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

JUDICIAL: includes crop insurance, land use, food labeling, CWA, and landowner liability issues.

James J. ZYCH, Appellant, v. Timothy HAUGEN, et al., Respondents. A16–2082, 2017 WL 3222325 (Minn. Ct. App. July 31, 2017) involved a crop insurance contract dispute. Appellant, a soybean farmer, alleged that negligent handling of his claims by an agent’s failure to file a notice of loss “was the direct and proximate cause of [his] loss or his claim.” District court found the insurance contract prevented state and local governmental entities from levying judgments for damages and costs against “companies, [and] employees of companies including agents and loss adjusters … arising out of actions or inactions on the part of such individuals and entities authorized or required under the Federal Crop Insurance Act.” District court further reasoned that appellant’s negligence claim involved the alleged negligence of an agent and agency “who were proceeding under the FCIA and that the claim was therefore federally preempted.” Appellate court affirmed, concluding appellant’s negligence claim was preempted.

Williams County, North Dakota, Plaintiff and Appellant v. Don Sorenson Investments, LLC, Don Sorenson, and Caleb Sorenson, Defendants and Appellees, No. 20160451, 2017 WL 3222767 (N.D. July 31, 2017) involved a county zoning dispute after defendant requested a zoning change for his property from residential to commercial. Plaintiff (County) fined defendant for violating a zoning ordinance after he parked numerous trucks and commercial vehicles on his property. Defendant argued County did not indicate which provisions of the zoning ordinances they violated and “did not provide specific details regarding the commercial business alleged to have been operated on the property,” and lower court granted defendant summary judgment. On appeal, court found that “County presented sufficient evidence to establish a genuine issue of material fact as to whether the Sorensons’ use of the property violated . . . the County’s zoning ordinances.” Reversed.

In DARYL WHITE, JR., Individually and on behalf of all others similarly situated, Plaintiffs, v. JUST BORN, INC., Defendant, No. 2:17-cv-04025-C-NKL, 2017 WL 3130333 (W.D. Mo. July 21, 2017), plaintiff sued candy manufacturer under the Missouri Merchandising Practices Act (MMPA) alleging he “attached importance” to the “size” of defendant’s candy boxes, and was misled to believe that he was “purchasing more Product than was actually received.” Plaintiff claimed had he known the boxes were “substantially slack-filled,” he would not have purchased defendant’s candy products. Defendant countered that “slack-fill is not by itself impermissible under federal or state law,” and that “violation of food-labeling regulations does not support a finding of liability under the MMPA.” Court reasoned that plaintiff “adequately alleged the scienter related to omission under the MMPA,” and denied defendant’s motion to dismiss.

In CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, Plaintiff, v. The SHILOH GROUP, LLC, et al., Defendants. No. 16–cv–06499–DMR, 2017 WL 3136443 (N.D. Cal. July 24, 2017), plaintiff alleged defendants operate a large industrial park that unlawfully discharges polluted storm water associated with industrial activities in violation of the Clean Water Act (CWA). Defendants argued “mere ownership of a storm water conveyance that discharges storm water associated with industrial activities does not create liability under the CWA.” Court was not persuaded and concluded that defendants, as owners and operators who maintain and control the Facility, “may be liable under the CWA for storm water discharges associated with their tenants’ industrial activities, even if Defendants themselves do not perform the industrial activities that create the pollutants in the storm water discharge.” Defendants’ motion to dismiss denied.

In COUNTY OF SAN MATEO, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; ZACHARY ROWE et al., Real Parties in Interest, A146077, 2017 WL 3141190 (Cal. Ct. App. July 25, 2017), a diseased tree fell on a child’s tent pitched in a public wilderness park and the park’s owner (County) argued it is immune from liability under “natural condition immunity.” The applicable statute states, “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.” Lower court denied County’s motion for summary judgment and appellate court affirmed, finding triable issues of fact as to whether the park property was “unimproved.”

REGULATORY: Includes AMS, EPA, FDA, NIFA, NOAA, and RBS rules and notices.

AGRICULTURAL MARKETING SERVICE: Notice the Fruit and Vegetable Industry Advisory Committee was established to examine the full spectrum of fruit and vegetable issues and provide recommendations and ideas to the Secretary of Agriculture on how the USDA can tailor programs to better meet the needs of the fruit and vegetable industry. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA proposes to approve a State Implementation Plan (SIP) revision submitted by the State of California on November 10, 1993. Details here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is announcing the rates and payment procedures for fiscal year (FY) 2018 animal drug user fees. Details here.

Notice FDA is announcing the fee rates and payment procedures for fiscal year (FY) 2018 generic new animal drug user fees. Details here.

Notice FDA is announcing the fiscal year (FY) 2018 fee rates for certain domestic and foreign facility reinspections, failures to comply with a recall order, and importer reinspections that are authorized by the Federal Food, Drug, and Cosmetic Act. Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE:

Notice NIFA will host a virtual listening session to gather stakeholder input regarding capacity building grants for Non-Land-Grant Colleges of Agriculture (NLGCA); The Secondary Education, Two-Year Postsecondary Education and Agriculture in the K-12 Classroom Challenge Grants Program (SPECA); The Women and Minorities in Science, Technology, Engineering, and Mathematics Fields Program (WAMS); The Higher Education Challenge Grants Program. Info here.

Notice NIFA will host a virtual listening session to gather stakeholder input for the Higher Education Multicultural Scholars Program (MSP) and the National Needs Graduate and Postgraduate Fellowship (NNF) Grants Program Request for Applications (RFA) in Fiscal Year (FY) 2018. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific cod, including for the Community Development Quota program, in the Western Aleutian Islands district of the Bering Sea and Aleutian Islands management area. Details here.

Notice that an on-line system developed by NMFS tracks allocations and allocation leases, and reconciles leases with bluefin tuna catches for quota monitoring. The extension of this collection of information will allow NMFS to continue to account for the reporting burden associated with allocation and lease tracking. Details here.

Notice the Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act. Title: Day 8 to 10 Forecast Focus Groups, Interviews and Survey. Info here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice RBS will revise a currently approved information collection in support of the program for the Annual Survey of Farmer Cooperatives. Info here.