San Joaquin College of Law

The San Joaquin Agricultural Law Review (ISSN 1055-422X) is published annually by the students of San Joaquin College of Law. The San Joaquin Agricultural Law Review prints all matter deemed meritorious regardless of the views expressed. Views expressed herein are views of the authors and do not necessarily refl ect the policies or opinions of the San Joaquin Agricultural Law Review, its editors and staff, or San Joaquin College of Law.

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San Joaquin Agricultural Law Review

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Please cite this issue as: 23 San Joaquin Agric. L. Rev. 1 (2014)

San Joaquin

Agricultural Law Review

Volume 23	2013-2014	Number 1

Board of Editors

Conlin Reis

Co-Editor-in-Chief

Angelica Ambrose

Co-Editor-in-Chief

Amanda Kjar

Executive Editor

Bradley Kalebjian

Articles Editor

David Benton

Production Editor

Candice Clark

Notes & Comments Editor

STAFF MEMBERS

Corina Burchfield

Wesley Carlson

Carmen Kalashian

E. Nicole Kozycki

Nichola Krebsbach

Sarah McNabb

Jarrett Rogers

Elizabeth Thomasian

Sally Noxon-Vecchiarelli

FACULTY ADVISORS

Justin Atkinson

Christine Goodrich

Denise Kerner

Jeffrey G. Purvis

San Joaquin College of Law

Board of Trustees

Douglas Noll, J.D.

Peacemaker

Chairperson

Ross Borba, Jr.

Borba Farms

Vice-Chairperson

John E. Loomis, J.D.

Retired Founder of
San Joaquin College of Law

Secretary/Treasurer

Dede Agrava, J.D.

SJCL Alumni Association Representative

Richard Caglia, J.D.

Attorney at Law

Hon. Jane Cardoza

Judge, Fresno Superior Court

Richard M. Cartier, J.D.

Professor of Law

Faculty Representative

Deborah A. Coe Hood

J.D., Baker, Manock & Jensen

Michael A. Dias, J.D.

Dias Law Firm

Greg Durbin, J.D.

McCormick, Barstow, Sheppard, Wayte & Carruth

Jan Kahn, J.D.

Kahn, Soares & Conway

Dianna Madison, J.D.

Attorney at Law

Anthony Mendes, J.D.

A.F. Mendes, Inc.

Hon. Robert Oliver

Judge, Fresno Superior Court

Roshana Shirzad

Student Bar Association Representative

Lisa Smittcamp, J.D.
District Attorney, Elect

Fresno County

Stephen Spencer, J.D.

Spencer Enterprises

Dennis Veeh, CPA

Baker, Peterson & Franklin

David Weiland, J.D.

Dowling Aaron Incorporated

Bob Whalen, J.D.

Deputy District Attorney

Melissa White, J.D.

House Counsel,
Trinity Fruit Sales

Nick Zinkin, J.D.

Law Offices of Nick Zinkin

ADMINISTRATION AND STAFF

Janice L. Pearson	Dean

Justin B. Atkinson	Academic Dean

Jessica Smith Bobadilla	NALC Director

Missy McKai Cartier	Public Information Officer

Victoria Denny	Administrative Assistant to the Deans

Matthew Dillard	Maintenance Assistant

Mark Enns	Senior Graphic Designer & Helpdesk Manager

Kenia Garcia	NALC Receptionist and Administrative Assistant

Ramona Garcia	NALC Administrative Coordinator

Lonzetta Hightower	Student Services Assistant

Jeannie Lewis	Director of Financial Aid

Joyce Morodomi	Director of Student Services

Jared Nelson	Senior Network Systems Engineer

Lisa Nilmeier	Assistant to the Chief Financial Officer

Gregory Olson	NALC Legal Director

Beth Pitcock	Director of Human Resources and Compliance

Kerry Prindiville	Head of Public Services

Carlyn Robbins	Administrative Assistant and Receptionist

Cynthia Robinson	Technical Services Librarian

Rick Rodriguez	Facilities Manager

Peter Rooney	Library & Facilities Director

Diane Skouti	Alumni Coordinator

Patricia Smith	Law Coordinator

Diane Steel	Director of Admissions

Oscar Torres	Admissions Counselor

Jill Waller-Randles	Chief Financial Officer

Kasi Welte	Annual Giving & MCLE Coordinator

Derron Wilkinson	Chief Information Officer

Debbie Yakovetic	Staff Accountant

Faculty of Law

Janice L. Pearson. J.D.

Justin Atkinson, J.D.

Jessica Smith Bobadilla, J.D.

Andreas Borgeas, J.D.

Richard M. Cartier, J.D.

Christine Goodrich, J.D.

