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


JUDICIAL: Includes pesticides, landowner liability, environmental, water law, and food labeling issues.

In NATURAL RESOURCES DEFENSE COUNCIL, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. Center for Food Safety; International Center for Technology Assessment, Petitioners, v. U.S. Environmental Protection Agency; Scott Pruitt,* in his official capacity as Administrator of the Environmental Protection Agency, Respondents, No. 15-72308, No. 15-72312, 857 F.3d 1030 (9TH Cir. May 30, 2017), an environmental conservation group sought review of Environmental Protection Agency’s (EPA) conditional registration of pesticide containing nanosilver. Case vacated and remanded after appellate court found that EPA’s finding that pesticide “had lower application rate than conventional-silver pesticides was supported by substantial evidence,” and that agency’s finding that use of pesticide “was in public interest was not supported by substantial evidence.”

In ORANGE COUNTY WATER DISTRICT, Plaintiff and Appellant, v. ALCOA GLOBAL FASTENERS, INC. et al., Defendants and Respondents, D070771, 2017 WL 2376596 (S.D. Cal. June 1, 2017), a water district sued to recover costs associated with a $200 million project addressing groundwater contamination caused by volatile organic compounds. Plaintiff sued under the Carpenter-Presley-Tanner Hazardous Substances Account Act (HSAA). Trial court ruled for defendants and on appeal, plaintiffs argued trial court “misinterpreted the legal requirements of [plaintiff’s] claims under the HSAA.” Defendants argued plaintiff could not assert a claim under the HSAA because “it is not seeking ‘contribution’ or ‘indemnity’ as those terms are used in the statute.” Appellate court found trial court “misinterpreted some elements” of plaintiff’s HSAA claim and reversed ruling of no liability in favor of defendant Northrop.

In CLEARWATER COUNTY, IDAHO, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants, No. 1:13-CV-00519-EJL, 2017 WL 2623166 (D. Idaho June 16, 2017), plaintiffs sought an injunction and disputed the Forest Service’s (FS) closure of approximately 200 miles of trail to motorized use “where such use was previously allowed.” Plaintiffs argued the “regulatory framework of NFMA, NEPA, and FLPMA . . . required Defendants to have coordinated with the Counties in this case during the travel planning process.” In ruling for the Forest Servce, the court found that defendants “appropriately coordinated with the Counties in this case,” and noted the impacted counties were part of the planning process.

In Plaintiffs-Appellants: Gallegos Family Properties, LLC; Marianne Gallegos; Ellen Gallegos; Gene J. Gallegos; and Reinaldo Gallegos, v. Defendants-Appellees: Colorado Groundwater Commission, an administrative agency of the State of Colorado; Dick Wolfe, in his capacity as the Colorado State Engineer, and as ex officio Executive Director of the Colorado Ground Water Commission, and as a non-voting member of the Colorado Ground Water Commission; Joseph B. Grantham, in his capacity as a Hearing Officer for the Colorado Ground Water Commission; Edna B. Anderson; William Anderson; BCK Heath Property LLC; Larry L. Croissant; Jean L. Croissant; Deerco LLC; Kenneth Everitt; Penny Everitt; Four Diamonds Ranch LLC; Hereford Farms, LLC; Rosella J. Jessen; Anita R. Johnson; Rod Johnson; Carl A. Johnson; James L. Karst; Judy Karst; James M. Konig; Janet F. Konig; Michael D. Konig; Konig Investments LLC; Larry Lang; Dan Loyd; Loyd Farms; Loyd Farms General Partnership; Jesse E. Loyd; Evelyn T. Loyd; F & R Marick; Fred D. Marick; Roxanne L. Marick; Philip McKinley; Diane McKinley; Colin W. Nicklas; Charles E. Nussbaum; Dorothy Nussbaum; C & D Nussbaum; Richard L. Pettinger; Lisa R. Pettinger; Rory J. Pettinger; Rocky Plains LLP; TR, Inc.; Lee A. Tappy; Tennick Land & Cattle Co.; Clarence W. Tietmeyer; Vonda J. Tietmeyer; Clarence E. Tietmeyer; Scott W. Tietmeyer; Paula J. Tietmeyer; Vonda Jean Tietmeyer; Darrell J. Timm; Donald L. Timm; Town of Grover; and Sharon C. Young. Plaintiff-Appellant: Gallegos Family Properties, LLC, v. Defendants-Appellees: William Anderson, Larry Lang, Dan Loyd, Loyd Farms, Loyd Farms General Partnership, Jesse E. Loyd, Evelyn T. Loyd, Richard L. Pettinger, Lisa R. Pettinger, Rory J. Pettinger, Clarence W. Tietmeyer, Vonda J. Tietmeyer, Clarence E. Tietmeyer, Scott W. Tietmeyer, Paula J. Tietmeyer, and Vonda Jean Tietmeyer, No. 15SA118, Supreme Court Case No. 15SA277, 2017 WL 2655836 (Colo. June 19, 2017), plaintiff sued to de-designate a portion of the Upper Crow Creek Designated Ground Water Basin and redraw boundaries “to exclude twenty-five wells and curtail junior groundwater rights” in favor of plaintiff’s senior surface water rights on Crow Creek. Defendants argued that if their properties remain within the Basin, “the State Engineer cannot curtail their junior groundwater rights.” Court found plaintiff failed to prove well owners “are pumping water connected to Crow Creek such that future conditions and factual data justify de-designating a portion of the Basin.” Appellate court affirmed designated groundwater court’s order denying plaintiff’s petition.

