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

JUDICIAL: Includes CERCLA, Urb & Ag, food labeling, pesticides, water law, and forestry issues.

In Dorothy ARNOLD, et al., Plaintiffs, v. UNITED STATES PIPE & FOUNDRY COMPANY, LLC, et al., Defendants, 2:15-cv-02049-KOB, 2017 WL 1196883 (N.D. Ala. March 31, 2017), defendants operated a pipe-making facility that released harmful chemicals into areas occupied by plaintiffs. Issue was tolling of statute of limitations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Plaintiff argued CERCLA preempts Alabama law “to start the clock on the statute of limitations.” Court found plaintiff failed to “create a triable issue of fact as to whether CERCLA’s discovery rule applies to this matter,” and applied two-year Alabama statute of limitations. Motion for summary judgment for defendants granted.

SHRINE OF OUR LADY OF LA SALETTE INC. v. BOARD OF ASSESSORS OF ATTLEBORO, SJC-12021, 476 Mass. 690 (Mass. March 22, 2017) involved a wildlife sanctuary and conservation easement. Tax board ruled that a safe house and the adjacent wildlife sanctuary were subject to taxation and plaintiff appealed. Court found that under the terms of the easement at issue, plaintiff had transferred to a wildlife socciety the “exclusive right and responsibility to manage the [wildlife sanctuary].” Court reasoned that, “This grant of access to a nonprofit organization, coupled with unrestricted public access rights, represents a ‘permanent and exclusive’ appropriation of this portion of [plaintiff’s] property for a dominant charitable purpose.” Court found that the wildlife sanctuary was fully taxable.

In Cedric WILLIAMS, Plaintiff, v. COCA COLA CO., Defendant, 8:15-CV-1534 (LEK/CFH), 2017 WL 1214503 (N.D.N.Y. March 31, 2017), plaintiff alleged injuries sustained after drinking Diet Coke. Plaintiff sought court order demanding defendant “identify and label all decomposition products of [aspartame], along with amounts, on all of its diet Coca-Cola soft drink labels.” Coke argued that relief plaintiff seeks concerning labeling “is preempted by the Nutrition Labeling and Education Act (NLEA), which amended the FDCA and expressly preempted certain state law requirements in the field of food labeling.” Court noted labeling change plaintiff desires “is a form of injunctive relief; it is not a separate cause of action.” Court declined plaintiff’s injunctive relief “until it determines whether his underlying causes of action have merit.”

In LIBERTY SURPLUS INSURANCE CORPORATION, Plaintiff–Appellant, v. NORFOLK SOUTHERN RAILWAY CO., Defendant–Appellee, No. 16-14767, 2017 WL 1228550 (11^th Cir. April 4, 2017), a motorist was injured at train crossing and added NatureChem as a defendant as they were tasked with maintaining the vegetation near the crossing. NatureChem sought coverage from its insurance company (plaintiff), but insurance company argued the policy was no longer in effect once NatreChem had sprayed pesticides. Trial court ruled against plaintiff and issue on appeal was the definition of the term “work” when determining whether policy remained in effect. Court found that, “By its plain language, the Crossing Contract describes—as the District Court found—an ongoing and continuous maintenance and monitoring obligation, rather than a contract for a series of limited and discrete tasks, such as defoliation of vegetation.” Trial court affirmed.

Casey VOIGT, Appellant v. NORTH DAKOTA PUBLIC SERVICE COMMISSION and Coyote Creek Mining Company, L.L.C ., Appellees, No. 20160046, 2017 WL 1196673(N.D. March 30, 2017) involved a coal mining project that threatened farming activities. Plaintiff appealed a judgment affirming the Public Service Commission’s order approving a surface coal mining permit. Appellate court concluded the order complied with applicable law requiring “identification and protection of ‘alluvial valley floors’ and sufficiently addressed plaintiff’s evidence.” Court also found the Commission’s conclusion regarding the lack of “alluvial valley floors” within or adjacent to the permit area was supported by the record. Affirmed for defendants.

CONSERVATION CONGRESS, a nonprofit organization, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE, Defendant-Appellee, No. 15-15737, 2017 WL 1192213  (9^th Cir. March 31, 2017) involved a forest treatment project wherein plaintiff sued alleging US Forest Service (USFS) failed to comply with the National Forest Management Act’s snag requirements, did not take a “hard look” at environmental consequences, and should have prepared an Environmental Impact Statement (EIS) for the project. Court observed, “USFS has explained, logging in designated critical habitat will be limited to areas that support lower-quality owl habitat—and no forest treatment will occur in nesting and roosting habitat.” Court determined USFS was not required to prepare an EIS.

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

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA proposes approving a revision to Montana’s State Implementation Plan. Info here.

Rule EPA is amending the electronic reporting requirements for the National Emission Standards for Hazardous Air Pollutants. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS received an application for an incidental take permit from New Beginnings of Central Florida, Inc. under the Endangered Species Act. Info here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is publishing three waivers from the requirements of the Sanitary Transportation of Human and Animal Food. Info here.

FOREST SERVICE: Notice FS is revising the Tonto National Forest’s Land and Resource Management Plan. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS is opening directed fishing for pollock in Statistical Area 610 of the Gulf of Alaska. Info here.

PROCUREMENT AND PROPERTY MANAGEMENT OFFICE: Notice USDA will request an extension and a revision to a currently approved information collection, Voluntary Labeling Program for Biobased Products for Federal Biobased Products Preferred Procurement Program. Info here.