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 labeling, due process, settlement, administrative, zoning, and trespass.

In Izquierdo v. Mondelez Int’l, Inc., No. 16-CV-04697 (CM), 2016 WL 6459832, (S.D.N.Y. Oct. 26, 2016), plaintiffs filed consumer class action against Mōndelez alleging defendant manufactures and sells Sour Patch Watermelon Candy with false and misleading labels. Plaintiffs sought certification of a nationwide class for persons who purchased the candy and defendant moved to dismiss. Court not persuaded by plaintiff’s argument, noting, “Plaintiffs’ pointing out that the Candy is more expensive per ounce than other sweets on the market brings them no closer to stating a claim for injury. Comparing the Candy to Hot Tamales and Junior Mints is the saccharine equivalent of comparing apples with oranges.” Mōndelez’s motion to dismiss granted.

In Drakes Bay Oyster Co. v. California Coastal Comm’n, No. A142820, 2016 WL 6311625, (Cal. Ct. App. Oct. 28, 2016), plaintiff moved for injunction against defendant (Commission) staff members from participating in litigation. Plaintiff argued staff members advocated for enforcement orders against plaintiff and participating in Commission proceedings violates plaintiff’s due process rights. Regarding the pending litigation at issue, the court observed that “the agency is not acting as a decision maker, nor can its staff’s assistance affect the fairness and impartiality of the decision maker, which is the court.” Court found plaintiff’s argument that defendant might take further enforcement actions “too speculative and involves circumstances too uncertain to deprive it now of its staff’s assistance in the litigation.” Court concluded plaintiff did not show “a likelihood of prevailing on the merits of its claim” and denied injunction.

In CUMBERLAND FARMS, INC., Plaintiff-Appellant/Cross-Respondent, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION & THE ADMINISTRATOR OF THE NEW JERSEY SPILL COMPENSATION FUND, Defendants-Respondents/Cross-Appellants., No. A-4335-14T2, 2016 WL 6471295, at *1 (N.J. Super. Ct. App. Div. Nov. 2, 2016), plaintiff sought to enforce a settlement with defendants (DEP) resolving natural resource damage claims. DEP cross-appealed from the same order granting judgment for plaintiff on a “breach of implied covenant of good faith and fair dealing claim.” Court observed that, “The record clearly establishes that the DEP never agreed to do anything more than attempt to negotiate a final settlement through the iterative process, and that [plaintiff] never responded to the DEP’s overtures.” Court reversed decision that granted judgment to plaintiff on breach of the implied covenant of good faith and fair dealing claim.

In MUSTANG RUN WIND PROJECT, LLC, Plaintiff/Appellee v. OSAGE COUNTY BOARD OF ADJUSTMENT, Defendant/Appellant, v. THE OSAGE NATION, Counter-Appellant., 2016 OK 113, plaintiff filed an application with defendant for a conditional use permit to operate an energy facility using wind turbines. Board denied the application and plaintiff appealed. Trial de novo held and defendant (Osage Nation) was ordered to issue a “conditional use permit” and appealed. Osage Nation argued Board “’had no power or authority to approve a conditional use permit’ because such power was not given by the Legislature to counties.” Court found County Board “possesses authority to grant conditional use permits, the trial judge’s findings are not against the clear weight of the evidence.” Defendant’s appeal denied regarding the conditional use permit.

In Cty. of York, et al., Appellants, v. Anthony T. Bavuso, et al., Appellees., No. 160104, 2016 WL 6304568, (Va. Oct. 27, 2016), appellate court considered whether county’s ordinances were invalid because they imposed a “special use permit” requirement on plaintiffs’ “oystering activities.” County re-zoned plaintiffs’ property from a “resource conservation” category to a “purely residential” category where “oystering” is not permitted. Court noted that, “This case presents questions of statutory construction,” and concluded that “the lack of a clear plain language definition” and “the absence of aquaculture from the relevant definitions” found in the applicable statues “all point toward the conclusion that the plaintiffs’ oyster raising activities were not encompassed” by the law. County ordinances ruled valid.

In Marcum v. Heinen Bros. Agra Servs., No. 115,411, 2016 WL 6405035, (Kan. Ct. App. Oct. 28, 2016) plaintiff’s trees were damaged when defendant sprayed herbicide on weeds adjoining plaintiff’s property. Plaintiff appealed trial court’s finding that there “was no evidence to show the defendant had the requisite state of mind to commit the tort alleged.” Court observed that “in order to establish a trespass on his land, Marcum was required to prove that the pilot applying the herbicide knowingly and intentionally sprayed Marcum’s property or that the pilot knew his act of spraying Ballew’s property would, to a substantial certainty, result in herbicide entering Marcum’s land.” Plaintiff presented no evidence suggesting intent and court affirmed ruling for defendant.

REGULATORY:

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act prohibits activities with listed species unless Federal authorization is acquired that allows such activities. Info here.