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


JUDICIAL: Includes PACA, water law, biosecurity, cooperatives, CWA, and ag lease issues.

FRESH & BEST PRODUCE, INC., Plaintiff, v. SPINELLO’S EAST COAST EATERY, an unknown entity; Michael Spinello, an individual; Does 1 to 10, Defendants, No.5:16-cv-06984-HRL, 2017 WL 1435888 (N.D. Cal. April 24, 2017), plaintiff moved for default judgment after suing under the Perishable Agricultural Commodities Act (PACA) to recover sums owed after delivering produce to defendant. Court considered factors in determining an entry of default judgment outlined in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) and granted plaintiff’s motion.

In Casey VOIGT, Appellant v. NORTH DAKOTA PUBLIC SERVICE COMMISSION and Coyote Creek Mining Company, L.L.C., Appellees, No. 20160046, 892 N.W.2d 149 (N.D. March 30, 2017), a landowner appealed Public Service Commission’s decision to approve mining company’s surface coal mining permit for new mine located partly on owner’s land. The District Court affirmed. Owner appealed. Appellate court affirmed concluding that the “evidence was sufficient to support finding that land was not subirrigated, and hat the land “lacked capability to be flood irrigated, for purposes alluvial valley floor determination.”

MARY HERNANDEZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOSEPH HERNANDEZ, DECEASED, CARLOS CRUZ HERNANDEZ, AND JOSE CRUZ HERNANDEZ, Appellants v. KROGER TEXAS L.P., Appellee, NO. 01-15-00836-CV, 2017 WL 1429200 (Tex. App. April 20, 2017) involved the sale of a cantaloupe contaminated with listeria. Plaintiff argued trial court erred by granting Kroger’s motion for summary judgment. Plaintiff maintained they presented sufficient evidence “to overcome the no-evidence grounds and that the innocent-seller statute does not support an affirmative defense for Kroger.” Appellate court concluded plaintiffs waived the issue because “their only appellate challenge to Kroger’s traditional ground is an argument that they did not raise in the trial court.” Affirmed for defendant.

PRODUCERS RICE MILL, INC. APPELLANT v. RICE HULL SPECIALITY PRODUCTS, INC. APPELLEE, No. CV-16-996, 2017 Ark. App. 219 (Ark. App. April 12, 2017), involved a dispute arising from an accident on plaintiff’s rice farm after defendant had agreed to broker the sale of plaintff’s rice hulls. Plaintiff appealed order granting defendant’s  motion for summary judgment regarding the parties’ rights and obligations pursuant to an indemnity agreement relating to the sale of rice hulls. Lower court ruled the indemnity agreement did not apply and dismissed case. Appellate court found there were “genuine issues of material fact to be decided regarding appellee’s obligation to indemnify appellant under the circumstances presented and regarding appellee’s breach of its duty to add appellant as an additional insured to its general-liability insurance policy.” Case reversed and remanded for further proceedings.

LOUISVILLE GAS AND ELECTRIC COMPANY APPELLANT v. KENTUCKY WATERWAYS ALLIANCE;, SIERRA CLUB; VALLEY WATCH; SAVE THE VALLEY; AND COMMONWEALTH OF KENTUCKY, ENERGY AND ENVIRONMENT CABINET APPELLEES, COMMONWEALTH OF KENTUCKY, ENERGY AND ENVIRONMENT CABINET APPELLANT v. KENTUCKY WATERWAYS ALLIANCE;, SIERRA CLUB; VALLEY WATCH; SAVE THE VALLEY; AND LOUISVILLE GAS AND ELECTRIC COMPANY APPELLEES 2015-SC-000461-DG2015-SC-000462-DG, 2017 WL 1536247 (Ky. April 27, 2017) concerned a permit issued to Louisville Gas and Electric Company (LG&E) by Kentucky’s Energy and Environment Cabinet’s Division of Water permitting discharge of pollutants into the Ohio River “in conjunction with the operation of an expanded electricity generating facility.”  Circuit court vacated the permit and court of appeals affirmed. LG&E claimed lower courts misapplied controlling federal law in vacating the permit. Kentucky Supreme Court reversed court of appeals and reinstated LG&E’s permit.

IN RE: DAVID WAYNE PEARSON and JACQUELINE DEE PEARSON, Debtors, NO. 16-50248-rlj12, 2017 WL 1533388 (Bankr. N.D. Tex. April 26, 2017) concerned a homestead dispute and bankruptcy. Creditor (Bank) objected to the exemption claims of debtors concerning four vehicles and a 170-acre farm. Four vehicles were claimed under the Texas Property Code and the farmland was claimed as part of the debtors’ rural homestead exemption under the Property Code and Texas Constitution. Court sustained Bank’s objection to the exemption claim to the vehicles, but denied its objection to the homestead claim. Court ordered debtors to “specifically identify the 170.44 acres that they assert is their homestead.”


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

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice that the Secretary of Agriculture is soliciting nominations for the National Wildlife Services Advisory Committee. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA approves State Implementation Plan revisions submitted by the State of Connecticut. Info here.

Rule EPA received negative declarations relating to commercial and industrial solid waste incineration units within the State of Delaware, the District of Columbia, and the City of Philadelphia. Details here.

Rule EPA approves revisions to the District of Columbia state implementation plan. Info here.

Rule EPA approves a State Implementation Plan revision submitted by the State of Maine. Details here.

Rule EPA approves a State Implementation Plan revision submitted by the State of Rhode Island. Info here.

Rule EPA approves the State of Tennessee’s November 21, 2016, revision to its State Implementation Plan (SIP), submitted through the Tennessee Department of Environment and Conservation. Info here.

Rule establishes tolerances for residues of tioxazafen in or on corn, field, forage; corn, field, grain; corn, field, stover; cotton, gin byproducts; cotton, undelinted seed; soybean, forage; soybean, hay; soybean, meal; soybean, seed. Details here.

Rule that Kentucky submitted a request for EPA to redesignate the Kentucky portion of the tri-state Cincinnati-Hamilton, Ohio-Kentucky-Indiana 2008 8-hour ozone nonattainment area. Details here.

Rule that in the Federal Register of January 19, 2017, EPA issued two proposed rules under section 6 of the Toxic Substances Control Act. Info here.

FISH AND WILDLIFE SERVICE: Rule to comply with a court order that reinstates the removal of Federal protections for the gray wolf in Wyoming under the Endangered Species Act. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Department of Commerce finds that revocation of the antidumping duty order on furfuryl alcohol from China would be likely to lead to continuation of dumping at the dumping margins identified in the “Final Results of Review” section of this notice. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Greenland turbot in the Aleutian Islands subarea of the Bering Sea and Aleutian Islands management area. Info here.

Rule sets the initial possession and trip limits for Northeast multispecies common pool vessels for the 2017 fishing year. Details here.

Notice sets forth the schedule of a forthcoming meeting of the Advisory Committee for the Sustained National Climate assessment. Details here.

Notice ONMS is seeking applications for vacant seats for seven of its 13 national marine sanctuary advisory councils and Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council. Info here.