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 crop insurance, animal welfare, pesticides, and ESA issues.

In C & N Farms, et al. Plaintiffs v. Producers Agriculture Insurance Co., Defendant, NO. 2:15-CV-00136 BSM, 2017 WL 628608 (E.D. Ark. Feb. 15, 2017), plaintiff appealed decision by arbitrator and sued defendant (insurance company) “to recover damages arising from the wrongful denial of crop insurance benefits.” Plaintiff maintained “[d]efendants breached their contractual obligations … by failing to properly and timely pay the insurance claim.” Defendant submitted briefs describing the facts underlying both the unpaid insurance claim and letters from plaintiff. Court reasoned that, “The problem with C&N Farms’s position is that the parties agreed to binding arbitration. Despite C&N Farms’s displeasure with the arbitrator’s decision, that decision stands unless there is a reason to set it aside.” Defendant’s motion for summary judgment granted.

In Animal Legal Defense Fund, Inc., Plaintiff, v. Thomas J. Vilsack, et al., Defendants. No. 16–cv–00914 (CRC), 2017 WL 627379 (D.D.C. Feb. 15, 2017), plaintiff appealed USDA decision under the Administrative Procedure Act (APA) allowing “interested persons” to participate in agency proceedings “so far as the orderly conduct of public business permits.” Plaintiff earlier sought an administrative enforcement action against a family-owned zoo for violating the Animal Welfare Act. Appellate court noted that the APA does not define the term “interested person.” Court observed that ALDF refers to itself as “a national non-profit organization dedicated to protecting animals, including animals exhibited by zoos and menageries,” and “has a longstanding interest in the problem of captive animal mistreatment at roadside zoos.” Court deemed plaintiff an “interested person” and case remanded back to USDA.

Bader Farms, Inc. and Bill Bader Plaintiffs, v. Monsanto Co., Defendant, No. 1:16–CV–299 SNLJ, 2017 WL 633815 (E.D. Mo. Feb. 16, 2017) involved plaintiffs’ claims that their peach crops were damaged by “drift” of defendant’s dicamba herbicide. Plaintiff alleged “fraudulent concealment” by defendant, among a host of charges. Plaintiffs argued court lacked subject matter jurisdiction because they filed only Missouri state law claims and that their claims “are not preempted by federal law.” Monsanto argued court has original federal question jurisdiction and that plaintiffs’ claims are “completely preempted under federal law.” Court noted the fraudulent conduct alleged by plaintiff is that “Monsanto knew of [APHIS’s and others’] ignorance of the truth and intentionally withheld the truth about its product and its risks.” Court observed Monsanto’s defense is “set out in federal regulations” and concluded plaintiffs’ fraudulent concealment allegation “presents a substantial federal question.” Plaintiffs’ motion denied.

In Friends of Animals, et al., Plaintiffs, v. Paul Phifer, in his official capacity as Assistant Regional Director of Ecological Services for the Northeast Region Office of the U.S. Fish and Wildlife Service, et al., Defendants, and State of Maine, et al., Intevenor Defendants. 1:15-cv-00157-JDL, 2017 WL 617910 (D. Me. Feb. 15, 2017), defendant issued an Incidental Take Permit to the Maine Department of Inland Fisheries and Wildlife exempting the state from liability for incidental takes of Canada lynx resulting from trapping programs. Plaintiffs sued asserting the permit violates the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). Plaintiffs argued defendant “should have required Maine to revisit its lethal take calculations and reconsider the minimization and mitigation measures.” Defendant argued it was “justified in employing the expedited procedure established in the Incidental Take Plan.” Court noted that defendant did not prepare an Environmental Impact Statement, but found defendant did not act “arbitrarily and capriciously” by approving Maine’s application for an Incidental Take Permit. Defendant’s cross-motion for summary judgment granted.

No Legislative or Regulatory updates due to yesterday’s Federal holiday.