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 food safety, land use, and class action issues.
In Jacob Petersen et al., Plaintiffs, v. Costco Wholesale Co., Inc. et al., Defendants, Case No.: SA CV 13-1292-DOC (JCGx), 2017 WL 187134 (C.D. Cal. Jan. 17, 2017), plaintiffs claimed exposure to hepatitis A virus after consuming a berry mix purchased at Costco. Costco argued for summary judgment claiming plaintiffs could not prove berry mix was defective and could not make out a claim for emotional distress damages. Plaintiffs argued berry mix was defective as “unfit for human food” and court persuaded a factual dispute existed regarding the berry mix. Summary judgment granted per claim for “emotional distress due to fear of disease”, but denied per defendant’s other claims.
KERRI HUNTER OTTO, Next Friend of BAILEY ANN MARIE NOBLE, Minor, Plaintiff-Appellant, v INN AT WATERVALE, INC, Defendant-Appellee, No. 330214, 2017 WL 192885 (Mich. Ct. App. Jan.17, 2017) concerned Michigan’s Recreational Land Use Act (RUA). Plaintiff injured her foot on a fire ring located on defendant’s beach property. Lower court held plaintiff’s negligence claim was barred because she failed to create an issue of fact regarding whether defendant’s conduct amounted to “gross negligence or willful and wanton misconduct” as required under the RUA. Court observed that plaintiff was not engaged “in an activity enumerated in the RUA when she was playing in the sand at the beach nor was she engaged in an ‘other outdoor recreational use’” when injured. Appellate court ruled RUA not applicable here and that “trial court erred in dismissing plaintiff’s negligence claim on that basis and in holding that plaintiff was required to prove gross negligence or willful and wanton misconduct.” Reversed for plaintiff and remanded.
In Naylor Farms, Inc., et al., Plaintiffs, v. Chaparral Energy, LLC, Defendant, NO. CIV-11-0634-HE, 2017 WL 187542 (W.D. Okla. Jan. 17, 2017), plaintiffs filed class action on behalf of Oklahoma royalty owners to recover for “underpayment of royalties” by defendant, owner of a large number of oil and gas wells. Court observed that the suit was similar to other suits wherein well operators “underpaid royalties . . . by improperly deducting certain costs incurred in making the gas marketable.” Defendant argued against class certification, but court reasoned that because defendant “sold the gas from the wells and at least nominally sold 85 to 90% of the gas at the well-head, many of the potential issues which defendant asserts to exist as a result of the multiple prongs in the various royalty clauses are eliminated.” Court granted motion for class certification.
LEGISLATIVE:
H.R. 238: Commodity End-User Relief Act. Bill’s text for status is now available.
REGULATORY: Includes AMS, ARS, USDA, APHIS, FWS, FS, OIG, and NOAA rules and notices.
AGRICULTURAL MARKETING SERVICE:
Rule AMS is reopening comment period on rule to change reporting of export certificate information under regulations issued pursuant to the Export Apple Act and the Export Grape and Plum Act until March 24, 2017. Info here.
Notice AMS will not proceed with the development of voluntary U.S. Standards for Grades of Catfish and Catfish Products at this time. Info here.
AGRICULTURAL RESEARCH SERVICE: Notice ARS will grant to BioWorks, Inc. of Victor, New York, an exclusive license to U.S. Patent No. 9,320,283, “TRICHODERMA ASPERELLUM TO REMEDIATE PHYTOPHTHORA RAMORUM-INFESTED SOIL.” Info here.
AGRICULTURE DEPARTMENT: Rule that a number of departments and agencies announce revisions to modernize, strengthen, and make more effective the Federal Policy for the Protection of Human Subjects. Details here.
ANIMAL AND PLANT HEALTH INPSECTION SERVICE:
Notice Lebanon was added to the APHIS list maintained on the APHIS Web site of regions considered affected with highly pathogenic avian influenza. Details here.
Notice Korea was added to the APHIS list maintained on the APHIS Web site of regions considered affected with contagious equine metritis. Info here.
Notice APHIS will request extension of approval of an information collection regarding regulations to prevent the introduction of highly pathogenic avian influenza, all subtypes, and Newcastle disease into the US through importation of birds, poultry, and unprocessed bird and poultry products. Info here.
Notice APHIS will request an extension of approval of an information collection associated with the regulations for the importation of horses, ruminants, swine, and dogs from regions where screwworm exists. Details here.
Notice APHIS will request a revision to an information collection associated with regulations for the importation of Unshu oranges. Info here.
Notice APHIS will request a reinstatement of an information collection associated with the National Veterinary Accreditation Program application form. Info here.
Notice APHIS will request the reinstatement of an information collection associated with National Veterinary Services Laboratories diagnostic support for the bovine spongiform encephalopathy surveillance program. Info here.
Notice APHIS will request an extension of approval of an information collection regarding regulations providing for the payment of compensation to owners of commercial stone fruit orchards and fruit tree nurseries whose trees or nursery stock were destroyed to eradicate plum pox virus. Info here.
Notice APHIS advises the public of a preliminary concurrence with the World Organization for Animal Health’s bovine spongiform encephalopathy risk designations for seven regions. Details here.
Notice APHIS will recognize Cyprus as being free of foot-and-mouth disease, rinderpest, and swine vesicular disease, and as low risk for classical swine fever. Info here.
FISH AND WILDLIFE SERVICE:
Rule to adjust for inflation the statutory civil monetary penalties that may be assessed for violations of Service-administered statutes and their implementing regulations. Details here.
Rule FWS published a final rule revising regulations for eagle nonpurposeful take permits and eagle nest take permits. Details here.
Notice FWS prepared a record of decision on the final environmental impact statement for Eagle Take Permits for the Chokecherry and Sierra Madre Phase I Wind Energy Project. Details here.
Notice FWS will prepare a draft environmental impact statement to evaluate the impacts of alternatives relating to the proposed issuance of an Endangered Species Act Incidental Take Permit in response to the American Electric Power Habitat Conservation Plan. Details here.
FOREST SERVICE:
Notice the Trout Creek Project is proposed to encourage stand health, vigor, species diversity and structural complexity in the Matrix, Adaptive Management Area (AMA), and Riparian Reserves. Details here.
Notice the Alabama Resource Advisory Committee will meet in Montgomery, Alabama. Info here.
INSPECTOR GENERAL OFFICE, AG DEPT: Notice USDA OIG publishes this records notice to modify an existing system of records, USDA/OIG-8, the Research Aggregated Data Analysis Repository System. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS issues final rule to list two foreign marine guitarfish species under the Endangered Species Act. Details here.
Rule sets forth changes to the regulations that implement conservation measures adopted by the Commission for the Conservation of Antarctic Marine Living Resources. Info here.
Rule provides guidance on requirement of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) that all fishery management plans establish a standardized reporting. Details here.
Rule NMFS wants to implement measures included in Framework Adjustment 28 to the Atlantic Sea Scallop Fishery Management Plan. Info here.
Rule NMFS received an application from the Alaska Aerospace Corporation (AAC) for authorization to take small numbers of marine mammals incidental to launching space launch vehicles. Details here.