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 negligence, labeling, NEPA, and discovery issues.

In WILBERTO MELENDEZ Plaintiff, v. HAPPY TRAILS AND RIDING CENTER, INC. Defendant., No. 3:14-CV-1894, 2016 WL 5402745 (M.D. Pa. Sept. 26, 2016), plaintiff claimed he was injured by defendant’s negligent operation of a horseback riding business. Defendant moved for summary judgment. Plaintiff claimed the stirrup defendant provided was defective and caused his fall. Defendant countered that the agreement plaintiff signed “insulates him from liability under these facts,” and that pursuant to the “Equine Activities Immunity Act (EAIA),” defendant is “immune from liability as a provider of equine activities.” Court found agreement plaintiff signed did not immunize defendant from “recklessness.” The court also stated the EAIA “only provides immunity where signs of at least a certain size are ‘conspicuously posted on the premises,’” and that defendant had to show plaintiff “knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge.” Defendant’s motion denied.

In SUSAN FITZPATRICK, on behalf of herself & all others similarly situated, Plaintiff, v. TYSON FOODS, INC., Defendant., No. 216CV00058JAMEFB, 2016 WL 5395955 (E.D. Cal. Sept. 27, 2016), plaintiff claimed defendant sold dog food unlawfully labeled as “Made in U.S.A.,” because it contained tapioca starch “derived from a plant not commercially grown in the United States.” Plaintiff sought relief under California’s Unfair Competition Law (UCL) and the state’s “Made in U.S.A.” law, (Business and Professions Code § 17533.7). The court observed that California amended Code § 17533.7 last year, and in doing so, “shifted from a strict prohibition on domestic origin labeling to one that exempts sellers for selling products that were made in the United States but contain up to a certain percentage of foreign sourced components.” In granting defendant’s motion to dismiss the court declared, “the amendment to § 17533.7 . . . extinguished Plaintiff’s cause of action. The amendment went into effect before final judgment in this case and before any rights vested.”

In HIGHWAY J CITIZENS GROUP, U.A.; WAUKESHA COUNTY ENVIRONMENTAL ACTION LEAGUE; & JEFFREY M. GONYO, Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; ANTHONY FOXX, Sec’y of Transportation; FEDERAL HIGHWAY ADMINISTRATON; GREGORY G. NADEAU, Acting Adm’r for the Fed. Highway Administration; MARK GOTTLIEB, Sec’y of the Wisconsin Dep’t of Transp., Defendants., No. 15-CV-994-PP, 2016 WL 5390880 (E.D. Wis. Sept. 27, 2016), plaintiffs sued United States Department of Transportation (USDOT), alleging federal approval of a road construction project involving a Wisconsin State Highway violates the Administrative Procedure Act (APA) and the National Environmental Policy Act (NEPA). Plaintiffs argued defendants violated NEPA by proceeding with the project without preparing an EIS and sought a preliminary injunction. The court noted “NEPA is not intended to protect against economic losses,” and reasoned that, “To support entry of a preliminary injunction . . . the alleged irreparable harm must threaten to occur before a final decision on the merits.” The court also observed that construction of the project will not begin until April 2018. Plaintiff’s motion for preliminary injunction denied.

PRESTON JONES, Plaintiff, v. NUTIVA, INC., Defendant., No. 16-CV-00711-HSG(KAW), 2016 WL 5387760 (N.D. Cal. Sept. 26, 2016) concerned a class action case alleging defendant misleadingly labeled coconut oil products as healthy and as healthy alternatives to butter. Plaintiff argued defendant’s labeling and advertising violates federal and California food laws. During pre-class certification discovery, plaintiff sought to compel supplemental responses to some interrogatories. Defendant argued it was “premature to compel answers” when plaintiff had “not chosen a damages or restitution model.” Court found for defendant, ruling “the interrogatory, as propounded, is a premature hypothetical given that Plaintiff has neither chosen a restitution model nor provided any facts upon which to calculate restitution.”

LEGISLATIVE:

S. 1886: Coordinated Ocean Monitoring and Research Act. Bill passed in the Senate on September 26, 2016 and goes to the House.

S. 3395: A bill to require limitations on prescribed burns. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry which will consider it before sending it to the Senate. Sponsor: Sen. John Thune [R-SD].

H.R. 845: National Forest System Trails Stewardship Act. Bill’s text for status Passed the House (Engrossed) (Sep 26, 2016) is now available.

H.R. 6189: To withdraw certain Bureau of Land Management land from mineral development.This bill was referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration. Sponsor: Rep. Michelle Lujan Grisham [D-NM1].

H.R. 5303: Water Resources Development Act of 2016. Passed 399/25.

REGULATORY: Includes ARS, EPA, FWS, FNS, FS and NOAA rules and notices.

AGRICULTURAL RESEARCH SERVICE: Notice  ARS will grant to TREASURE8 LLC of SAN FRANCISCO, CALIFORNIA, an exclusive license to U.S. Patent Application Serial No. 14/244,448, entitled “NOVEL INFRARED DRY BLANCHING, INFRARED BLANCHING, AND INFRARED DRYING TECHNOLOGIES FOR FOOD PROCESSING,” filed on April 3, 2014. Details here.

ENVIRNOMENTAL PROTECTION AGENCY: Rule EPA may establish federal baseline water quality standards for certain Indian reservation waters to narrow a long-standing gap in coverage of Clean Water Act protections. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS determined endangered species status under the Endangered Species Act of 1973, as amended, for Big Pine partridge pea, wedge spurge, and Linum arenicola, and threatened species status for Blodgett’s silverbush, all plant species from south Florida. Info here.

Notice FWS received an application from Roseburg Resources Co. for an Endangered Species Act Enhancement of Survival Permit for take of the federally threatened northern spotted owl. Info here.

FOOD AND NUTRITION SERVICE: Rule FNS is proposing changes to the Supplemental Nutrition Assistance Program issuance regulations in accordance with the Food, Conservation and Energy Act of 2008, Public Law 110-234. Details here.

FOREST SERVICE: Notice the Gallatin Resource Advisory Committee will meet in Bozeman, Montana. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces its approval of a transfer of a portion of the 2016 commercial bluefish quota from the State of North Carolina to the Commonwealth of Massachusetts. Info here.

Rule NMFS hereby reopens the comment period on the proposed designation of critical habitat for five distinct population segments of Atlantic sturgeon. Details here.

Rule NMFS proposes to make administrative revisions to the Bycatch Reduction Device Testing Manual. Details here.