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

JUDICIAL: Includes renewable energy, agritourism, pesticides, climate change, intellectual property, water law, and ag lease issues. 

In Scott A. SAFIER, Plaintiff–Respondent, v. SAGGIO RESTAURANT INC., et al., Defendants–Respondents, Tri–State Biodiesel, LLC, Defendant–Appellant, First Food Service LLC, etc., et al., Defendants, 54 N.Y.S.3d 272 (Mem) (N.Y. June 15, 2017), plantiff sued defendant, who collects used cooking oil from restaurants, after slipping on a grease slick on a road. Defendant appealed judgment for plaintiff and provided evidence “it did not cause the large slick of cooking oil and/or grease to be on the road where plaintiff slipped.” Plaintiff failed to show their opposition to [defendant’s] motion “is supported by something other than mere hope or conjecture.” Reversed for defendant.

In KATHLEEN S. SWIGART, Plaintiff and Appellant, v. CARL BRUNO, Defendant and Appellant, D071072, 2017 WL 3016756 (S.D. Cal. June 22, 2017), plaintiff and defendant attended a horseback riding event and defendant’s horse struck and injured plaintiff while she was standing on the ground. Plaintiff sued alleging negligence and having an animal with a dangerous propensity. The trial court granted defendant summary judgment. Appellate court found “the doctrine of primary assumption of risk barred plaintiff’s cause of action for negligence,” and that plaintiff did not meet her burden of establishing defendant’s horse’s “propensity for danger.” Judgment affirmed.

WESTERN WATERSHEDS PROJECT, Plaintiff-Appellant, v. JOHN RUHS, Nevada State Director; BUREAU OF LAND MANAGEMENT, an agency of the United States; U.S. DEPARTMENT OF THE INTERIOR, an agency of the United States, Defendants-Appellees, No. 15-17031, 2017 WL 3034308 (9^th Cir. July 18, 2017) involved an appeal of a ruling in favor of the United States Bureau of Land Management (BLM). Plaintiff challenged BLM’s issuance of a final Environmental Assessment (EA) which sought to “reduce fire risks and improve habitats for greater sage-grouse by removing trees and vegetation in eastern Nevada.” Plaintiff argued the EA violates the National Environmental Policy Act (NEPA) for failing to take a “hard look” at the Restoration Plan’s potential effects on the greater sage-grouse, and by “failing to analyze the potential impacts of the project’s rangeland improvements.” Plaintiff failed to show the EA was deficient under NEPA and appellate court affirmed.

In Gunnar HOLMQUIST, et al., Plaintiffs, v. UNITED STATES of America, Defendant, NO. 2:17-CV-0046-TOR, 2017 WL 3013259 (E.D. Wash. July 14, 2017), plaintiff submitted initiative to Spokane City Council seeking to ban the transportation of coal and oil by rail within the City, claiming it violated the “right of the people of Spokane to a healthy climate.” City Council initially adopted the resolution and then voted to rescind based on preemption concerns. Issue was whether “the preemptive effect violates Plaintiff’s purported constitutional right to a livable and healthy climate by prohibiting Plaintiffs from passing legislation that would curb the purported deterioration of the climate.” Plaintiff filed suit and defendant moved to dismiss for failure to state a claim and lack of standing. Court determined plaintiff’s claim was “not ripe, fails for lack of standing, and any relief requested would amount to an advisory opinion.” Dismissed.

PARKS LLC, Appellant v. TYSON FOODS, INC; HILLSHIRE BRANDS COMPANY, No. 16-2768, 2017 WL 3014273 (3^rd Cir. July 6, 2017) concerned the  trademark “PARKS” once owned by the Parks Sausage Company. “PARKS” was placed on the Principal Register of trademarks at the United States Patent and Trademark Office (USPTO), but, the company failed to renew the registration in the early 2000s. In 2014, Tyson Foods, owner of the frankfurter brand “BALL PARK,” launched a premium frankfurter product called “PARK’S FINEST.” Plaintiff sued, claiming Tyson “was engaged in false advertising and was infringing Parks’s trademark.” District court ruled for defendant, finding plaintiff’s claim for false advertising was “really a repetition of its trademark claim, and that the PARKS mark was too weak to merit protection against Tyson’s use of the PARK’S FINEST name.” Affirmed.

