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


ANNOUNCEMENT: Join us Wednesday, November 1st, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “From Farm Fields to the Courthouse: Legal Issues Surrounding Pesticide Use.” Details available here.


JUDICIAL: includes animal ID, landowner liability, pesticides, urb & ag, and food safety issues.

In DARLA K. DEHLIN, a single person, Appellant, v. FORGET ME NOT ANIMAL SHELTER, KIM GILLEN, JOHN DOE(S), Respondents, No. 34407-0-III, 2017 WL 4712142 (Wash. Ct. App. October 19, 2017), plaintiff appealed dismissal of her conversion and trespass claims against defendant. Defendant reported suspected “animal neglect on plaintiff’s property” and the sheriff obtained a warrant to seize the dogs. Sheriff asked defendant “to provide volunteers and vehicles to assist in impounding” the dogs. Plaintiff sued, but court reasoned that defendant “was not the entity that seized the dogs, but rather transported and stored them on behalf of the sheriff’s office.” Affirmed for defendant.

In Jay RAGAN, Plaintiff v. Clifton STAFFORD, Defendant, No. 4:16-cv-4097, 2017 WL 4764620 (W.D. Ark. October 20, 2017), plaintiff was injured after striking defendant’s cow on an open highway and sued, alleging defendant was negligent in failing to “have, maintain, inspect, and repair safe fencing in order to keep his cattle enclosed.” Defendant claimed he breached no duty of care with respect to “the kind and quality of fence” enclosing his property. Significantly, seven months after the accident, defendant “used a backhoe to remove the entire fence around his land and replaced it with a new fence.” Plaintiff maintained defendant “intentionally destroyed and replaced the fence due to his desire to ‘suppress the truth.’” Court noted that “[d]efendant had the duty to preserve the fence because he had been put on notice by the complaint that the fence was at issue in Plaintiff’s current lawsuit,” and concluded that it would allow plaintiff’s counsel to discuss defendant’s removal of the original fence at trial.

BADER FARMS, INC. and BILL BADER Plaintiffs, v. MONSANTO CO., Defendant, No. 1:16-CV-299-SNLJ, 2017 WL 4758886 (E.D. Mo. October 20, 2107) involved plaintiffs’ claims that their peach crops were damaged by “drift” of defendant’s dicamba herbicide. Plaintiff alleged “fraudulent concealment” by defendant, among a host of charges. Here, plaintiff sought to file an amended complaint to add BASF as a defendant to its civil conspiracy claim. Plaintiff believes “[t]he conspiracy is no longer between Monsanto and the farmers who bought dicamba-resistant seeds.” Instead, plaintiff charges “Monsanto and BASF conspired to create an ‘ecological disaster’ where farmers would be forced to buy dicamba-based products.” Court observed that plaintiff “alleges more than parallel conduct and an existing, legal business agreement between the companies” (Monsanto and BASF) and granted plaintiff’s motion to file an amended complaint to add a party defendant.

In Vincent SCHWENT, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants, NO. C16-5708 BHS, 2017 WL 4700318 (W.D. Wash. October 19, 2017), plaintiffs purchased property adjacent to a third party’s land and discovered USDA (Government) holds a conservation easement over portions of the third party’s property. Property at issue contains a beaver colony and numerous beaver dams. Plaintiffs claimed that the excessive water coming from the beaver dams “acts as a nuisance, establishes trespass by nuisance, and violates the easement agreement.” Court observed that plaintiff’s request for an order enforceable against the Government “amounts to a takings claim, and ‘neither injunctive nor declaratory relief is available for a takings claim against the United States.’” Government’s motion to dismiss granted.

In Compassion Over Killing, Inc., complainant, Appellant, v. Quality Pork Processors, Inc., Respondent, A17-0464, 2017 WL 4766999 (Minn. Ct. App. October 23, 2017), plaintiff challenged decision to quash an application for a search warrant and investigation of animal cruelty. Issue was whether the lower court erred in concluding that the evidence offered “was stale and insufficient to establish probable cause for a search warrant.” Here, district court found that the evidence observed by plaintiff’s investigator “was stale and did not establish probable cause to believe that violations of animal-cruelty law had taken place . . .  at QPP’s meatpacking plant.” Appellate court reasoned that the district court “in its discretion determined that the evidence presented in [plaintiff’s] application did not justify a warrant and investigation of animal cruelty.” Affirmed.


LEGISLATIVE:

H.R. 3279: Helium Extraction Act of 2017. This bill’s text for status Reported by House Committee (Oct 23, 2017) is now available.

H.R. 4091: To remove from the John H. Chafee Coastal Barrier Resources System the areas included in Indian Peninsula Unit FL-92 and Cape San Blas Unit P-30 in Florida. This bill was referred to the House Committee on Natural Resources.

MEETING: Senate Committee on Energy and Natural Resources Meeting. Hearings to examine advanced cyber technologies that could be used to help protect electric grids and other energy infrastructure from cyberattacks. October 26 @ 9:45 a.m.  Location: SD-366.


REGULATORY: Includes AMS, EPA, FDA, FS, NOAA  and RHS  rules and notices. 

AGRICULTURAL MARKETING SERVICE: Notice AMS is announcing the availability of an interim instruction document intended for use by USDA-accredited organic certifying agents. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action on a revision to the formaldehyde standards for composite wood products final rule, published in the Federal Register on December 12, 2016. Info here.

Rule EPA is proposing to amend the formaldehyde emission standards for composite wood products final rule, published in the Federal Register on December 12, 2016 (81 FR 89674). Details here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is announcing the availability of the Animal Drug User Fee Act (ADUFA) reauthorization draft recommendations and extending the comment period to allow interested persons 30 days to submit comments on these draft recommendations. Info here.

Notice FDA is announcing the availability of the Animal Generic Drug User Fee Act (AGDUFA) reauthorization draft recommendations and extending the comment period to allow interested persons 30 days to submit comments on these draft recommendations. Details here.

FOREST SERVICE: Notice the National Advisory Committee for Implementation of the National Forest System Land Management Planning Rule Committee will meet in El Dorado Hills, California. Attendees may also listen via webinar and conference call. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS approves and implements an exemption for vessels with Federal Limited Access General Category Individual Fishing Quota permits from the State of Maine and the Commonwealth of Massachusetts. Info here.

Rule NMFS proposes to modify the Atlantic highly migratory species (HMS) regulations to require vessels in the pelagic longline fishery to account for bycatch of bluefin tuna (bluefin) using Individual Bluefin Quota (IBQ) on a quarterly basis instead of before commencing any fishing trip with less than the minimum required IBQ balance or with quota debt. Details here.

Notice NMFS has issued an incidental harassment authorization (IHA) to the Scripps Institution of Oceanography (SIO) to incidentally harass, by Level A and Level B harassment, marine mammals during a low-energy marine geophysical survey in the northeastern Pacific Ocean. Info here.

Notice NMFS has received a request from Space Exploration Technology Corporation (SpaceX) for authorization to take marine mammals incidental to boost-back and landing of Falcon 9 rockets at Vandenberg Air Force Base in California, and at contingency landing locations in the Pacific Ocean. Details here.

RURAL HOUSING SERVICE: Notice RHS is revising its existing regulations regarding financial reporting. Info here.