A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.


ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, May 2:  Water Wars in the United States Supreme Court: Why Should Agriculture Care? Details available here.


JUDICIAL: Includes secured transactions, environmental law, SNAP, and biosecurity issues.

In IN THE MATTER OF: WADE BRANDON HILL and KIMBERLY DAWN HILL, Debtor(s), NO. BK16-41396, 2018 WL 1916172 (Bankr. D. Neb. April 17, 2018), two creditors claimed a first-priority security interest in 2017 crop proceeds held by bankruptcy trustee and trustee sought order determining that Adams Bank (ABT) had priority over AG-Land Aviation (AGL). Here, ABT had a perfected lien on the debtors’ assets “by virtue of U.C.C. financing statements, effective financing statements, and continuation statements filed with the Nebraska Secretary of State.” AGL countered that “under the law of negotiable instruments that because [ABT] was not a named payee on the check, [AGL] should be considered a holder in due course who takes priority over an earlier security interest.” Court disagreed and observed that “[a] negotiable instrument is a promise or order to pay a fixed amount of money,” and that “[m]oney, as in the check proceeds in the hands of the bankruptcy trustee, is not subject to the U.C.C. law on negotiable instruments.” Court ruled ABT’s prior perfected security interest had priority over AGL’s unperfected lien in the crop proceeds.

In IN THE MATTER OF THE APPLICATION OF OKLAHOMA GAS AND ELECTRIC COMPANY FOR COMMISSION APPROVAL OF THE COMPANY ‘S PLAN TO INSTALL DRY SCRUBBERS AT THE SOONER GENERATING FACILITY: SIERRA CLUB INC. and OKLAHOMA ENERGY RESULTS LLC., Appellants, v. THE CORPORATION COMMISSION OF THE STATE OF OKLAHOMA and OKLAHOMA GAS & ELECTRIC COMPANY, Appellees, Number: 115029, w/115030, 2018 WL 1919060 (Okla. April 24, 2018), Oklahoma Gas & Electric (OG&E) sought Commission’s approval for a capital expenditure to comply with environmental regulations. Commission denied the application and two years later, OG&E submitted another application, which Commission granted. Issue was whether Commission lacked authority to grant approval outside of the relevant statute. Court recognized Oklahoma legislature intended to “link pre-approval with the project’s fairness to ratepayers,” and concluded OG&E “received pre-approval for a project costing approximately half a billion dollars without its effect on ratepayers being considered.” Court found Commission lacked authority, per statute, to grant approval of the project.

In SHREEGI ENTERPRISES, INC., d/b/a/ SHENANDOAH STOP SHOP, Plaintiff v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF AGRICULTURE FOOD AND NUTRITION SERVICE Defendant, NO. 1:CV-15-2232, 2018 WL 1919576 (M.D. Pa. April 24, 2018), convenience store challenged Food and Nutrition Service (FNS) decision to permanently disqualify store from the Supplemental Nutrition Assistance Program (SNAP), after the agency determined plaintiff illegally trafficked in SNAP benefits. FNS cited four “suspicious patterns of EBT transactions” at the store. Plaintiff maintained that a civil money penalty is more appropriate here, and argued the “shopping habits of its SNAP customers in making their EBT transactions provide an innocent explanation for the patterns.” FNS argued that “depleting a household’s entire allotment in one or a few transactions or within one or two days . . . is inconsistent with normal shopping patterns of SNAP households and is often indicative of trafficking.” Plaintiff maintained it was “not unusual for a household to use most or all of its benefits in a short period of time.” Court granted defendant’s motion for summary judgment in part.

In ORGANIC CONSUMERS ASSOCIATION, et al., Plaintiffs, v. SANDERSON FARMS, INC., Defendant, No. 17-cv-03592-RS, 2018 WL 1586142 (N.D. Cal. April 2, 2018), plaintiff sued poultry processor over “advertising and marketing materials they claim are designed to, and do, mislead consumers about the nature of [defendant’s] chicken products and farming practices. Here, defendant sought sanctions and dismissal of the case, alleging that plaintiffs included factual allegations in their complaint which they knew to be false. Defendants claimed that the USDA “informed plaintiffs’ counsel that the initial test results provided to plaintiffs were incomplete and unconfirmed preliminary screening data and that further testing ultimately indicated no violation or detection of contaminants.” Court concluded that plaintiff’s “reliance on the USDA’s data was not without a reasonable basis,” and denied defendant’s motion to dismiss.


