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: “Agritourism, Zoonotic Diseases and Legal Liability.”  Details available here.


JUDICIAL: Includes administrative law, biotechnology, renewable energy, and CWA issues.

In Mark MITTELSTADT, Plaintiff, v. Tom VILSACK, in his capacity as Secretary, United States Department of Agriculture, Defendant, 15-cv-725-wmc, 2017 WL 2589435 (W.D. Wis. June 14, 2017), plaintiff owned land in a Wisconsin county enrolled in the USDA’s Conservation Resource Program (CRP). He sued under the judicial review provision of the Administrative Procedure Act (APA), challenging USDA decision upholding “the denial of re-enrollment of his land” in the program. A Farm Service Agency (FSA) inspection determined the land was not in compliance and plaintiff was denied re-enrollment. Plaintiff sought court order “directing re-enrollment and awarding monetary relief for “breach” of an alleged, binding contract.” Appellate court found USDA did not act “arbitrarily or capriciously” in denying a second, ten-year re-enrollment of plaintiff’s property. USDA decision affirmed.

In re 5-Hour Energy Marketing and Sales Practices Litigation, No. ML 13-2438 PSG (PLAx), 2017 WL 2559615 (C.D. Cal. June 7, 2017) involved a class action suit wherien plaintiffs alleged defendants “deceptively and misleadingly” marketed that their 5-Hour Energy (5HE) product provided “hours of energy.” Defendant argued court should not certify class of plaintiffs. Court determined plaintiffs did not demonstrate that the statements on the 5HE label were “material to the class.” Court also noted plaintiffs’ proposed damages model “does not comport with Plaintiffs’ theory of liability in this case.” Motion for class certification denied.

In JAMES WILLIAM DAGGETT and NADIA TORA DAGGETT, Appellants and Cross-Appellees, v. RICHARD L. FEENEY, Appellee and Cross-Appellant, No. S-15799, 2017 WL 2609223 (Alaska June 16, 2017), a property owner cancelled a contract to install a wind turbine on his property and sued the contractor for his down payment. Contractor countersued for breach of contract and superior court found that contractor was “required to be licensed by the State and had misrepresented its licensing status.” Court ordered the contract rescinded and the contractor to return the down payment “less a setoff covering costs incurred in the transaction.” Property owner appealed the setoff calculation by lower court and appellate court reasoned that, “Because the contract is rescinded, [plaintiff] is entitled to offset its costs, as the court concluded, but only to the extent that their costs are greater than the profit they gained.”

In West McDonald Lake Association, Relator, v. Minnesota Department of Natural Resources, Respondent, A16-1469, 2017 WL 2625563 (Minn. Ct. App. June 19, 2017), relator challenged a public-waters work permit to lower the runout elevation between two lakes. Relator argued respondent “(1) failed to satisfy the criteria for granting the permit, (2) granted the permit solely for private interests, and (3) violated both the Clean Water Act and state regulations by failing to obtain an NPDES permit.” Appellate court found that respondent failed to satisfy necessary criteria to issue a public-waters work permit. The court also observed that, “The federal water-transfer rule . . . is not an exemption incorporated by reference in Minnesota’s National Pollutant Discharge Elimination System (NPDES) program,” and concluded that the federal water-transfer rule “does not apply in Minnesota.”


REGULATORY: Includes APHIS, EPA, FWS, FDA, and NOAA rules and notices.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Rule APHIS is amending the fruits and vegetables regulations to allow the importation of fresh pitahaya fruit into the continental United States from Ecuador. Details here.

Rule APHIS is proposing to amend the regulations governing the importation of plants for planting to authorize the importation of Campanula spp. plants for planting from Denmark in approved growing media into the United States, subject to a systems approach. Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is taking direct final action to amend the Standards and Practices for All Appropriate Inquiries to update an existing reference to a standard practice recently revised by ASTM International, a widely recognized standards development organization. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS invites the public to comment on applications to conduct certain activities with endangered species. Details here.

FOOD AND DRUG ADMINISTRATION:

Notice solicits comments on “Application for Participation in FDA Fellowship Programs.” Info here.

Notice solicits comments on the information collection provisions of reporting and recordkeeping requirements for firms that process acidified foods and thermally processed low-acid foods in hermetically sealed containers. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements accountability measures (AMs) for commercial greater amberjack in the Gulf of Mexico (Gulf) reef fish fishery for the 2017 fishing year. Info here.

Rule that on April 20, 2017, NMFS published a final rule to implement the portions of the Pacific Halibut Catch Share Plan and management measures that are not regulated through the International Pacific Halibut Commission. Details here.

Notice NOAA will submit to the Office of Management and Budget (OMB) for clearance a proposal for collection of information. Title: Alaska Pacific Halibut Fisheries: Subsistence. Info here.

Notice NOAA invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections. Details here.

Notice NMFS announce its intent to conduct a 5-year review for the Gulf of Maine distinct population segment of Atlantic salmon under the Endangered Species Act. Info here.