A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu
JUDICIAL: Includes intervention, APHIS, evidence, bankruptcy, food safety, and standing issues.
In Robert Ito Farm, Inc. v. Cty. of Maui, No. 15-15246, 2016 WL 6818863 (9th Cir. Nov. 18, 2016), defendant approved county ordinance prohibiting growth, testing, and cultivation of genetically engineered crops until the County conducted an “environmental and health impact study.” Plaintiffs sued County in federal court to “enjoin and invalidate the ordinance” and the parties agreed to have the case proceed before a magistrate judge. Third-party public interest group (MOM Hui) filed motion to intervene and court considered whether “consent of a prospective intervenor . . . is necessary for a magistrate judge to rule on a motion to intervene.” Court decided “prospective intervenors are not ‘parties’ for purposes of (the statute) and a magistrate judge who has the consent of the named parties to the suit may rule on a prospective intervenor’s motion to intervene without the prospective intervenor’s consent.” Court did not rule on whether MOM Hui should have been allowed to intervene,” but agreed with district court that “MOM Hui’s appeal should have been made to this court and not the district court.”
In Atay v. Cty. of Maui, No. 15-16466, 2016 WL 6832509, (9th Cir. Nov. 18, 2016), Maui County enacted ordinance banning “cultivation and testing” of genetically engineered plants. District court held ordinance was preempted by federal and state law and county appealed. Appellate court held ordinance is “expressly preempted by the Plant Protection Act,” to the extent that it “bans GE plants that the U.S. Animal and Plant Health Inspection Service (APHIS) regulates as plant pests.” Court further ruled the ban is “impliedly preempted in this application by Hawaii’s comprehensive state statutory scheme for the regulation of potentially harmful plants.” District court ruling affirmed.
In KIMBERLY KUCERA ADAMS, Appellant V. THE STATE OF TEXAS, Appellee, No. 09-15-00328-CR, 2016 WL 6809220, (Tex. App. Nov. 16, 2016), appellant was charged with five counts of cruelty to livestock animals for failing to provide food, water, or care to horses. Jury found appellant guilty and appellant appealed, objecting to admission of a variety of photos, video and testimony. After considering evidence, appellate court found “the complained-of evidence was harmless because the record establishes that essentially the same evidence was admitted elsewhere in the record.” The court further concluded that “any error in the admission of [inspector’s] testimony concerning [appellant’s] state of mind or the admission of the complained-of letter did not have a substantial and injurious effect or influence in determining the jury’s verdict.” Guilty verdict affirmed.
In Placid Oil Co. v. C.C. Abbitt Farms, LLC, No. 3:16-CV-00047-M, 2016 WL 6778384, (N.D. Tex. Nov. 14, 2016), plaintiff drilled and plugged three oil and gas wells on defendant’s property before a mineral deed was executed. Eleven wells were drilled and plugged before plaintiff filed for bankruptcy. Plaintiff’s claims for sanctions and discharge of pre-confirmation order claims were dismissed by bankruptcy court and plaintiff appealed. Regarding standard of review, appellate court observed that it “may affirm for any reason supported by the record, even if not [explicitly] relied on by the [bankruptcy] court.” Court found that plaintiff “did not properly request leave to amend its complaint,” and therefore, bankruptcy court “did not abuse its discretion by dismissing the case without granting leave to amend.” Bankruptcy court decision affirmed.
Lucido v. Nestle Purina Petcare Co., No. 15-CV-00569-EMC, 2016 WL 6804576, at *1 (N.D. Cal. Nov. 17, 2016) concerned class action against defendant for not disclosing that its “Beneful” dog food contained “Industrial Grade Glycols, which are not approved for use in food, mycotoxins, lead, and/or arsenic.” Defendant moved to exclude expert opinions and testimony and also sought motion for summary judgment. Court found testimony by plaintiffs’ experts to be too “speculative.” Regarding plaintiffs’ claims, court found “insufficient evidence of causation,” and stated that “there is no evidence such as an evaluation by a veterinarian that a dog actually did get sick or die because it ate Beneful.” Defendant’s motion for summary judgment granted.
