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

ANNOUNCEMENT: 

Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, August 15th: Commercial Shellfish Aquaculture Permitting under Nationwide Permit 48. Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.

JUDICIAL: Includes water law, food safety, and agritourism issues.

In RESTORE HETCH HETCHY, Petitioner and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Respondents; MODESTO IRRIGATION DISTRICT et al., Real Parties in Interest and Respondents, F074107, 2018 WL 3656051 (Cal. Ct. App. July 9, 2018), plaintiff sought writ of mandate declaring a reservoir and dam “unreasonable methods of diverting water” under the California Constitution. Trial court ruled plaintiff’s request was preempted by the Raker Act, “federal legislation granting certain rights-of-way to San Francisco subject to various conditions.” Appellate court observed the Raker Act “intends to place a permanent diversion point, in the form of a dam, in the Hetch Hetchy Valley in a manner that will intentionally flood that land.” After exhaustive analysis the court concluded that “Congress intended to permanently flood the valley through its right-of-way grant. That intent cannot be overcome by the Act’s general saving clause.” Court found plaintiff’s claims preempted and affirmed.

In STARR SURPLUS LINES INSURANCE COMPANY, as subrogee to AdvancePierre Foods, Inc., Plaintiff, v. MOUNTAIRE FARMS INC., Defendant, 2:18-cv-00067-JDL, 2018 WL 3676839 (D. Maine August 2, 2018), plaintiff delivered raw chicken contaminated with Salmonella bacteria to AdvancePierre (AP), resulting in a recall and an insurance payout of ten million dollars by plaintiff to AP. Starr, as “subrogee,” sought repayment under an insurance policy and brought subrogation action “to recover all payments it made to AP associated with the product recall.” Court agreed with defendant’s arguments that plaintiff’s claims fail under both the “reasonable expectation” test and the “foreign-natural” test. The court also noted that even if plaintiff’s claims overcame those hurdles, the claims are also barred by the “economic loss doctrine.” Motion to dismiss granted.

In POST FOODS, LLC, et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Richard Sowinski, Real Party in Interest, B284057, 2018 WL 3424800 (Cal. Ct. App. July 16, 2018), a consumer sued manufacturers of breakfast cereals, alleging the cereals were required by state’s Safe Drinking Water and Toxic Enforcement Act (Proposition 65) “to display cancer and reproductive harm warnings because they contain acrylamide.” Lower court denied manufacturers’ motion for summary judgment and they appealed, seeking a writ of mandate. Appellate court found that a warning on cereals under Proposition 65 “would have posed obstacle to federal scheme promoting consumption of whole grains and therefore was preempted by federal law.” Writ of mandate granted.

In PHOENIX VINTNERS, LLC, d/b/a Traveling Vineyard, a Massachusetts Limited Liability Company, and Michaela Robinson, a Wyoming resident, Appellants (Plaintiffs), v. Dan NOBLE, in his official capacity as Director of the Wyoming Department of Revenue, Greg Cook, in his official capacity as Administrator for the Wyoming Department of Revenue Liquor Division, Thomas Montoya, in his official capacity as Chief of Enforcement for the Wyoming Department of Revenue Liquor Division, Kelly Hunt, in his official capacity as Senior Compliance Agent for the Wyoming Department of Revenue Liquor Division, and Jason Allen, in his official capacity as Compliance Agent for the Wyoming Department of Revenue Liquor Division, Appellees (Defendants), S-17-0279, 2018 WL 3654308 (Wyo. August 2, 2018), plaintiff hired independent contractors to offer wine tasting events free of charge. Attendees to the events were only required to provide contact information and to complete surveys regarding the wines. Issue concerned whether plaintiff “engaged in the ‘sale’ of alcohol at in-home wine tasting events.” Appellants argued their activities did not meet “the statutory definition of ‘sell’ or ‘sale.’”  Court considered the definition of the term “purely gratuitous” and noted plaintiffs provide wine at the wine tasting events “with the expectation that they will receive a completed “Survey & Interest Form.” Court concluded plaintiff’s activities “are not ‘purely gratuitous’ because they receive a return benefit from the guests at the wine tasting events.”

LEGISLATIVE:

H.R. 4528: To make technical amendments to certain marine fish conservation statutes. Enacted after being signed by the President on August 2, 2018.

H.R. 4645: East Rosebud Wild and Scenic Rivers Act. Signed by President.

H.R. 3186: Every Kid Outdoors Act. Text for status Reported by House Committee (Aug 3, 2018) is now available.

H.R. 4824: Rural Broadband Permitting Efficiency Act of 2018. Text for status Reported by House Committee (Aug 3, 2018) is now available.

H.R. 6650: To reauthorize and amend the National Earthquake Hazards Reduction Program. Referred to the House Committee on Natural Resources, House Committee on Science, Space, and Technology, and one other committee.

H.R. 6652: To direct the Secretary of the Interior to convey certain facilities, easements, and rights-of-way to the Kennewick Irrigation District. Referred to the House Committee on Natural Resources.

Includes USDA, CCC, EPA, FNS, FS, and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: U.S. National Arboretum Use of the Grounds and Facilities as well as Commercial Photography and Cinematography. Details here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Foreign Quarantine Notices. Info here.

COMMODITY CREDIT CORPORATION: Notice CCC is republishing this announcement to extend the application deadline for the availability of competitive grants to conduct a forest inventory analysis, forest management, and economic outcomes modelling, for certain currently enrolled Conservation Reserve Program (CRP) land. Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA Region 8 is issuing a Notice of Intent to Delete the Eureka Mills Superfund Site (Site) located in Eureka, Utah, from the National Priorities List (NPL) and requests public comments on this proposed action. Info here.

FOOD AND NUTRITION SERVICE: Notice of a new information collection for the voluntary collection of summer meal site information from State agencies. Details here.

FOREST SERVICE: Notice FS, Washington Office, transmitted the final boundary of the Ontonagon National Wild and Scenic River to Congress. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is transferring 30 metric tons (mt) of Atlantic bluefin tuna (BFT) quota from the Reserve category to the Harpoon category. Info here.

Notice NOAA has prepared four draft programmatic environmental assessments for the proposed continuation of field operations for each region of sites managed by the Office of National Marine Sanctuaries. Details here.