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


JUDICIAL: Includes crop insurance, SNAP, food safety, environmental law, and landowner liability issues.

In William J. BUSH, Plaintiff, v. RISK MANAGEMENT AGENCY/UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant, No. 16-CV-4128-CJW, 2017 WL 2483704 (N.D. Iowa June 8, 2017), plaintiff filed a Freedom of Information Act (FOIA) request with the Risk Management Agency (RMA) seeking “the total production, acres harvested, and yield for corn and for soybeans aggregated by section for Amherst, Rock, Sheridan and Tilden townships . . . for 2015, 2014, 2013 and 2012.” RMA provided a “no records” response claiming it did not have information available “by sections for townships within a county.” RMA also claimed the Federal Crop Insurance Act prohibits the disclosure of identifying producer information and “limits disclosure of producer information to the public only in the aggregate form.” In considering plaintiff’s motion for further discovery, the Court declared, “When weighing the consideration that discovery is generally inappropriate in FOIA actions with plaintiff’s lack of evidence of any bad faith on defendant’s part or even insinuations that could lead to inferences of bad faith, the Court finds it appropriate to deny plaintiff’s motion for a continuance to conduct limited discovery.”

In Lucy PERRY, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent, No. 3D16–911, 2017 WL 2457615 (Fla. Dist. Ct. App. June 7, 2017), petitioner’s Supplemental Nutrition Assistance Program (SNAP) benefits were terminated and she claimed lack of proper notice. Petitioner sought writ of mandamus requiring defendant to provide her with notice of the Able Bodied Adults Without Dependants (ABAWD) designation and an opportunity to challenge it in an administrative proceeding. Court observed, “The extraordinary remedy of mandamus applies exclusively to enforce a ministerial duty of a government official.” In denying the writ, the court concluded “We cannot issue a writ to [defendant] directing its employees to correct previously-issued notices of case action to make them ‘easily understandable’ and ‘clear.’”

In Cynthia SMALL v. ROUSE’S ENTERPRISES, LLC d/b/a Rouses Market, NO. 2016–CA–0953, 2017 WL 2464118 (La. Ct. App. 7, 2017), plaintiff sued for negligence alleging she purchased a plate of food from defendant’s buffet and discovered a fingernail in it. Plaintiff claimed she suffered nausea and was awarded damages. Defendant appealed, arguing the trial court “committed legal error by applying a strict liability analysis rather than a duty/risk analysis” to determine fault. On the issue of “duty” the court observed, “A food provider, in selecting, preparing and cooking food, including the removal of injurious substances, has a duty to act as would a reasonably prudent man skilled in the culinary art in the selection and preparation of food.” Appellate court concluded trial court’s inference of negligence “is not manifestly erroneous,” and affirmed for plaintiff.

In WILMINGTON TRUST COMPANY, a Delaware corporation, acting in its capacity as owner trustee of AEGCO Trust 1, AEGCO Trust 2, AEGCO Trust 5, I&M Trust 1, I&M Trust 2, and I&M Trust 5, and not in their individual capacities, Plaintiff-Appellant, v. AEP GENERATING COMPANY, an Ohio corporation; Indiana Michigan Power Company, an Indiana corporation, Defendants-Appellees, No. 16-3496, 2017 WL 2468721 (6th Cir. June 8, 2017), defendants built, sold, and leased back a coal-burning power plant, and agreed, via consent decree, “to either make over a billion dollars of emission control improvements to the plant, or shut it down.” Defendants got a modification to the consent decree “pushing their commitments to improve the air quality of the plant’s emissions to the plant’s owners.” District court found the modification “did not violate the terms of the parties’ contracts,” and that “plaintiff’s breach of contract claims precluded it from maintaining an alternative cause of action for breach of the covenant of good faith and fair dealing.” Appellate court, affirming in part, determined that “the dismissal of plaintiff’s breach of the covenant of good faith and fair dealing claim as duplicative of the breach of contract claims.”

In James NELSON and Elizabeth Varney, Plaintiffs, v. UNITED STATES of America, Defendant, Civil Action No. 11-cv-02953-WYD-CBS, 2017 WL 2492159 (D. Colo. June 9, 2017), plaintiff was injured when riding his bike over a sinkhole on US Air Force Academy property. Government argued it was entitled to immunity under the Colorado Recreational Use Statute (CRUS) and won on appeal on that issue, but case was remanded to determine “if an exception to the liability limitations of the CRUS applied.” On remand, court ultimately concluded that “the United States’ liability for the damages sustained by the Plaintiffs . . . is not limited by the Colorado Recreational Use Statute because of the United States’ willful failure to warn or guard against a known dangerous condition on its property likely to cause harm.”


LEGISLATIVE:

S. 286: Elkhorn Ranch and White River National Forest Conveyance Act. This bill’s text for status Reported by Senate Committee (Jun 7, 2017) is now available.

S. 826: WILD Act. This bill’s text for status Passed the Senate (Engrossed) (Jun 8, 2017) is now available.

S. 1298: A bill to modify the criteria used by the Corps of Engineers to dredge small ports. Bill referred to the Senate Committee on Environment and Public Works.

S. 1308: A bill to increase authorized funding for the Soo Locks. This bill was referred to the Senate Committee on Environment and Public Works.

H.R. 2816: To authorize a settlement in accordance with the agreement entered into by the Tennessee Valley Authority and the United States Department of the Interior, and counties within the Great Smoky Mountains National Park. This bill was referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 2799: To amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize certain recycled water projects. Bill referred to the House Committee on Natural Resources.


REGULATORY: Includes AMS, USDA, APHIS, EPA, FSA, FWS, FS, ITA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule would implement a recommendation from the American Pecan Council to establish the initial assessment rates for the 2016-2017 and subsequent fiscal years at $0.03 per pound for improved varieties, $0.02 per pound for native and seedling varieties, and $0.02 for substandard pecans handled under the pecan marketing order. Info here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Title: Export Sales of U.S. Agricultural Commodities. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice announcing two additional upcoming meetings regarding the Animal Disease Traceability (ADT) system. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishing an exemption from the requirement of a tolerance for residues of cumene sulfonic acid and its ammonium, calcium, magnesium, potassium, sodium and zinc salts when used as an inert ingredient in pesticide formulations applied to growing crops and to animals. Details here.

Rule EPA proposes to approve state implementation plan revisions submitted by the State of Alaska Department of Environmental Conservation on September 15, 2016. Info here.

FARM SERVICE AGENCY: Notice FSA seeks comments on an extension of a currently approved information collection associated with transferring of farm records from one FSA county office to another. Info here.

FISH AND WILDLIFE SERVICE:

Rule reopening the comment periods for a proposed rules to list Guadalupe fescue as an endangered species. Details here.

Notice FWS seeks comment on applications to conduct certain activities with endangered species. Details here.

FOREST SERVICE: Notice the Lassen County Resource Advisory Committee will meet in Susanville, California. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice On April 10, 2017, the Department of Commerce (the Department) published in the Federal Register notice of its initiation of the 2016-2017 administrative review of the antidumping duty order on certain frozen warmwater shrimp from India. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS announces that the Elephant Trunk Flex Scallop Access Area will close to Limited Access General Category Individual Fishing Quota scallop vessels for the remainder of the 2017 fishing year as of the effective date below. Info here.