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

JUDICIAL: Water, Pesticides, COVID Vaccine Mandate

In Holm v. Kodat, 2022 IL 127511, the plaintiffs own property on the non-navigable Mazon River in Grundy County and want to kayak on the River through the defendants’ neighboring properties. They sought a declaration that they had the right as riparian owners to kayak along the entire length of the Mazon River, including through property owned by the defendants, “f[r]ee and clear from any claim of trespass.” The Mazon River is 28 miles long and is a tributary of the Illinois River.

The circuit court, appellate court, and the Illinois Supreme Court ruled in favor of the defendants. Neither precedent nor Illinois common law grants a riparian owner on a non-navigable river or stream the right to use that waterway to cross the property of another riparian owner without that owner’s permission. The distinction between property boundaries on a lake versus a river or stream has been recognized in Illinois law for over a century. The Illinois common law “reasonable use” doctrine of water by riparian owners applies to direct consumptive or diversionary uses of the water, not the use of the surface water to enter the property of another riparian owner.

In Nat. Res. Def. Council v. U.S. Env’t Prot. Agency, No. 20-70787, 2022 WL 2184936 (9th Cir. June 17, 2022), a group of petitioners challenged EPA’s decision, arguing, among other things, that EPA did not adequately consider whether glyphosate causes cancer and shirked its duties under the Endangered Species Act (“ESA”). The Environmental Protection Agency (“EPA”) recently assessed whether glyphosate poses “any unreasonable risk to man or the environment” and answered, for the most part, “no.” The court agreed with the petitioners and remanded the issue to the EPA for further consideration.

In Johnson v. Tyson Foods, Inc., No. 21-CV-01161-STA-JAY, 2022 WL 2161520 (W.D. Tenn. June 15, 2022), Plaintiff brought thirteen claims in her amended complaint. Many of those claims were based on the underlying premise that Defendants are government or state actors, specifically the claims alleged violations of the Free Exercise Clause of the First Amendment (claim one); the Religious Freedom Restoration Act (claim five); the Food Drug and Cosmetic Act (claim nine); the Nuremberg Code (claim ten); and the Fourth and Fifth Amendments (claim eleven). Because Plaintiff failed to show that Defendants’ actions in requiring employees to be vaccinated was equivalent to government or state action, the claims above that required state action were dismissed.

The Court also held that there was no private right of action for a violation of international law based on the Nuremberg Code. Additionally, the court found that Plaintiff failed to plead sufficient facts to support a common law claim of assault because she had not alleged an overt act or a physical movement sufficient to set forth a plausible assault claim for which relief may be granted under Tennessee law. In summary, Defendants’ motion to dismiss were PARTIALLY GRANTED and PARTIALLY DENIED. The motion was granted with prejudice as to claims one, two, five, nine, ten, eleven, and thirteen. The motion was granted without prejudice as to claims three, six, and eight. The motion is denied without prejudice as to claims four, seven, and twelve.

In REED v. TYSON FOODS, INC., No. 21-CV-01155-STA-JAY, 2022 WL 2134410 (W.D. Tenn. June 14, 2022), Plaintiffs brought twelve claims in their amended complaint. Many of those claims were based on the underlying premise that Defendant is a government or state actor, specifically the claims that alleged violations of the Free Exercise Clause of the First Amendment (claim one); the RFRA (claim five); the FDCA (claim eight); the Nuremberg Code (claim nine); and the Fourth and Fifth Amendments (claim ten). Plaintiffs relied, in part, on the Court’s previous finding of federal officer jurisdiction in support of their contention that Defendant acted as a government or state actor during the events giving rise to this lawsuit while Defendant argues that removal under the federal officer removal statute did not transform it into a government actor. Because Plaintiff failed to show that Defendants’ actions in requiring employees to be vaccinated was equivalent to government or state action, the claims above that required state action were dismissed.

Defendant’s motion to dismiss was PARTIALLY GRANTED and PARTIALLY DENIED. The motion was granted with prejudice as to claims one, five, eight, nine, ten, and twelve. The motion was also granted with prejudice on Plaintiffs Crawford and Whitehead’s claim two. The motion was granted without prejudice as to claims three and six. The motion was denied without prejudice as to claims four, seven, and eleven.

REGULATORY: EPA, FSA, FWS, FDA

ENVIRONMENTAL PROTECTION AGENCY

Proposed rule proposing to amend specific provisions in the Greenhouse Gas Reporting Rule to improve the quality and consistency of the data collected under the rule, streamline and improve implementation, and clarify or propose minor updates to certain provisions that have been the subject of questions from reporting entities. Info here.

Notice announcing the release of health advisories for four perfluoroalkyl substances (PFAS), including interim updated lifetime drinking water health advisories for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), and final health advisories for hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt (together referred to as “GenX chemicals”) and perfluorobutane sulfonic acid and its related compound potassium perfluorobutane sulfonate (together referred to as “PFBS”). Info here.

Notice announcing that the EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Info here.

Notice announcing that the EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Info here.

FARM SERVICE AGENCY

Notice announcing the availability of $200 million through the new Food Safety Certification for Specialty Crops Program for specialty crop operations that incur eligible on-farm food safety program expenses to obtain or renew a food safety certification in calendar years 2022 or 2023. Info here.

FISH AND WILDLIFE SERVICE

Notice announcing that FWS received an application from Maricopa Sun, LLC to amend their existing incidental take permit for the Maricopa Sun Solar Complex. Info here.

FOOD AND DRUG ADMINISTRATION

Notice announcing the availability of a final guidance for FDA staff entitled “FDA Oversight of Food Covered by Systems Recognition Arrangements.” Info here.