LEGISLATIVE:

H.R. 3979: Keep America’s Refuges Operational Act. Signed by President.

H.R. 5005: To direct the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of establishing the birthplace of James Weldon Johnson in Jacksonville, Florida, as a unit of the National Park System. Text for status Reported by House Committee (Apr 24, 2018) is now available.

2734: A bill to designate the Federal building and United States courthouse located at 1300 Victoria Street in Laredo, Texas, as the “George P. Kazen Federal Building and United States Courthouse”. Referred to the Senate Committee on Environment and Public Works.

2733: A bill to amend the Department of Agriculture Reorganization Act of 1994 to rename the Department of Agriculture. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S.J.Res. 60: A joint resolution providing for the reappointment of Barbara M. Barrett as a citizen regent of the Board of Regents of the Smithsonian Institution. Referred to the Senate Committee on Rules and Administration.

H.R. 5608: To amend title 54, United States Code, to authorize the provision of technical assistance under the Preserve America Program. Referred to the House Committee on Natural Resources which.

H.R. 5600: To designate the Cerro del Yuta and Río San Antonio Wilderness Areas in the State of New Mexico. Referred to the House Committee on Natural Resources.

H.R. 5597: To provide for the expansion of the Desert Tortoise Habitat Conservation Plan, Washington County, Utah. Referred to the House Committee on Natural Resources.

H.R. 5596: To authorize the Administrator of the Environmental Protection Agency to establish a program of awarding grants to owners or operators of water systems to increase resiliency or adaptability of the systems to any ongoing or forecasted changes. Referred to the House Committee on Energy and Commerce, House Committee on Natural Resources.


REGULATORY:  Includes USDA, APHIS, EPA, FWS, ITS, NOAA and RHS rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Small Business Timber Set-Aside Program: Appeal Procedures on Recomputation of Shares. Info here.

Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Milk and Milk Products. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS is extending the comment period for our notice of availability of a revised version of the Chronic Wasting Disease Herd Certification Program Standards. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Colorado on May 26, 2017, addressing regional haze. Details here.

Rule EPA is proposing to approve a revision to the Minnesota sulfur dioxide State Implementation Plan (SIP) for the Flint Hills Resources, LLC Pine Bend Refinery (FHR) as submitted on February 8, 2017. Info here.

Rule EPA is proposing to approve certain portions of a State Implementation Plan (SIP) revision to address regional haze submitted by the Governor of North Dakota on March 3, 2010, along with SIP Supplement No. 1 submitted on July 27, 2010, SIP Amendment No. 1 submitted on July 28, 2011 and SIP Supplement No. 2 submitted on January 2, 2013. Details here.

FISH AND WILDLIFE SERVICE:

Notice FWS will authorize nonlethal, incidental take by harassment of small numbers of northern sea otters between May 23, 2018, and September 30, 2018. Details here.

Notice FWS issued Letters of Authorization for the nonlethal take of polar bears and Pacific walruses incidental to oil and gas industry exploration, development, and production activities in the Beaufort Sea and the adjacent northern coast of Alaska and incidental to oil and gas industry exploration activities in the Chukchi Sea and the adjacent western coast of Alaska. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA is issuing antidumping duty (AD) orders on biodiesel from Argentina and Indonesia. Info here.

Notice that because of determinations by the Department of Commerce and the International Trade Commission (ITC) that revocation of the antidumping duty order on honey from China would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, Commerce is publishing a notice of continuation of the antidumping duty order. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS has determined that the Atlantic bluefin tuna daily retention limit that applies to vessels permitted in the Highly Migratory Species Angling category and the HMS Charter/Headboat category should be adjusted for the remainder of 2018. Details here.

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 (GOA). Info here.

Rule NMFS issues a final rule to approve new fishery management measures to limit incidental catch of endangered Sacramento River winter-run Chinook salmon (SRWC) in fisheries managed under the Pacific Fishery Management Council. Details here.

Rule provides information on a request by the Pacific Fishery Management Council to establish a control date of September 15, 2017, for the Pacific Coast groundfish fishery. Info here.

Rule would extend the current region-wide moratorium on the harvest of gold corals in the U.S. Pacific Islands through June 30, 2023. Info here.

RURAL HOUSING SERVICE: Notice RHS announces the acceptance of applications under the Rural Community Development Initiative (RCDI) program. Applicants must provide matching funds in an amount at least equal to the Federal grant. Info here.