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


ANNOUNCEMENT: Join us TOMORROW 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 biosecurity, urb & ag, landowner liability, and labor issues.

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, WATER COMPLIANCE AND ENFORCEMENT, Petitioner-Respondent, v. CHEYENNE CORPORATION and CAYUSE, LLC, t/a WILD WEST CITY, Respondents-Appellants. CHEYENNE CORPORATION and CAYSE, LLC, t/a WILD WEST CITY, Petitioners-Appellants, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, WATER ALLOCATION, Respondent-Respondent, NO. A-4547-15T4, 2017 WL 4848382 (N.J. Super. Ct. App. Div October 27, 2017) involved an appeal by an amusement park (WWC) of an order directing it to “re-designate or decommission its original water well.” Water in the well tested positive for e coli bacteria and NJDEP ordered decommission of the well. Amusement park argued NJDEP’s findings were not supported by evidence and that the agency “acted arbitrarily by ordering WWC to cease testing the original well, ignoring WWC’s negative water-test results, and by concluding the original WWC well was unsafe.” Appellate court affirmed, finding that the agency did not act “arbitrary, capricious, or unreasonable,” and that’s its decision was “supported by credible evidence in the record.”

JEFFREY BURDICK SR., WANDA BURDICK, and JEFFREY BURDICK JR., Plaintiffs-Appellants, v. INTERSTATE POWER AND LIGHT COMPANY, Defendant-Appellee, No. 16-0821, 2017 WL 4843058 (Iowa Ct. App. October 25, 2017) involved a dairy farmer’s allegations that defendant (electric company) “allowed stray voltage to come into contact with their dairy herd causing decreased milk production and a reduction in breeding.” Jury found for plaintiff, but court vacated the judgment after concluding defendant “was entitled to a new trial based on the fact the jury’s award lacked evidentiary support.” Plaintiff appealed and argued defendant’s expert witness “provided the necessary data from which the jury could have calculated the variable expenses associated with their estimated lost revenue.” Appellate court agreed with plaintiff and reversed ruling for defendant.

TIMOTHY P. OTTERSTATTER, PLAINTIFF-APPELLANT, v. CITY OF WATERTOWN, DEFENDANT-RESPONDENT, No. 2016AP2000, 2017 WL 4862073 (Wis. Ct. App. October 26, 2017) concerned condemnation of some property for an airport. Plaintiff claimed defendant’s jurisdictional offer for the property “did not equal the appraisal valuation,” and “was not the result of negotiation.” Court observed that per statute, “[a]fter the condemnor has arranged for an appraisal, ‘the condemnor shall attempt to negotiate personally with the owner … of the property sought to be taken for the purchase of the same.’” Court noted that plaintiff failed to “explain why submitting a jurisdictional offer that seeks to avoid litigation expenses is an improper aspect of the required negotiation process.” Summary judgment for defendant affirmed.

In In the MATTER OF the Complaint of BUCHANAN MARINE, L.P., as Bareboat Charterer of The Barge B-252, In the Matter of the Complaint of A.P. Franz, Jr., Trustee, As Owner, Petitioners-Counter-Defendants-Appellees, Tilcon New York, Inc., Claimant-Counter-Claimant-Appellee, v. Wayne Volk, Karen Volk, Claimants-Appellants, No. 16-1092-cv, 2017 WL 4847844 (2d Cir. October 27, 2017), appellant worked at a quarried rock processing facility on the Hudson River, inspecting and maintaining barges used to transport rock down the river. He slipped on some stone and injured himself and issue was “whether [appellant] was a ‘seaman’ within the meaning of the Jones Act.” Lower court found he was not a seaman and dismissed. Appellate court affirmed, finding that appellant did not qualify as a “seaman” because he did not “derive his livelihood from sea-based activities,” and “never operated a barge and only worked aboard the barges when they were secured to the dock.” Affirmed in part.

In AYAAN M. KULMIYE, Appellant, v. TYSON FRESH MEATS, INC., Appellee, No. 117,336, 2017 WL 4848247 (Kan. Ct. App. October 27, 2017), plaintiff was injured at defendant’s chicken processing plant. She was later fired and argued it was done to avoid paying workers’ compensation benefits. Appeals board determined Tyson “conducted a proper investigation into the circumstances leading to plainitff’s termination, noting that Tyson interviewed several witnesses and did not rush to a judgment.” Plaintiff claimed she was “wrongfully terminated. . . and the Board erred when it considered hearsay statements.” Court agreed with Board that the witness statements were not hearsay, concluding the statements “were presented to demonstrate that a reasonable investigation was conducted, not to prove the truth of the matter asserted.” Affirmed for defendant.


REGULATORY: Includes USDA, EPA, FWS, FDA, FS, ITA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Plants for Planting Regulation. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is proposing to grant a petition submitted by Blanchard Refining Company LLC, to exclude (or delist) the residual solids generated from the reclamation of oil bearing hazardous secondary materials (OBSMs) on-site at Blanchard’s Galveston Bay Refinery (GBR), located in Texas City, Texas from the lists of hazardous wastes. Info here.

FISH AND WILDLIFE SERVICENotice FWS will reopen the comment period on its October 4, 2016, proposed rule to list the western glacier stonefly (Zapada glacier) and the meltwater lednian stonefly (Lednia tumana) as threatened species under the Endangered Species Act. Info here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is proposing to revoke its regulation authorizing the use of health claims on the relationship between soy protein and coronary heart disease on the label or in the labeling of foods. Details here.

FOREST SERVICE: Notice FS is seeking comments from all interested individuals and organizations on the extension with no revision of a currently approved information collection, Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA preliminarily determines that biodiesel from Argentina is being, or is likely to be, sold in the United States at less than fair value. Details here.

Notice ITA preliminarily determines that biodiesel from Indonesia is being, or is likely to be, sold in the United States at less than fair value. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements an accountability measure (AM) for the recreational sector of greater amberjack in the South Atlantic exclusive economic zone (EEZ) through this temporary rule. NMFS estimates that recreational landings have reached the recreational annual catch limit (ACL) for greater amberjack in the South Atlantic. Details here.

Rule NMFS is proposing regulations under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to implement a March 2017 recommendation by the Pacific Fishery Management Council (Council) to amend the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species. Info here.

Rule NMFS’ Fisheries Finance Program (FFP) provides long-term financing to the commercial fishing and aquaculture industries for fishing vessels, fisheries facilities, aquaculture facilities, and certain designated individual fishing quota (IFQ). Details here.

Notice NMFS has issued an incidental harassment authorization (IHA) to the Federal Aviation Administration (FAA) to incidentally harass, by Level A and Level B harassment, marine mammals during construction activities associated with the Biorka dock replacement project in Symonds Bay, AK. Info here.