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 commodity programs, CAA, bankruptcy, and food labeling issues.

In UNITED STATES of America v. Brett LILLEMOE and Pablo Calderon, Defendants, NO. 15-CR-25 (JCH), 2017 WL 1022806 (D. Conn. March 16, 2017), defendants were charged with conspiracy to commit wire fraud and bank fraud related to defendants’ involvement with the Export Credit Guarantee program (GSM-102), a program run by USDA. Per the government, the defendants “altered bills of lading to secure loans from U.S. banks to foreign banks,” and charged foreign banks a fee for the service. Defendants claimed lower court excluded necessary evidence and sought a new trial. Appellate court concluded “the evidence was more than sufficient to permit a rational trier of fact to determine that the moving defendants committed wire fraud and conspiracy, and the court properly exercised its discretion . . . to exclude the evidence of subsequent revisions to the governing regulations.” Motion for new trial denied.

SIERRA CLUB, Appellant, v. Susan MOSIER, M.D., in her Official Capacity as Secretary of the Kansas Department of Health and Environment, and the Kansas Department of Health and Environment, an Agency of the State of Kansas, Appellees, and Tri-State Generation and Transmission Association, Inc., and Sunflower Electric Power Corporation, Intervenors, No. 112,008, 2017 WL 1035179 (Kan. March 17, 2017) concerned permit issues under the Clean Air Act. Kansas Department of Health and Environment (KDHE) issued a permit allowing defendant Sunflower to build a coal-fired electric generating unit near an operational coal-fired station. KDHE then issued addendum to the permit and Sierra Club argued KDHE was required to conduct completely new permitting process. Plaintiff maintained addendum failed to “incorporate newly promulgated regulations for greenhouse gases,” and failed to “properly address the 1–hour emission limits for nitrogen dioxide and sulfur dioxide.” Court found defendant adequately addressed hazardous air pollutants and committed no wrong “by not including best available control technology requirements for greenhouse gas emissions” in their evaluation.

In LT. Henry G.L. MCCULLOUGH and Princess S.D. Naro-McCullough, Appellants v. CITIMORTGAGE, INC., Appellee, No. 71S03-1605-MF-272, 2017 WL 977158 (Ind. March 14, 2017), husband and wife (debtors) appealed summary judgment resulting in foreclosure of their family homestead. Debtors obtained a discharge in their Chapter 7 Bankruptcy and protected themselves from personal liability on debts due creditors. Court noted, however, that the mortgage lien survived and is enforceable as an in rem action. Critically, creditor (CitiMortgage) did not seek an “in personam judgment” against homeowners, but rather, “an in rem judgment against their property for which there was an outstanding lien balance.” Trial court granted summary judgment for CitiMortgage and appellate court affirmed.

In Aaron CARTER, Plaintiff, v. L. J. FLEMING, et al., Defendants, No. 7:16cv00123, 2017 WL 1024342 (W.D. Va. March 15, 2017), plaintiff (prisoner) alleged defendants violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) “by not providing a diet that conforms to his religious beliefs.” Plaintiff alleged that he is an adherent of the Nation of Islam and that defendants’ “Common Fare menu does not meet his religious dietary needs.” Defendants argued their Common Fare foods “satisfy halal and Kosher standards and that those same foods appear on the regular menu.” Court determined there was “no implication to [plaintiff’s] religious rights by serving halal and Kosher foods on the regular menu.”  Plaintiff failed to show serving halal and Kosher foods on the regular menu “puts substantial pressure on him to abandon his religious practice,” and court granted summary judgment for defendants.


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

AGRICULTURE DEPARTMENT:

Notice USDA submitted information collection requirement(s) to OMB for review. Title: (7 CFR part 767), Farm Loan Program—Inventory Property Management. Info here.

Notice USDA submitted information collection requirement(s) to OMB for review. Title: “Clear Title”—Protection for Purchasers of Farm Products. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule Alabama has applied to EPA for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS received a request from California Flats Solar, LLC, for an incidental take permit authorizing take of the federally endangered San Joaquin kit fox and the threatened California red-legged frog, California tiger salamander, and vernal pool fairy shrimp. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule the FDA is further delaying the effective date of a final rule published in the Federal Register of January 9, 2017 regarding clarification of when products made or from tobacco are regulated as drugs, devices, or combination products. Info here.

Notice FDA announces an opportunity for public comment on the proposed collection of information regarding voluntary National Retail Food Regulatory Program Standards. Info here.