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

ANNOUNCEMENT: Join us Wednesday, September 6, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Water Law Update.” Details available here.

JUDICIAL: Includes pesticides, food labeling, CWA, landowner liability, and contract issues. 

IN RE: STEPAN COMPANY, Appellant, 2016-1811, 2017 WL 3648528 (Fed. Cir. August 25, 2017) concerned an appeal after a patent registrant’s claim was rejected by the patent board. Registrant’s invention involved a “storage stable, aqueous, herbicidal formulation” and the treatment of “unwanted vegetation employing the formulation.” Board found that the registrant “failed to rebut the examiner’s prima facie case of obviousness,” and rejected the patent claim. Appellate court, however, reasoned that, “Because the Board failed to adequately articulate its reasoning, erroneously rejected relevant evidence of nonobviousness, and improperly shifted to [registrant] the burden of proving patentability, we vacate the Board’s decision.” Case vacated and remanded.

IN RE: SUBWAY FOOTLONG SANDWICH MARKETING AND SALES PRACTICES LITIGATION. Appeal of: Theodore Frank, Objector, No. 16-1652, 2017 WL 3666635 (7th Cir. August 25, 2017) involved class-action litigation wherein plaintiffs’ lawyers sued Subway for damages under state consumer-protection laws after a customer discovered his Subway Footlong sandwich was only 11 inches long. No compensable injury was found as “no customer is shorted any food even if a sandwich roll fails to bake to a full 12 inches,” and Subway was then forced to implement measures to ensure “all Footlong sandwiches are at least 12 inches long.” Here, objector argued that the settlement “enriched only the lawyers and provided no meaningful benefits to the class.” Lower court certified the class and objector appealed. Appellate court reversed, noting that, “A class action that seeks only worthless benefits for the class and yields [only] fees for class counsel is ‘no better than a racket’ and ‘should be dismissed out of hand.’”

In TAOS SKI VALLEY, INC., Plaintiff – Appellant, v. NOVA CASUALTY COMPANY, Defendant – Appellee, No. 16-2118, 2017 WL 3669414 (10th Cir. August 25, 2017), plaintiff discovered an oil-and-water separator on its federally leased property “released hydrocarbon contaminants into the soil” at its ski resort in New Mexico. To halt contamination, plaintiff spent over a million dollars remediating the property. Plaintiff had a commercial general-liability insurance policy with defendant and sought indemnification for clean-up expenses. Defendant denied coverage under the insurance policy’s “owned-property exclusion” and plaintiff sued. District court granted defendant’s motion to dismiss and plaintiff appealed. Court considered the insurance policy and noted that, “We see nothing ambiguous in [defendant’s] owned-property exclusion, in particular its exclusion of damage to an insured’s property, including restoration costs ‘for any reason, including prevention of … damage to another’s property.’” Affirmed.

In KENNETH S. WADE, PLAINTIFF-APPELLANT, v. ALEXA A. PFISTER A/K/A ALEXA BEVERS, DEFENDANT-RESPONDENT. Appeal No. 2016AP1693, 2017 WL 3668929 (Wis. Ct. App. August 24, 2017), plaintiff’s property abutted defendant’s property that had been placed in a Conservation Reserve Program. Plaintiff sought judgment declaring that he had established prescriptive easements over five paths on defendant’s property. Plaintiff claimed he used the “for a period greater than 20 years to move equipment necessary to the management of his land.” Circuit court dismissed and plaintiff appealed. Appellate court affirmed, concluding that plaintiff “failed to prove at least one of the elements of a prescriptive easement claim . . . that since 2001 Wade’s use of [defendant’s] ‘unenclosed land’ was hostile or adverse to [defendant].”

