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, May 16th: U.S. Agriculture Trade:  Overview and Update on Current and Emerging Issues. Details available here.


JUDICIAL: Includes biosecurity, renewable energy, labor and taxation issues.

In WHITE RIVER FEED COMPANY, a Washington corporation, Respondent, v. KRUSE FAMILY, LP, a Washington liability company, doing business as KRUSE FAMILY DAIRY, Appellant, No. 76562-1-I, 2018 WL 2021881 (Wash. Ct. App. April 30, 2018), appellant, a dairy farmer, sued livestock feed company for damages after an “an incident of severe illness among its dairy herd.” Dairy farmer’s expert stated there was “an 80 percent probability that the cause of illness was salmonella poisoning originating from [defendant’s] feed. Trial court found for defendant after concluding the expert’s opinion was “speculative.” Court observed that the expert’s opinion “is based on the assumption that it is possible to determine the source of contamination based on what the animals ate. . . But there is evidence that the calves also ate grain, yet did not become sick.” Court concluded plaintiff failed to establish “a genuine issue of material fact as to whether White River’s grain was the source of contamination,” and affirmed ruling for defendant.

In KRISTINE K. YATES, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; MARION COUNTY PLANNING DEPARTMENT; DICK ANDERSON CONSTRUCTION COMPANY; SILVERTON SOLAR, LLC; SILVERTON LAND CO., LLC; TLS CAPITAL INC.; CYPRESS CREEK RENEWABLES DEVELOPMENT, LLC; CYPRESS CREEK RENEWABLES, LLC; PINE GATE ENERGY CAPITAL, LLC; PINE GATE RENEWABLES LLC; GORDON MOE; JUDY DUNN; NIKKI ANAS; ZOE GAMBLE HANES; JEROME O’BRIEN; BLUE OAK ENERGY; SAM LINES; PATRICK LEIBACK; DOES 1–20; and CYPRESS CREEK HOLDINGS, LLC, Defendants, No. 6:17-cv-01819-AA, 2018 WL 2033290 (D. Or. April 30, 2018), plaintiff alleged defendants, including the EPA, violated her rights under federal and state law with the construction of a solar array on a parcel adjacent to her property. Plaintiff argued EPA failed to notify about the construction of the project, and after plaintiff complained to the agency about the construction of the solar panels, “the EPA told plaintiff it would pass on the complaint to the Oregon DEQ, and the Oregon DEQ never heard from the EPA about the matter.” Court noted that the EPA “owes plaintiff neither a statutory nor a common law duty to notify her about land use decisions or pass complaints along to the Oregon DEQ.” Court found no claim for trespass or nuisance against the agency because “there is an insufficient causal relationship between the EPA’s inaction and the alleged incursions on plaintiff’s property.” Claims against EPA dismissed.

ARNAUDO BROTHERS, L.P. et al., Petitioners, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; United Farm Workers of America, Real Party in Interest. F072420, 2018 WL 2077902 (Cal. Ct. App. May 4, 2018) concerned a writ proceeding by appellate court regarding Agricultural Labor Relations Board (ALRB) ruling that an agricultural employer committed unfair labor practices “by refusing to bargain with, and provide information to, the United Farm Workers of America.” Employer argued that in the early 1980’s, during a bargaining session, the Union “expressly disclaimed any interest in representing the bargaining unit.” ALRB found the disclaimer was “not clear and unequivocal.” Employer appealed and California Supreme Court ordered appellate court to vacate earlier ruling favoring the ALRB. Here, appellate court determined the statement by the Union representative in 1981 that “’we’re through with you’ . . . was not a clear and unequivocal disclaimer of interest.” The court also found that the Union’s “subsequent conduct consistent with a disclaimer could not render the equivocal disclaimer effective.” ALRB ruling affirmed.

BRINGLE FAMILY TRUST, Petitioner–Appellant, v. BOARD OF COUNTY COMMISSIONERS OF SUMMIT COUNTY, Colorado, Respondent–Appellee, and Colorado Board of Assessment Appeals, Appellee, No. 17CA0435, 2018 WL 2054916 (Colo. Ct. App. May 3, 2018) involved a property tax appeal concerning two land parcels. One parcel was classified as residential and one as vacant. Colorado Board of Assessment Appeals’ upheld parcel’s classification as vacant, and plaintiff appealed. Appellate court observed that per statute, a “subject parcel must be “contiguous” to the residential lot in order to be properly classified as residential property for tax purposes.” Court also noted that the two parcels were replatted “as two distinct parcels separated by a public road that [plaintiff] does not own. The subject parcel and the residential parcel do not touch at any point.” Court found the two parcels were not, in fact, “contiguous,” and affirmed Board ruling.


LEGISLATION:

H.R. 5485: Hemp Farming Act of 2018. Bill would fully legalize hemp. It would also remove most existing restrictions or regulations limiting hemp growers’ access to banking or crop insurance, among other things. Introduced by in the Senate by Sen. Mitch McConnell (R-KY) as S. 2667, and in the House by Rep. James Comer (R-KY1) as H.R. 5485.


REGULATORY: Includes USDA, EPA, FDA, FNS, and NRCS rules and notices. 

AGRICULTURE DEPARTMENT: Notice AMS is requesting comments from all interested individuals and organizations on an extension of a currently approved information collection process associated with the regulations, licensing, and electronic provider agreements issued pursuant to the United States Warehouse Act. Info here.

ENVIRONMENTAL PROTECTION AGENCYRule EPA is proposing three amendments to the existing National Oil and Natural Gas Federal Implementation Plan (National O&NG FIP) that applies to new true minor sources and minor modifications at existing true minor sources in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector that are locating or expanding in Indian reservations. Details here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is announcing the availability of a guidance for industry entitled “Menu Labeling: Supplemental Guidance for Industry.” Info here.

FOOD AND NUTRITION SERVICE: Notice announces the Department’s annual adjustments to the Income Eligibility Guidelines to be used in determining eligibility for free and reduced price meals and free milk for the period from July 1, 2018 through June 30, 2019. Info here.

NATURAL RESOURCES CONSERVATION SERVICENotice NRCS will deauthorize Federal funding for the Lick Creek Watershed project, Russell, Dickenson and Wise Counties, Virginia. Details here.