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


ANNOUNCEMENT: Join us for the next Agricultural & Food Law Consortium webinar, Wednesday, September 19th, at 12 noon (ET): Understanding USDA’s New Dairy Revenue Insurance Program. Details here.


JUDICIAL: includes landowner liability, agritourism, land use and climate change issues. 

Raul Amparo Zuniga RODRIGUEZ and Ana Maria Ortiz Martinez, Individually and as Personal Representatives, and Heirs of the Estate of Raul Amparo Zuniga Ortiz Jr., and Juana Guadalupe Martinez, as Next Friend of Sebastian Zuniga and Wendy Zuniga, Heirs of the Estate of Raul Amparo Zuniga Ortiz Jr., Appellants v. Conway WAAK Jr. and Marlene Waak, d/b/a Carmine Charolais Ranch, and Carmine Charolais Ranch, Appellees, NO. 01-17-00755-CV, 2018 WL 3977868 (Tex. Ct. App. August 21, 2018) concerned the Farm Animals Activities Act (FAAA) after plaintiff was killed working on defendant’s farm. Parties disputed whether plaintiff was a “participant” in a “farm animal activity” and lower court ruled the Act waived defendant’s liability. Plaintiff appealed. Appellate court observed that a “participant” is defined as “a person who engages in the activity as ‘an amateur or professional,’ a person who pays for the activity, or a person who participates in a ‘farm animal activity’ for free.” Court eventually concluded that plaintiff “was not a participant in a farm animal activity at the time of his death,” and the FAAA does not bar his claims. Reversed.

In COUNTY OF SAN BERNARDINO, SAN BERNARDINO FLOOD CONTROL DISTRICT, Petitioners, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; CYNTHIA GAMACHE, Real Party in Interest, E070524, 2018 WL 4233544 (Cal. Ct. App. September 6, 2018), plaintiff was injured riding her bike over cracked pavement “situated along a public easement granted by the Flood Control District to the County.” Plaintiff sued for negligence and “dangerous condition on public property.” Defendant maintained the relevant statute provides “absolute immunity against liability for injury occurring on a trail used for recreational purposes.” Plaintiff countered that the statute in question, however, “when read as a whole, creates a duty to warn . . . where the trail is located on an easement.” The court disagreed with plaintiff’s interpretation and found the argument “inconsistent with purpose behind the grant of immunity for recreational activities on public land.” Defendant’s motion for summary judgment granted.

In COLORADO HEALTH CONSULTANTS, d/b/a Starbuds, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, THROUGH its DEPARTMENT OF EXCISE AND LICENSES; and Ashley Kilroy, in her official capacity as Director of Denver Department of Excise and Licenses, Defendants-Appellees, No. 17CA1644, 2018 WL 4225006 (Col. Ct. App. September 6, 2018), Department of Excise and Licenses denied plaintiff a retail marijuana cultivation (RMC) license and district court affirmed Department’s decision. Plaintiff had argued marijuana cultivation is a permitted use “based on the Zoning Administrator’s issuance of its retail sales permit.” Department maintained the retail sales permit “made no mention of plant husbandry and listed only ‘retail sales’ as the proposed use.” Appellate court observed that a RMC license “requires that the retail marijuana establishment be located in a zone ‘where, at the time of application for the license, plant husbandry is authorized as a permitted use under the zoning code.’” Court also observed that plant husbandry “is not permitted in the . . . zone district” at issue, and affirmed for defendant.

NEW ENGLAND POWER GENERATORS ASSOCIATION, INC., & others1 v. DEPARTMENT OF ENVIRONMENTAL PROTECTION & another, SJC-12477, 2018 WL 4224463 (Mass. September 4, 2018) concerned a challenge by Massachusetts’ electric sector to a Cap Regulation establishing “declining annual aggregate emission limits for sources that emit greenhouse gas emissions.” Specifically, the Regulation at issue “impose[d] declining greenhouse gas emissions limits on the in-State electric sector through 2050.” Plaintiffs maintained they should be regulated by an entirely different provision and alleged defendant “exceeded their authority.” Court observed the Cap Regulation “seeks to reduce emissions generated within the Commonwealth,” and that the “Regulation’s impact cannot be analyzed in a vacuum.” Cap Regulation upheld.


REGULATORY: Includes EPA, FCIC, FWS, and NOAA rules and notices. 

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is proposing to approve the State plan submitted by New York State to implement and enforce Emission Guidelines (EG) for existing large municipal waste combustor (MWC) units. The State plan is consistent with the amended EG promulgated by EPA on May 10, 2006. Info here.

FEDERAL CROP INSURANCE CORPORATION:

Rule FCIC amends the Common Crop Insurance Regulations, Sugar Beet Crop Insurance Provisions. The intended effect of this action is to update existing policy provisions and definitions to better reflect current agricultural practices. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS will open 3 National Wildlife Refuges (NWRs, or refuges) to hunting, open 1 NWR to sport fishing, increase the hunting activities available at 26 NWRs, increase sport fishing activities at 4 NWRs, and add pertinent refuge-specific regulations for other NWRs that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2018- 2019 season. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice sets forth the schedule and proposed agenda of a forthcoming meeting of the Ocean Exploration Advisory Board (OEAB). Details here.

Notice the Pacific Fishery Management Council’s Coastal Pelagic Species Management Team will hold a meeting that is open to the public. Details here.

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