Denise M. Kerner, J.D.

Gregory Olson, J.D.

Jeffrey G. Purvis, J.D.

Peter Rooney. J.D.

Rose Safarian, J.D.

Adjunct Faculty of Law

Hon. James A. Ardaiz

Lawrence Artenian, J.D.

Art Baggett, J.D.

Alyson A. Berg, J.D,

Barry J. Bennett, J.D.

Stanley Boone, J.D.

David M. Camenson, J.D.

Thomas Campagne, J.D.

Daniel Casas, J.D.

Philip Cherney, J.D.

Hon. Hilary Chittick

Lisa B. Coffman, J.D.

Hon. Jonathan B. Conklin

Mark E. Cullers, J.D.

Matthew Dardenne, J.D.

Matthew Farmer, J.D.

Peter Fashing, J.D.

Mia Giacomazzi, J.D.

David J. Guy, J.D.

Jason P. Hamm, J.D.

Jeffrey T. Hammerschmidt, J.D.

Shannon C. Harding, J.D.

Rachel Hill, J.D.

Paul Kerkorian, J.D.

Kathi Kesselman, J.D.

Stefanie J. Krause, J.D.

Andrew S. Kucera, J.D.

Michael Linden, J.D.

Jeremy K. Lusk, J.D.

Jeff Manning-Cartwright, J.D.

William T. McLaughlin II, J.D.

Steven McQuillan, J.D.

Mark D. Miller, B.S., J.D.

Hilda Cantu Montoy, J.D.

David Mugridge, J.D.

Hon. Kimberly Nystrom-Geist

John O’Connor, J.D.

Erik S. Peterson, J.D.

Dan Rogers, J.D.

Gary W. Sawyers, J.D.

Michael Sheltzer, J.D.

Esmeralda Z. Soria, J.D.

Hon. Oliver W. Wanger

Melissa L. White, J.D.

FOREWORD

Conlin Reis

Co-Editor-in-Chief

Continuing its commitment to provide a forum for students and legal professionals to explore various legal issues that impact agriculture, the San Joaquin Agricultural Law Review is proud to present Volume 23. On behalf of the Editorial Board, a heartfelt thank you to everyone who contributed to this volume, including but not limited to our hardworking staff members, professional contributions, and faculty advisors.

In the lead article, State-level Aquaculture Leasing and Permitting Regulations: Balancing a Growing American Industry with Environmental Protection, Lauren Bernadett addresses difficulties in permitting and leasing for domestic aquaculture. She discusses the problems with importing over ninety percent of the seafood consumed in the United States and makes the case for decreasing regulatory barriers to entry into domestic aquaculture. She analyzes leasing and permitting frameworks in California, North Carolina, and Maine. She concludes by suggesting the best policies that states can utilize to streamline permitting and leasing while still maintaining environmental protection and accountability. These best policies include specialized governmental staff and departments, streamlined applications, offering different types of leases and permits, prioritizing aquaculture as a beneficial use for leasing, environmentally protective siting, monitoring the environmental impacts of operations, retaining some authority to revoke leases, and promoting aquaculture research and development.

Josh Hallenbeck & Mark Murphey Henry, J.D., L.L.M., in The Futile Exercise, analyze the legal strategy used in OSGATA v. Monsanto by a non-profit organization known as PUBPAT, as a snapshot by which to explore the growing body of litigation involving patented plant technology and the ensuing genetic contamination. The authors give context to the involvement of PUBPAT in connection with OSGATA and then analyze the weight of OSGATA’s claims against the relevant body of patent case law to determine if such a legal challenge (for plaintiffs having actual legal standing) is likely to succeed in the future. They then utilize the expiration of Monsanto’s Roundup Ready Generation One Technology patents, which are set to expire in 2014, as a means by which to discuss the potential implications were PUBPAT to have ultimately succeeded using its patent invalidity theories. Finally, they conclude by analyzing the many issues triggered by domestic and international regulatory approval processes in the use of genetically modified crops as a means by which to further flesh out the implications of patent invalidation.

In Taking “Baby Steps” Towards Protecting Our Children: Why Proposition 65 Does Not Do Enough to Protect Infants From Lead Exposure, Corina Burchfield discusses a recent discovery that particular flavors and brands of baby food contain trace amounts of lead and a subsequent state court decision rejecting advocate groups’ claims that a Proposition 65 warning should be placed on the labels of such foods. Ms. Burchfield scrutinizes the court’s decision and explores the application of and policy behind the “safe harbor level” and “naturally occurring” exemptions of Proposition 65. She takes the position that the exemptions should not apply to food that is specifically marketed for infants, since there is no insignificant amount of lead that infants can safely ingest.