HOSTINGXTREME VENTURES, LLC, Plaintiff, v. BESPOKE GROUP, LLC, Divyesh Patel, and Hina Patel, Defendants. No. 3:14-CV-1471-M, 2017 WL 3434296 (N.D. Tex. August 9, 2017) involved a breach of contract for the sale of 180 metric tons of “dry green peas.” Defendants pleaded an affirmative defense of impracticability and designated an agricultural transportation expert to testify defendants were “unable to perform under the contract because of market factors and weather conditions affecting agricultural sales and transportation during the time of performance.” Plaintiff designated its own expert to testify about the relevant market price for dried green peas and defendant objected that the witness’ opinion is “irrelevant.” Court noted plaintiff’s witness considered “unit value estimates” from the USDA and “a sample of four invoices for similar transactions during the relevant time frame,” and concluded plaintiff met its burden. Defendants’ motion to exclude plaintiff’s expert opinion on “dried pea prices” denied.

REGULATORY: Includes USDA,  APHIS, EPA, FSA, FWS, FDA, FS, NOAA and RBCS rules and notices. 


Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Supplemental Nutrition Assistance Program Repayment Demand and Program Disqualification. Details here.

Notice announcing the re-opening of the solicitation for nominations to fill vacancies on the National Agricultural Research, Extension, Education, and Economics Advisory Board and its subcommittees. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS will request a revision to and extension of approval of an information collection associated with the plants for planting regulations. Info here.


Rule EPA is approving revisions submitted by the State of Louisiana controlling emissions of volatile organic compounds (VOCs) and changes to the Stage II gasoline vapor recovery rule as part of the Louisiana State Implementation Plan. Info here.

Rule EPA is approving Tennessee’s RACM determination for the Knoxville Area and incorporating it into the SIP. Info here.

Rule EPA is proposing to conditionally approve a revision to the New York State Implementation Plan (SIP) addressing requirements of the Cross-State Air Pollution Rule. Details here.

Rule EPA is proposing amendments to previous proposals to the National Emission Standards for Hazardous Air Pollutants for the Wool Fiberglass Manufacturing source category. Details here.

FARM SERVICE AGENCY: Notice FSA seeks comments from all interested individuals and entities on an extension of a currently approved information collection associated with the FSA county committee elections. Info here.

FISH AND WILDLIFE SERVICE: Notice Montana Department of Natural Resources and Conservation is amending its Forested Trust Lands Habitat Conservation Plan (2010 HCP) to incorporate the terms of a settlement agreement and add lands that it acquired since the FWS issued an incidental take permit to DNRC in December 2011. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing the fiscal year (FY) 2018 annual fee rate for recognized accreditation bodies and accredited certification bodies, and the fee rate for accreditation bodies applying to be recognized in the third-party certification program that is authorized by the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended by the FDA Food Safety Modernization Act. Info here.


Notice the Green Mountain and Finger Lakes National Forests are proposing several new fees to recreation areas on the three ranger districts located within the Forests. Details here.

Notice the Butte County Resource Advisory Committee will meet in Oroville, California. Details here.


Notice that Kara Dodge, Ph.D., Woods Hole Oceanographic Institution, MS #33, Redfield 256, Woods Hole, MA 02543, has applied in due form for a permit to take leatherback sea turtles for purposes of scientific research. Details here.

Notice that a Letter of Authorization has been issued to the U.S. Air Force (USAF) 86 Fighter Weapon Squadron (86 FWS) to take marine mammals incidental to Long Range Strike (LRS) Weapons System Evaluation Program (WSEP) exercises on the Barking Sands Underwater Range Expansion (BSURE) area of the Pacific Missile Range Facility (PMRF) off Kauai, Hawaii. Info here.

Notice the SEDAR 52 assessment process of Gulf of Mexico red snapper will consist of an In-person Workshop, and a series of assessment webinars. Info here.

Notice the Gulf of Mexico Fishery Management Council will hold a 3-day meeting of its Standing, Reef Fish, and Socioeconomics Scientific and Statistical Committees. Details here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice RBCS is accepting applications for the Value-Added Producer Grant program. Approximately $18 million is currently available. Info here.