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, CAFO, energy, and aquaculture issues.

In JERRY M. GILBERT APPELLANT v. RAIN AND HAIL INSURANCE D/B/A ACE INSURANCE COMPANY, LLP APPELLEE, NO. 02-16-00277-CV, 2017 WL 710702 (Tex. App. Feb. 23, 2017) plaintiff, a wheat farmer, appealed an arbitration award for defendant regarding a crop insurance policy. Plaintiff claimed heavy rains prevented him from planting part of his wheat crop and that infestation damaged the crop. Defendant denied both claims and plaintiff sued for breach of contract and lost in arbitration. Plaintiff appealed arguing the arbitrator “exceeded his powers.” Court observed that the Federal Arbitration Act (FAA) governs arbitrations under federal crop-insurance policies and that, “A party seeking to vacate an award bears the burden of presenting a complete record that establishes grounds for vacatur.” Court found that arbitrator “did not engage in misconduct by conducting the arbitration in [plaintiff’s] absence,” and affirmed award for defendant.

In the Matter of W.M. SCHULTZ CONSTRUCTION, INC., et al., Petitioners, v. Mario J. MUSOLINO, as Acting Commissioner of Labor, Respondent, (And Another Related Proceeding.) 2017 WL 703011 (N.Y. App. Div. Feb. 23, 2017) involved a wage law dispute regarding construction of a concentrated animal feeding operation (CAFO) in the stable area of the Saratoga Race Course. Labor commission found the contract between the parties for the CAFO project was subject to prevailing wage laws. Court noted the project was not paid for by “public funds” and that “the use of public funds for a project is a prerequisite to the finding that a contract relates to a public work subject to prevailing wage obligations.” Labor commission’s ruling annulled.

In Carole Lee Greenberg, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. Sunrun Inc., et al., Defendants, No. 3:16-cv-2480-CRB, 2017 WL 528413 (N.D. Cal. Feb. 9, 2017), defendant leased rooftop solar panels to homeowners and had its initial public offering (IPO) in 2015. The company stock price dropped and plaintiff and investors lost heavily on the stock. Plaintiff sued Sunrun for violations of the Securities Act of 1933. Court observed that for plaintiffs to state a claim under Section 11 of the Securities Act, they must “plausibly allege that the Prospectus ‘contained an untrue statement of material fact’ or ‘omitted to state a material fact … necessary to make the statements therein not misleading.’” Court carefully parsed the company’s prospectus and reasoned that, “The test is whether a reasonable jury could find that the above statements ‘affirmatively’ created a misimpression about Sunrun’s Nevada operations.” Court found not “actionable” misstatements by defendants and dismissed the case.

In Peter Emmet, Plaintiff, v. Tom Del Franco, et al., Defendants, No.: 16-cv-11211, 2017 WL 697049 (E.D. Mich. Feb. 22, 2017), plaintiff invested over $500,000 in defendant’s “self-sustaining and renewable aquaponics/hydroponic farm” and requested a return of his investment after repeated attempts to obtain information about the farm and alleged erratic behavior by defendant. Plaintiff sued demanding an accounting (and a number of other claims) and defendant moved to dismiss. Court observed that plaintiff seeking an accounting must show that the “the Defendant has done something improper or that the financial records are too complicated to comprehend through discovery.” Plaintiff alleged defendants failed to produce any documents in discovery reflecting the “financial health or status of the Defendant corporations.” Court ruled dismissal of plaintiff’s accounting claim would be premature and denied defendant’s request for dismissal.


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

ENVIRONMENTAL PROTECTION AGENCY: Rule establishing an exemption from the requirement of a tolerance for residues of VNT1 protein in potato when used as a plant-incorporated protectant. Details here.

FISH AND WILDLIFE SERVICE:

Notice FWS will ask OMB to approve an information collection. Title: Federal Fish and Wildlife Permit Applications and Reports—Management Authority. Info here.

Notice FWS will ask OMB to approve an information collection. Title: Federal Fish and Wildlife Permit Applications and Reports—Migratory Birds and Eagles. Info here.

Notice FWS will ask OMB to approve an information collection. Title: Marine Mammal Marking, Tagging, and Reporting Certificates, and Registration of Certain Dead Marine Mammal Hard Parts. Details here.

Notice FWS will ask OMB to approve an information collection. Title: Migratory Bird Surveys. Details here.

Notice FWS will ask OMB to approve an information collection. Title: National Wildlife Refuge Special Use Permit Applications and Reports. Info here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA amends the animal drug regulations to reflect application-related actions for new animal drug applications and abbreviated new animal drug applications during September and October 2016. Details here.

Rule FDA amends the animal drug regulations to reflect approval of eight supplemental new animal drug applications. Details here.

Rule FDA withdraws approval of an abbreviated new animal drug application because the product is no longer manufactured or marketed. Details here.

Rule FDA withdraws approval of 18 new animal drug applications and 2 abbreviated new animal drug applications. Info here.

FOOD AND NUTRITION SERVICE:

Notice FNS seeks comment on a new information collection for the Evaluation of the Direct Certification with Medicaid for Free and Reduced-Price Meals (DCM-F/RP) Demonstrations. Info here.

Notice FNS seeks comment on a new information collection for the Scanner Capability Assessment of SNAP-Authorized Small Retailers Study. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice the NOAA and the U.S. Geological Survey National Geospatial Program plan to conduct a follow-on study to the National Enhanced Elevation Assessment white paper finalized in 2012. Info here.

Notice NMFS completed a comprehensive status review under the Endangered Species Act for thorny skate in response to a petition to list this species. Details here.

Notice that the Washington coastal Dungeness crab sub-loan in the Pacific Coast Groundfish Capacity Reduction Program was repaid. Details here.