A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

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JUDICIAL: Includes FDA, mechanic’s lien, land use, ESA, NEPA, and civil rights issues.

In Hawkins v. Advancepierre Foods, Inc., No. 15-CV-2309-JAH (BLM), 2016 WL 6611099, (S.D. Cal. Nov. 8, 2016), plaintiff filed class action lawsuit challenging defendant’s use of partially hydrogenated oil (“PHO”) in its microwaveable sandwiches. Plaintiff argued PHO is a source of artificial trans fat and that “there is ‘no safe level’ of PHO or artificial trans fat intake.” Plaintiff further alleged defendant violated the “unlawful prong of section 17200 of the UCL, in part, by using PHO in its microwavable sandwiches.” Court ruled current use of PHO in food products “does not violate federal law,” because the FDA chose June 18, 2018 as the compliance date. The court stated, “If the FDA intended to make illegal the current use of PHO in food, it is reasonable to expect that the Final Determination would have contained language to that effect.” Case dismissed with prejudice.

AUI Const. Grp., LLC v. Vaessen, 2016 IL App (2d) 160009, concerned whether a wind energy system was a “nonlienable trade fixture” or “an improvement” on a piece of property. Third party built a wind energy system, including a tower, on defendant’s property. Plaintiff, a subcontractor on the project, filed a mechanic’s lien to recover $3 million, arguing it was question of fact whether the tower was a “lienable land improvement” as opposed to a “nonlienable trade fixture.” Court noted the factors to be considered in determining whether equipment added to property constitutes a land improvement are “the nature of its attachment to the realty,  . . . its adaptation to and necessity for the purposes to which the premises are devoted, and . . . whether it was intended that the item in question should be considered part of the realty.” Court concluded that “although it is clear that it will be expensive to remove the tower from [defendants’] property . . . this consideration does not outweigh the fact, reflected in the . . . agreement, that the tower was intended to be temporary.” Defendants’ motion to dismiss affirmed.

In STRIB IV, LLC v. Cty. of Hennepin, No. A16-0423, 2016 WL 6635631, (Minn. Nov. 9, 2016), defendant (County) assessed real estate taxes on two properties owned by plaintiff. Plaintiff submitted an application to classify the properties under Minnesota’s Green Acres statute that “provides property tax relief to land that is primarily devoted to agricultural use ‘and located on the fringes or amidst expanding urban areas.’” Court noted property classified under Green Acres statute is valued “solely with reference to its appropriate agricultural classification, rather than according to its market value.” County originally denied application and tax court considered whether land owned by an LLC is entitled to Green Acres classification. Tax court found plaintiff not entitled to classification and appellate court affirmed.

In ROCKY MOUNTAIN WILD, CENTER FOR BIOLOGICAL DIVERSITY, UTAH NATIVE PLANT SOCIETY, SOUTHERN UTAH WILDERNESS ALLIANCE, GRAND CANYON TRUST, WESTERN RESOURCE ADVOCATES, & WESTERN WATERSHEDS PROJECT, Plaintiffs, v. NOREEN WALSH, Reg’l Dir. of the Mountain-Prairie Region of the U.S. Fish & Wildlife Serv., SALLY JEWELL, Sec’y of the Interior, U.S. FISH AND WILDLIFE SERVICE, & U.S. DEPARTMENT OF THE INTERIOR, Defendants, & STATE OF UTAH, UTAH SCHOOL AND INSTITUTIONAL TRUST LANDS ADMINISTRATION (SITLA), & UINTAH COUNTY, UTAH, Intervenor-Defendants., No. 15-CV-0615-WJM, 2016 WL 6651409, (D. Colo. Oct. 25, 2016), plaintiffs challenged U.S. Fish and Wildlife Service (FWS) ruling not to list two flowers as threatened under Endangered Species Act (ESA). FWS did not list the flowers based on a 15-year conservation agreement between FWS and governmental entities. The conservation agreement requires “the signatories to implement restrictions on federal, state, and private land.” Plaintiffs maintain FWS is legally precluded from considering the agreement in its listing decision, “given that it was new and unproven at the time FWS made its decision not to list the [flowers].” Court ruled FWS “is not legally precluded from accounting for new conservation agreements when assessing the status of a potentially threatened or endangered species,” and further concluded “FWS did not err when it accounted for the Conservation Agreement in this case.” Court vacated FWS’s decision not to list the flowers and required parties to discuss “whether the Conservation Agreement may be modified in a manner satisfactory to Plaintiffs.”

In Diné Citizens Against Ruining Our Env’t v. Jewell, No. 15-2130, 2016 WL 6301136, (10th Cir. Oct. 27, 2016), plaintiffs, under the National Environmental Policy Act (NEPA), appealed denial of a preliminary injunction to prevent drilling of oil and gas wells “in the Mancos Shale formation of the San Juan Basin in New Mexico.” District court concluded plaintiffs did not satisfy elements required to obtain a preliminary injunction. Considering the evidence, appellate court found plaintiffs failed “to present any argument or cite to any evidence as to how drilling in the Mancos Shale will cause different environmental impacts than drilling in other formations in the San Juan Basin.” The court also found plaintiffs failed “to present us with any argument or evidence to support their contention that horizontal drilling and multi-stage fracturing may give rise to different types—rather than just different levels—of environmental harms when compared to the traditional vertical drilling and hydraulic fracturing techniques that have historically been used in the San Juan Basin.” Plaintiff’s preliminary injunction request denied.

In WILLIAM F. HOLDNER DBA HOLDNER FARMS, Plaintiff, v. KATY COBA, DIRECTOR OF THE OREGON DEPARTMENT OF AGRICULTURE, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, DICK PEDERSON, DIRECTOR OF THE OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, IN HIS INDIVIDUAL AND HIS OFFICIAL CAPACITY, Defendants., No. 3:15-CV-2039-AC, 2016 WL 6662687, (D. Or. Nov. 9, 2016), plaintiff filed civil rights action against state officials challenging Oregon’s authority to regulate livestock operations on his land. Plaintiff claimed he was denied due process and that his land patent “bars the state from regulating water quality on his land.” Lower court dismissed finding plaintiff lacked standing and his claims barred by claim preclusion, issue preclusion, and Eleventh Amendment immunity. On appeal, court found plaintiff’s suit was “frivolous, unreasonable, or without foundation” and defendants entitled to recover attorney fees.