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

JUDICIAL: Labor, Restrictive Covenants

In FRANK’S NURSERY, LLC, Plaintiff, v. MARTIN J WALSH, SECRETARY, United States Dep’t of Lab., Defendant., No. CV H-21-3485, 2022 WL 2757373 (S.D. Tex. July 14, 2022), Frank’s Nursery, LLC, challenged the administrative proceedings the Department of Labor brought against it for violating four H-2A visa program requirements: implementing a drug testing policy without proper disclosure, violating sanitary housing requirements, issuing pays stubs without the federal employer identification number, and withholding of Medicare and social security taxes. The Department found ample evidence of the violations and imposed civil monetary penalties of $12,387, as well as back wages of $12,036.16. Frank’s Nursery moved for summary judgment, challenging the violation findings and financial penalties as arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 501 et seq. Frank’s Nursery also argued that the decision was inconsistent with the Department’s procedures and that both the decision and the Department itself are unconstitutional. The government responded and filed a cross motion for summary judgment, arguing that the decision was consistent with the Act, supported by the administrative record, and consistent with the Constitution. Frank’s Nursery replied. The court heard oral argument on the motions. Based on the motions, the administrative record, the parties’ arguments, and the applicable law, the court denied Frank’s Nursery’s motion for summary judgment, and granted the government’s cross-motion.

In Schwintek, Inc. v. High Top Buds, LLC, No. 357152, 2022 WL 2760428 (Mich. Ct. App. July 14, 2022), High Top Buds, LLC (HTB) owned 39.06 acres of a 48.8-acre industrial park in Cassopolis, Michigan. The village council approved HTB’s plans to erect several buildings on the land to cultivate and process marijuana. The industrial park was subject to restrictive covenants that HTB revoked before the 10-year automatic renewal date. Schwintek, Inc., which owns a 3.28-acre parcel in the industrial park, brought an action asserting that HTB’s marijuana operations violated the restrictive covenants and that its revocation was invalid because it was premature, non-uniform, and undermined the purpose of the restrictive covenants. The court held that HTB successfully revoked the restrictive covenants. As the owner of more than 75 percent of the real estate in the industrial park, HTB was authorized to revoke the restrictive covenants. The revocation become effective on the date of the 10-year automatic renewal. Further, the revocation was uniform because it revoked the restrictive covenants for the entire industrial park. The court of appeals affirmed the trial court’s grant of summary disposition in favor of HTB pursuant to MCR 2.116(C)(10).

LEGISLATIVE: Includes Arizona, Michigan

ARIZONA

HB 2182 creates a livestock operator fire and flood assistance grant program to provide grant assistance to certain landowners and lessees of a livestock operation of more than forty animals under normal operating conditions for infrastructure projects that are required as a result of a wildfire and associated flooding. Info here.

MICHIGAN

HB 5747 authorizes the state’s department of agriculture to grant or deny applications for certificates of free sale submitted by processors of milk and dairy products within the state. Info here.

REGULATORY: EPA, FDA, NIFA, NOAA

ENVIRONMENTAL PROTECTION AGENCY

Notice announcing the EPA’s receipt of an application from Bayer CropScience LP requesting an experimental use permit for the GA20ox_SUP miRNA. Info here.

FOOD AND DRUG ADMINISTRATION

Proposed rule proposing dates for compliance with the pre-harvest agricultural water provisions for covered produce other than sprouts in the “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption Relating to Agricultural Water” proposed rule. Info here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE

Final rule amending NIFA’s regulations and updating the list of institutions that are granted Hispanic-Serving Agricultural Colleges and Universities (HSACU) certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2021 and ending September 30, 2022. Info here.

NATIONAL OCEANIC ATMOSPHERIC ADMINISTRATION

Notice that a Letter of Authorization has been issued to CGG for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico. Info here.