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


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JUDICIAL: Includes bankruptcy, PACA, zoning, and energy issues.

In re THEORA R. GOODMAN JANIE H. GOODMAN, Debtors, No. 16-80809-WRS, 2017 WL 122983 (Bankr. M.D. Ala. Jan. 12, 2017) involved a Chapter 13 bankruptcy wherein debtor moved to avoid the “nonpossessory, nonpurchase money security interest” in a John Deere riding lawn mower. Court considered whether the mower “is a lawn mower . . . subject of a motion to avoid a security interest, or a lawn tractor, which could not.” Court reasoned that “a lawn tractor is a vehicle used to haul or power implements, not limited to just cutting grass with a rotary blade . . . Whereas, a lawn mower is not suited to perform any significant task other than to cut grass.” Court ruled the John Deere mower was not a lawn tractor per the statute in question and granted debtor’s motion.

Chula Brand CA, Corp., a California corporation, Plaintiff, v. Josue E. Rodriguez Martinez, an individual, and Irma P. Hernandez, an individual, both d/b/a Ervey Produce, and Ervey Produce, Inc., a California corporation, Defendants, Case No.: 17cv37-JLS (KSC), 2017 WL 107672 (S.D. Cal. Jan. 11, 2017) involved a Perishable Agricultural Commodities Act (PACA) dispute. Defendant owed plaintiff over $9,000 and had obtained a $21,000 loan from a third party. Plaintiff sought a temporary restraining order (TRO) prohibiting defendant from using the loan proceeds for any purpose other than repaying plaintiff. Plaintiff argued that a PACA trust “is imbued with an unusual ‘floating’ characteristic, i.e., it applies to all of [a] [d]ebtor’s produce related inventory and proceeds thereof, regardless of [which] … produce supplier was the source of such inventory.” Court concluded that “uncertainty” regarding the specific amount of the $21,000 that encompassed PACA-related debt “does not bar Plaintiff’s TRO Application on this point.” Plaintiff’s TRO request granted.

In JAMES MOSBY, Plaintiff and Appellant, v. COUNTY OF SANTA BARBARA, Defendant and Respondent, 2d Civil No. B268736, 2017 WL 167521 (Cal. Ct. App. Jan. 17, 2017), plaintiff was denied a permit to operate a sports facility on land zoned for agriculture. County refused to approve an urban-type facility hosting up to 780 patrons per weekend day in a rural area. Plaintiff’s land bordered “riparian open space/park land and cultivated farm land.” Court noted plaintiff’s proposed site adjoined “agricultural operations that use pesticides and his project degrades the soil and lacks public services.” Court found no “prejudicial abuse of discretion” and concluded County’s denial was “supported by substantial evidence.”

State of Wyoming and State of Montana, Petitioners, and State of North Dakota, Intervenor–Petitioner, v. United States Department of the Interior; Sally Jewell, in her official capacity as Secretary of the Interior; United States Bureau of Land Management; and Neil Kornze, in his official capacity as Director of the Bureau of Land Management, Respondents, Wyoming Outdoor Council, et al.; Earthworks; State of California and State of New Mexico, Intervenor–Respondents. Western Energy Alliance, and the Independent Petroleum Association of America, Petitioners, v. Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior; and Bureau of Land Management, Respondents, Case No. 2:16–CV–0285–SWS, 2017 WL 161428 (D. Wyo. Jan. 16, 2017) concerned whether Bureau of Land Management (BLM) has authority to “regulate the development of federal and Indian oil and gas resources for the prevention of waste.” BLM issued a Final Rule (Waste Prevention, Production Subject to Royalties, and Resource Conservation) and petitioners challenged it under the Administrative Procedure Act (APA), claiming the Rule is “an attempt by BLM to regulate air pollution which it lacks authority to do.” BLM maintained the Rule’s benefits to air quality “do not undercut its waste prevention purpose.” Court found the BLM “is entitled to deference regarding the determination of how best to minimize losses of gas due to venting, flaring, and leaks, and incentivize the capture and use of produced gas.” Plaintiff’s motion for preliminary injunction denied


LEGISLATIVE:

S. 164: A bill to direct the Secretary of the Interior to reissue the final rules relating to the listing of the gray wolf in the Western Great Lakes and the State of Wyoming under the Endangered Species Act of 1973. Bill referred to the Senate Committee on Environment and Public Works. Sponsor: Sen. Ron Johnson [R-WI].

MEETING: Senate Committee on Energy and Natural Resources. Hearings to examine the nomination of Rick Perry, of Texas, to be Secretary of Energy. Jan. 19 at 9:30 a.m. Location: SD-366.


REGULATORY: Includes AMS, EPA and FDA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule USDA adopts an interim rule implementing a recommendation from the Almond Board of California relaxing quality control requirements prescribed under the California almond marketing order. Info here.

Rule AMS amends the organic livestock and poultry production requirements by adding new provisions for livestock handling and transport for slaughter and avian living conditions. Details here.

Rule that a referendum be conducted among eligible Washington potato producers to determine whether they favor continuance of the marketing order regulating handling of Irish potatoes grown in Washington. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA withdraws new use rules promulgated under the Toxic Substances Control Act for two chemical substances. Info here.

Rule EPA proposes new health and environmental protection standards under the Uranium Mill Tailings Radiation Control Act of 1978. Details here.

Rule EPA identified significant health risks associated with TCE use in vapor degreasing. Details here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA and EPA announce revised fish advice containing supplemental questions and answers regarding their jointly released March 2004 document entitled “What You Need to Know About Mercury in Fish and Shellfish.” Info here.

Notice FDA announces a docket to receive comments on the use of genome editing techniques to produce new plant varieties that are used for human or animal food. Details here.

Notice FDA announces availability of a draft guidance for industry #187 entitled “Regulation of Intentionally Altered Genomic DNA in Animals.” Info here.

Notice FDA announces availability of a draft guidance for industry #236 entitled “Regulation of Mosquito-Related Products.” Details here.