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: “AquAdvantage Salmon and Other Current Issues in GMO Regulation.” Details available here.


JUDICIAL: Includes SNAP, landowner liability, water law, nutrition program, and labor issues.

In Derrick BROOKS, Clifton DeMeco, and Brian Blowers, on behalf of themselves and all others similarly situated, Plaintiffs, v. Samuel D. ROBERTS, Commissioner of the New York State Office of Temporary and Disability Assistance, Defendant, 16–CV–1025, 2017 WL 1831604 (N.D.N.Y. May 5, 2017), plaintiffs sought relief from New York State Office of Temporary and Disability Assistance (OTDA) after their Supplemental Nutrition Assistance Program (SNAP) benefits were terminated following implementation of a federal rule imposing a time limit on receipt of food stamps by able bodied adults without dependents (ABAWDs). Court noted that OTDA is designated by the USDA as the state agency to provide food stamp benefits to low income New York residents. Defendant argued the USDA “is a required party because the complete relief requested by plaintiffs requires the addition of the federal agency that administers and fully funds the SNAP program in New York, and to leave it out would dangerously prejudice its rights.” Court determined USDA is not a necessary party because plaintiffs did not challenge “actions or policies” of the USDA. Defendant’s motion to dismiss denied.

LAURIE FREEMAN, SHARON MOCKMORE, BECCY BOYSEL, GARY D. BOYSEL, LINDA L. GOREHAM, GARY R. GOREHAM, KELCEY BRACKETT, and BOBBIE LYNN WEATHERMAN, Appellees, v. GRAIN PROCESSING CORPORATION, Appellant, No. 15-1942, 2017 WL 1967416 (Iowa May 12, 2017) involved plaintiffs living near a corn wet milling plant that alleged air pollution from the plant interferes with use of their property. Plaintiffs sued based on nuisance, trespass, and negligence theories. Lower court held their claims were not preempted by the Federal Clean Air Act (CAA). On remand, district court granted plaintiffs’ motion for class certification and divided the class into two subclasses. Appellate court affirmed class certification order.

In Plaintiff–Appellee: Select Energy Services, LLC, a Delaware limited liability company, and Appellee Pursuant to C.A.R. 1(e): Division Engineer for Water Division No. 1, v. Defendant–Appellant: K-LOW, LLC, a Louisiana limited liability company, and Defendant–Appellee: Faith Tabernacle Church, Inc., a Colorado corporation, No. 16SA166, 2017 WL 2061463 (Colo. May 15, 2017), plaintiff sought to run a water pipeline across an irrigation ditch, but defendant had an easement arising from a water right. Defendant attempted to block the pipeline as a trespass, but a recent change to the easement required defendant to divert waters through a pump downstream from and beyond the end of the ditch. Issue was whether that change also eliminated any right to divert water from the old ditch. Water court found there was no right to divert water from the ditch, noting that the “decree defining the water right allows its holder to divert water only at the pump downriver from the disputed ditch,” and concluded that “the decree does not include a right to divert water from that ditch.” Appellate court affirmed water court ruling.

Partners in Nutrition’s Appeal of Disapproval of Site Expansion in the CACFP Program, A16-1422, 2017 WL 2062123 (Minn. Ct. App. May 15, 2017) concerned Partners in Nutrition (PIN), a nonprofit participating in the federal Child and Adult Care Food Program (CACFP). The organization appealed a decision by Minnesota Department of Education (MDE) denying their application to sponsor multiple sites. MDE determined Partners in Nutrition was not a “financially viable organization.” Appellate court, ruling for PIN, found that “MDE’s rejection of Partners in Nutrition’s application does not comply with federally required procedures and legal standards and is arbitrary and capricious.”

In Kimberly VERNON, Plaintiff, v. GO VENTURES, LLC, et al., Defendants, No. 16-cv-13818, 2017 WL 2002011 (E.D. Mich. May 12, 2017), defendants operated campgrounds and lodging facilities and plaintiff was their employee. Plaintiff claimed  defendants violated the Fair Labor Standards Act (FLSA) and the Michigan Workforce Opportunity Wage Act, arguing that defendants “failed to pay her and other similarly situated employees of Defendants’ camping and lodging facilities the appropriate minimum wages and overtime pay.” Defendants argued they were exempt from FLSA under the “amusement or recreational establishment” exception. Court noted that “lodging facilities may include rental rooms and meal sales—each ‘a necessity of life,’ which has already been recognized in this circuit not to be exempt as a ‘recreational activity,’” but denied defendants’ motion to dismiss.


REGULATORY: Includes BOC, NOAA, USPTO and RUS rules and notices.

CENSUS BUREAU: Notice Bureau of the Census determined that it is conducting current mandatory business surveys in 2017. Details here.

NATIONAL OCEANIC AND ATMOSPERHIC ADMINISTRATION:

Rule NMFS is opening directed fishing for species that comprise the deep-water species fishery by vessels using trawl gear in the Gulf of Alaska. Info here.

Rule announces inseason changes to management measures in the Pacific Coast groundfish fisheries. Details here.

Notice Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application contains all of the required information and warrants further consideration. Info here.

Notice NMFS has received an application from Point Blue Conservation Science for an Incidental Harassment Authorization to take marine mammals, by harassment, incidental to seabird and pinniped research activities in central California. Details here.

PATENT AND TRADEMARK OFFICE: Notice USPTO seeks comments from stakeholders, mark owners, and all those interested in the maintenance of an accurate U.S. Trademark Register, on the establishment of a streamlined version of the existing inter partes abandonment and nonuse grounds for cancellation before the USPTO’s Trademark Trial and Appeal Board. Details here.

RURAL UTILITIES SERVICE: Notice RUS announces its Distance Learning and Telemedicine Grant Program application window for FY 2017. Info here.