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


ANNOUNCEMENT: Join us TOMORROW at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Using LLCs in Agriculture: Beyond Liability Protection.” Details available here.


JUDICIAL: Includes pesticides, landowner liability, rural development, urb & ag, and food safety issues.

IN RE: IMPRELIS HERBICIDE MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, MDL No. 2884, 2017 WL 3429355 (E.D. Pa. August 9, 2017) concerned the class action settlement regarding the Dupont pesticide Imprelis. Plaintiff disputed the ratings and heights of three trees for which it sought compensation from the class settlement. On appeal, plaintiff submitted photographs and argued an arborist’s estimate of tree height was flawed and that “all three trees involved in this appeal were so damaged by Imprelis that they should be rated high enough to warrant replacement.” Court observed that the photographs “do not clearly show that [arborist’s] height estimate is incorrect or that the trees exhibited sufficiently serious Imprelis damage to disturb the original ratings.” Arborist Panel decision affirmed.

Joshua RAWA, on behalf of himself and all others similarly situated, Plaintiff, v. MONSANTO COMPANY, Defendant, No. 4:17CV01252 AFG, 2017 WL 3392090 (E.D. Mo. August 7, 2017) involved a class action filed under the Missouri Merchandise Practices Act. Plaintiff claimed defendant’s product labels overstated the number of gallons of spray solution Roundup Concentrates would make. Monsanto moved to dismiss for failure to state a claim. Court noted that plaintiff “sufficiently alleged that the value of the Super Concentrate he purchased was less than the value of the products as represented because he believed the dilution instructions on the front of the booklet label would yield 23 gallons of solution, but the actual yield was significantly less.” Defendant’s motion to dismiss denied in part.

In Diane NASH, Personal Representative of the Estate of Chance Aaron Nash, deceased, Plaintiff–Appellant/Cross–Appellee, v. DUNCAN PARK COMMISSION, Defendant–Appellee/Cross–Appellant. Diane Nash, Personal Representative of the Estate of Chance Aaron Nash, deceased, Plaintiff–Appellant/Cross–Appellee, v. Duncan Park Trust and Edward Lystra, Rodney Griswold, and Jerry Scott, individually and as Trustees of the Duncan Park Trust, Defendants–Appellees/Cross–Appellants. Diane Nash, Personal Representative of the Estate of Chance Aaron Nash, deceased, Plaintiff–Appellant, v. Robert L. Dehare, Defendant–Appellee. City of Grand Haven, successor trustee of the Duncan Park Trust, Appellee, v. Diane Nash, Personal Representative of the Estate of Chance Aaron Nash, deceased, Appellant, No. 331651, No. 331840, No. 331842, No. 331869, 2017 WL 3441404 (Mich. Ct. App. August 10, 2017), a child died when he struck a fallen tree in a forest while snow sledding and plaintiffs sought to hold the landowner liable for this death. Issue on appeal was whether defendants are liable for child’s death “while sledding down a snowy, wooded, natural hill in an undeveloped tract of land.” Court considered the governmental tort liability act (GTLA) and the Recreational Land Use Act (RUA), eventually reasoning that, “If permitting recreational activity to occur knowing that injury may result is to be considered gross and wanton conduct, then every governmental entity in this state would be guilty of gross and wanton conduct. To adopt plaintiff’s argument would render meaningless the exception from liability as contained in [the immunity statute].” Affirmed for defendant.

In AIRPORT ROAD ASSOCIATES, LTD., Clifford E. Olsen—Delta Square, Oakdale Associates, Limited, Serenity Village, a Partnership in Commendam, Southeastern Associates, Ltd., a Louisiana Limited Partnership, Southside Apartments, Ltd., Plaintiffs, Bayou Des Glaises, Ltd., Bloomfield Partnership II, a Louisiana Partnership in Commendam, Clifford E. Olsen—College Towne, Clifford E. Olsen—Collins Square, a Louisiana Partnership in Commendam, Clifford E. Olsen—Hammond Towne, Clifford E. Olsen—Jefferson South, Clifford E. Olsen—Old Man River, Clifford E. Olsen—Walker Partnership, Clifford E. Olsen 1977-B, Cypress Cove Association, Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee, 2016-1542, 2017 WL 3427713 (Fed. Cir. August 10, 2017), property owners holding loan agreements with the Rural Housing Service (RHS) sued alleging breach of contract and takings claim arising out of RHS’ refusal to permit owners to prepay loans. Court of Federal Claims granted RHS’ motion to dismiss for lack subject matter jurisdiction, concluding “limitations period on owners’ breach of contract claim had run.” Property owners appealed. Court of Appeals held that “owners’ cause of action for breach of contract accrued, and six-year limitations period began to run, only once owners had made a complete prepayment request.” Reversed and remanded.

