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

ANNOUNCEMENT: Join us Wednesday, September 6, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Water Law Update.” Details available here.

JUDICIAL: Includes crop insurance, administrative law, pesticides, and secured transactions issues.

In WILLIAM J. BUSH, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, RISK MANAGEMENT AGENCY, Defendant, No. 16-CV-4128-CJW, 2017 WL 3568672 (N.D. Iowa Aug. 17, 2017), plaintiff sued the Risk Management Agency (RMA) under the Freedom of Information Act (FOIA), seeking details on soybean and corn yields within four townships in Iowa. Defendant moved for summary judgment. On appeal, plaintiff claimed RMA’s search “was inadequate because it produced no responsive documents.” Appellate court observed that, “When confronted with an adequacy of search claim, federal courts apply a ‘reasonableness’ test to decide if the agency’s search methodology was adequate.” Court reasoned that although RMA “collected some information from records of insurance companies on claims that would contain some of the information plaintiff sought, it simply did not maintain records containing the precise information claimant sought in his FOIA request.” Court ruled RMA did not have an obligation under FOIA to create records for plaintiff.

In GLORIA G QUINTERO, et al, Plaintiffs, v. UNITED STATES OF AMERICA, et al, Defendants, NO. 7:17-CV-231, 2017 WL 3582517 (S.D. Tex. August 18, 2017), plaintiffs sued Rural Development for the State of Texas alleging wrongful foreclosure. Plaintiffs alleged they executed a promissory note to purchase real property but “due to unexpected circumstances, Plaintiffs stayed behind on a few payments.” The property was scheduled for foreclosure and the state court granted an injunction preventing foreclosure. Defendant filed motion to remand and dismiss, arguing “removal was proper because the United States holds the note executed by Plaintiffs and a deed of trust securing an interest in the property.” Appellate court found plaintiffs improperly named Rural Development for the State of Texas as a defendant “instead of the United States, on behalf of the USDA, acting by and through the RHS—an agency of the USDA.” Court concluded that “since the USDA and the RHS are proper defendants, Plaintiffs needed to exhaust administrative remedies before filing the instant suit.” Suit dismissed.

STEVEN W. LANDERS, et al., on behalf of themselves, all other similarly situated, and the Class they seek to represent, Plaintiffs, v. MONSANTO COMPANY, Defendant, No. 1:17-CV-20-SNLJ, 2017 WL 3531378 (E.D. Mo. August 17, 2017) concerned recent issues with the dicamba herbicide. Plaintiffs (soybean, corn, and cotton farmers) sued on behalf of a class of farmers in “Alabama, Arkansas, Illinois, Kentucky, Minnesota, Mississippi, Missouri, North Carolina, Tennessee, and Texas, and whose crops were affected by the herbicide dicamba.” Plaintiffs alleged Monsanto’s “Xtend seed system” and “its purchasers’ inevitable use of dicamba resulted in the loss of hundreds of thousands of acres of farmland.” Monsanto moved to dismiss, arguing (among other claims) that “it owed plaintiffs no duty of care to prevent injuries caused by other manufacturers’ products.” Plaintiffs identified a number of “special circumstances” they argued gave rise to a duty on the part of Monsanto. Court observed that “plaintiffs’ allegation that defendant’s representatives told third parties to apply dicamba herbicide in contravention of the warning labels suffices to create a special circumstance that . . . creates a duty to plaintiffs.” Court concluded plaintiffs “sufficiently alleged that defendant owed a duty of care to plaintiffs,” and denied Monsanto’s motion to dismiss in part.

In KORNEGAY FAMILY FARMS LLC v. CROSS CREEK SEED, INC., No. 187PA16, 2017 WL 3568622 (N.C. August 18, 2017), plaintiffs, a collection of commercial farmers, alleged defendant sold them mislabeled, certified tobacco seed for planting. Lower court denied defendant’s motions for partial summary judgment and on appeal, issue was whether defendant could enforce “limitation of remedies clauses pursuant to Article 2 of the Uniform Commercial Code (UCC)” against the farmers in defense of lawsuits premised on defendant’s “distribution of allegedly mislabeled tobacco seed.” Court observed that it is “the policy of this State, as expressed by the General Assembly in the North Carolina Seed Law of 1963 . . . to protect farmers from the potentially devastating consequences of planting mislabeled seed.” State Supreme Court concluded that defendant’s “limitation of remedies clauses” were unenforceable against plaintiffs. Affirmed.

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

AGRICULTURE DEPARTMENT: Notice USDA submitted the following information collection requirement(s) to OMB for review. Title: Agricultural Prices. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS will prepare an environmental impact statement on a proposed Endangered Species Act incidental take permit application from Sierra Pacific Industries (SPI) for the federally threatened Northern spotted owl and the California spotted owl. Info here.

FOOD AND DRUG ADMINISTRATION:

Notice announcing the availability of a guidance for industry #232 entitled “Studies to Evaluate the Safety of Residues of Veterinary Drugs in Human Food: General Approach to Establish an Acute Reference Dose.” Details here.

Notice announcing the availability of a guidance for industry #237 entitled “Oncology Drugs for Companion Animals.” Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes to revise the FRACTION parameter of the Pacific sardine harvest guideline (HG) control rule to use a 3-year average of ocean temperature data from the California Cooperative Oceanic Fisheries Investigations survey that takes place off southern and central California. Details here.

Notice NMFS seeks comment on proposed and/or continuing information collections. Title: Cooperative Charting Programs. Info here.

Notice NMFS and the Northeast Regional Stock Assessment Workshop (SAW) will convene a peer review of Operational Stock Assessments of twenty fish stocks. Info here.

Notice the Hydrographic Services Review Panel (HSRP) will hold a public meeting. Details here.