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

JUDICIAL: Includes CAFO, environmental, labor, and PACA issues.

In NATIONAL RAILROAD PASSENGER CORP.; BNSF Railway Company, Plaintiffs, And Everett Owen, et al., Intervenor-Plaintiffs, v. CIMARRON CROSSING FEEDERS, LLC, Defendant, No. 6:16–cv–01094–JTM, 2017 WL 1175432 (D. Kan. March 29, 2017), plaintiffs sued after an Amtrak passenger train derailed at a highway crossing and alleged that shortly before the accident, employees of defendant had loaded a grain truck at the company’s nearby cattle-feeding facility, “when they left the truck unattended, out of gear, and with no brake applied, resulting in the truck rolling downhill and striking and damaging the railroad bed and track where the train subsequently derailed.” Plaintiffs asserted a claim for negligence and a group of train passengers asserted a claim against Amtrak based on the company’s status as a “common carrier.” Court reasoned, “The term “common carrier,” both under its ordinary meaning and under the particular meaning of the term at common law, includes a railroad operator which transports the public for a fee.” Amtrak’s motion for judgment on the pleadings denied.

In TOWN OF ISLIP, Plaintiff, v. Thomas DATRE, Jr., et al., Defendants, No. 16–CV–2156, 2017 WL 1157188 (E.D.N.Y. March 28, 2017), plaintiffs alleged defendants violated the Comprehensive Environmental Response Compensation and Liability Act (CERCLA claims) and engaged in a RICO conspiracy to fraudulently conceal the disposal of hazardous substances at a park. Defendants were hired to replace topsoil on a soccer field. Court dismissed the CERCLA claims after finding plaintiffs failed to “state a plausible claim with respect to the requisite degree of control over the Park or the hazardous material for operator liability.”

In THOMAS E. PEREZ, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff, v. FOG RIVER, LLC, a Utah limited liability company; and JOHN BOWEN, an individual, Defendants, No. 2:15-cv-500-PMW, 2017 WL 1194343 (D. Utah March 30, 2017), government sued a seafood processor seeking uncompensated wages due employees and liquidated damages under the Fair Labor Standards Act (FLSA). Defendants agreed they are employers and that the company is “an enterprise engaged in commerce for purposes of the FLSA,” but argued that “assuming their employees are not exempt and Defendants are liable for back wages, the amount they owe would be significantly less than what Plaintiff alleges.” Court found defendants’ employees are not exempted from overtime and defendants violated FLSA by failing to pay overtime wages.

In FRESH DIRECT, INC., et al., Plaintiffs, v. HARVIN FOODS, INC., et al., Defendants, C.A. No. 10-040-GMS, 2017 WL 1197674 (D. Del. March 30, 2017), plaintiffs alleged defendants failed to compensate it for produce received and violated statutory trust under the Perishable Agricultural Commodities Act (PACA). Court noted that PACA does not mention “individual liability,” and that the Third Circuit “has, however, found PACA buyers individually liable based on common law breach of trust principles.” Citing the Third Circuit the court noted, “‘individual shareholders, officers, or directors of a corporation who are in a position to control PACA trust assets, and who breach their fiduciary duty to preserve those assets, may be held personally liable under the Act.” Court found that because defendant “had a fiduciary duty to preserve the trust assets, the ability to actually control those assets, and he failed to turn over the trust assets, he can be held personally liable under PACA for ‘fail[ing] to maintain the trust.’” Plaintiffs’ motion for summary judgment granted.

LEGISLATIVE:

S. 190: Power And Security Systems (PASS) Act. Last Action: Committee on Energy and Natural Resources.

S. 214: A bill to authorize the expansion of an existing hydroelectric project. Last Action: Committee on Energy and Natural Resources.

S. 217: A bill to amend the Denali National Park Improvement Act to clarify certain provisions relating to the natural gas pipeline authorized in the Denali National Park and Preserve. Last Action: Committee on Energy and Natural Resources.

S. 213: Jay S. Hammond Wilderness Act of 2017. Last Action: Committee on Energy and Natural Resources.

S. 225: Mount Hood Cooper Spur Land Exchange Clarification Act. Last Action: Committee on Energy and Natural Resources.

S. 216: Bureau of Reclamation Transparency Act. Last Action: Committee on Energy and Natural Resources.

S. 199: A bill to authorize the use of the active capacity of the Fontenelle Reservoir. Last Action: Committee on Energy and Natural Resources.

