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 PACA, agritourism, CWA, and crop insurance issues.

CHOUMAS PRODUCE CO., INC., Plaintiff, v. ACADEMY FRUIT SALES, LLC, et al., Defendants, 1:18-cv-00457-LJO-SKO, 2018 WL 2047237 (E.D. Cal. May 2, 2018) involved Perishable Agricultural Commodities Act (PACA) issues wherein the parties entered into a settlement agreement regarding defendant’s outstanding payments. Defendant defaulted per terms of the agreement and here, plaintiff moved for summary judgment. Court considered whether summary procedure could be used to “enforce a settlement reached before suit was filed.” Court reasoned that “because this case . . . was not pending when the Settlement Agreement was signed . . . the Court’s independent research indicates that there is no basis for immediate entry of judgment.” Motion denied.

In Donna JONES, Plaintiff–Appellant, v. SMOKE TREE FARM, a New York Partnership, Robert F. Smith, Individually and as a Partner of Smoke Tree Farm and/or Doing Business as Smoke Tree Farm, Benedette Smith, Individually and as a Partner of Smoke Tree Farm and/or doing Business as Smoke Tree Farm, Diane Van Patten, Individually and as a Partner of Smoke Tree Farm and/or doing Business as Smoke Tree Farm, and Don Van Patten, Individually and as Partner of Smoke Tree Farm and/or doing Business as Smoke Tree Farm, Defendants–respondents, 1530, CA 17–01222, 2018 WL 2075492 (N.Y. App. Div. May 4, 2018), plaintiff was injured during a horseback riding lesson at defendants’ stables and had earlier, signed a release. Defendant moved for summary judgment. Court observed assumption of the risk “will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased.” When considering defendants’ motion, court noted fact that defendant may have “unreasonably increased the risks associated with mounting the horse by failing to give plaintiff adequate instructions and assistance based on her size, athleticism, and obvious struggles in attempting to mount the horse.” Court rejected defendant’s’ argument that the written release established “plaintiff expressly assumed the unavoidable risks inherent in all horse-related activities,” denied motion for summary judgment.

In Alan J. SCHNEIDER, Plaintiff-Appellant, v. DONALDSON FUNERAL HOME, P.A.; Donaldson Properties No 3 LLC; Dewitt Jay Donaldson; Howard County, Maryland, Defendants-Appellees, No. 17-1183, 2018 WL 2095192 (4th Cir. May 7, 2018), plaintiff brought citizen suit under the Clean Water Act (CWA) after defendant sought to build a funeral home near his property. Lower court found plaintiff’s claims without merit and ruled for defendant. Plaintiff argued construction on the project would cause discharge of pollutants and defendant would be operating without a CWA permit for pollution created by stormwater runoff. Court noted, however, that before plaintiff filed his complaint, defendant obtained coverage under a CWA permit “authorizing his construction activities and the resulting stormwater runoff.” Court concluded defendant’s violation is “’wholly past’ and cannot form the basis of a CWA citizen suit.” Affirmed.

In AgCountry Farm Credit Services, ACA, Respondent, v. Richard Steven Elbert, Appellant, A17-1413, 2018 WL 2090617 (Minn. Ct. App. May 7, 2018), appellant, a farmer, purchased crop insurance from respondent (AgCountry) and when he failed to make a premium payment by the contractual deadline, AgCountry sued for payment. Farmer counterclaimed AgCountry failed to include “a 118.8-acre tract of [farmer’s] crop land in the insurance policy.” Farmer also argued AgCountry owed him a “heightened duty of care because of ‘special circumstances’ present in the relationship.” Including the length of the parties’ relationship and farmer’s “actual reliance” on company to provide “comprehensive insurance coverage.” Lower court ruled for AgCountry after farmer failed to show existence of a “heightened duty.” Appellate court agreed, and noted that “[t]o create a special circumstance . . . the record would have to reflect that Elbert “delegate[d] decision-making authority” to AgCountry for his insurance needs.”


REGULATORY: Includes AMS, CCC, EPA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation from the California Desert Grape Administrative Committee to decrease the assessment rate established for the 2018 fiscal period for grapes grown in a designated area of southeastern California. Info here.

Rule would implement a recommendation from the Idaho-Eastern Oregon Potato Committee to revise the varietal classifications that determine the size requirements for Irish potatoes grown in certain designated counties of Idaho, and Malheur County, Oregon. Details here.

COMMODITY CREDIT CORPORATION:

Notice CCC is inviting proposals for the 2019 Technical Assistance for Specialty Crops program. Info here.

Notice CCC is inviting proposals for the 2019 Emerging Markets Program. Details here.

Notice CCC is inviting proposals for the 2019 Foreign Market Development Cooperator program. Info here.

Notice CCCis inviting proposals for the 2019 Quality Samples Program. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a request from New Jersey to revise its State Implementation Plan (SIP) to incorporate revisions to the motor vehicle enhanced inspection and maintenance (I/M) program. Details here.

Rule EPA is approving four revisions to the Texas State Implementation Plan (SIP) submitted on December 12, 2016 and February 21, 2017, specific to air quality permitting and public notice for air quality permit applications. Info here.

Rule EPA is proposing to approve, as a revision of the California state implementation plan (SIP), the State’s request to redesignate the Chico nonattainment area to attainment for the 2006 24-hour fine particulate matter national ambient air quality standard. Details here.

Rule EPA is proposing to approve a revision to the Yolo-Solano Air Quality Management District portion of the California State Implementation Plan (SIP). Info here.

Rule EPA is proposing to approve portions of State Implementation Plan (SIP) submissions from Colorado, Montana, North Dakota, South Dakota and Wyoming addressing the Clean Air Act interstate transport SIP requirements for the 2012 annual Fine Particulate Matter National Ambient Air Quality Standards. Info here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia. Details here.

Rule EPA issued a proposed rule in the Federal Register on February 12, 2018, proposing to update a portion of the Outer Continental Shelf (OCS) Air Regulations that pertains to the requirements for OCS sources for which Massachusetts is the designated the Corresponding Onshore Area (COA). Info here.

NATIONAL OCEANIC ATMOSPHERIC ADMNISTRATION:

Rule NMFS is issuing a final rule to list the Taiwanese humpback dolphin as endangered under the Endangered Species Act (ESA). Info here.

Notice Commerce will submit to the Office of Management and Budget for clearance the following proposal for collection of information. Title: Florida Fishing and Boating Survey. Details here.

Notice Commerce will submit to the Office of Management and Budget for clearance the following proposal for collection of information. Title: Washington Steelhead Anglers Survey. Info here.

Notice NMFS has received a request from Hilcorp Alaska, LLC for authorization to take small numbers of marine mammals incidental to the construction and operation of the Liberty Drilling and Production Island (LDPI) in Foggy Island Bay, Beaufort Sea, Alaska, over the course of five years from the date of issuance. Info here.