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


ANNOUNCEMENT: Join us this Wednesday, October 18th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Understanding the H-2A Temporary Agricultural Guest Worker Program.” Details available here.


JUDICIAL: Includes food safety, easement, nutrition programs, and landowner liability issues.

EVOLUTION FAST FOOD GENERAL PARTNERSHIP, Plaintiff, v. HVFG, LLC, LA BELLE FARM, INC., Defendants, 15 Civ. 6624 (DAB), 2017 WL 4516821 (S.D.N.Y. September 9, 2017) involved a dispute between a California restaurant and foie gras producers from New York regarding the sale of foie gras from force-fed geese or ducks. Plaintiff alleged defendants “produce their foie gras by force-feeding ducks” in violation of California’s unfair competition law and New York State Agriculture & Markets Code. Court noted that “[a] product may not be sold in California if it is the result of force-feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” Court denied defendant’s motion to dismiss after concluding that “Plaintiff has adequately alleged that Defendant’s unlawful ‘conduct’ occurred in California because Defendant sold force-fed foie gras in California.”

Ray L. Olin and Carole J. Olin, husband and wife as joint tenants; Paul Johnson and Candace Johnson, husband and wife; Neil R. Slavick; Dennis Olin and Carol Olin, husband and wife as joint tenants; David F. Heid; Tami A. Heid; Brent Heid; Michele Burger; James Bahm; Gary A. Haugen and Melinda K. Haugen, husband and wife as joint tenants; Timothy Lee Johnson and Thomas Wesley Johnson Partnership; Lee L Ingalls; Matthew E. Ingalls; Thomas J. Ingalls; Robert J. Slavick; Jacquelyn M. Slavick; and Clark A. Norton and Debra D. Norton, husband and wife, Plaintiffs, v. Dakota Access, LLC and Contract Land Staff, LLC, Defendants, No. 1:17-cv-007, 2017 WL 4532581 (D.N.D. October 10, 2017) involved a dispute over easement agreements between a group of landowners (plaintiffs) and an oil company installing a pipeline. Plaintiffs argued defendants made misrepresentations to them during the easement negotiation process “designed to induce them to sign the easement agreements at a lower price than other landowners.” Defendants countered the statements they made were “merely sales talk or puffery, and the alleged misrepresentations do not constitute fraud because the statements were not representations of past or present material fact.” Court considered defendant’s statements made during the negotiations and concluded “[p]redictions of future value, earnings, or profit are not actionable because the falsity of the statement cannot be determined at the time it was made. Such statements are not actionable as they are simply sales talk or puffing.” Case dismissed.

In LAWRENCE M. SMITH, and UNITED STATES OF AMERICA, ex rel Plaintiffs, v. DEION L. SANDERS, Individually, ET AL., Defendants, No. 3:12-CV-4377-M, 2017 WL 4536005 (N.D. Tex. September 15, 2017), plaintiff alleged defendants “committed several acts and omissions that contributed to and resulted in the making of false and fraudulent statements and claims to obtain federal grant funds” through the Summer Food Service Program. The Summer Food Program ensures low-income children continue to receive meals throughout the summer and defendant’s organization applied to sponsor a local program. Court considered possible violations of the False Claims Act and noted the legislation “is the government’s primary litigation tool for recovering losses sustained as the result of fraud.” Court found that plaintiff did not meet his burden to “identify record evidence creating a genuine issue of material fact as to whether Defendants made a claim for payment to the government.” Summary judgment granted for defendant.

In COASTAL ENVIRONMENTAL RIGHTS FOUNDATION et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO, Defendant and Respondent; COVERT CANYON, LLC, Real Party in Interest and Respondent, D071544, 2017 WL 4544713 (Cal. Ct. App. October 12, 2017), environmentalist plaintiffs appealed after trial court found defendant did not abuse his discretion “in classifying a use of private property . . . for firearms and associated training activities for military and law enforcement agencies as a Law Enforcement Services use type pursuant to the San Diego County Zoning Ordinance.” Plaintiff argued defendant did not conduct a review required under the California Environmental Quality Act (CEQA) “before classifying the Covert Canyon’s activity as Law Enforcement Services.” Appellate court found the classification of use “was not an abuse of discretion and neither the classification nor the SAEO (stipulated administrative enforcement order) constituted a project approval requiring CEQA review prior to execution of the SAEO.” Affirmed.


LEGISLATIVE:

H.R. 4034: To direct the Secretary of Agriculture to issue to the Pat Harrison Waterway District a long-term special use permit to develop approximately 8,307 acres of National Forest System land within the Bienville National Forests in Mississippi. Bill referred to the House Committee on Agriculture.

H.R. 4058: To amend the Packers and Stockyards Act, 1921, to provide for the establishment of a trust for the benefit of all unpaid cash sellers of livestock. Bill referred to the House Committee on Agriculture.

H.R. 4069: To amend the Migratory Bird Treaty Act to clarify the treatment of authentic Alaska Native articles of handicraft containing nonedible migratory bird parts. Bill referred to the House Committee on Natural Resources.


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

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS recognizes Japan as being free of highly pathogenic avian influenza and Newcastle disease. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve a revision to the Florida State Implementation Plan (SIP), addressing the Clean Air Act (CAA or Act) interstate transport (prongs 1 and 2) infrastructure SIP requirements for the 2010 1-hour Nitrogen Dioxide (NO2) National Ambient Air Quality Standard (NAAQS). Info here.

Rule EPA is withdrawing the August 15, 2017, direct final rule that approves changes to Georgia’s state implementation plan (SIP) related to new source review (NSR) permitting for prevention of significant deterioration (PSD). Details here.

Rule EPA is taking final action to approve changes to the Georgia State Implementation Plan (SIP) to revise new source review (NSR) permitting regulations. Info here.

Rule EPA is taking direct final action to approve a revision to the Commonwealth of Pennsylvania’s state implementation plan (SIP). Details here.

Rule EPA is taking direct final action to approve a revision to the Commonwealth of Virginia state implementation plan (SIP). Info here.

Rule EPA is taking direct final action to approve revisions to the State of West Virginia state implementation plan (SIP). Info here.

Rule finalizes the residual risk and technology review (RTR) conducted for the Manufacturing of Nutritional Yeast source category regulated under national emission standards for hazardous air pollutants. Info here.

Rule establishes tolerances for residues of fenpicoxamid (XDE 777) in or on banana, rye, and wheat. Dow AgroSciences LLC requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Info here.

Rule establishes tolerances for residues of triflumezopyrim in or on rice, grain and rice, hulls. E.I. Dupont de Nemours and Company requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice that on July 25, 2017, the Department of Commerce (the Department) published the preliminary results of the administrative review of the countervailing duty order on pasta from Italy. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NOAA is closing the Georges Bank Cod Trimester Total Allowable Catch Area for the remainder of Trimester 2, through December 31, 2017. Info here.
Rule NMFS announces that the State of North Carolina is transferring a portion of its 2017 commercial summer flounder quota to the State of New York. Info here.