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 GSA, insurance, ESA and class action issues.

In re: Syngenta Ag Mir 162 Corn Litig., No. 14-MD-2591-JWL, 2016 WL 4382772 (D. Kan. Aug. 17, 2016) involved negligence actions against Syngenta regarding its commercialization of genetically-modified corn seeds, Viptera and Duracade. Among other issues, plaintiffs claim Syngenta negligently commercialized Viptera “without adequate safeguards.” Syngenta argued plaintiffs’ claims are preempted because they would either require Syngenta to “have undertaken measures to channel or segregate Viptera corn from other corn or require Syngenta to have made sure that others channeled or segregated Viptera corn.” Syngenta argued segregating and channeling would have required inspection of the corn for presence or absence of MIR 162. The court noted that “seed sold by Syngenta did not become a grain subject to the US Grain Standards Act (GSA) until after it grew into corn. Thus, any claims based on duties that do not require anyone to have acted with respect to corn, after it has been grown by the farmers, would not be preempted under the GSA.” Holding for Syngenta on the issue the court found plaintiffs’ claims against Syngenta “are preempted to the extent that they are based on duties that would require inspection or description of corn by reference to the presence or absence of MIR 162.”

Moore v. The Climate Corp., No. 15-4916-DDC-KGS, 2016 WL 4527991 (D. Kan. Aug. 30, 2016) concerned an insurance coverage dispute. Plaintiffs argued defendants “fraudulently induced” them to purchase weather-based insurance policies and failed to pay plaintiffs per the insurance policies and alleged breach of contract, bad faith, and unjust enrichment. Regarding breach of contract, the court found for defendant noting plaintiffs “do not allege that certain provisions in the policies required defendants to make payment upon specific weather-related events or measurements.” Plaintiffs also did not provide “facts stating that defendants failed to follow the mathematical formulas recited in the policies for determining payment.” Defendant’s motion to dismiss plainitff’s breach of contract claim granted.

Ctr. for Envtl. Sci. Accuracy & Reliability v. Nat’l Park Serv., No. 114CV02063LJOMJS, 2016 WL 4524758 (E.D. Cal. Aug. 29, 2016) concerned management of the Hetch Hetchy Water Project operated by the San Francisco Public Utilities Commission. Plaintiffs, an individual and a non-profit organization, claimed defendants “caused a take of threatened and endangered fish species in violation of Section 9 of the ESA (Endangered Species Act).” Among a host of issues, the court considered the issue of standing under Section 9 and found plaintiff did not “articulate any facts that would suffice to show any harm to him would be imminent.” Court was not persuaded that plaintiff “has standing because he wants to preserve certain unidentified threatened and endangered fish species and performs some certain unidentified work to do so.” Court found plaintiff’s “generalized interest in ‘species protection’” did not establish injury and granted defendant’s motion for summary judgment.

BACILIO RUIZ TORRES; JOSE AMADOR, on behalf of themselves & all other similarly situated persons, Plaintiffs-Appellees, v. MERCER CANYONS INC., Defendant-Appellant., No. 15-35615, 2016 WL 4537378 (9th Cir. Aug. 31, 2016) involved defendant’s appeal of a district court’s order certifying a class of domestic farm workers. In 2013, defendant (a fruit and vegetable farm) participated in the federal H-2A program. Plaintiffs brought a putative class action, claiming that defendant did not inform “domestic farm workers of the availability of H-2A work that paid $12 per hour,” in violation of the Agricultural Workers’ Protection Act (AWPA), and the Washington Consumer Protection Act (CPA). District court certified an “Inaccurate Information class” and an “Equal Pay subclass,” relative to plaintiffs’ claims. Appellate court observed Rule 23 of the FRCP concerning class actions, noting, “the court’s task at certification is to ensure that the class is not ‘defined so broadly as to include a great number of members who for some reason could not have been harmed by the defendant’s allegedly unlawful conduct.’” Appellate court affirmed class certification order.

LEGISLATIVE:

S. 1577: East Rosebud Wild and Scenic Rivers Act. This bill’s text for status Reported by Senate Committee (Aug 30, 2016) available here.

S. 1623: Maritime Washington National Heritage Area Act. This bill’s text for status Reported by Senate Committee (Aug 30, 2016) available here.

REGULATORY: Includes APHIS, EPA, FS, and NOAA rules and notices.

ANIMAL AND PLANT HEALTH INPSECTION SERVICE: Notice APHIS will prepare an environmental impact statement to analyze the effects of a program to suppress populations of grasshoppers and Mormon cricket from 17 States in the western United States. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is approving Connecticut’s request to remove two regulations from its SIP that regulate “open burning” and “portable fuel container spillage control.” In place of the open burning regulation, we are approving into the Connecticut SIP a Connecticut statute that controls open burning. Info here.

FOREST SERVICE:

Notice the Glenn and Colusa County Resource Advisory Committee will meet in Willows, California. Info here.

Notice the Tehama County Resource Advisory Committee (RAC) will meet in Red Bluff, California. Info here.

NATIONAL OCEANIC AND ATMOSPOHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for species that comprise the deep-water species fishery by vessels using trawl gear in the Gulf of Alaska. Details here.

Rule NMFS adjusts the northern albacore annual baseline quota for 2016 with available underharvest of the 2015 adjusted U.S. NALB quota. Info here.

Rule announcing inseason changes to management measures in the Pacific Coast groundfish fisheries. Info here.

Notice the Mid-Atlantic Fishery Management Council’s Spiny Dogfish Monitoring Committee will hold a public meeting. Info here.

Notice the New England Fishery Management Council will hold a three-day meeting to consider actions affecting New England fisheries in the exclusive economic zone. Info here.

Notice NMFS announces a 5-year review of the Mediterranean monk seal under the Endangered Species Act of 1973 to ensure that the listing classification of the species is accurate. Details here.