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

ANNOUNCEMENT: 

Join us Wednesday, July 25^th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: Compliance with DOL and Immigration Laws and Regulations for Agricultural Businesses. Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.

JUDICIAL: Includes secured transactions, food safety, agritourism, and administrative law issues.

Charles MAGLEY III, Plaintiff-Appellant, v.M & W INCORPORATED, Defendant-Appellant, No. 340507, 2018 WL 3443976 (Mich. Ct. App. July 17, 2018) involved a tort action arising from the repossession of plaintiff’s farm equipment. Plaintiff had a loan for a tractor with credit union and the tractor was his secured collateral. Plainitff defaulted on his tractor loan and defendant. An asset recovery company, repossessed the tractor as well as an herbicide sprayer and tank. Plaintiff sued for conversion regarding the sprayer, but lower court ruled defendant could not be held liable when acting as an agent for a third-party and issued summary judgment for defendant. On appeal, plaintiff argued that the sprayer and tank were not subject to repossession “because these items do not qualify as ‘accessions’ within the meaning of the Loan and Security Agreement.” Issue was whether defendant “had a legal right to take, and refuse to return, plaintiff’s tank and sprayer.” Appellate court reversed ruling for defendant after concluding plaintiff “may still maintain a claim for conversion, and plaintiff can recover damages for the reasonable value for the loss of use.”

In Brandon STACHULSKI v. APPLE NEW ENGLAND, LLC, No. 2016-0692, 2018 WL 3447678 (N.H. July 18, 2018), plaintiff sued under strict product liability theory and alleged he contracted salmonella poisoning after eating a hamburger at defendant’s restaurant. Jury awarded plaintiff $750,000 and defendant appealed, arguing there was “insufficient causation evidence to prove . . . the hamburger from the defendant’s restaurant caused the plaintiff’s salmonella.” State Supreme Court upheld jury verdict after finding that “[t]hough the causation evidence adduced at trial was conflicting, several reasonable inferences could be drawn from such evidence, including that the defendant-restaurant’s hamburger was the cause of the plaintiff’s salmonella illness.”

In Susan C. Giordano, appellant, v. Heather A. Zepp, et al., defendants, Three Brothers Winery & Estates, LLC, respondent, 2016–03620, 2018 WL 3450388 (Index No. 9605/12) (N.Y. July 18, 2018) plaintiff sued for injuries after she was assaulted by a patron at defendant’s winery following a wine-tasting tour. Plaintiff claimed defendant served alcohol to “an already-intoxicated” patron, and was therefore liable for her injuries under the Dram Shop Act. Lower court granted summary judgment for defendant. Appellate court observed that “[t]o establish a cause of action under New York’s Dram Shop Act, a plaintiff is required to prove that the defendant sold alcohol to a person who was visibly intoxicated.” Court considered affidavits from the winery’s owner and four of its employees, “all of whom stated that they . . . did not recall seeing or being informed about any visibly intoxicated patron.” Affirmed for defendant.

In AIR TRANSPORT ASSOCIATION OF AMERICA, INC. d/b/a Airlines for America, et al., Plaintiffs, v. UNITED STATES DERPARTMENT OF AGRICULTURE, et al., Defendants, No. 16-919 (RMC), 2018 WL 3448223 (D.D.C. July 17, 2018), plaintiffs challenged Final Rule issued by the Animal and Plant Health Inspection Service (APHIS) that “set fees for checking international aircraft for unwanted pests, including an additional amount for a ‘reserve.’” Here plaintiffs asked court to certify for interlocutory review “whether APHIS violated the Administrative Procedure Act when it determined to apply the fee for commercial aircraft to passenger aircraft without explaining inconsistencies in the rulemaking record.” Court found plaintiffs failed to meet their burden of “showing that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of final judgment.” The Court ruled certification for interlocutory appeal was not warranted, but ordered APHIS to complete notice and comment rulemaking.

LEGISLATIVE:

H.R. 66: Route 66 Centennial Commission Act. This bill’s text for status Reported by House Committee (Jul 16, 2018) is now available.

S. 1573: American Discovery Trail Act of 2017. This bill’s text for status Reported by Senate Committee (Jul 16, 2018) is now available.

H.R. 3281: Reclamation Title Transfer and Non-Federal Infrastructure Incentivization Act. This bill’s text for status Referred to Senate Committee (Jul 16, 2018) is now available.

S. 1645: Thurgood Marshall’s Elementary School Study Act. This bill’s text for status Reported by Senate Committee (Jul 16, 2018) is now available.

H.R. 3906: To direct the Administrator of the Environmental Protection Agency to establish a stormwater infrastructure funding task force. This bill’s text for status Reported by House Committee (Jul 16, 2018) is now available.

H.R. 4446: To amend the Virgin Islands of the United States Centennial Commission Act to extend the expiration date of the Commission. This bill’s text for status Reported by House Committee (Jul 16, 2018) is now available.

