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

JUDICIAL: Includes environmental, international trade, pesticides, commodity programs, biotechnology, conservation programs, leases, and nutrition program issues.

In AES PUERTO RICO, L.P., Plaintiff, Appellant, v. MARCELO TRUJILLO-PANISSE, in his Official Capacity as Mayor of the Municipality of Humacao; MUNICIPALITY OF HUMACAO; WALTER TORRES-MALDONADO, in his Official Capacity as Mayor of the Municipality of Peñuelas; MUNICIPALITY OF PEÑUELAS, Defendants, Appellees, No. 16-2052, 2017 WL 2115417 (1^st Cir. May 16, 2017), plaintiff, a coal-fired power plant owner, argued that two municipal ordinances banning the approved handling of “coal combustion residuals” (CCRs) are preempted by federal and Commonwealth law and violate the United States and Puerto Rico constitutions. Issue was whether two Puerto Rico municipalities can prevent disposal of coal ash at landfills within their borders “even though a state agency has authorized the activity at those particular landfills.” Appellate court found that the local ordinances “may not be enforced to the extent they directly conflict with Commonwealth law as promulgated by the Puerto Rico Environmental Quality Board (EQB).” Summary judgment for defendants was reversed and lower court ordered to enter judgment for plaintiff based on its claim of Commonwealth law preemption.

In UNITED STATES, Plaintiff, v. INTERNATIONAL TRADING SERVICES, LLC and Julio Lorza, Defendants, No. 12–00135, Slip Op. 17–55, 2017 WL 1957548 (Ct. Intl. Trade May 5, 2017), plaintiff moved for summary judgment under the Tariff Act regarding eight misclassified shipments of sugar. Plaintiff argued defendants negligently misclassified “eight entries of sugar under an improper subheading of the Harmonized Tariff Schedule of the United States.” Defendants did not respond to plaintiff’s motion and “proffered no evidence of reasonable care.” Court granted plaintiff’s motion for partial summary judgment.

In Michael ADKINS, et al., Plaintiffs, v. Thomas James VILSACK, Secretary, The United States Department of Agriculture, et al., Defendants, No. 1:15–CV–169–C, 2017 WL 2061390 (N.D. Tex. May 12, 2017), plaintiffs, a group of wheat farmers, sought review of an adverse decision of the Risk Management Agency (RMA) and affirmed by USDA National Appeals Division (NAD). At issue was whether RMA properly applied the Actual Production History (APH) Yield Exclusion as interpreted under the Federal Crop Insurance Act (FCIA). NAD ruled the APH Yield Exclusion was not immediately available to Plaintiffs upon the passage of the Farm Bill on February 7, 2014, but was subject to RMA’s discretion. Court concluded that “the fact that Congress chose to include specific application/implementation language for other crops and yet stay silent as to winter wheat indicates a direct intention to allow the governing and existing statutory law to be applicable as to the implementation of the APH Yield Exclusion for the 2015 winter wheat crop.” Case reversed and remanded.

Marilyn KEEPSEAGLE, et al., Appellees v. Sonny PERDUE, Appellee, Donivon Craig Tingle, Silent Class Member, Appellant, No. 16-5189, Consolidated with 16-5190, 2017 WL 2111020 (D.D.C. May 16, 2017) involved a dispute concerning a 2011 $680M settlement agreement between Native American farmers and the USDA. Two class members sued regarding the agreement’s modification clause, claiming it was approved without their consent and that the addendum was not “fair, reasonable, and adequate.” Appellate court ruled the modification clause did not require appellant consent before the agreement could be amended and that the district court did not abuse its discretion. Affirmed.

IN RE: SYNGENTA AG MIR 162 CORN LITIGATION — This Document Relates to: Funk, et al. v. Syngenta Seeds, Inc., et al., No. 16-2280-JWL, MDL No. 2591, No. 14-md-2591-JWL, 2017 WL 2080601 (D. Kan. May 15, 2017) concerned the mass tort action against Syngenta regarding the company’s Viptera brand corn seed containing genetically modified traits. Here, one of the plaintiffs asserted a claim for negligence by Syngenta under Indiana law “based on the manner and timing of Syngenta’s commercialization of its Viptera and Duracade products.” Syngenta argued plaintiff’s claim was barred by the “contractual economic loss doctrine (ELD).” Court observed that “under the ELD applied in Indiana cases, ‘the defendant is not liable under a tort theory for purely economic loss caused by its negligence.’” Court dismissed plaintiff’s negligence claims.

