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


ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, March 21st: 2018 Farm Bill Outlook. Details available here.


JUDICIAL: Includes pesticides, bankruptcy, agritourism, and water law issues.

NATIONAL ASSOCIATION OF WHEAT GROWERS; NATIONAL CORN GROWERS ASSOCIATION; UNITED STATES DURUM GROWERS ASSOCIATION; WESTERN PLANT HEALTH ASSOCIATION; IOWA SOYBEAN ASSOCIATION; SOUTH DAKOTA AGRI-BUSINESS ASSOCIATION; NORTH DAKOTA GRAIN GROWERS ASSOCIATION; MISSOURI CHAMBER OF COMMERCE AND INDUSTRY; MONSANTO COMPANY; ASSOCIATED INDUSTRIES OF MISSOURI; AGRIBUSINESS ASSOCIATION OF IOWA; CROPLIFE AMERICA; AND AGRICULTURAL RETAILERS ASSOCIATION, Plaintiffs, v. LAUREN ZEISE,IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENT; and XAVIER BECERRA, in his official capacity as Attorney General of the State of California, Defendants,  NO. 2:17-2401 WBS EFB, 2018 WL 1071168 (E.D. Cal. February 26, 2018) concerned a challenge to California’s listing of glyphosate as “a chemical known to the State of California to cause cancer, as well as a challenge to California’s warning requirements that accompany that listing.” Plaintiffs sought preliminary injunction and argued warning requirements “violate the First Amendment by compelling them to make false, misleading, and highly controversial statements about their products.” The court reasoned that “[o]rdinary consumers do not interpret warnings in accordance with a complex web of statutes, regulations, and court decisions.” The court further concluded that “the required warning would nonetheless be misleading to the ordinary consumer,” and granted plaintiffs’ request to enjoin the warning requirement for glyphosate.

In In re JOSHUA RICHARD EWING, Debtor, No. 17-60803-13, 2018 WL 1137611 (Bankr. D. Mont. February 28, 2018), creditors objected to confirmation of debtor’s Chapter 13 bankruptcy plan. Debtor obtained a loan that included a promissory note, agricultural loan agreement, and agricultural security agreement. Debtor defaulted on the loan and filed a Chapter 13 petition. Creditor objected and argued petition was filed in bad faith. Court reasoned that “[r]elief under the Code is premised on a debtor’s honesty and allegations of bad faith represent a serious challenge to that premise.” Although court noted debtor would face “challenges over the term of the Plan,” due to his lack of “modern technology” and no “family support,” court was not persuaded debtor would be “unable to make all payments under the Plan or comply with the Plan’s terms.” Debtor’s Chapter 13 plan confirmed.

In SARAH DOMINGUEZ, Plaintiff, v. United States of America, Defendant, No. 17-118 KK/SCY, 2018 WL 1135538 (D.N.M. February 26, 2018), plaintiff was injured after participating in a rappelling activity on defendant’s property. Issue for court was enforceability of the waiver plaintiff signed before engaging in a “recreational climbing activity.” Plainitff maintained the waiver was “vague” and defendant moved to dismiss. Court examined the language of the waiver plaintiff signed and found that “while the waiver informs the participant that there are risks and hazards . . . it is devoid of specificity as to what those risks may be.” Court concluded that “[b]ecause the waiver did not adequately inform Plaintiff of the risks that she was assuming, it is invalid and unenforceable as a bar to Plaintiff’s negligence claims.” Motion to dismiss denied.

NORTHERN CALIFORNIA WATER ASSOCIATION et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Appellants. CALIFORNIA FARM BUREAU FEDERATION et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Appellants, C075866, 2018 WL 1127892 (Cal. Ct. App. March 2, 2018) involved a dispute over Water Resources Control Board’s (Board) annual fee on water right permit holders “to cover a portion of the costs of the Board’s Division of Water Rights.” Plaintiffs claimed the annual fee “constituted an unlawful tax, as opposed to a valid regulatory fee. . . because it required fee payors to pay more than a de minimis amount for regulatory activities that benefited non-fee-paying right holders.” Trial court ruled for plaintiffs and issue on appeal was “whether the fees were reasonably apportioned in terms of the regulatory activity’s costs and the fees assessed.” Appellate court found that lower court “failed to recognize the role that general fund money played” in the years at issue. Accordingly, appellate court ruled the fees assessed on permit and license holders “were proportionate to the benefits derived by them or the burdens they placed on the [defendant]. Judgment invalidating the fees reversed.


REGULATORY: Includes ARS, EPA, FNS, and NOAA rules and notices.

AGRICULTURAL RESEARCH SERVICE:

Notice ARS will grant to Mississippi State University of Mississippi State, Mississippi, an exclusive license to the variety of blueberry described in U.S. Plant Patent Application Serial No. 15/731,025, “BLUEBERRY PLANT NAMED `GUMBO’,” filed on April 7, 2017. Info here.

Notice ARS will grant to Oklahoma State University of Stillwater, Oklahoma, an exclusive license to the variety of peanut described in Plant Variety Protection Certificate Number 201500363, “VENUS”, issued on June 27, 2017. Info here.

Notice ARS will grant to Oklahoma State University of Stillwater, Oklahoma, an exclusive license to the variety of peanut described in Plant Variety Protection Certificate Number 201600156, “LARIAT”, issued on November 28, 2016. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Massachusetts. Info here.

Rule EPA is making a final determination that the Lebanon County, Pennsylvania nonattainment area has attained the 2012 annual fine particulate matter national ambient air quality standards. Info here.

Rule establishes tolerances for residues of kasugamycin in or on the cherry subgroup 12-12A and walnut. Info here.

Rule establishes an exemption from the requirement of a tolerance for lipochitooligosaccharide (LCO) SP104 in or on all food commodities when used in accordance with label directions and good agricultural practices. Details here.

FOOD AND NUTRITION SERVICE: Rule would add four flexibilities to the hiring standards for new school nutrition program directors in small local educational agencies (LEAs) and new school nutrition program State directors under the professional standards regulations for the National School Lunch and School Breakfast Programs. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in April, May, and June of 2018. Info here.

Notice that a Letter of Authorization has been issued to the United States Air Force 96th Civil Engineer Group/Environmental Planning Office at Eglin Air Force Base to take marine mammals incidental to testing and training activities in the Eglin Gulf Test and Training Range in the Gulf of Mexico over the course of five years. Info here.

Notice NMFS has received a request from the Eastern Massachusetts (MA) National Wildlife Refuge (NWR) Complex, U.S. Fish and Wildlife Service (USFWS), for authorization to take marine mammals incidental to conducting seabird and shorebird monitoring and research in the Eastern MA NWR Complex. Details here.