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


ANNOUNCEMENT:  Join us Wednesday, September 20, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Tackling the Challenge of Invasive Species to Reduce Impacts to Agriculture.” Details available here.


JUDICIAL: Includes urb & ag, labor, food labeling, and secured transactions issues.

In SALEM GRAIN COMPANY, INC., appellant, v. CONSOLIDATED GRAIN AND BARGE CO. et al., appellees, No. S-16-995, 297 Neb. 682 (Neb. September 8, 2017, plaintiff, a grain warehouse company, claimed its business was injured by defendant’s entry into its market because defendant “received special economic privileges” consisting of “knowledge of the economic development activities” of City. Plaintiff sued under the Nebraska Consumer Protection Act (NCPA). Court’s analysis considered the Noerr-Pennington doctrine which provides that “federal antitrust laws do not regulate the conduct of private individuals in seeking anticompetitive action from the government.” Court found that “claims of civil conspiracy and aiding and abetting require an underlying tort, not merely an underlying statutory violation, to be actionable.” Court concluded that plaintiff failed to state a claim and dismissed complaint.

In AVILES-CERVANTES, et al., Plaintiffs v. OUTSIDE UNLIMITED, INC., Defendant, No. RDB-16-1214, 2017 WL 3916985 (D. Md. September 7, 2017), plaintiffs sued a landscaping company on behalf all temporary guestworkers hired by defendant as landscape laborers pursuant to the H-2B visa program. Plaintiffs alleged violations of the Fair Labor Standards Act (FLSA) and the Maryland Wage and Hour Law (MWHL). At issue was whether plaintiffs’ “commuting” work time was “indispensable and integral” to their “principal activity.” Court found that plaintiffs plausibly stated their daily travel time “to and from ‘the yard’ was ‘integral and indispensable’ to their ‘primary work’ and, therefore, not categorically exempt from coverage under the Fair Labor Standards Act.” Defendant’s motion to dismiss denied.

In KATELYN KINN AND MATTHEW PRICE, on behalf of themselves and all others similarly situated, Plaintiffs, v. THE QUAKER OATS COMPANY, Defendant, No. 16-cv-10833, 2017 WL 3922068 (N.D. Ill. September 6, 2017), plaintiffs alleged defendant’s “Old Fashioned Quaker Oats and Quick 1-Minute Quaker Oats” products containing the term “natural” on their labels deceived consumers because testing revealed the products contain glyphosate. Plaintiffs’ complaint alleged “unjust enrichment, breach of warranty, negligent misrepresentation, and violation of state consumer protection laws.” Court determined that any state consumer protection law claims “are precluded by federal law” and that plaintiffs’ state consumer protection law allegations “fail to state a claim because those state laws expressly incorporate federal standards.” Case dismissed.

Steven F. SCHROEDER, a married man dealing with his sole and separate property, Appellant, v. Phillip J. HABERTHUR, as trustee of a deed of trust, Excelsior Management Group, LLC, an Oregon limited liability company, Excelsior Mortgage Equity Fund II, LLC, an Oregon limited liability company, James Haney, and CLS Mortgage, Inc., a Washington corporation, Respondents, No. 33336-l-III, 2017 WL 3483668 (Wash. Ct. App. AUGUST 15, 2017) concerned a  trustor suing a trustee seeking damages and “to enjoin nonjudicial foreclosure of agricultural land.” Issue was whether timber was a “crop” and protected from nonjudicial foreclosure under the Deeed of Trust Act (DTA). Court noted that “over 90 percent of the land was granted a tax break due to its characterization as forest land rather than as agricultural land,” and that trustor used the the land for his scrap business. Appellate court ruled the timber was not a crop, and therefore “not agricultural property protected from nonjudicial foreclosure under DTA.”


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

AGRICULTURE DEPARTMENT: Notice USDA is soliciting public comment on the proposed reorganization announced by Secretary Perdue on September 7, 2017. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Rule amending the regulations governing the importation of certain animals, meat, and other animal products by allowing, under certain conditions, the importation of bone-in ovine meat from Uruguay. Info here.

Rule amending the regulations concerning the importation of fruits and vegetables to allow the importation of fresh persimmon with calyxes from Japan into the United States. Details here.

Notice APHIS announces the Animal and Plant Health Inspection Service’s intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of bees and related articles into the United States. Info here.

Notice APHIS has prepared a supplement to an environmental assessment and finding of no significant impact relative to an oral rabies vaccination field trial in New Hampshire, New York, Ohio, Vermont, and West Virginia. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve the State Implementation Plan (SIP) submission submitted by the Commonwealth of Kentucky, through the Kentucky Division for Air Quality. Details here.

Rule EPA is finalizing revisions pursuant to section 110 of the Clean Air Act (CAA) to the Federal Implementation Plan (FIP) addressing regional haze in the State of Montana. Info here.

Rule EPA is proposing to approve revisions to the Placer County Air Pollution Control District (PCAPCD) and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan. Info here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the State of Delaware. This revision pertains to reasonably available control technology (RACT) requirements under the 2008 8-hour ozone national ambient air quality standard. Details here.

Rule EPA is proposing to find that the Idaho State Implementation Plan (SIP) meets the infrastructure requirements of the Clean Air Act (CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for the annual particulate matter (PM2.5) standard on December 14, 2012. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA preliminarily determines that the application of facts available is warranted for mandatory respondent GODACO Seafood Joint Stock Company. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice sets forth the schedule and proposed agenda of a forthcoming meeting of the NSGAB. Info here.

Notice of public meetings of the North Pacific Fishery Management Council and its advisory committees. Details here.

Notice the Groundfish Subcommittee of the Pacific Fishery Management Council’s Scientific and Statistical Committee (SSC) will hold a meeting via webinar to review analyses informing 2019 and 2020 groundfish harvest specifications and other matters that will be considered at the November 14-20, 2017 Pacific Council meetings in Costa Mesa, California. Details here.

Notice NMFS announces a meeting of the Permanent Advisory Committee (PAC) to advise the U.S. Commissioners to the Western and Central Pacific Fisheries Commission (WCPFC) on October 24-October 25, 2017. Info here.

Notice the South Atlantic Fishery Management Council (Council) will hold meetings of the: Advisory Panel Selection Committee (Closed); Habitat Protection and Ecosystem-Based Management Committee; Southeast Data, Assessment and Review (SEDAR) Committee; Snapper Grouper Committee; Personnel Committee (Closed); Mackerel Cobia Committee; and Executive Finance Committee. Info here.

RURAL HOUSING SERVICE: Notice announcing Rural Development’s intention to request a revision for a currently approved information collection in support of loan programs administered by the Rural Housing Service, Business-Cooperative Service, and Rural Utilities Service. Details here.

RURAL UTILITIES SERVICE: Notice announcing Rural Development’s intention to request a revision for a currently approved information collection in support of loan programs administered by the Rural Housing Service, Business-Cooperative Service, and Rural Utilities Service. Details here.