In STATE OF MISSOURI EX REL. CHRIS KOSTER, Attorney General; STATE OF NEBRASKA EX REL. JON BRUNING, Attorney General; STATE OF OKLAHOMA EX REL. E. SCOTT PRUITT, Attorney General; STATE OF ALABAMA EX REL. LUTHER STRANGE, Attorney General; COMMONWEALTH OF KENTUCKY EX REL. JACK CONWAY, Attorney General; TERRY E. BRANSTAD, Governor of State of Iowa, Plaintiffs-Appellants, v. KAMALA D. HARRIS, in her official capacity as Attorney Gen. of the State of California; KAREN ROSS, in her official capacity as Sec’y of the California Dep’t of Food & Agric., Defendants-Appellees, & HUMANE SOCIETY OF THE UNITED STATES; ASSOCIATION OF CALIFORNIA EGG FARMERS, Intervenor-Defendants-Appellees., No. 14-17111, 2016 WL 6803046, (9th Cir. Nov. 17, 2016), plaintiffs (six states) wanted to block enforcement of California laws prescribing standards for “conditions under which chickens must be kept in order for their eggs to be sold in the state.” Plaintiffs aimed to block regulations before they took effect. Lower court held plaintiffs “failed to establish parens patriae standing” because “they failed to articulate an interest apart from the interests of private egg producers,” and their economic claims “were necessarily speculative.” Appellate court observed, “To establish Article III standing, an injury must be concrete, particularized, and actual or imminent,” and critically, noted that, “In a parens patriae case. . . ‘the State must articulate an interest apart from the interests of particular private parties. . . and. . . must express a quasi-sovereign interest.’” Plaintiffs argued their egg farmers would be harmed economically and that the Shell Egg Laws would cause “harmful fluctuations in the price of eggs.” Court did not consider issue of ripeness and concluded none of plaintiffs’ theories established standing.
REGULATORY: Includes EPA, FWS, NOAA, and RUS rules and notices.
ENVIRONMENTAL PROTECTION AGENCY: Rule establishing an exemption from the requirement of a tolerance for residues of Spodoptera frugiperda multiple nucleopolyhedrovirus strain 3AP2 in or on all food commodities when used in accordance with label directions and good agricultural practices. Details here.
FISH AND WILDLIFE SERVICE:
Notice seeking comment on applications for recovery permits to conduct activities with the purpose of enhancing the survival of endangered species. Applicant requests a new permit to take Friendly ground-dove in conjunction with research, survey, and population monitoring activities in American Samoa. Details here.
Notice FWS received an incidental take permit application from the Port of Portland pursuant to the Endangered Species Act of 1973. Info here.
Notice FWS seeks comment on an incidental take permit application for federally listed American burying beetle take resulting from activities associated with oil and gas well field infrastructure geophysical exploration and construction, maintenance, operation, repair, and decommissioning in Oklahoma. Info here.
NATIONAL OCEANIC AND ATMOSPERHIC ADMINISTRATION:
Rule NMFS adjusts the 2016 D seasonal apportionments of the total allowable catch for pollock in the Gulf of Alaska by re-apportioning unharvested pollock TAC in Statistical Areas 610, 620, and 630 of the GOA. Details here.
Rule NMFS approves a transfer of 2016 commercial bluefish quota from the State of Maine to the State of Rhode Island. Details here.
Rule NMFS is closing the U.S. pelagic longline fishery for bigeye tuna in the western and central Pacific Ocean because the fishery will reach the 2016 allocation limit for the Commonwealth of the Northern Mariana Islands. Info here.
RURAL UTILITIES SERVICE: Notice RUS will prepare an Environmental Impact Statement and hold additional public scoping meetings in connection with possible impacts related to the Cardinal-Hickory Creek Transmission Line Project proposed by Dairyland Power Cooperative. Info here.