In CHELAN BASIN CONSERVANCY, Petitioner, v. GBI HOLDING CO., STATE OF WASHINGTON, and CITY OF CHELAN, Respondents, and CHELAN COUNTY PUBLIC UTILITY DISTRICT, Additional Named Party, No. 93381-2, 2017 WL 2876140 (Wash. July 6, 2017), a conservancy sought removal of six acres of fill material that respondent added to its property in 1961 to keep the formerly dry property permanently above the artificially raised seasonal water fluctuations of Lake Chelan. The Conservancy sued under Washington’s public trust doctrine and issue was whether the State “consented to the fill’s impairment of that right and, if so, whether such consent violates the public trust doctrine.” State Supreme Court found Court of Appeals “correctly ruled the legislature consented to the fill’s impairment of navigable waters, but . . . prematurely concluded such consent did not violate the public trust doctrine.” Case reversed and remanded to determine whether statute violates the public trust doctrine.

JOHN DEPPE and DEPPE JJ, LLC f/k/a DOERSCHER-DEPPE, LLC, Plaintiffs-Appellants, v. DOUGLAS H. DEPPE and KIM DOERSCHER-DEPPE, Defendants-Appellees, No. 16-0310, 2017 WL 2875865 (Iowa Ct. App. July 6, 2017) involved a dispute over a farm lease (breach of contract) and definition of the term “crop year” used in the eventual settlement agreement. Plaintiffs claimed lower court erred in not giving their proposed jury instruction defining the term “crop year” as used in the settlement agreement, arguing the term “is defined by statute, regulation, by the court, by industry usage, and by the parties.” Plaintiffs maintained the court should not have instructed the jury that “There is no established legal definition of ‘crop year’ in this case.” Court reasoned that “the evidence was not so clear that no reasonable person would determine ‘crop year’ could only mean the period of time running from March first to the end of February of the following year.” Upon review, appellate court concluded “there was no reversible instructional error.” Jury verdict affirmed.

REGULATORY: Includes USDA, EPA, FDA, NOAA and RUS rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Environmental Monitoring Form. Details here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: RUS Specification for Quality Control and Inspection of Timber Products. Details here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Significant Cave Nomination. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishing a process for conducting risk evaluations to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation, under the conditions of use. Info here.

Rule establishing the process and criteria that EPA will use to identify chemical substances as either High-Priority Substances for risk evaluation, or Low-Priority Substances for which risk evaluations are not warranted at the time. Details here.

Rule EPA is proposing to approve Maine’s regional haze progress report, submitted on February 23, 2016, as a revision to its State Implementation Plan. Details here.

FOOD AND DRUG ADMINISTRATION: Notice the Minor Use and Minor Species Animal Health Act of 2004 (the MUMS Act) added section 572 of the Federal Food, Drug, and Cosmetic Act, which authorizes FDA to establish new regulatory procedures intended to make more medications legally available to veterinarians and animal owners for the treatment of minor animal species. Details here.

NATIONAL OCEANIC AND ATMOPSHERIC ADMINISTRATION:

Notice announces the Secretary of Commerce’s compliance decision under the Atlantic Coastal Fisheries Cooperative Management Act regarding New Jersey recreational management of summer flounder. Details here.

Notice the U.S. Global Change Research Program is mandated under the Global Change Research Act of 1990 to conduct a quadrennial National Climate Assessment. Info here.

RURAL UTILITIES SERVICE:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Electric System Emergency Restoration Plan. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Servicing of Water Programs Loans and Grants. Info here.