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 water, tax, lease, zoning, FDCA, and FDA issues.

In Don H. GUNDERSON and Bobbie J. Gunderson, Co–Trustees of the Don H. Gunderson Living Trust Dated November 14, 2006, Appellants/Cross–Appellees/Plaintiffs, v. STATE of Indiana, Indiana Department of Natural Resources, Appellees/Defendants, Alliance for the Great Lakes and Save the Dunes, Appellee/Cross–Appellant/Intervenor–Defendant, Long Beach Community Alliance, Patrick Cannon, John Wall, Doria Lemay, Michael Salmon, and Thomas King, Appellees/Cross–Appellants/Intervenor–Defendants, No. 46A03–1508–PL–1116, 2016 WL 7125255 (Ind. Ct. App. Dec. 7, 2016), plaintiffs sought judgment declaring their Lake Michigan property extends to the water’s edge. Defendants argued the State “holds in trust for the public all land up to the ordinary high water mark (OHWM), regardless whether that land is covered by water.” Trial court granted summary judgment for State and plaintiff appealed. Appellate court observed, “Granting lakeshore owners the right to exclude the public from land between the low and high water marks would be inconsistent with the public trust doctrine.” Central issue was “whether the public trust land extends up to the ordinary high water mark or whether . . . it applies only to land that is actually under water at any particular moment.” Court, citing an earlier case, reasoned, “We can protect traditional public rights under our public trust doctrine only by simultaneously safeguarding activities inherent in the exercise of those rights.” Court ruled that “the land at issue below the OHWM is open to limited public use, such as gaining access to the public waterway or walking along the beach.”

In ESTATE OF STEVE K. BACKEMEYER, DECEASED, JULIE K. BACKEMEYER, PERSONAL REPRESENTATIVE, AND JULIE K. BACKEMEYER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Docket No. 10596-14, 147 T.C. No. 17 (Tax Dec. 8, 2016), plaintiff, a husband and farmer, purchased farm inputs in 2010 intending to use them to cultivate crops in 2011. He deducted his expenditures on the inputs for 2010 and died in March 2011 without using any of the farm inputs. The inputs were transferred to his wife, who used all the farm inputs in 2011 to grow crops sold in 2011 and 2012. Wife deducted for tax year 2011 an amount “equal to the value of the farm inputs inherited.” Respondent’s argued that allowing husband to deduct farm input expenses on his 2010 Schedule F, while allowing wife to deduct expenses for the same farm inputs on her 2011 Schedule F, amounted to a “double deduction.” Tax court held the tax benefit rule “does not require the recapture upon [husband’s] death in 2011 of deductions he claimed for 2010 for his expenditures on the farm inputs.”

United States of America, Plaintiff, v. Cliven D. Bundy, Defendant, Case No. 2:16-cr-00046-PAL-GMN, 2016 WL 7190546 (D. Nev. Dec. 12, 2016) concerned Bureau of Land Management’s impoundment of defendant’s cattle following a decades-long battle with the federal government. Defendant filed motion to sever from 18 co-defendants as his family ranched the land at issue dating back to the 1800s, and “none of the other defendants have this history or the same defenses.” Government opposed motion to sever claiming crimes charged in the indictment “involve a continuing conspiracy to impede and interfere with federal law enforcement officers.” Court noted that “Rule 8 permits joinder of offenses or defendants in the same criminal indictment,” and that a defendant “seeking severance bears the burden of showing undue prejudice.” Court agreed to separate defendants into three groups “corresponding to their alleged roles in the offences charged.” Court did not, however agree with government “that it would be less fair to try the least culpable defendants first.”

In RESIDENTIAL AND AGRICULTURAL ADVISORY COMMITTEE, LLC, an Iowa Limited Liability Company; MATT MESCHER; ALLAN R. DEMMER; CATHERINE DEMMER; WAYNE AMESKAMP; SHARON AMESKAMP; VERNON BOGE; DONALD BOGE; MARY ANN RUBLY; JOHN R. RUBLY; DOLORES THIER; LARRY THIER; GARY BURKLE; CINDY BURKLE; WAYNE VORWALD; LINDA VORWALD; JEFF PAPE; GERALD WOLF; and JOANNE WOLF, Appellants, v. DYERSVILLE CITY COUNCIL, MAYOR JAMES A. HEAVENS, MIKE ENGLISH, MARK BREITBACH, ROBERT PLATZ, MOLLY EVERS, and DAN WILLENBORG, Appellees, No. 15-1413, 2016 WL 7175256 (Iowa Dec. 9, 2016), a city council voted to rezone the area containing the Field of Dreams movie site from agricultural to commercial to help develop a baseball complex. Community members filed writs challenging the rezoning and district court annulled the writs. Community members appealed arguing the city council acted in a “quasi-judicial function.” Appellate court affirmed, holding that plaintiffs “did not meet their burden of demonstrating that the rezoning did not meet the requirements of the city’s comprehensive plan.” Writs denied.

