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

ANNOUNCEMENT: Join us this Wednesday, November 15th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Estate Planning: Preparing to Plan.”  Details available here.

JUDICIAL: Includes right to farm, cooperatives, renewable energy, food labeling, and water law issues.

IN RE: NC SWINE FARM NUISANCE LITIGATION THIS DOCUMENT RELATES TO: McKiver v. Murphy-Brown LLC, No. No. 7:14-CV-180-BR, McGowan v. Murphy-Brown LLC, No. 7:14-CV-182-BR, Anderson v. Murphy-Brown LLC, No. 7:14-CV-183-BR, Gillis v. Murphy-Brown LLC, No. 7:14-CV-185-BR, Artis v. Murphy-Brown LLC, No. 7:14-CV-237-BR Master Case No. 5:15-CV-00013-BR 7:14-CV-180-BR 7:14-CV-182-BR 7:14-CV-183-BR 7:14-CV-185-BR 7:14-CV-237-BR, 2017 WL 5178038 (E.D.N.C. November 8, 2017) concerned North Carolina’s right-to-farm law. Plaintiffs lived near defendant’s swine farms and sought to recover damages for nuisance and negligence. Plaintiffs argued they have lived on the “affected properties” before the swine farms started operating. Defendant countered that “conditions in the areas around the swine farms have changed since the swine farms began operating.” Court observed that “[w]hile changed conditions are certainly relevant, under the plain language of the statute, ‘an agricultural operation that was not a nuisance when it began cannot become a nuisance due to ‘changed conditions in or about the locality thereof.’” Court found that “plaintiffs’ use of their properties as residences did not extend into an agricultural area,” and that their land use existed “well before the operations of the subject farms began.” Plaintiffs granted summary judgment on right-to-farm issue.

In In re: Processed Egg Products Antitrust Litigation THIS DOCUMENT APPLIES TO: ALL DIRECT ACTION PLAINTIFF CASES, No. 08-md-2002, 2017 WL 5177757 (E.D. Pa. November 7, 2017), plaintiffs alleged a egg price-fixing conspiracy “conducted using a certification program run by the United Egg Producers (UEP) in which egg producers achieved a decrease in supply by requiring increased cage space for chickens and mandating 100% compliance with the program.” At issue was the admissibility of plaintiffs’ expert witness testimony derived from a supplemental report focused on eggs from the state of Arizona. Plaintiffs’ expert witness explained that “adjustments for Arizona require no additional regressions or economic analysis of the overall impact of Defendants’ and their co-conspirators’ coordinated conduct.” Court concluded defendants had to demonstrate that “Arizona is somehow different than the rest of the states in the union in terms of egg consumption or production,” to render the evidence inadmissible. Defendants failed to rebut and court ruled the evidence admissible.

In SCOTT RUETER and TRICIA RUETER, Plaintiffs-Appellants, v. OSCEOLA WINDPOWER, LLC, Defendant-Appellee, No. 16-2088, 2017 WL 5185439 (Iowa Ct. App. November 8, 2017), plaintiffs sued for nuisance and negligence regarding defendant’s “construction, placement, and operation of wind turbines.” Plaintiffs claimed the wind turbines created a nuisance and sought damages. Trial court ruled for defendant and on appeal, issue was plaintiffs’ “failure to provide requested discovery concerning their calculation of damages.” Plaintiffs failed to provide numerous supplement discovery responses and appellate court affirmed dismissal for defendant.

IN RE QUAKER OATS MAPLE & BROWN SUGAR INSTANT OATMEAL LITIGATION, CV 16-1442 PSG (MRWx), 2017 WL 4676585 (C.D. Cal. October 10, 2017) involved allegations of false and misleading food labeling regarding defendant’s maple syrup-flavored oatmeal. Plaintiff argued defendant markets its oatmeal with “the claim that maple syrup or maple sugar … is an ingredient,” although no maple syrup is present. Defendant countered plaintiffs’ claims are “squarely preempted” by the federal Food, Drug, and Cosmetic Act (FDCA) and Nutritional Labeling and Education Act (NLEA). Plaintiffs argued NLEA’s preemption provision does not apply as that provision “specifically excepts state laws that are ‘applicable to maple syrup.’” Court disagreed with plaintiffs’ interpretation and reasoned that “the maple syrup exceptions to the preemption provision ‘were implemented to enable states … to set standards for what can be sold as maple syrup.’” Defendant’s motion to dismiss granted.

Richard GUNTHER, Courtenay Konet, and William E. Marcus, individually and as trustee of the William E. Marcus Trust, Plaintiffs–Appellant, v. Chad APAP, Michael K. Strehl, Casey J. Ambrose, and Christy Brown–Ambrose, also known as Christy M. Brown, also known as Christy M. Ambrose, Defendants–Appellees, No. 333169, 2017 WL 4654975 (Mich. Ct. App. October 17, 2017) concerned a riparian rights dispute wherein a group of lakefront property owners sought to prevent some backlot owners from “maintaining a fence along a 9–foot pathway to the lake, placing a dock in the lake, and docking boats in the water on a long term basis.” Trial court ruled for defendants and found plaintiffs “did not have a property interest in the 9–foot pathway used by defendants.” Appellate court agreed plaintiffs did not have a property interest in the path, but concluded that “because plaintiffs do not need a property interest . . . to challenge defendants’ riparian conduct . . .  the trial court erred by granting summary disposition to defendants with regard to defendants’ maintenance of a dock and docking of boats in the lake.” Affirmed in part.

LEGISLATIVE:

STATE: Last week, the Oklahoma Department of Agriculture, Food and Forestry announced the results from the Oklahoma beef checkoff referendum. The vote failed to pass by a vote of 2,506 to 1,998. Details available here.

REGULATORY: No updates due to the Veterans Day holiday on Friday, November 10.