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


JUDICIAL: Includes animal welfare, administrative, food labeling, urb and ag, and CWA issues.

In ALTERNATIVES RESEARCH AND DEVELOPMENT FOUNDATION v. TOM VILSACK, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL, NO. 15-6408, 2017 WL 1177104 (E.D. Pa. March 30, 2017), plaintiff brought a breach of contract action pursuant to the Little Tucker Act, seeking a remedy for USDA’s alleged breach of a litigation settlement agreement under which the agency “agreed to enact regulations concerning the use of birds in research, product testing and education.” Plaintiff sought monetary damages and “an order requiring USDA to enact bird-specific regulations.” Court observed that “the Little Tucker Act waives the government’s sovereign immunity, and confers jurisdiction on the federal district courts, for contract claims against the United States that seek damages of no more than $10,000.” Court found it had “no jurisdiction to adjudicate ARDF’s breach of contract claim,” and granted defendants’ motion to dismiss.

In TIDEWATER CONTRACTORS, INC., Plaintiff, v. The UNITED STATES, Defendant, No. 13–600C, 2017 WL 1180497 (Fed. Cl. March 30, 2017), plaintiff claimed Department of Transportation’s Federal Highway Administration (FHWA) breached a road construction contract by improperly withholding payments. Issue concerned FHWA’s verification of plaintiff’s test results regarding “the density of its superpave hot asphalt concrete pavement.” Plaintiff argued FHWA improperly decided to test all core samples for verification and failed to follow procedures when conducting verification testing. Court found “no issues of material fact concerning the propriety of the FHWA’s decision to reject additional sampling and testing,” and granted defendant’s motion for summary judgment.

In Benjamin PHELPS, individually and on behalf of all others similarly situated, Plaintiff, v. HORMEL FOODS CORPORATION, Defendant, NO. 16–CV–62411–DIMITROULEAS, 2017 WL 1185514 (S.D. Fla. March 27, 2017), plaintiff claimed Hormel’s “100% Natural” and “No Preservatives” claims on their deli meats are “false, misleading, and deceptive” because they allegedly contain “cultured celery powder, baking powder, and genetically modified ingredients.” Plaintiff sued for violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and negligent misrepresentation. Defendant argued plaintiff’s claims are preempted by federal law because its “100% Natural” and “No Preservatives” claims were specifically approved by the Food Safety Inspection Service (FSIS) pursuant to the Federal Meat Inspection Act (FMIA) and Poultry Products Inspection Act (PPIA). Court ruled plaintiff’s claims are “expressly preempted by PPIA and FMIA.” Defendant’s motion to dismiss granted.

In Re: Application of Sunflower Farm, LLC, No. 815 C.D. 2016, 2017 WL 1152564 (Pa. Commw. Ct. March 28, 2017) involved zoning issues. Applicant wanted to construct an equine hospital facility and submitted an application for use and dimensional variances. Review board denied the variance request based on “concerns that the proposed use with the various medical barn structures was being ‘squeezed’ into a small parcel, consisting of five acres.” Landowner appealed, but court sided with Board, noting that, “The Board chose not to accept Applicant’s assertion that the renovation of the farmhouse was cost prohibitive and that it could only be rehabilitated for an office use, and this determination will not be disturbed by this Court.”

In HUNTON & WILLIAMS LLP, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant, HUNTON & WILLIAMS LLP, Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS, Defendant, HUNTON & WILLIAMS LLP, Plaintiff, v. U.S. DEPARTMENT OF THE ARMY, Defendant, No.: 15-1203 (RC), Civil Action No.: 15-1207 (RC), 2017 WL 1207410 (D.D.C. March 31, 2017), plaintiff, a law firm, sued seeking documents under the Freedom of Information Act (FOIA) from the EPA,  the U.S. Army Corps of Engineers (Corps), and the U.S. Army regarding the government’s Clean Water Act (CWA) and Rivers and Harbors Act (RHA) jurisdiction over an industrial site. Defendants moved for summary judgment. Court considered whether the EPA “properly withheld the requested information,” and concluded that “the EPA’s disclosures, like others rejected in this jurisdiction, are insufficiently specific about the deliberative process at issue and the function and significance of each record in that process.” Defendants’ motion for summary judgment denied in part.


REGULATORY: Includes FWS, FNS and NOAA rules and notices.

FISH AND WILDLIFE SERVICE:

Rule FWS will reclassify the West Indian manatee from endangered to threatened. Info here.

Rule FWS is removing the scarlet-chested parrot and the turquoise parrot from the Federal List of Endangered and Threatened Wildlife. Details here.

Rule FWS announces a 12-month finding on a petition to list a mussel species, the yellow lance, as endangered or threatened. Info here.

FOOD AND NUTRITION SERVICE: Notice FNS invites comment on an information collection regarding the types of Supplemental Nutrition Assistance Program (SNAP) related fraud activity observed by large retailers and methods used to prevent fraud. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Bering Sea and Aleutian Islands management area. Info here.