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


ANNOUNCEMENT: Join us Wednesday, June 21, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Agritourism, Zoonotic Diseases and Legal Liability.”  Details available here.


JUDICIAL: Includes crop insurance, land use regulation, biosecurity, and landowner liability issues.

In JILLANE HIXSON, on behalf of Hixson Farms, Plaintiff, v. U.S. DEPARTMENT OF AGRICULTURE, SONNY PERDUE,*Secretary, U.S. Department of Agriculture, STEVEN C. SILVERMAN,** Director, National Appeals Division, JENNY PETERSON,***Acting State Executive Director, Colorado USDA Farm Service Agency, and NATALIE BOND,****County Executive Director, Prowers County Farm Service Agency, Defendants, No. 15-cv-02061-RBJ, 2017 WL 2544637 (D. Colo. June 13, 2017), plaintiff appealed USDA’s treatment of its Supplemental Revenue Assistance Payments Program (SURE) application. In 2009, plaintiff sustained losses of planted wheat due to wind and drought and submitted an insurance claim. Plaintiff filed forms with local Farm Service Agency (FSA) and was denied relief – a decision upheld by USDA’s National Appeals Division. On appeal, plaintiff argued NAD’s denial of its request for equitable relief was “arbitrary and capricious,” and that defendants “violated the Fifth Amendments’ Due Process Clause by misprocessing its notice of failed acreage.” Court reversed and remanded NAD decision denying plaintiff’s request for equitable relief.

In RICHARD FORSHEE, JEAN FORSHEE, JUDITH TIMMERMAN, VERLAN E. EDWARDS, MARY L. EDWARDS ON BEHALF OF VERLAN & MARY EDWARDS LLP, ROBERT R. OLSON AND JANET A. OLSON, PLAINTIFFS-RESPONDENTS, v. LEE NEUSCHWANDER AND MARY JO NEUSCHWANDER, DEFENDANTS-APPELLANTS, Appeal No. 2016AP1608, 2017 WL 2558875 (Wis. Ct. App. June 13, 2017), plaintiffs sued arguing defendant violated a restrictive covenant prohibiting “commercial activity” on defendants’ lot by renting their property to others on a short-term basis. Lower court agreed that “short-term rentals” violated the restrictive covenant and issued an injunction prohibiting defendants from renting their property on a short-term basis. Court analyzed the covenant in question and reversed decision, reasoning that “restrictive covenants must be clear and unambiguous in order to be enforced.” Summary judgment for defendants.

STATE of Wisconsin, Plaintiff-Respondent, v. Robert Joseph STIETZ, Defendant-Appellant-Petitioner, No. 2014AP2701-CR, 2017 WL 2558878 (Wis. June 13, 2017), defendant, a farmer, was charged with intentionally pointing a gun at an officer after confronting Department of Natural Resources (DNR) Wardens on his property.  The wardens were out “looking for hunters who were trying to nab an eleventh-hour deer after the gun deer season ended.” Defendant appealed his conviction arguing circuit court erred in “failing to instruct the jury on self-defense.” Court found that “the jury could conclude that the defendant threatened to use force as he reasonably believed necessary to prevent or terminate the interference with his person.” Case remanded for new trial.

In BENJAMIN DEVITT et al., Plaintiffs and Appellants, v. LOS ANGELES COUNTY DEPARTMENT OF ANIMAL CARE AND CONTROL, et al., Defendants and Respondents, B270577, 2017 WL 2570661 (S.D. Cal. June 14, 2017), plaintiff’s daughter was fatally mauled by pit bulls and alleged defendants knew about multiple attacks by the dogs and failed to comply with county code “requiring unlicensed and stray dogs to be captured.” Defendants argued that “as governmental entities, they cannot be held liable for failing to control the dogs.” Trial court held defendants were immune from liability. On appeal, plaintiff argued county code imposed a “mandatory duty” on defendant to “capture and take into custody all unlicensed dogs, stray dogs, or dogs running at large. Appellate court agreed with plaintiff and reversed trial court decision.


REGULATORY: includes EPA, FWS, FDA, FSIS, FS, ITA, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule is conditionally approving the visibility transport portions of revisions to the Tennessee State Implementation Plan, submitted by the Tennessee Department of Environment and Conservation. Details here.

Rule EPA is proposing to approve revisions to the South Coast Air Quality Management District portion of the California State Implementation Plan. Details here.

Rule EPA is proposing to approve revisions to the Placer County Air Pollution Control District portion of the California State Implementation Plan. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS invites the public to comment on the following applications for a permit to conduct activities intended to enhance the survival of endangered or threatened species. Details here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is announcing that a proposed collection of information has been submitted to the Office of Management and Budget for review. Title: Animal Generic Drug User Fee Act Cover Sheet. Details here.

Notice solicits comments on the information collection entitled “Establishing and Maintaining Lists of U.S. Milk Product Manufacturers/Processors With Interest in Exporting.” Details here.

Notice is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review. Title: Food Labeling Regulations. Info here.

Notice solicits comments on information collection provisions in FDA’s infant formula recall regulations. Info here.

FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS announces two educational meetings to discuss the enforcement and implementation of the Final Rule, “Mandatory Inspection of Fish of the Order Siluriformes and Products Derived from Such Fish.” Info here.

FOREST SERVICE:

Notice the Uinta-Wasatch-Cache National Forest is cancelling the notice of intent issued on January 29, 2014 for preparation of an environmental impact statement for the Uinta Express Pipeline Project. Info here.

Notice the Ozark-Ouachita Resource Advisory Committee will meet in Russellville, Arkansas. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Commerce is rescinding its administrative review of the countervailing duty order on utility scale wind towers from China for the period January 1, 2016, through December 31, 2016. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS issues regulations pursuant to the Marine Mammal Protection Act to govern the taking of marine mammals incidental to commercial fireworks displays permitted by the Sanctuary in California, over the course of five years. Info here.

Notice NMFS received eight scientific research permit application requests relating to Pacific salmon, steelhead, eulachon, green sturgeon, and rockfish. Details here.

Notice Pacific Fishery Management Council will convene three Stock Assessment Review panels this year to review new stock assessments for lingcod, Pacific ocean perch, yelloweye rockfish, yellowtail rockfish, blue rockfish, deacon rockfish, and California scorpionfish. Details here.