H.R. 5772: To designate the J. Marvin Jones Federal Building and Courthouse in Amarillo, Texas, as the “J. Marvin Jones Federal Building and Mary Lou Robinson United States Courthouse.” This bill’s text for status Reported by House Committee (Jul 16, 2018) is now available.

H.R. 6386: To direct the Secretary of Agriculture, in consultation with other appropriate entities, to develop and carry out a national science-based education campaign to increase public awareness regarding the use of technology in food and agriculture. This bill’s text is now available.

H.R. 6383: To provide funds to enable counties to make competitive grants to qualified local units of government to address major community development and public infrastructure challenges. This bill’s text is now available.

H.R. 6381: To memorialize victims and survivors of the occupation of Guam, provide for additional development at the War in the Pacific National Historical Park. This bill’s text is now available.

H.R. 1482: To authorize the Secretary of Agriculture to maintain or replace certain facilities and structures for commercial recreation services at Smith Gulch in Idaho. This bill’s text for status Reported by House Committee (Jul 17, 2018) is now available.

S. 3222: A bill to designate the J. Marvin Jones Federal Building and United States Courthouse in Amarillo, Texas, as the “J. Marvin Jones Federal Building and Mary Lou Robinson United States Courthouse”. This bill was referred to the Senate Committee on Environment and Public Works.

S. 3223: A bill to amend the Pittman-Robertson Wildlife Restoration Act to make supplemental funds available for the management of fish and wildlife species of greatest conservation need, as determined by State fish and wildlife agencies. This bill was referred to the Senate Committee on Environment and Public Works.

S. 3219: A bill to amend the Internal Revenue Code of 1986 and the Employee Retirement Income Security Act of 1974 to modify the requirements for multiple employer plans. This bill was referred to the Senate Committee on Finance.

S. 3226: A bill to direct the Administrator of the Environmental Protection Agency to ensure that the treatment of natural gas vehicles is equal to the treatment of electric vehicles. Referred to the Senate Committee on Environment and Public Works.

S. 3224: A bill to direct the Secretary of Agriculture to exchange certain public lands in Ouachita National Forest. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 6394: To amend the Food and Nutrition Act of 2008 to require that supplemental nutrition assistance benefits be used to purchase only supplemental foods that are eligible for purchase under section 17 of the Child Nutrition Act of 1966. Referred to the House Committee on Agriculture.

H.R. 6404: To amend the Agricultural Research, Extension, and Education Reform Act of 1998 to provide for a set aside for small fruits in the specialty crop research initiative. Referred to the House Committee on Agriculture which will consider it before sending it to the House floor for consideration.

H.R. 6410: To provide for the administration of certain national monuments, to establish a National Monument Enhancement Fund, and to establish certain wilderness areas in the States of New Mexico and Nevada. Referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

REGULATORY: Includes USDA, EPA, FSIS, FS, and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA announces the opening of the solicitation for nominations to fill vacancies on the National Agricultural Research, Extension, Education, and Economics (NAREEE) Advisory Board and its subcommittees. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is proposing to make a determination that the Jamestown, New York Marginal Nonattainment Area (Jamestown Area or Area) has attained the 2008 8-hour ozone National Ambient Air Quality Standard. Details here.

Rule EPA Region 1 is issuing a Notice of Intent to Delete the Old Southington Landfill Superfund Site (Site) located at Old Turnpike Road, Southington, Connecticut (CT), from the National Priorities List (NPL) and requests public comments on this proposed action. Info here.

Rule EPA Region 1 is issuing a Notice of Intent to Delete the Union Chemical Co., Inc. Superfund Site (Site) located in South Hope, Maine, from the National Priorities List (NPL) and requests public comments on this proposed action. Details here.

FOOD SAFETY AND INSPECTION SERVICE: Notice that the National Advisory Committee on Microbiological Criteria for Foods (NACMCF) will hold public meetings of the full Committee and Subcommittees on August 7-10, 2018. Info here.

FOREST SERVICE:

Notice provides additional time for interested parties to submit comments on the Bog Creek Road Project Draft Environmental Impact Statement (Draft EIS) concerning the repair and maintenance of Bog Creek Road and closure of certain roads within the Blue-Grass Bear Management Unit in the Selkirk Mountains in Boundary County, Idaho. Info here.

Notice the Malheur National Forest will prepare an environmental impact statement (EIS) to disclose the environmental effects of proposed vegetation and fuels treatments, wildlife habitat designations, and road activities in the Cliff Knox project area located on the Prairie City and Emigrant Creek Ranger Districts. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule determines the quota overages that Northeast Fishery Sector IX is responsible for paying back, allocates annual catch entitlements to Northeast Fishery Sectors VII and IX for the 2018 fishing year, approves a new lease-only operations plan for Northeast Fishery Sector IX, and approves a substantive amendment to Northeast Fishery Sector VII operations plan. Info here.

Notice NOAA invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Details here.