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

JUDICIAL: Includes secured transactions, environmental law, labor, urb & ag, and ESA issues.

In Milo BURROUGHS, Appellant, v. WESTERN AIRPARK ASSOCIATION, Respondent, No. 48078–6–II, 2017 WL 2560144 (Wash. Ct. App. June 13, 2017), plaintiff appealed judgment for defendant, a homeowners’ association, granting defendant authority to “restrict his use of its aircraft runway and to penalize him for future violations.” Plaintiff argued defendant did not have “standing” to defend an appeal, and that the the trial court judge, Western Airpark’s trial attorney, and the custodian of records for Thurston County Superior Court forged documents related to this appeal.” Defendant countered it was entitled to costs with the appeal under an attorney fee provision in its covenants. Court ruled plaintiff’s arguments are “untimely” and that defendant is entitled to reasonable attorney fees on appeal.

In In re MIDLAND INSURANCE COMPANY. Asarco LLC, Claimant–Appellant, v. The Superintendent of Financial Services of the State of New York, in her capacity as Liquidator of Midland Insurance Company, Respondent–Respondent, 2017 WL 2674838 (N.Y. App. Div. June 22, 2017), plaintiff, a mining and refining company, sought indemnification under insurance policies issued by defendant (insurance company) payments made under a settlement with the Environmental Protection Agency (EPA) in connection with the EPA’s clean-up of a residential area. Plaintiff argued it was entitled to indemnification of “the clean-up costs directly related to the contamination caused by the chipping and flaking of lead-based paint on … houses in the [subject area].” Court observed that, “The fact that some of the damage was caused by someone other than the insured does not, in itself, affect the applicability of a coverage exclusion.” Court concluded that “claimant would not have had to pay for any damage. . . if not for the accompanying pollution,” and ruled that “the entire claim is barred by the pollution exclusions.”

CARLOS PEDRO, et al., Plaintiffs, v. GABRIEL GALLARDO, SR., et al., Defendants, No.: 1:16-cv-0283 – DAD-JLT, 2017 WL 2694170 (E.D. Cal. June 22, 2017) involved a suit by farmworkers who allegedly performed vineyard work for the defendants. They claimed defendants violated federal and state law through “failure to pay wages due and failure to provide required meal and rest breaks.” Plaintiffs sought to compel defendant to produce further discovery, responsive to plaintiffs’ Requests for Production of Documents. Defendant failed to participate in preparing a Joint Statement and did not oppose motion to compel discovery. Plaintiffs’ motion to compel granted.

FOX v. NORFOLK SOUTHERN CORPORATION et al, A17A0319, 2017 WL 2705660 (Ga. Ct. App. June 23, 2017) concerned an appeal arising from a right-of-way owned by defendant (railroad) and bisecting plaintiff’s land. After the railroad constructed a “passing side track running parallel to the existing track situated in the right-of-way,” plaintiff sued for inverse condemnation and trespass. Plaintiff argued trial court erred in finding that the railroad constructed the passing track “within its right-of-way,” and that plaintiff did not acquire part of that right-of-way by adverse possession. Appellate court affirmed grant of summary judgment to defendant on plaintiff’s inverse condemnation and trespass claims relating to the railroad’s right-of-way.

In Edwin R. PETROWSKY, and Lisa L. Petrowsky, Plaintiffs, v. NEXTERA ENERGY RESOURCES, LLC, et al., Defendant, No. 17-1043-EFM-KGG, 2017 WL 2666361 (D. Kan. June 21, 2017), plaintiff opposed the erection of defendant’s wind towers in a migratory population flyway used by whooping cranes and brought a citizen suit under the Endangered Species Act (ESA) seeking an injunction. Defendant filed motion to dismiss arguing the court lacks subject matter jurisdiction because plaintiff “failed to comply with the ESA’s requirement that he notify each of its subsidiaries prior to bringing suit.” Defendant also claimed “it is not a proper Defendant in this case because it does not directly own or operate the wind farms in question.” Defendant’s motion to dismiss granted.

REGULATORY: Includes AMS, ARS, USDA, EPA, FWS FDA, ITA, NASS and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule implements a recommendation from the Cherry Industry Administrative Board to establish free and restricted percentages for the 2016-17 crop year under the marketing order for tart cherries grown in the states of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. Details here.

AGRICULTURAL RESEARCH SERVICE:

Notice ARS will grant to Oregon State University of Corvallis, Oregon, an exclusive license to the variety of blackberry described in U.S. Plant Patent Application Serial No. 15/530,950, “BLACKBERRY NAMED `HALL’S BEAUTY’,” filed on March 28, 2017. Info here.

Notice ARS intends to grant to Oregon State University of Corvallis, Oregon, an exclusive license to the variety of blueberry described in U.S. Plant Patent Application Serial No. 15/530,947, “BLUEBERRY CULTIVAR NAMED `ECHO’,” filed on March 28, 2017. Details here.

AGRICULTURAL DEPARTMENT: Notice USDA submitted information collection requirement(s) to OMB for review. Title: Current Agricultural Industrial Reports (CAIR). Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule is approving a request submitted by the Indiana Department of Environmental Management on December 13, 2016, to revise the Indiana state implementation plan. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS provides notice of an exemption to threatened species permit requirements granted under our Endangered Species Act regulations for beluga sturgeon. Details here.

Notice FWS announces that its Pima pineapple cactus draft recovery plan is available. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA solicits comments on the reporting requirements associated with extralabel drug use in animals. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice of Issuance of an Amended Export Trade Certificate of Review to California Almond Export Association, LLC (CAEA), Application No. 99-11A05. Info here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice NASS will request revision and extension of a currently approved information collection, the Livestock Slaughter Survey. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINSITRATION:

Rule NMFS announces four in season actions in the ocean salmon fisheries. Info here.

Rule NMFS announces 90-day findings on a petition to list ten species of giant clam as endangered or threatened under the U.S. Endangered Species Act. Info here.

Rule NMFS completed a comprehensive status review under the Endangered Species Act for the Taiwanese humpack dolphin in response to a petition from Animal Welfare Institute, Center for Biological Diversity, and WildEarth Guardians to list the species. Details here.

Notice NOAA is conducting a review of all designations and expansions of National Marine Sanctuaries and Marine National Monuments since April 28, 2007. Info here.