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

ANNOUNCEMENT: Join us Thursday, April 20, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Ag Taxation & Reform 101:  What You Need to Know.” Details available here.

JUDICIAL: Includes environmental, landowner liability, pesticides, food labeling, CWA, and Urb & Ag issues.

POET, LLC et al., Plaintiffs and Appellants, v. STATE AIR RESOURCES BOARD et al., Defendants and Respondents; NATURAL RESOURCES DEFENSE COUNCIL, INC., Intervener and Respondent, F073340, 2017 WL 1325296 (Cal. Ct. App. April 10, 2017) involved a writ of mandate compelling the California Air Resources Board (ARB) to take corrective action after violating the California Environmental Quality Act in promulgating low carbon fuel standards. Court observed that “when the agency’s activity involves a regulation (as compared to building a physical structure, such as a road or power plant), the whole of the activity constituting the “project” includes the enactment, implementation and enforcement of the regulation.” Court reasoned purpose of the writ “was to provide the public and decisions makers with information omitted from the original environmental disclosure documents in 2009.” Court concluded “the writ should not have been discharged and the CEQA violation continues uncorrected.”

In PACIFIC GAS AND ELECTRIC COMPANY, Petitioner, v. The SUPERIOR COURT of San Mateo County, Respondent; Zachary Rowe, a Minor, etc., et al., Real Parties in Interest, A146495 (Cal. Ct. App. April 5, 2017), plaintiff suffered catastrophic injuries when a tree fell on his tent while sleeping at a campground. California’s recreational use immunity statute confers property owners with immunity from liability arising from the recreational use of their property and the issue here was whether petitioner, PG&E, retains its immunity under the statute “notwithstanding the payment of a camping fee to the County.” PG&E claimed it does retain immunity, arguing that the “consideration exception” only applies when the defendant claiming immunity “receives all or some portion of the consideration paid.” Court found the consideration exception to recreational use immunity applies to PG&E and held that “payment of consideration in exchange for permission to enter a premises for a recreational purpose abrogates . . . immunity of any nonpossessory interest holder who is potentially responsible for the plaintiff’s injuries, including a licensee or easement holder who possesses only a limited right to enter and use a premises on specified terms but no right to control third-party access to the premises.”

BADER FARMS, INC. and BILL BADER Plaintiffs, v. MONSANTO CO., Defendant, No. 1:16-CV-299 SNLJ, 2017 WL 1315792 (E.D. Mo. April 10, 2017) involved plaintiffs’ claims that their peach crops were damaged by “drift” of defendant’s dicamba herbicide. Here, plaintiffs stated they were harmed by defendant’s release of their Xtend seeds because “it was foreseeable that third-party farmers who purchased the seeds would illegally spray older formulations of dicamba onto their own crops to kill weeds,” causing damage. Court considered intervening acts and the product’s warning label and concluded that “the warning was adequate as a matter of law, at least for the purpose of negating plaintiffs’ claim that the release of GE seeds was the proximate cause of the damage to plaintiffs’ orchards.” Parties granted 21 days to provide evidence regarding the adequacy of the warning labels.

In MARY ANN NICHOLS, Plaintiff, v. NATURMED, INC. d/b/a INSTITUTE FOR VIBRANT LIVING, Defendant, No. 16 C 7356, 2017 WL 1333146 (N.D. Ill. April 11, 2017), plaintiff filed class action alleging breach of implied warranty under the Uniform Commercial Code (UCC) and the Magnuson-Moss Act, after purchasing defendant’s “All Day Energy Greens” energy product and defendant moved to dismiss. Defendant argued claims should be dismissed because they are preempted by federal law, specifically the Nutrition Labeling and Education Act (NLEA). Plaintiff argued defendant “lacks substantiation that the representations on the [product] label are truthful and not misleading, as required by the NLEA.” Court found that because plaintiff’s claims “did not seek to impose labeling requirements that differ from or add to the requirements under the NLEA, they are not preempted by federal law.” Motion to dismiss denied.

In SOUTHERN CALIFORNIA ALLIANCE OF PUBLICLY OWNED TREATMENT WORKS, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; JARED BLUMENFELD, Regional Administrator, USEPA, Region IX, Respondents, No. 14-74047, 2017 WL 1337263 (9^th Cir. April 12, 2017), plaintiff sought review of an objection letter from the Environmental Protection Agency (EPA) regarding draft permits for water reclamation plants. Plaintiff maintained appellate court has original jurisdiction to review an objection letter “which applies to EPA action approving or promulgating any effluent limitation,” and also applies to an EPA action “issuing or denying any permit.” Court agreed with EPA that it lacks subject matter jurisdiction to hear plaintiff’s claims. Petition dismissed.

In McKee Family I, LLC and JD McCormick Company, LLC, Plaintiffs-Appellants-Cross-Respondents-Petitioners, v. City of Fitchburg, Defendant-Respondent-Cross-Appellant, L.C. No. 2010CV3808, 2017 WL 1337663 (Wis. April 12, 2017), court of appeals determined plaintiff, a developer, did not have a “vested right under a planned development district zoning classification,” and therefore, had no takings claim. Plaintiff intended to build an apartment complex and argued vested rights “accrue when a developer has made substantial expenditures or incurred substantial liability based upon reasonable expectations established by government action.” Plaintiff maintained zoning classifications are “contractual” and create “expectations upon which developers may rely.” Court found plaintiff did not have a vested right in developing the property because it did not apply for a building permit. Per Wisconsin statute, a property owner’s rights do not vest “until the developer has submitted an application for a building permit that conforms to the zoning or building code requirements.”

REGULATORY: Includes FDA, FS, and NOAA rules and notices.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is extending the comment period for a docket to receive comments on the use of genome editing techniques to produce new plant varieties used for human or animal food. Details here.

Notice FDA extends comment period for the draft guidance for industry entitled “Regulation of Intentionally Altered Genomic DNA in Animals.” Details here.

FOREST SERVICE:

Notice FS seeks comments on the extension of a currently approved information collection, National Visitor Use Monitoring. Info here.

Notice the Superior National Forest published a Notice of Intent in the Federal Register on January 13, 2017, proposing a withdrawal of approximately 234,328 acres of National Forest System lands, for a 20-year term. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is adjusting the commercial aggregated large coastal shark (LCS) and hammerhead shark management group retention limit for directed shark limited access permit holders in the Atlantic region from 25 LCS other than sandbar sharks per vessel per trip to 3 LCS other than sandbar sharks per vessel per trip. Info here.

Notice Department of Commerce will submit to OMB for clearance a proposal for collection of information. Title: Expanded Vessel Monitoring System Requirement in the Pacific Coast Groundfish Fishery. Details here.

Notice NMFS received a request from the San Francisco Bay Area Water Emergency Transportation Authority for authorization to take marine mammals incidental to construction activities as part of a ferry terminal expansion and improvements project. Info here.