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

JUDICIAL: Clean Water Act, Contracts

In Naturaland Tr. v. Dakota Fin. LLC, No. 21-1517, 2022 WL 2824971 (4th Cir. July 20, 2022), plaintiffs attempted to sue defendants under the Clean Water Act citizen-suit provision. The Act also contains a provision stating that a violation of its requirements “shall not be the subject of a civil penalty action under … section 1365” if a State “has commenced and is diligently prosecuting an action under a State law comparable to” the federal scheme for assessing civil penalties. The issue before the court is whether a state agency’s notice of an alleged violation for failure to obtain a required permit, without more, “commence[s] … an action” within the meaning of that provision. The court concluded that it does not. The court reversed the district court’s judgment and remanded for further proceedings.

In Herren Farms, LLC v. Martin, No. 3:21-CV-00025, 2022 WL 2811650 (W.D. Va. July 18, 2022), Plaintiff’s 115-foot grain elevator collapsed and caused over half a million dollars of property damage. Plaintiff sought to recover those losses in this breach of contract suit against Defendant, who sold and assembled the elevator just six months prior to its failure. According to Plaintiff, Defendant breached his implied duty of care by improperly installing the elevator’s guy wires and support brackets. The court considered whether the statute of limitations had run on Plaintiff’s claim. The looked to which of Virginia’s statutory periods applies: (1) that relating to the sale of goods, (2) that relating to unsigned contracts for services, or (3) that relating to signed contracts for services. Plaintiff’s claim would be time-barred if governed by the first two provisions. But it would be timely under the third. The court denied Defendant’s motion for summary judgment because a rational factfinder could conclude that the parties’ contract was signed and was for services.

REGULATORY: AMS, CFTC, FWS

AGRICULTURAL MARKETIING SERVICE

Proposed rule announcing that AMS is soliciting comments and feedback on an update to the List of Bioengineered Foods as it pertains to the National Bioengineered Food Disclosure Standard. Info here.

COMMODITY FUTURES TRADING COMMISSION

Notice announcing an opportunity for public comment on the proposed renewal of a collection of certain information by the agency. Info here.

FISH AND WILDLIFE SERVICE

Notice announcing that FWS is developing a proposed barred owl management strategy to address the threat of the nonnative, invasive barred owl (Strix varia) to the native northern and California spotted owls (Strix occidentalis). Implementation of the management strategy would require the take of barred owls, which is prohibited under the Migratory Bird Treaty Act unless authorized by a permit or regulation. Info here.

Notice announcing FWS received an application from KB Home Orlando, LLC for an incidental take permit under the Endangered Species Act. Info here.