In VICKY SILVA, an Oregon consumer, individually and on behalf of all others similarly situated, Plaintiffs, v. UNIQUE BEVERAGE COMPANY, LLC, a foreign corporation, Defendant. No. 3:17-cv-00391-HZ, 2017 WL 2642286 (D. Or. June 15, 2017), plaintiff sued after purchasing defendant’s “Cascade Ice” beverage depicting large coconuts and the word “Coconut.” Plaintiff alleged the product “contains no coconut, coconut water, or coconut juice,” and sued for violation of Oregon’s Unlawful Trade Practices Act (UTPA). Defendant moved to dismiss arguing plaintiff’s claims are “preempted” by the federal Food Drug and Cosmetics Act (FDCA). Court found plaintiff’s UTPA claims are not preempted because, “given that Defendant’s Cascade Ice coconut water beverage label does not comply with the FDCA and the NLEA regulations, the claims do not seek to impose additional or different requirements than those provided under federal law.” The court also reasoned that plaintiff’s claims are not “impliedly preempted” because they are “based on a state statute which independently regulates allegedly deceptive conduct and the claims are not based solely on a FDCA violation.”


REGULATORY: Includes EPA, FDA, FS, NRCS, and USPTO rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is extending the comment period for a proposed rule to approve portions of the State of Delaware’s December 14, 2015 state implementation plan submittal to address the infrastructure requirements for the 2012 fine particulate matter national ambient air quality standards. Info here.

Rule EPA is proposing to redesignate the Indiana portion of the Cincinnati-Hamilton, OH-IN-KY, nonattainment area to attainment for the 1997 fine particulate matter annual national ambient air quality standard. Info here.

Rule EPA is proposing to rescind the visibility protection federal implementation plan promulgated on February 8, 2002, to regulate air pollutant emissions from the Mohave Generating Station, located in Clark County, Nevada. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing that a proposed collection of information regarding Potential Tobacco Product Violations Reporting Form was submitted to the Office of Management and Budget for review. Info here.

FOREST SERVICE:

Notice FS proposes to approve the Notice of Intent (NOI) and Plan of Operations submitted by the Torosians to mine gold bearing alluvial gravels along an un-named perennial stream channel, tributary to West Fork Chiquito Creek. Info here.

Notice the Columbia River Gorge National Scenic Area, located in Hood River, Oregon, is proposing to charge a new standard amenity fee of $5 per vehicle per day for use of services and facilities at the Sandy River Delta site. Info here.

NATURAL RESOURCES CONSERVATION SERVICE: Notice of availability of proposed revisions to Section I of the Iowa, Minnesota, North Dakota, and South Dakota State Technical Guides for public review and comment. Details here.

PATENT AND TRADEMARK OFFICE: Notice USPTO will host a public meeting at its headquarters in Alexandria, Virginia, on July 17, 2017, on measuring the impact of voluntary initiatives undertaken to reduce intellectual property infringement, such as copyright piracy and trademark counterfeiting, that occurs online. Info here.