A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE


JUDICIAL: Includes GIPSA, CWA, SNAP, and food safety issues.

In Mitchell W. CRUTCHFIELD, Plaintiff v. TYSON FOODS, INC., Defendant, No. 2:17-CV-02075, 2017 WL 2838190 (W.D. Ark. June 30, 2017), plaintiff grew broiler chickens for Tyson and alleged he spent over $600,000 on broiler houses after Tyson “mandated hundreds of thousands of dollars be spent upgrading the chicken houses.” Plaintiff claimed Tyson’s actions violated the Packers and Stockyards Act, the Age Discrimination in Employment Act, the Arkansas Deceptive Trade Practices Act (ADTPA), and that defendant breached its contract. Tyson argued plaintiff’s lawsuit is barred by the Rooker-Feldman doctrine and by issue and claim preclusion. Court observed that, “The Rooker-Feldman doctrine precludes a district court from reviewing any final state court decision on the merits, as ‘federal jurisdiction to review most state court judgments is vested exclusively in the United States Supreme Court.’” Court found for defendant and dismissed lawsuit.

State of KANSAS, EX REL. Derek SCHMIDT, Attorney General; Cherokee County, Kansas, Board of County Commissioners, Plaintiffs-Appellants, v. Ryan ZINKE,* Secretary of the United States Department of Interior, in his official capacity; National Indian Gaming Commission; Jonodev Osceloa Chaudhuri, National Indian Gaming Commissioner, in his official capacity; Daniel J. Little, Associate Commissioner National Indian Gaming Commission, in his official capacity; Department of Interior; Eric N. Shepard, General Counsel National Indian Gaming Commission, in his official capacity; Kevin K. Washburn, Assistant Secretary of Indian Affairs for the United States Department of Interior, in his official capacity; John Berrey, Chairperson of the Quapaw Tribe of Oklahoma Business Committee and Chairperson of the Downstream Development; Thomas Mathews, Vice-Chairperson of Quapaw Tribe of Oklahoma Business Committee; Tamara Smiley-Reeves, Secretary/Treasurer of Quapaw Tribe of Oklahoma Business Committee, Secretary of the Quapaw Tribe of Oklahoma Development Corporation, and member of the Downstream Development Authority; T.C. Bear, Member of Quapaw Tribe of Oklahoma Business Committee and Quapaw Gaming Authority; Betty Gaedtke, Member of Quapaw Tribe of Oklahoma Business Committee; Ranny McWatters, Member of Quapaw Tribe of Oklahoma Business Committee and Treasurer of the Downstream Development Authority; Marilyn Rogers, Member of Quapaw Tribe of Oklahoma Business Committee, Quapaw Gaming Authority, and Downstream Development Authority; Trenton Stand, Member of Quapaw Gaming Authority; Lori Shafer, Member of Quapaw Gaming Authority; Justin Plott; Fran Wood, Member of Quapaw Gaming Authority; Larry Ramsey, Secretary of the Downstream Development Authority; Barbara Kyser-Collier, Executive Director of the Quapaw Gaming Oklahoma Tribal Gaming Agency; Erin Shelton, Deputy Director of the Quapaw Tribe of Oklahoma Tribal Gaming Agency, a/k/a Erin Eckart; Rodney Spriggs, President of the Quapaw Development Corporation; Art Cousatte, Vice-President of the Quapaw Development Corporation; Donna Mercer, Treasurer of the Quapaw Development Corporation; Jerri Montgomery, Member of the Quapaw Development Corporation; Quapaw Development Corporation; Downstream Development Authority of the Quapaw Tribe of Oklahoma, (O-GAH-PAH); Quapaw Gaming Authority, Defendants-Appellees, Iowa Tribe of Kansas and Nebraska; Sac and Fox Nation of Missouri in Kansas and Nebraska, Movants, No. 16-3015, 2017 WL 2766292 (10th Cir. June 27, 2017) concerned whether a legal opinion letter issued by the Acting General Counsel of the National Indian Gaming Commission (NIGC) regarding the eligibility of Indian lands for gaming “constitutes ‘final agency action’ subject to judicial review.” The NIGC Acting General Counsel issued a legal opinion letter by stating that the Tribe’s Kansas trust land was eligible for gaming under the Indian Gaming Regulatory Act (IGRA). The State of Kansas and the Board of County Commissioners of the County of Cherokee, Kansas, filed suit, arguing that the letter was “arbitrary, capricious, and erroneous as a matter of law.” The district court concluded the letter did not constitute reviewable final agency action under IGRA or the Administrative Procedure Act (APA). Appellate court confirmed district court and concluded that “IGRA’s text, statutory scheme, legislative history, and attendant regulations demonstrate congressional intent to preclude judicial review of legal opinion letters.”

