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 pesticide, food safety, estate planning, and water law issues.

In Elisabeth Martin v. Monsanto Company, Case No. ED CV 16-2168-JFW (SPx), 2017 WL 659014 (C.D. Cal. Feb. 16, 2017), plaintiff sued claiming that when users of defendant’s Roundup product follow the instructions on the back of the label, “the Roundup Concentrates only make about half of the amount that Monsanto claims on the front of the label.” Defendant moved to dismiss plaintiff’s claims arguing they are preempted by Federal Insecticide Fungicide and Rodenticide Act (FIFRA) provision providing that a “State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA].” Court noted that plaintiff’s claims “are not limited to injunctive relief; she also seeks restitution and damages,” and found that that claims for relief are not preempted by FIFRA. Court concluded that “Federal law does not prevent a state from providing a damages remedy for violations of federal law.” Defendant’s motion to dismiss denied.

In Julian Montilla, Kenneth Seidler, Dennis Hoppes, Plaintiffs, v. Aramark Food Services Corp., Steve Dredge, Greg Scott, and Jennifer Blaesing, Defendants, 11–cv–3193, 2017 WL 637675 (C.D. Ill. Feb. 16, 2017), plaintiffs, inmates at a detention center, sued claiming constitutional violations after the center gave them “inedible food” by serving mechanically separated chicken in boxes marked “for further processing only.” Defendants moved for summary judgment arguing that federal laws governing mechanically separated chicken “do not prohibit the serving of meals containing mechanically separated chicken.” Court reasoned that, “Plaintiffs’ testimony allows a reasonable inference that they suffered an objectively serious deprivation,” and denied defendants’ motion.

Matthias Schroeder, Appellant, v. Dana Brewer, Appellee, No. 114,123, 2017 WL 658859 (Kan. Ct. App. Feb. 17, 2017) concerned settlement negotiations regarding interests in a family farm. Court considered whether a settlement agreement precluded plaintiff’s claim against defendant, an attorney and administrator of the estate at issue, for not reducing his fees to 3 percent and delaying the settlement negotiations. District court ruled plaintiff could not pursue any claim against defendant by the settlement agreement and plaintiff appealed. Appellate court focused on the phrase, “any further claims against each other related to either court case” and determined it “must include [plaintiff’s] claim against [defendant]. Court ruled that, “The reasonable interpretation is that any claim relating to the negotiation of [defendant’s] fees was settled. It would not be reasonable to settle one’s fee and then be sued based on the amount of the time that it took to settle that fee.” Plaintiff’s appeal denied.

In City of Lake Elmo, Plaintiff, v. 3M Company, Defendant, No. 16–2557 ADM/SER, 2017 WL 630740 (D. Minn. Feb. 15, 2017), plaintiff sued claiming it incurred millions of dollars in costs associated with presence of PFCs in its water supply. Plaintiff alleged 3M’s “improper disposal of hazardous waste and contamination of its municipal well constitute conversion of the City’s interest in its well and the water within it.” Court observed that, “Conversion is the willful interference with another’s personal property, done without lawful justification, which deprives the person of the use and possession of the property.” Court ruled that defendant “is correct that a well is real property, and thus the conversion claim fails with respect to Lake Elmo’s well.” However, court also noted that “riparian rights entitle an owner to the use and enjoyment of the water,” and that “3M’s argument that Lake Elmo has not been deprived of the ability to use the groundwater is unavailing.” Court concluded plaintiff’s conversion claim “will be allowed to proceed at this stage and the motion to dismiss is denied as to this claim.”


LEGISLATIVE:

S. 440: A bill to establish a procedure for the conveyance of certain Federal property around the Dickinson Reservoir in the State of North Dakota. Bill referred to the Senate Committee on Energy and Natural Resources. Sponsor: Sen. John Hoeven [R-ND].

S. 441: A bill to designate the Organ Mountains and other public land as components of the National Wilderness Preservation System in the State of New Mexico. Bill referred to the Senate Committee on Energy and Natural Resources. Sponsor: Sen. Tom Udall [D-NM].


REGULATORY: Includes AMS, USDA, FNS, FS, NOAA, and OPPM rules and notices.

AGRICULTURAL MARKETING SERVICE: Notice AMS will request an extension for the form currently used by marketers to apply for exemption from market promotion assessments under 23 marketing order programs. Title: Organic Handler Market Promotion Assessment Exemption under Federal Marketing Orders. Info here.

AGRICULTURE DEPARTMENT: Notice USDA submitted an information collection requirement(s) to OMB for review. Title: Interstate Movement of Certain Land Tortoises. Details here.

FOOD AND NUTRITION SERVICE:

Rule FNS is extending the effective dates and comment period for a rule implementing provisions of the Food, Conservation and Energy Act of 2008. Details here.

Notice inviting comment on a proposed information collection. Title: Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Program Regulations—Reporting and Record-keeping Burden. Details here.

FOREST SERVICE:

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

Notice the Lake Tahoe Basin Federal Advisory Committee will meet in South Lake Tahoe, California. Info here.

Notice the Land Between The Lakes Advisory Board will meet in Golden Pond, Kentucky. Info here.

Notice the Siskiyou Resource Advisory Committee will meet in Brookings, Oregon. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS prohibits directed fishing for Pacific cod by vessels using pot gear in the Western Regulatory Area of the Gulf of Alaska. Details here.

Rule NMFS identified a section of the regulations for black sea bass pot commercial trip limits in need of clarification. Details here.

Rule NMFS will implement management measures described in Framework Amendment 4 to the Fishery Management Plan for the Coastal Migratory Pelagics Fishery of the Gulf of Mexico and Atlantic Region. Info here.

PROCUREMENT AND PROPERTY MANAGEMENT OFFICE, AGRICULTURE DEPARTMENT: Notice USDA is extending by 30 days the deadline to submit comments on the proposed rule to designate 12 product categories for federal procurement under the Farm Security and Rural Investment Act of 2002. Details here.