A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu


ANNOUNCEMENT: Join us this Wednesday, February 15, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: Legal Checkup on Checkoffs: Recent & Emerging Legal Issues in Federal & State Checkoff Programs. Sign-in details available here.


JUDICIAL: Includes FSA, landowner liability, pesticides, ESA, and procedural issues.

In UNITED STATES OF AMERICA, Appellee, v. EFRÉN IRIZARRY-COLÓN, Defendant, Appellant, No. 15-1550, 2017 WL 526482 (1st Cir. Feb. 8, 2017), defendant, a closing agent for the Farm Service Agency (FSA) and an “attorney for emergency and operating loans disbursed to farmers” after Hurricane Georges struck Puerto Rico in 1998, attempted to defraud the FSA. Defendant claimed the government violated the Speedy Trial Act, his Sixth Amendment right to a speedy trial, and his Fifth Amendment right to due process. With respect to defendant’s Speedy Trial claim, the court observed that, “The Supreme Court has identified four factors that courts should assess when considering whether a defendant has been deprived of the right to a speedy trial. These are ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’” Barker v. Wingo, 407 U.S. 514, 530 (1972). Case remanded to district court for application of all four Barker factors.

MERCED IRRIGATION DISTRICT, Petitioner, v. The SUPERIOR COURT of Merced County, Respondent; Hart High-Voltage Apparatus Repair and Testing Co., Inc., Real Party in Interest, F072704, 2017 WL 345119 (Cal. Ct. App. Jan.24, 2017) concerned the definition of the term “municipal corporation.” Plaintiff challenged trial court decision that it was not a “municipal corporation.” Per statute, municipal corporations are authorized “to recover all damages from any person who injures any facility or equipment of the municipal corporation through want of care.” Appellate court considered whether the term “municipal corporation” is ambiguous and found “an ambiguity exists because, historically, ‘municipal corporation’ has been interpreted different ways in different contexts.” Court observed that, “Nothing in the statutory text or legislative history suggests the Legislature ever considered whether to extend the benefits of [the statute] to irrigation districts.” Court found the term “municipal corporation” does not include irrigation districts. Plaintiff’s petition for writ of mandate denied.

In DENNIS L. DAVIS, APPELLANT, v. ROBERT D. SNYDER, ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE, NO. 15-4481, 2017 WL 541543 (Vet. App. Feb. 10, 2017), Board of Veterans’ Appeals (Board) denied VA disability benefits for prostate cancer due to plaintiff’s exposure to Agent Orange. Plaintiff appealed and argued Board failed to address “specific assertions” regarding his exposure to herbicide agents in service. Court agreed with plaintiff and ordered case remanded, charging the Board to  “expressly consider the possibility that [plaintiff] was exposed to herbicide agents when he flew low-flying aircraft over the jungles and coastline of Viet Nam, reportedly through chemical mist left behind by UC-123 aircraft.”

HOOPA VALLEY TRIBE, Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants, No. 16-cv-04294-WHO, 2017 WL 512807 (N.D. Cal. Feb. 8, 2017), plaintiff sued to protect salmon in the Klamath River from impacts of a Klamath River Project. Plaintiff claimed defendants violated an “implementing regulation” of the Endangered Species Act (ESA), by failing to “reinitiate formal consultation following two years of record rates of disease among Coho salmon in the Klamath River.” Defendants filed motion to dismiss. Court concluded that unlawful taking of a listed species is “not cognizable against the National Marine Fisheries Service (NMFS) because NMFS does not participate in running the Klamath Project and so is not responsible for any taking.” Motion to dismiss granted per plaintiff’s ESA claim, but denied in other respects.

In TIMOTHY CLEVELAND, Plaintiff, v. THOMAS C. HUNTON, et al., Defendants, No. 1:16-cv-01732-AWI-SAB, 2017 WL 531897 (E.D. Cal. Feb. 9, 2017), plaintiff, an African American, sued claiming violations of the Equal Credit Opportunity Act, the Administrative Procedures Act, and Title VI of the Civil Rights Act of 1964. Plaintiff received a loan from Farm Service Agency (FSA) and argued defendant, a Farm Service Agency Senior Loan Officer, “knew or should have known that the term of the loan may exceed 18 months in unusual situations,” and that defendant failed to act following a final decision by the National Appeals Division (NAD). Court examined the pleadings and concluded that, “The factual allegations in the first amended complaint are too vague to state a cognizable claim that any named defendant violated Plaintiff’s federal rights.” Plaintiff permitted to file amended complaint.


REGULATORY: includes USDA, APHIS, FSIS, ITA and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review and clearance. Title: USDA PIV Request for Credential. Details here.

Notice USDA has submitted information collection requirement(s) to OMB for review and clearance. Title: Importation of Fresh Bananas from the Philippines into the Continental United States. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Rule APHIS extends the comment period for a proposed rule revising regulations regarding the movement of plant pests to propose criteria regarding the movement and environmental release of biological control organisms. Info here.

Notice APHIS will request the reinstatement of an information collection associated with the Federal plant pest and noxious weeds regulations. Details here.

Notice advising public that proposed changes to the National Poultry Improvement Plan Program Standards are available for review. Details here.

FOOD SAFETY AND INSPECTION SERVICE:

Notice FSIS will request a revision of the approved information collection regarding nutrition labeling of the major cuts of single-ingredient raw meat or poultry products and ground or chopped meat and poultry products. Details here.

Notice FSIS will request a revision of the approved information collection regarding the regulatory requirements associated with the production of meat from advanced meat recovery systems. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice the President’s Advisory Council on Doing Business in Africa will hold a meeting via teleconference to deliberate and vote on the adoption of a letter outlining the Council’s priority recommendations to the President. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Notice NMFS will prepare a Programmatic Environmental Impact Statement to analyze the environmental impacts of the continued authorization and management of U.S. Pacific Island deep-set tuna longline fisheries under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific. Info here.