Carmen Kalashian, in Out of Sight, Out of Mind: Finding a Solution to Food Waste in America, suggests that the current food date labeling system creates misleading labels based on current federal law that prohibits such misleading methods used on food. She explores how improving the date labeling policies and practices would bring benefits to consumers, reduce food waste, and extend the amount of food available to donate. She concludes that the most effective remedy is for the federal government to implement a more efficient and uniform food date labeling system across the United States.

In Protecting National Security: How the United States Government Put Our Nation at Risk by Approving the Acquisition of Smithfield Foods by Shuanghui International, Nichola Garver Krebsbach examines Congress’ original intent in creating the National Security Act of 1947, and whether that intent was faithfully advanced when the Obama Administration recently allowed a nefarious Chinese conglomerate to acquire the world’s largest pork producer, U.S.-based Smithfield Foods. The comment discusses the numerous threats to national security inherent in the Shuanghui acquisition, including risk to the safety and adequacy of the U.S. food supply at the hands of a hostile foreign government, risk to critical economic and military infrastructure, and an increased probability of espionage and terrorism. The author outlines the existing federal statutes that address potentially threatening foreign acquisitions, and analyzes how the President could have blocked the merger between the two private parties under the authority of the Exon-Florio and Byrd Amendments. The author argues that the acquisition should not have been approved, regardless of the economic benefit of foreign direct investment during the current post-recessionary period, and that President Obama’s approval stands in direct contravention to the intent behind the security-focused legislation designed to protect the nation and its citizens. She concludes by recommending multiple legislative solutions that would serve to avoid the same potentially dangerous outcome as occurred in the Smithfield acquisition.

Sarah McNabb, in California’s Proposition 2 Has Egg Producers Scrambling: Is It Constitutional? analyzes whether the proposition is constitutional under the Dormant Commerce Clause due to the burdens it imposes on out-of-state producers. There has been growing public awareness of animal welfare as it relates to food production procedures and states are increasingly introducing ballot initiatives and adopting regulations requiring improved animal welfare practices. Some states have passed statutes requiring all producers selling particular products in the state to meet the same animal welfare requirements. California’s Proposition 2, which requires more spacious enclosures for egg-producing hens, is one such statute. This Comment provides an analysis of the appropriate balancing test; balancing the burdens placed on out-of-state egg producers and the legitimate state interests of improving the health of those who consume eggs and preventing animal cruelty to hens used in egg production. Ms. McNabb concludes that Proposition 2 is constitutionally permissible under the Dormant Commerce Clause and recommends federal legislation regulating egg production throughout the country.

Katherine Pankow, in An Equitable Proposal for Injunctive Relief to End Casualties in Cultivation, discusses the California legislature’s failed efforts to pass preventative measures that would have addressed the heat-related farm worker deaths and injuries that continue to occur in California each summer. She argues that if farm workers could obtain a statutory right to injunctive relief to compel their employers to comply with Cal/OSHA regulations, then heat-related illness could be effectively prevented without unduly burdening agribusiness. In determining whether to issue the injunction, she suggests that the courts should use the standard set forth in Brinker v. Superior Court. This article won the McGeorge School of Law’s 2014 Stauffer Charitable Trust Award for outstanding student scholarship and excellence in writing.

In It’s Everyone’s Beeswax: How Weaknesses in the Federal Regulation of Pesticides Endanger the Environment and Threaten the Public Welfare, Jarrett Rogers analyzes the current system for regulating the use of pesticides in the United States under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and proposes that weaknesses in the law leave room for vast amounts of untested toxins to enter the market with little to no oversight by the Environmental Protection Agency. Highlighting the charges levied against neonicotinoids, a commonly used class of pesticides implicated in the dramatic collapse of honeybee populations over the last decade, Rogers explores the increased use of the conditional registration process over the years. He goes on to discuss the Agency’s lack of useful standard for assessing harm to important pollinators, its questionable procedure for granting conditional registrations, its inability to effectively monitor these registrants for compliance once registration is granted, and its frequent reluctance to cancel or suspend active registrations once problems are detected. He proposes changing these standards and procedures to better reflect evolving scientific understanding and suggests scaling back the use of the conditional registration process to better comport with the spirit with which FIFRA was created and amended. He ultimately concludes that if left unchanged, the current system for regulating pesticides could create both an environmental crisis and a human health disaster.