FAYEZ A. SHANAA and HAIM A. DAKWAR, D/B/A MR. F’S FOODS Plaintiff, v. UNITED STATES OF AMERICA, Defendant, No. 15-CV-42, 2017 WL 2838150 (E.D. Wis. June 30, 2017) concerned a convenience store trafficking in Supplemental Nutrition Assistance Program (SNAP) benefits and its disqualification from the program. After monitoring plaintiff’s store, the Food and Nutrition Service (FNS) found evidence of unusual EBT transactions from its Anti-Fraud Locator using Electronic Benefits Retailer Transactions (ALERT) computer program. Court observed that, “Permanent disqualification from the SNAP program is mandated when an authorized retail store has engaged in trafficking.” Court concluded FNS “properly relied on the regulatory requirements,” and that “its decision was not arbitrary or capricious.”

In PATTERSON et al. v. KEVON, LLC, A17A0399, 2017 WL 2829252 (Ga. Ct. App. June 30, 2017), plaintiffs appealed summary judgment for defendant, a caterer. Plaintiffs attended a wedding rehearsal dinner and alleged that food prepared by defendant was “negligently prepared, was unsavory and contaminated, and had caused them a variety of ailments in the days following the rehearsal dinner.” District court found that plaintiffs “had not excluded all other reasonable possibilities for why they became sick,” and appellate court affirmed for defendant.


REGULATORY: Includes  USDA, EPA, FWS, FDA, FAS, ITA and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA submitted information collection requirement(s) to OMB for review. Title: Voluntary Labeling Program for Biobased Products. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes a tolerance for residues of flubendiamide in or on tea at 50 parts per million. Info here.

Rule establishes tolerances for residues of indaziflam in or on multiple commodities. Details here.

Rule establishes tolerances for residues of pyroxsulam in or on teff, grain; teff, forage; teff, hay; and teff, straw. Info here.

Rule establishes an exemption from the requirement of a tolerance for residues of titanium dioxide in honey when used as an inert ingredient at a concentration of not more than 0.1% by weight in pesticide formulations intended for varroa mite control around bee hives. Info here.

FISH AND WILDLIFE SERVICE:

Notice this information collection is associated with FWS regulations that implement the Migratory Bird Treaty Act. Details here.

Notice FWS will ask the Office of Management and Budget to approve the information collection regarding a Conservation Order for light geese. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule extending the comment period for the interim final rule regarding nutrition labeling of standard menu items in restaurants. Details here.

Rule FDA is amending the color additive regulations to provide for the expanded safe use of spirulina extract to seasonally color hard-boiled shell eggs at levels consistent with good manufacturing practice. Info here.

Rule FDA is correcting a document that published three waivers from the Requirements of 21 CFR part 1, subpart O—Sanitary Transportation of Human and Animal Food. Details here.

FOREIGN AGRICULTURAL SERVICE: Notice FAS will request a revision for currently approved information collections in support of the foreign donation of agricultural commodities under the section 416(b) program, the Food for Progress Program, and the McGovern-Dole International Food for Education and Child Nutrition Program. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice that on March 6, 2017, Commerce published the preliminary results of the 2015-2016 administrative review of the antidumping duty order on certain frozen warmwater shrimp from Thailand. Info here.

Notice Commerce published the preliminary results of the administrative review of the antidumping duty order on certain preserved mushrooms from China covering the period of review February 1, 2015, through January 31, 2016. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NOAA invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections. Details here.

Notice NMFS published a Federal Register notice of five proposed incidental harassment authorizations (IHAs), pursuant to the Marine Mammal Protection Act (MMPA), to incidentally harass marine mammals during the conduct of geophysical survey activity in the Atlantic Ocean, with comments due by July 6, 2017. Details here.