S. 215: A bill to authorize the Federal Energy Regulatory Commission to issue an order continuing a stay of a hydroelectric license for the Mahoney Lake hydroelectric project in the State of Alaska, and for other purposes. Last Action: Committee on Energy and Natural Resources.

S. 239: Energy Savings Through Public-Private Partnerships Act of 2017. Last Action: Committee on Energy and Natural Resources.

S. 267: A bill to provide for the correction of a survey of certain land in the State of Alaska. Last Action: Committee on Energy and Natural Resources.

S. 287: A bill to update the map of, and modify the maximum acreage available for inclusion in, the Florissant Fossil Beds National Monument. Last Action: Committee on Energy and Natural Resources.

S. 280: Crags, Colorado Land Exchange Act. Last Action: Committee on Energy and Natural Resources.

S. 286: Elkhorn Ranch and White River National Forest Conveyance Act. Last Action: Committee on Energy and Natural Resources.

S. 289: Arapaho National Forest Boundary Adjustment Act of 2017. Last Action: Committee on Energy and Natural Resources.

S. 285: Bolts Ditch Access and Use Act. Last Action: Committee on Energy and Natural Resources.

S. 331: A bill to remove the use restrictions on certain land transferred to Rockingham County, Virginia. Last Action: Committee on Energy and Natural Resources.

S. 346: National Volcano Early Warning and Monitoring System Act. Last Action: Committee on Energy and Natural Resources.

S. 363: North Country National Scenic Trail Route Adjustment Act. Last Action: Committee on Energy and Natural Resources.

S. 385: Energy Savings and Industrial Competitiveness Act. Last Action: Committee on Energy and Natural Resources.

S. 432: Cerros del Norte Conservation Act. Last Action: Committee on Energy and Natural Resources. Ordered to be reported without amendment favorably.

S. 466: A bill to clarify the description of certain Federal land under the Northern Arizona Land Exchange and Verde River Basin Partnership Act of 2005 to include additional land in the Kaibab National Forest. Last Action: Committee on Energy and Natural Resources.

S. 490: A bill to reinstate and extend the deadline for commencement of construction of a hydroelectric project involving the Gibson Dam. Last Action: Committee on Energy and Natural Resources.

S. 491: A bill to reinstate and extend the deadline for commencement of construction of a hydroelectric project involving Clark Canyon Dam. Last Action: Committee on Energy and Natural Resources.

S. 508: Western Oregon Tribal Fairness Act. Last Action: Committee on Energy and Natural Resources.

S. 502: A bill to modify the boundary of Voyageurs National Park in the State of Minnesota. Last Action: Committee on Energy and Natural Resources.

S. 513: Frank and Jeanne Moore Wild Steelhead Special ManagementArea Designation Act. Last Action: Committee on Energy and Natural Resources.

S. 501: East Rosebud Wild and Scenic Rivers Act. Last Action: Committee on Energy and Natural Resources.

S. 566: Methow Headwaters Protection Act. Last Action: Committee on Energy and Natural Resources.

REGULATORY: Includes

AGRICULTURAL MARKETING SERVICE: Notice AMS will request approval from OMB for an extension of and revision to the currently approved information collection “Laboratory Approval Programs.” Details here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Sanitation SOP’s Pathogen Reduction/Hazard Analysis and Critical Control Point. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS determined the regulatory review period for Lawsonia Intracellularis Bacterin Vaccine and is publishing this notice of that determination as required by law. Info here.

Notice to inform the public of upcoming meetings regarding the Animal Disease Traceability system. Details here.

FARM SERVICE AGENCY: Notice FSA seeks comments on an extension with a revision of a currently approved information collection regarding the Generic Clearance for the Collection of Qualitative Customer Feedback on FSA Service Delivery. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS is establishing migratory bird subsistence harvest regulations in Alaska for the 2017 season. Info here.

Notice FWS sent an Information Collection Request to OMBfor review. Title: Incidental Take of Marine Mammals During Specified Activities. Details here.

FOREST SERVICE:

Notice the Black Hills National Forest Advisory Board will meet in Rapid City, South Dakota. Details here.

Notice the Lynn Canal-Icy Strait Resource Advisory Committee will meet in Juneau, Alaska. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is amending the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan based on the results of the 2016 stock assessment update for Atlantic dusky sharks. Info here.

Rule NMFS is reallocating the projected unused amount of Pacific cod from catcher vessels using trawl gear to vessels using pot gear in the Central Regulatory Area of the Gulf of Alaska. Details here.