A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
ANNOUNCEMENT: Join us Wednesday, June 21, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Agritourism, Zoonotic Diseases and Legal Liability.” Details available here.
JUDICIAL: Includes food labeling, environmental law, Urb & Ag, CWA, and secured transactions issues.
In Lora Jean WILLIAMS; Gregory J. Smith; CVP Management, Inc. d/b/a or t/a City View Pizza; John’s Roast Pork, Inc. f/k/a John’s Roast Pork; Metro Beverage of Philadelphia, Inc. d/b/a or t/a Metro Beverage; Day’s Beverages, Inc. d/b/a or t/a Day’s Beverages; American Beverage Association; Pennsylvania Beverage Association; Philadelphia Beverage Association; and Pennsylvania Food Merchants Association, Appellants v. CITY OF PHILADELPHIA and Frank Breslin, in His Official Capacity as Commissioner of the Philadelphia Department of Revenue, No. 2077 C.D. 2016, No. 2078 C.D. 2016, 2017 WL 2562646 (Commw. Ct. Pa. June 14, 2017), plaintiffs appealed dismissal of their complaint questioning validity of the Philadelphia Beverage Tax (PBT) on “sugar-sweetened beverages.” Plaintiffs argued the City’s authority to enact the PBT is not permitted because the Sterling Act “precludes the imposition of a tax on the same subject of the state tax.” They further argued that the PBT is preempted because it conflicts with the Tax Code “precluding a tax on the resale of ‘soft drinks,’” and by “obstructing the Commonwealth’s collection of the tax and reducing the amount of tax collected.” Court affirmed lower court, noting that “the PBT and the Sales Tax do not tax the same subject, or the same person, and the field covered by the PBT has not been preempted by the Sales Tax.”
STANDING ROCK SIOUX TRIBE, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, No. 16–1534 (JEB), 2017 WL 2573994 (D.D.C. June 14, 2017) concerned the Dakota Access Pipeline (DAPL) that delivers oil from North Dakota to Southern Illinois. Plaintiffs sought summary judgment on defendants’ alleged failure to comply with the National Environmental Policy Act (NEPA). Plaintiff argued defendants “did not sufficiently consider the pipeline’s environmental effects before granting permits to Dakota Access to construct and operate DAPL under Lake Oahe, a federally regulated waterway.” Court found defendants “substantially complied” with NEPA, but concluded “it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.” Court ordered Corps “to reconsider those sections of its environmental analysis upon remand by the Court.”
AGCS MARINE INSURANCE COMPANY, a/k/a Allianz Global Corporate & Specialty, a/s/o Harris Teeter, et al. v. ARLINGTON COUNTY, No. 160221, 2017 WL 2591007 (Va. June 15, 2017) concerned two insurers that paid claims for property damage to a grocery store arising from a faulty county sewer line. Insurers filed an “inverse condemnation” suit against county claiming the sewer backup “constituted a taking and/or damaging of private property for a public use without just compensation.” Circuit court dismissed the suit for failure to state a claim. Appellate court reversed lower court ruling denying motion for leave to amend the complaint, concluding that, “The allegations in the proffered amended complaint, coupled with the reasonable inferences arising from these allegations, assert a legally viable claim for inverse condemnation.”
In UNITED STATES of America v. Andrew MANGANAS and Panthera Painting, Inc., No. 1:16-CR-0209, 2017 WL 2547310 (M.D. Pa. June 13, 2017), defendants were indicted on charges including embezzlement, submitting false payroll statements, fraud, and violations of the Clean Water Act related to a subcontract for the George Wade Bridge project. Defendants moved to dismiss the Clean Water Act counts in the indictment for violating the rule of duplicity. Court observed that, “The CWA does not require that each day of violation be charged as a separate offense.” Defendants’ motion denied.
In Alejandro ZENDEJAS, Plaintiff, v. Eugenie H. REDMAN, et al., Defendants, NO. 15-81229-CIV-MARRA, 2017 WL 2547202 (S.D. Fla. June 13, 2017), plaintiff hired an agent to help him find and purchase a competition horse, and later sued for misrepresentation and breach of contract, alleging the horse that was purchased had “dirty stopper” tendencies and these tendencies “were undisclosed prior to his sale.” Defendant moved for summary judgment arguing that since he was not a part of the original contract, the “economic loss rule” precludes tort claims against him and tort claims are barred “based on basic contract principals.” Court observed that, “Florida law recognizes that tort claims may exist independently from contractual claims,” and that, “To hold otherwise would leave a plaintiff without a means of seeking redress against torts perpetrated by a non-party to a contract.”
REGULATORY: Includes AMS, USDA, APHIS, DOC, EPA, FWS, FSIS, FS, NOAA, and RBCS rules and notices.
AGRICULTURAL MARKETING SERVICE:
Rule adjusts representation on the Cattlemen’s Beef Promotion and Research Board to reflect changes in domestic cattle inventories and changes in levels of imported cattle, beef, and beef products that have occurred since AMS last reapportioned the Board in July 2014. Info here.
AGRICULTURAL DEPARTMENT:
Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Event Appearance Request for the Secretary or Members of his Staff. Details here.
Notice USDA announces the solicitation for nominations to fill vacancies on the National Agricultural Research, Extension, Education, and Economics Advisory Board and its subcommittees. Info here.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE:
Notice APHIS will request a revision to and extension of approval of an information collection associated with accrediting nongovernment facilities to perform services related to the export of plants or plant products. Details here.
Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of cape gooseberry from Colombia into the United States. Info here.
Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of Hass avocados from Mexico. Details here.
DEPARTMENT OF COMMERCE: Notice Commerce will submit a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for clearance. Title: DOC National Environmental Questionnaire and Checklist (EQC). Info here.
ENVIRONMENTAL PROTECTION AGENCY:
Rule EPA is taking final action to approve revisions to the Clark County Department of Air Quality and Washoe County Health District portions of the Nevada State Implementation Plan. Details here.
Rule EPA is proposing to stay for three months certain requirements that are contained within the Final Rule titled “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources,” published in the Federal Register on June 3, 2016. Info here.
FISH AND WILDLIFE SERVICE: Notice FWS issued permits to conduct certain activities with endangered species, marine mammals, or both. Details here.
FOOD SAFETY AND INSPECTION SERVICE:
Rule FSIS is proposing to amend the poultry products inspection regulations to list the PRC as eligible to export to the United States poultry products from birds slaughtered in the PRC. Info here.
Notice FSIS is extending until July 17, 2017, the comment period for its plan to adjust inspection coverage at official establishments that slaughter fish of the order Siluriformes, which include catfish, from all hours of operation to once per production shift. Details here.
Notice FSIS is announcing the availability of and requesting comments on two updated compliance guidelines for small and very small businesses. Details here.
FOREST SERVICE: Notice the National Urban and Community Forestry Advisory Council will meet in Flushing, New York. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Reporting Requirements for the Ocean Salmon Fishery off the Coasts of Washington, Oregon, and California. Info here.
Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Vessel Monitoring System Requirements in Western Pacific Fisheries. Info here.
Notice requesting revision and extension of a current information collection. Title: Atlantic Highly Migratory Species Vessel Logbooks and Cost-Earnings Data Reports. Details here.
Notice requesting revision and extension of a current information collection. Title: Coral Reef Conservation Program. Info here.
RURAL BUSINESS-COOPERATIVE SERVICE: Notice identifies the examination procedures that the Rural Business-Cooperative Service will use for non-leveraged Rural Business Investment Companies within the Rural Business Investment Program. Details here.