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


ANNOUNCEMENT: Join us TODAY at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Water Law Update.” Details available here.


JUDICIAL: Includes landowner liability, urb & ag, agritourism, CAA, finance and credit, and bankruptcy issues.

In JUANITA BROWN, ET AL., Plaintiffs, v. PANHANDLE EASTERN PIPLELINE COMPANY L.P., Defendant, No. 16-2428-JAR-TJJ, 2017 WL 3821743 (D. Kan. September 1, 2017), a pipeline owned and operated by defendant released natural gas condensate causing property and personal damage to people, livestock, and land, crops in the nearby community. The release created a black, oily, smoke cloud and residents near the plume path “physically felt the chemicals and compounds.” Plaintiff alleged defendant should be strictly liable for engaging in an abnormally dangerous activity. Defendant argued Plaintiffs did not sufficiently allege defendant “was engaged in abnormally dangerous activity because the operation of a natural gas pipeline is not an abnormally dangerous activity.” Court declined to consider the issue because it was not “fully argued by the parties,” and because strict liability “is a fact intensive inquiry.” Court denied defendant’s motion to dismiss in part.

Dale KREIN, and Debra Krein, Plaintiffs-Respondents, v. Karen M. SZEWC, and Jon Updegraff, Defendants-Appellants, A159610, 287 Or.App. 481 (Or. Ct. App. August 30, 2017) involved a nuisance action with barking dogs, wherein defendants appealed an injunction requiring them to have their dogs “devocalized.” Defendants asserted a “farm use immunity” defense claiming that the use of guard dogs “is an acceptable method to protect livestock from predators and that the use constitutes a ‘farming practice.’” On appeal, defendants argued the court “should not have given preclusive effect” to the county’s administrative ruling rejecting defendant’s farm use defense. Appellate court found injunction was proper remedy and affirmed for plaintiffs.

Lisa PENUNURI, and Barry Siegwart, Petitioners, v. SUNDANCE PARTNERS, LTD., Sundance Holdings, LLC, Robert Redford, Robert Redford 1970 Trust, and Rocky Mountain Outfitters, L.C., Respondents. No. 20160683, 2017 WL 3697701 (Utah August 25, 2017) involved a rider who fell off her horse during a guided trail ride at a resort and sued for gross negligence. Circuit court granted summary judgment for resort. Appellate court held that “summary judgment may be appropriate on gross negligence claim even if standard of care is not fixed by law.” Affirming for defendant, the court reasoned that, “The question for the district court is whether reasonable minds could not differ as to whether the defendant was grossly negligent under the circumstances.”

In WILD EQUITY INSTITUTE; Sierra Club, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Scott Pruitt, Administrator, United States Environmental Protection Agency, Respondents, No. 15-70199, 2017 WL 3700996 (9th Cir. August 28, 2017), an air quality management district proposed to issue a Title V operating permit to an electric company for a generating station and plaintiff petitioned Environmental Protection Agency (EPA) Administrator to review the decision. Administrator approved issuance of the permit and on appeal, court considered “whether EPA Administrator erred in determining that … [plaintiff] failed to demonstrate . . . that the final Title V permit . . . did not comply with the CAA.” Court denied plaintiffs’ petition after concluding that, “The Administrator did not abuse her discretion in concluding that there are no applicable PSD permit requirements that apply to the proposed Title V permit challenged in this suit.”

In Eddie SLAUGHTER, Plaintiff, v. UNITED STATES of America, Defendant, No. 15–403 C, 2017 WL 3821912 (Fed. Cl. September 1, 2017), plaintiff, a member of a class of  African-American farmers, sued USDA for breach of contract claiming the agency “did not provide debt relief promised him pursuant to a consent decree that resolved a class action of which he had been a part.” Plaintiff received IRS tax form 1099-C “Cancellation of Debt” indicating his government loans were excused. Defendant argued the forms were sent by mistake and did not “establish plaintiff’s right to debt relief.” Court determined that plaintiff “has not shown a legal basis for finding that defendant’s mistaken delivery of tax forms created a bilateral contract between himself and the Government.” Cased dismissed.

IN RE GERALD L. PENICK, II LINDA S. PENICK DEBTORS, NO. 17-20178, 2017 WL 3772620 (Bankr. E.D. Ken. August 28, 2017) concerned a Chapter 12 bankruptcy wherein Bank argued debtors were ineligible to be in a chapter 12 proceeding and “cannot effectively reorganize.” Bank moved for automatic stay and debtors argued “they are eligible for chapter 12 and that their proposed plan with its clarifications and amendments is confirmable.” Debtors claimed to operate a calf farm and a timber operation and issue was whether the timber operations constituted a “farming operation.” Court noted that, “The definition of a ‘farming operation’ is not exclusive . . . and is to be liberally construed. Nontraditional enterprises may be considered farming operations.” Court found debtors eligible under chapter 12, but concluded their plan was “not feasible” and granted Bank “relief from the automatic stay.”


REGULATORY: Includes EPA, FWS, FDA, FSIS, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY: Rule is approving State Implementation Plan (SIP) revisions submitted by the State of New Hampshire on August 9, 2011, and July 23, 2013. Details here.

FISH AND WILDLIFE SERVICE: Rule FWS is making a technical correction to remove the endangered Tonkin snub-nosed monkey from certain regulations that apply to certain threatened primates. Info here.

FOOD AND DRUG ADMINISTRATION: Rule announcing the availability of a guidance for industry entitled “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption: What You Need to Know About the FDA Regulation: Small Entity Compliance Guide.” Info here.

FOOD SAFETY AND INSPECTION SERVICE:

Notice announcing the availability of and requesting comments on the updated compliance guideline for small and very small businesses on reducing STEC and Salmonella in beef and veal operations. Info here.

Notice announcing the sanitary and phytosanitary standard-setting activities of the Codex Alimentarius Commission (Codex), and the Uruguay Round Agreements Act. Info here.

Notice announcing a plan to implement the Public Health Information System (PHIS) Export Component. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule the Regional Administrator, Southeast Region, NMFS (RA) has determined that Hurricane Harvey has caused catastrophic conditions in coastal and adjacent counties in the state of Texas, and Cameron and Vermilion parishes in Louisiana. Details here.

Rule NMFS is prohibiting directed fishing for Atka mackerel in the Central Aleutian district (CAI) of the Bering Sea and Aleutian Islands management area (BSAI) by vessels participating in the BSAI trawl limited access fishery. Details here.

Rule NMFS is opening directed fishing for Pacific cod by catcher/processors using trawl gear in the Central Regulatory Area of the Gulf of Alaska. Details here.

Rule NMFS is opening directed fishing for Pacific cod by catcher vessels less than 6feet (18.3 meters) length overall (LOA) using hook-and-line or pot gear in the Bering Sea and Aleutian Islands Management Area. Info here.

Notice the Mid-Atlantic Fishery Management Council’s Spiny Dogfish Monitoring Committee will hold a public meeting to review 2018 specifications and management measures and make any appropriate recommendations. Details here.

Notice the Western Pacific Fishery Management Council (Council) will hold a meeting of its Mariana Archipelago, American Samoa Archipelago, and Hawaii Archipelago Fishery Ecosystem Plan (FEP) Advisory Panels (AP) to discuss and make recommendations on fishery management issues in the Western Pacific Region. Info here.