A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu
JUDICIAL: Includes feeding operation, contract, environmental, food safety, and land use issues.
In Patricia J. McILRATH, Plaintiff–Appellee, v. PRESTAGE FARMS OF IOWA, L.L.C., Defendant–Appellant, No. 15–1599, 2016 WL 6902328 (Iowa Ct. App. Nov. 23, 2016), defendant appealed award of damages to plaintiff in her nuisance action based on odor from an animal confinement operation. Defendant constructed an “animal confinement facility” for 2,000 hogs about 2200 feet from plaintiff’s home and plaintiff sued claiming odor from the hog facility constituted a nuisance. Defendant claimed it was entitled to immunity based on Iowa Code Sec. 657.11 that protects animal ag producers. Court reasoned that plaintiff “lived on her property and made substantial improvements to it long before Prestage Farms constructed the hog confinement facility.” Court found defendant not entitled to immunity and affirmed district court ruling for plaintiff.
In Campbell Soup Supply Company LLC, Plaintiff/Counter-Defendant, v. Protenergy Natural Foods Corp., Defendant/Counter-Claimant, CIVIL NO. 16-684(NLH)(JS), 2016 WL 7104840 (D.N.J. Dec. 5, 2016), plaintiff sued claiming damage to beef, chicken, fish and vegetable stock that defendant manufactured for plaintiff. Plaintiff claimed 600,000 units of stock shipped on pallets suffered “crush damage” because defendant “improperly manufactured and packaged the stock, in violation of the parties’ manufacturing agreement.” Defendant filed counterclaim alleging negligence by plaintiff. Court noted that “a tort remedy does not arise from a contractual relationship unless the breaching party owes an independent duty.” The court further conclude that if a defendant “owe[s] a duty of care separate and apart from the contract between the parties,” a tort claim such as negligence may lie, “[b]ut mere failure to fulfill obligations encompassed by the parties’ contract … is not actionable in tort.” Defendant’s counterclaim for negligence dismissed.
UNITED STATES OF AMERICA, Plaintiff, v. ATLANTIC RICHFIELD COMPANY, Defendant, No. CV-89-39-BU-SHE, 2016 WL 7165882, (D. Mont. Dec. 7, 2016) concerned a 27 year-old CERCLA action involving environmental damage resulting from a “century of mining and smelting operations.” Montana Standard sought to intervene in this case and wanted access to documents in possession of Montana Department of Environmental Quality. A confidentiality order was in place dating to 2002 and the court observed that, “To require the United States and ARCO to expend further time and money defending the [confidentiality] order is itself prejudicial. The parties unquestionably would be prejudiced were the Motion to be granted.” Court found no justification to challenge the confidentiality order and did not permit intervention.
In Ismael Brizuela, Plaintiff, v. Immigration Centers of America, et al., Defendants, 1:15cv1662 (CMH/IDD), 2016 WL 7173783 (E.D. Va. Dec. 8, 2016), plaintiff was confined at the Farmville Detention Center and alleged he was served contaminated food in violation of his Eighth Amendment rights after he found a rock in his serving of rice. Court observed that, “Although the Eighth Amendment requires prisons to provide inmates with wholesome and nutritious meals, an inmate must allege a serious injury arising from the provision of inadequate food to state an Eighth Amendment violation.” Court found that plaintiff “suffered no injury whatever.” Plaintiff failed “satisfy the requirement that a serious injury must have resulted from the provision of inadequate food to state an Eighth Amendment violation,” and his claims were dismissed.
Jeffrey L. Grim and Carol A. Grim, Appellants v. Zoning Hearing Board of Perry Township and Township of Perry, Berks County and Earl Christman, James P. Adam, Jan M. Adam and Dean A. Adam, No. 2482 C.D. 2015, 2016 WL 7176944 (Pa. Commw. Ct. Dec. 9, 2016) concerned landowner liability. Appellants owned land they leased to a “club” that flew model aircraft on the property. Neighbors complained that the land was not zoned for such use and appellants were cited. Appellants argued they were entitled to a “variance by estoppel” allowing club members to continue operating model aircraft on the land. Court observed that a “variance by estoppel is an unusual remedy under the law and is granted only in the most extraordinary of circumstances.” Zoning board and trial court found appellants did not establish that “cessation of the illegal use would create a hardship and that the variance would not be a threat to the health, safety, or morals of the community.” Appellate court ruled zoning board acted within its discretion and affirmed trial court ruling for board.
LEGISLATIVE:
H.R. 875: Cross-Border Trade Enhancement Act of 2016. Passed Senate without amendment by unanimous consent. Goes to the President next.
H.R. 4245: To exempt exportation of certain echinoderms and mollusks from licensing requirements under the Endangered Species Act of 1973. Passed Senate with an amendment by Unanimous Consent.
H.R. 6452: Ensuring Access to Pacific Fisheries Act. Passed Senate without amendment by voice vote. Goes to the President next.
REGULATORY: Includes AMS, FWS, FDA, FNS, FS, NIST, and NOAA rules and notices.
AGRICULTURAL MARKETING SERVICE: Notice that comment period on proposed amendments to the provisions for removal of board and council members or staff of the research and promotion orders overseen by AMS is extended to December 23, 2016. Info here.
FISH AND WILDLIFE SERVICE: Notice FWS will reissue an expired golden-cheeked warbler (GCWA) incidental take permit (ITP) in Travis County, Texas. Info here.
FOOD AND DRUG ADMINISTRATION:
Rule FDA is correcting a final rule entitled “Requirements for Foreign and Domestic Establishment Registration and Listing for Human Drugs, Including Drugs That Are Regulated Under a Biologics License Application, and Animal Drugs” that appeared in the Federal Register of August 31, 2016. Info here.
Notice FDA announces that a proposed collection of information has been submitted to OMB for review regarding the Animal Feed Regulatory Program Standards. Details here.
Notice FDA announces the availability of a revised guidance for industry entitled “Registration and Product Listing for Owners and Operators of Domestic Tobacco Product Establishments.” Details here.
FOOD AND NUTRITION SERVICE: Rule FNS updates the Supplemental Nutrition Assistance Program (SNAP) regulations to set implementation parameters, prerequisites and operational standards required of State agencies intending to implement the photo EBT card option. Details here.
FOREST SERVICE: Notice the Manti-La Sal National Forest will charge a fee at the Mammoth Administrative Site. Info here.
NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY: Notice invites comment on proposed and/or continuing information collections regarding an approach for measuring the life-cycle environmental and economic performance of building products. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS announces re-opening of the commercial sector for vermilion snapper in the exclusive economic zone of the South Atlantic through this temporary rule. Details here.
Rule NOAA for Coastal Management is requesting comments on the preliminary findings and draft environmental assessment for a request from the Commonwealth of Puerto Rico for approval of amendments to the Puerto Rico Coastal Zone Management Program. Info here.
Notice NMFS announces availability of the Record of Decision for the Kalamazoo River Natural Resources Damage Assessment: Final Restoration Plan and Programmatic Environmental Impact Statement. Info here.
Notice NMFS publishes the individual fishing quota standard prices and fee percentage for cost recovery for the IFQ Program for the halibut and sablefish fisheries of the North Pacific. Details here.
Notice NMFS publishes standard ex-vessel prices for groundfish and halibut for the calculation of the observer fee under the North Pacific Observer Program. Details here.