In Nicholas L. and Donnelle K. HOFFMAN, Applicants and Appellants, v. Jessica VAN WYK, in her capacity as the Douglas County Planning and Zoning Administrator, and The Douglas County Planning and Zoning Commission, Respondents and Appellees, 27977, 2017 WL 3426532(S.D. August 9, 2017), property owners applied for writ compelling zoning commission to revoke a building permit for a hog containment unit. Application was denied and property owners appealed. State Supreme Court held the proposed hog facility “was a permitted use without the need for a variance or conditional use permit even if application for building permit did not conform to ordinance’s requirement for a detailed site plan, mandamus would not be granted, when the facility had already been completed at the time of trial.”

In LINDA O’RISKY, Plaintiff, v. MEAD JOHNSON NUTRITION CO., Defendant, No. 17 C 1046, 2017 WL 3421552 (N.D. Ill. August 8, 2017), plaintiff claimed she was fired from her job in retaliation for raising concerns about safety issues related to defects in the manufacture of defendant’s ready-to-use infant formula. Plaintiff sued for retaliation in violation of the Food Safety Modernization Act (FSMA). Court observed that Indiana law recognizes at will employment, and that whistleblowing, “which [plaintiff] claims as the basis for her common law retaliatory discharge claim, does not fall into one of Indiana’s recognized exceptions.” Plaintiff’s retaliatory discharge claim dismissed.


REGULATORY: Includes AMS, APHIS, EPA, FWS, FDA, ITA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Notice AMS is making corrections to the Code of Federal Regulations by revising the authority citation for its regulation, Cotton Research and Promotion. Info here.

ANIMAL AND PLANT HEALTH INSPECITON SERVICE: Rule amending the regulations to allow the importation of fresh Hass avocado fruit from Colombia into the continental United States. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve changes to the Georgia State Implementation Plan to revise new source review and miscellaneous permitting regulations. Info here.

Rule EPA is taking final action to approve revisions to the Placer County Air Pollution Control District portion of the California State Implementation Plan. Details here.

Rule EPA is proposing to approve portions of revisions to Alabama’s State Implementation Plan. Info here.

Rule EPA is proposing to approve a State Implementation Plan revision submitted by the State of Georgia, Department of Natural Resources, through the Georgia Environmental Protection Division on January 8, 2014. Details here.

Rule EPA is proposing to approve certain changes to the Michigan State Implementation Plan. Details here.

Rule EPA is proposing to approve a revision to the South Carolina State Implementation Plan. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS proposes to approve the shot for hunting waterfowl and coots. Details here.

Notice FWS invites the public to comment on the following applications to conduct certain activities with endangered species. Info here.

Notice FWS received a request from BAE Systems Land and Armaments L.P., for an incidental take permit under the Endangered Species Act. Info here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA is amending the regulations for food additives permitted in feed and drinking water of animals to provide for the safe use of oil from a variety of bioengineered safflower as a source of omega-6 fatty acids in complete dry adult maintenance dog food. Info here.

Notice FDA is announcing the availability for public comment of a proposed method for applying a food animal biomass denominator to annual data on antimicrobials sold and distributed for use in food animals in the United States. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA initiated antidumping duty investigations on biodiesel from Argentina and Indonesia. Info here.

Notice ITA initiated the countervailing duty investigation of citric acid and certain citrate salts from Thailand. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific Ocean perch in the West Yakutat District of the Gulf of Alaska. Info here.

Rule NMFS is prohibiting retention of sablefish by vessels using trawl gear in the West Yakutat District of the Gulf of Alaska. Details here.

Notice NMFS announces the initiation of a new status review of alewife and blueback herring to determine whether listing either species as endangered or threatened under the Endangered Species Act is warranted. Info here.

Notice NMFS announces its intent to prepare an environmental impact statement in order to assess the impacts of issuing annual catch limits for the subsistence harvest of bowhead whales by Alaska Natives from 2019 onward. Info here.