In Orlando Bautista, individually and on behalf of all other persons similarly situated, Plaintiff, v. Cytosport, Inc., Defendant, No. 15-CV-9081 (CS), 2016 WL 7192109 (S.D.N.Y. Dec. 12, 2016), plaintiff purchased defendant’s protein powder expecting the container to be full, but it contained “30% of empty space,” and plaintiff would not have bought the powder “had he known about the empty space in the container before making the purchase.” Court observed that under the federal Food, Drug, and Cosmetic Act (FDCA), food is misbranded “[i]f its container is so made, formed or filled as to be misleading.” Further, “A container is misleading if its contents cannot be fully viewed and it contains ‘nonfunctional slack fill.’” Court found that plaintiff did not plead facts “rendering plausible the conclusion that the slack fill in Defendant’s products is nonfunctional within the meaning of the applicable regulation.” Defendant’s motion to dismiss granted.

In SHAVONDA HAWKINS, on behalf of herself and all others similarly situated, Plaintiff, v. KELLOGG COMPANY, Defendant, Case No. 16-cv-0147-JAH (JMA), 2016 WL 7210381 (S.D.Cal. Dec. 13, 2016), plaintiff claimed she suffered damages from eating defendant’s cookies containing partially hydrogenated oil (PHO). Defendant argued plaintiff’s complaint should be dismissed “for lack of standing, failure to state any claims, and because Plaintiff’s claims are preempted by federal law.” Court observed that the FDA set June 18, 2018, as a compliance date “by which time food producers must have removed PHO from their food products,” and concluded that “if the FDA intended to make illegal the current use of PHO in food, it is reasonable to expect that the Final Determination would have contained language to that effect.” Defendant’s motion to dismiss granted.


LEGISLATIVE:

H.R. 6528: To amend the Forest and Rangeland Renewable Resources Planning Act of 1974 and the Federal Land Policy and Management Act of 1976 to discourage litigation against the Forest Service and the Bureau of Land Management. Bill referred to the House Committee on Agriculture and House Committee on Natural Resources. Sponsor: Rep. Ryan Zinke [R-MT0].


REGULATORY: Includes AMS, FWS, FDA, FSIS, ITA and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule amends the Patents, Copyrights, Trademarks, Publications, and Product Formulations language of the Egg Research and Promotion Rules and Regulations to conform with commodity research and promotion program orders created under the Commodity Promotion, Research, and Information Act of 1996. Info here.

Rule USDA will amend the regulations under the Perishable Agricultural Commodities Act to enhance clarity and improve the administration and enforcement of the PACA. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS announces a proposal to list five tarantula species under the Endangered Species Act of 1973. Details here.

Notice FWS invites comment on applications for a permit to conduct activities intended to enhance the survival of endangered species. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA amends regulations on accreditation of third-party certification bodies to conduct food safety audits and to issue certifications to provide for a reimbursement program to assess fees for the work FDA performs administering third-party certification program under the FDA Food Safety Modernization Act (FSMA). Info here.

Rule FDA announces availability of a draft guidance for industry entitled “Fruit Juice and Vegetable Juice as Color Additives in Food.” Details here.

Notice FDA announces the fiscal year 2017 fee rate for accreditation bodies applying to be recognized in the third-party certification program that is authorized by the Federal Food, Drug, and Cosmetic Act. Info here.

FOOD SAFETY AND INSPECTION SERVICE: Notice USDA and AMS are sponsoring a public meeting on January 17, 2017, to provide information on agenda items and draft United States positions to be discussed at the 3rd Session of the Codex Committee on Spices and Culinary Herbs. Details here.

INTERATIONAL TRADE ADMINISTRATION: Notice details the schedule and proposed agenda of a meeting of the Environmental Technologies Trade Advisory Committee. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule establishes a commercial retention limit of eight blacknose sharks for all Atlantic shark limited access permit holders in the Atlantic region south of 34°00′ N. latitude. Details here.

Rule implements regulations in Amendment 16 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. Info here.

Rule that the South Atlantic Fishery Management Council and Gulf of Mexico Fishery Management Council jointly submitted Amendment 26 to the Fishery Management Plan for the Coastal Migratory Pelagics Fishery of the Gulf of Mexico and Atlantic Region for review. Details here.

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