In In the MATTER OF the SADC RESOLUTION FY2015R12(2), A-4379-14T1, 2017 WL 2118771 (N.J. Super. Ct. App. Div May 16, 2017), plaintiffs sought to relocate a right-of-way in which they have an easement deed. State Agriculture Development Committee (SADC) denied them permission to reconfigure and move the right-of-way and they appealed, arguing the decision was based on “SADC staff net opinions that resulted in arbitrary, unreasonable, and capricious action by the agency.” SADC claimed its decision was based on “a proper assessment of facts and law.” Court examined transcripts and the easement deeds and concluded the record “does not allow for meaningful review.” Remanded allow parties “the opportunity to fully explore the legal and factual issues.”

In PEDROLI RANCHES PARTNERSHIP, a Nevada Partnership; and Barbara Paganini, Individually and as Sole Surviving Partner of the Pedroli Ranches Partnership, Appellants/Cross-Respondents, v. Honorine L. PEDROLI, an Individual; Jack Warn, an Individual; and Honorine Pedroli, as Executrix of the Estate of Thomas C. Pedroli, Respondents/Cross-Appellants, No. 67469, 2017 WL 2119474 (D. Nev. May 09, 2017), plaintiff, a member of a ranch partnership, sued another partner and the partnership’s ranch hand alleging they conspired to steal partnership cattle. Plaintiff appealed lower court finding of no conspiracy. Court observed that, “To prevail on her civil conspiracy claim, [plaintiff] must show the respondents had an agreement ‘to accomplish an unlawful objective[.]’” Court sided with lower court’s finding of no conspiracy, noting that “as the jury found that [defendant] did not convert the cattle, the jury implicitly rejected the objective of the civil conspiracy [plaintiff] alleged.

In DEBRA HATTEN-GONZALES, individually and on behalf of all others similarly situated, Plaintiff – Appellee, v. BRENT EARNEST, Secretary of the New Mexico Human Services Department, Defendant – Appellant, No. 16-2064, 2017 WL 2130091 (10^th Cir. May 16, 2017), New Mexico appealed a district court’s grant of a preliminary injunction preventing the New Mexico Human Services Department from implementing federal restrictions on food stamp benefits, until December 31, 2016. Plaintiff filed the motion pursuant to a consent decree and the parties agreed “New Mexico’s appeal from the grant of the preliminary injunction is now moot, because the injunction has expired by its own terms.” Defendant’s appeal dismissed.

REGULATORY: Includes USDA, APHIS, FWS, FDA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA seeks comment on the proposed reorganization announced by Secretary Perdue on May 11, 2017. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS is hosting a series of public meetings to provide the public with an opportunity to offer comments on proposed revisions to its regulations regarding the importation, interstate movement, and environmental release of genetically engineered organisms. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS are revising a previously published notice of intent to prepare a draft Comprehensive Conservation Plan (CCP) for the National Bison Range. Info here.

Notice FWS will prepare a draft Comprehensive Conservation Plan (CCP) and associated Environmental Assessment for Pablo, Lost Trail, and Ninepipe National Wildlife Refuges, and the Northwest Montana Wetland Management Districts. Details here.

FOOD AND DRUG ADMINISTRATION: Rule that FDA issued a final rule entitled “Clarification of When Products Made or Derived From Tobacco Are Regulated as Drugs, Devices, or Combination Products; Amendments to Regulations Regarding `Intended Uses’.” Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule that the State of North Carolina is transferring a portion of its 2017 commercial summer flounder quota to the Commonwealth of Virginia. Details here.

Rule summarizing the annual fur seal subsistence harvests on St. George and St. Paul Islands in Alaska for 2014-2016 and proposes annual estimates of northern fur seal subsistence harvest on the Pribilof Islands for 2017-2019. Info here.

Notice the Deepwater Horizon Federal and State natural resource trustee agencies for the Texas Trustee Implementation Group have prepared a Draft 2017 Restoration Plan and Environmental Assessment: Restoration of Wetlands, Coastal, and Nearshore Habitats; and Oysters. Details here.