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 taxation, animal law, procedural, and hemp issues.

Rocky Torres, Plaintiff, v. Mike Wells, et al., Defendants, NO.: 8:16–cv–2640–T–23AAS, 2017 WL 397609 (M.D. Fla. Jan. 30, 2017) concerned plaintiff’s failure to pay his property tax. Plaintiff claimed county’s appraisal of real estate and enforcement of ad valorem taxes violated federal criminal statutes and that the governor, attorney general, and tax collector conspired to obtain his property. The government allegedly conspired unlawfully to classify plaintiff’s residence as “non-commercial and to deprive him of his property through the imposition and enforcement of the ad valorem tax.” Case dismissed with court noting that plaintiff’s “attempt to characterize Florida’s statutory system of ad valorem taxation as a crime and as a RICO conspiracy and to characterize as RICO conspirators the state and county officials implementing Florida’s statutes is, at least, acutely implausible, if not wholly preposterous.”

In Kenneth HETRICK, Appellant–Appellant, v. OHIO DEPARTMENT OF AGRICULTURE, Appellee–Appellee, No. 15AP–944, 2017 WL 390314 (Ohio Ct. App. Jan. 26, 2017), appellant appealed order of the Ohio Department of Agriculture (ODA) upholding the transfer of his wild animals to an ODA-approved facility. Court considered the Dangerous Wild Animals and Restricted Snakes Act regulating the possession, care, and housing of dangerous wild animals. Appellant argued he was treated differently than others in possession of wild animals and that the ODA “used its power to investigate and transfer inconsistently and arbitrarily.” Court found appellant “has a limited property interest in his dangerous wild animals, but his ownership of his animals does not rise to the level of a constitutionally fundamental property interest.” Appellant did not demonstrate “deprivation of a constitutionally protected property interest” and court found no basis for his substantive due-process argument. Affirmed for defendant.

In FMC Corporation, Plaintiff, v. United States Environmental Protection Agency, DefendantIn, 14-CV-487S, 2017 WL 431809 (W.D.N.Y. Feb. 1, 2017) plaintiff engaged in cleanup of soil containing arsenic and sued seeking a declaration of rights and obligations pertaining to an “environmental remediation” project. Defendant filed motion to dismiss for lack of subject matter jurisdiction. Plaintiff invoked the federal-question statute, but court noted “this statute does not give rise to subject-matter jurisdiction because it ‘is in no way a general waiver of sovereign immunity.’” Plaintiff also sought relief under the Administrative Procedure Act (APA), but court ruled, “The APA is not an independent grant of subject matter jurisdiction…. Rather, it waives the federal government’s sovereign immunity in actions brought under the general federal questions jurisdictional statute.” Plaintiff’s complaint dismissed.

In Mark Lundy, Appellant v. Commonwealth of Kentucky, Appellee, NO. 2015–CA–000451–MR, 2017 WL 382409 (Ky. Ct. App. Jan. 27, 2017), jury found appellant guilty of possession of marijuana and he appealed claiming the state “failed to prove the plant material seized from his residence met the definition of marijuana” per Kentucky law. Court considered definition of “marijuana” under the Controlled Substances Act and “industrial hemp” under Agricultural Act of 2014. Court observed, “While the level of THC distinguishes marijuana plants from hemp plants under federal and Kentucky law, that distinction is only relevant if [appellant] could legally possess industrial hemp.” Court concluded that unless appellant “was a licensed grower or could otherwise possess industrial hemp, any difference between the definition of marijuana and industrial hemp was not relevant to the jury’s inquiry.” Trial court ruling affirmed.


REGULATORY: Includes BSEE, EPA, ITA, and NOAA rules and notices.

BUREAU OF SAFETY AND ENVIRONMENTAL ENFORCEMENT: Rule adjusts level of the maximum civil monetary penalty contained in the Bureau of Safety and Environmental Enforcement regulations pursuant to the Outer Continental Shelf Lands Act, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, and OMB guidance. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is establishing a federal Clean Water Act (CWA) aquatic life criterion for freshwaters under the state of Oregon’s jurisdiction, to protect aquatic life from the effects of exposure to harmful levels of cadmium. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA is initiating a new shipper review regarding Jiangsu Runchen Agricultural/Sideline Foodstuff Co., Ltd. in the context of the antidumping duty order on honey from China. Details here.

Notice ITA is initiating “Sunset Reviews” of antidumping and countervailing duty order(s). Info here.

Notice ITA finds revocation of the antidumping duty order on pure magnesium from China may lead to continuation of dumping at the dumping margins identified in the “Final Results of Review” section of this notice. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS reduces the commercial trip limit of Atlantic migratory group Spanish mackerel in or from the exclusive economic zone in the Atlantic migratory group southern zone to 1,500 lb, per day. Details here.

Notice Department of Commerce will submit to OMB for clearance a proposal for collection of information. Title: West Coast Swordfish Fishery Survey. Info here.

Notice the New England Fishery Management Council will prepare a draft environmental impact statement consistent with the National Environmental Policy Act. Info here.