A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.


ANNOUNCEMENT: 

Join us TOMORROW at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: Compliance with DOL and Immigration Laws and Regulations for Agricultural Businesses. Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.


JUDICIAL: Includes PACA, renewable energy, landowner liability, and climate change issues.

In PRODUCE PAY, INC., Plaintiff(s), v. PRODUCERS INTERNATIONAL, INC., Defendant(s), No. 2:16-CV-2451 JCM (CWH), 2018 WL 3489236 (D. Nev. July 19, 2018), defendant failed to pay plaintiff for shipments of mangies and plaintiff sued for breach of contract and violation of the Perishable Agricultural Commodities Act (PACA). Court granted plaintiff’s motion for default judgment and here, plaintiff sought to recover attorneys’ fees. Court considered some “additional terms” that were on invoices issued by plaintiff and issue was whether they “materially altered the terms of the contract.” Court reasoned that the terms at issue “are standard contract terms throughout the produce industry and are generally expected to be present on invoices or other billing statements.” Plaintiff’s motion for attorneys’ fees granted.

In ERGON-WEST VIRGINIA, INCORPORATED, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, No. 17-1839, 2018 WL 3483282 (4th Cir. July 20, 2018), plaintiff was exempted as a small refinery from the Environmental Protection Agency’s (EPA) renewable fuel standard program, requiring it to “allocate a certain percentage of their fuel production to renewable fuels.” Here, plaintiff filed for an extension of the small refinery exemption and the EPA denied its petition, contending that plaintiff’s “participation in the program would not constitute a disproportionate economic hardship.” Plaintiff appealed the EPA’s denial and argued that the agency “read a viability requirement into the definition of ‘disproportionate economic hardship’” that negatively impacted plaintiff. Court concluded the EPA’s decision was “arbitrary and capricious,” and vacacted EPA’s denial of the exemption.

Shawn P. DOYLE and Thyme B. Doyle, Individually, and on Behalf of their minor children, Brady Doyle, Shawn Michael Doyle and Maggie Grace Doyle v. LONESOME DEVELOPMENT, LIMITED LIABILITY COMPANY, Nautilus Insurance Company, Natchez Trace Property Owners Association, Inc., Western World Insurance Company and Renaissance Property Management, a Division of Renaissance Realty Services, LLC, 2017 CA 0787, 2018 WL 3470589 (La. Ct. App. July 18, 2018) involved Vermont’s Recreational Use Immunity Statutes after plaintiff was injured by a rotten tree while playing soccer on property within defendant’s  homeowners’ association. Trial court ruled defendant (Natchez Trace) was immune from suit under the Recreational Use Statute, and plaintiff and co-defendant (Lonesome) appealed. Here, plaintiff argued the common areas “were for commercial profit and benefitted Natchez Trace, thereby excluding the application of the Recreational Use Immunity Statutes.” Court considered the “commercial enterprise exception” and noted that “[t]he collection of dues, in and of itself, does not make a homeowners’ association a ‘commercial enterprise.’” Court concluded defendant’s use of the common areas “was not principally for a commercial recreational purpose so as to exclude it from the immunity provided by the Recreational Use Immunity Statutes.”

CITY OF NEW YORK, Plaintiff, v. BP P.L.C., CHEVRON CORPORATION, CONOCOPHILLIPS, EXXON MOBIL CORPORATION, and ROYAL DUTCH SHELL, PC, Defendants, No. 18 Civ. 182 (JFK), 2018 WL 3475470 (S.D.N.Y. July 19, 2018) concerned New York City’s allegations that defendant’s oil and natural gas production has harmed its citizens and “exacerbated global warming.” City argued defendant’s production marketing and selling of fossil fuels has caused injury, “including . . .  interferences with City property, and increasingly severe threats to public health.” Court observed that plaintiff’s claims “implicate countless foreign governments and their laws and policies.” The court further reasoned that “[t]o litigate such an action for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the U.S. Government.” Defendant’s motion to dismiss granted.


REGULATORY: Includes AMS, USDA, EPA, FDA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation from the Far West Spearmint Oil Administrative Committee (Committee) to establish salable quantities and allotment percentages of Class 1 (Scotch) and Class 3 (Native) spearmint oil for the 2018-2019 marketing year. Info here.

Rule invites comments on proposed amendments to Marketing Order No. 956, which regulates the handling of sweet onions grown in the Walla Walla Valley of Southeast Washington and Northeast Oregon. Details here.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Assignments of Payments and Joint Payment Authorizations. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve revisions to the Northern Sonoma County Air Pollution Control District (NSCAPCD or District) portion of the California State Implementation Plan (SIP). Info here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is announcing the availability of a draft guidance for industry (GFI) #257 entitled “Studies to Evaluate the Metabolism and Residue Kinetics of Veterinary Drugs in Food-Producing Species: Marker Residue Depletion Studies to Establish Product Withdrawal Periods in Aquatic Species” (VICH GL57). Info here.

Notice FDA is announcing the following public workshop entitled “Regulatory Perspectives on Otic and Vestibular Toxicity: Challenges in Translating Animal Studies to Human Risk Assessment.” Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS issues a final rule to designate critical habitat for the Main Hawaiian Islands (MHI) insular false killer whale distinct population segment (DPS) by designating waters from the 45-meter (m) depth contour to the 3,200-m depth contour around the main Hawaiian Islands from Niihau east to Hawaii. Info here.

Rule NMFS implements accountability measures (AMs) for commercial snowy grouper in the exclusive economic zone (EEZ) of the South Atlantic. Details here.

Rule NMFS is reapportioning the seasonal apportionments of the 2018 Pacific halibut prohibited species catch (PSC) limits for the trawl deep-water and shallow-water species fishery categories in the Gulf of Alaska. Info here.