Tiffany B. Wong, in Playing Politics with Food: Comparing Labeling Regulations of Genetically Engineered Foods Across the North Atlantic in the United States and European Union, examines the United States regulatory system for genetically engineered foods. She compares the United States’ approach (substantial equivalence) to regulating genetically engineered foods with that of th e European Union (risk-based), and demonstrates how the perceived uncertainty of the Food and Drug Administration’s policy has increased popular concern and public controversy toward the risk of consuming genetically engineered food. She explores how public perceptions of risk and trade implications for the United States’ export market have lead to state and federal initiatives to label genetically engineered foods in the United States. She concludes by recommending a cohesive national policy for the regulation of genetically engineered products to best meet consumer concerns and preserve international trade as the world market for genetically engineered products continues to expand.

San Joaquin Agricultural Law Review

2013-2014 Donors

Anonymous

Ross Borba

Tara C. Brady

C. William Brewer

Scott L. Jones

Teresa Petty-Jones

Joan Lassley

Philip E. Tavlian

Kasi G. Welte

Acknowledgments

The Following San Joaquin College of Law Students contributed to the Production of the San Joaquin Agricultural Law Review, Volume 23:

Corina Burchfield

Carmen Kalashian

Nichola Krebsbach

Sarah McNabb

Jarrett Rogers

The staff at the San Joaquin Agricultural Law Review would like to extend a special thank you and acknowledgement to the following people for exceptional assistance and contribution to the advancement of the San Joaquin Agricultural Law Review and the production of Volume 23:

Justin Atkinson

Ross Borba, Jr.

Lisa Cutts

Marcella Downing

Mark Enns

Scott Jones

Joan Lassley

Missy McKai-Cartier

Lisa Nilmeier

Sally Perring

Jill Waller-Randles

Kyle Roberson

Peter Rooney

Hon. Oliver W. Wanger (Ret.)

Kasi G. Welte

Law Review EmerItus Group Of The
San Joaquin College Of Law Alumni Associates

Dede Agrava

Chineme Anyadiegwu

Deborah Boyett

Marcella Downing

Amy Guerra

Sherrie Flynn

Kevin Hansen

Scott Jones

Joan Lassley, Liaison

Karen Mathes

Kathy McKenna

Michelle Oleksa

Janice Pearson

Sally Perring

Toni Porter

Ann Roberts

Adam Stirrup

Gary Winter

Law Review National Advisory Committee

Dennis Bean

Barry Bedwell

Paul Betancourt

Thomas Birmingham

Ross Borba

Gary Brunsvik

Thomas Campagne

William Coit

Manuel Cuhna

James Demsey

Ocatavia Diener

Marcella Downing

Sherrie Flynn

Dan Gerawan

John Harris

Ima Jean Harvey

Bill Jones

Greg Kirkpatrick

Hon. W. Richard Lee

Dr. Bert Mason

Tony Mendes

John Mesrobian

Norman Morrison

Dick Moss

Joel Nelson

Ken Newby

Douglas Noll

Sally Perring

Charles Poochigian

Toni Porter

Pat Ricchiuti

Sharlene Roberts-Caudle

Howard Sagaser

Gary Sawyers

John Shehadey

George Soares

Adam Stirrup

Riley Walter

Elizabeth Steinhauer-Clark

San Joaquin

Agricultural Law Review

If you are interested in obtaining more information about the San Joaquin Agricultural Law Review, including how to obtain past and future volumes or how to make contributions to help continue the Law Review’s tradition of excellence in the future, please visit the Law Review’s website at www.sjcl.edu/sjalr. Your support is greatly appreciated.

San Joaquin

Agricultural Law Review

Volume 23	2013-2014	Number 1

Table of Contents

Articles

State-Level Aquaculture Leasing and Permitting
Regulations: Balancing a Growing American
Industry with Environmental Protection	Lauren Bernadett	1

The Futile Exercise:
Osgata v. Monsanto	Josh Hallenbeck & Mark Murphey Henry	45

Comments

Taking “Baby Steps” Towards Protecting our Children:
Why Proposition 65 does not do Enough to Protect
Infants from Lead Exposure	Corina Burchfield	75

Out of Sight, Out of Mind: Finding a Solution to
Food Waste in America	Carmen Kalashian	103

Protecting National Security: How the United
States Government put our Nation at Risk by
Approving the Acquisition of Smithfield Foods
by Shuanghui International	Nichola Garver Krebsbach	125

California’s Proposition 2 has Egg Producers
Scrambling: Is it Constitutional?	Sarah McNabb	159

An Equitable Proposal for Injunctive Relief to
End Casualties in Cultivation	Katherine Pankow	189

It’s Everyone’s Beeswax: How Weaknesses
in the Federal Regulation of Pesticides
Endanger the Environment and Threaten
the Public Welfare	Jarrett Rogers	215

Playing Politics with Food: Comparing Labeling
Regulations of Genetically Engineered Foods
Across the North Atlantic in the United States
and European Union	Tiffany B. Wong	243