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


ANNOUNCEMENT: Join us TODAY at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “AquAdvantage Salmon and Other Current Issues in GMO Regulation.” Details available here.


JUDICIAL: Includes finance and credit, international trade, aquaculture, food labeling, and CWA issues.

In UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KAREN B. OLSON, Defendant-Appellant, No. 15-30022, 2017 WL 2055631 (9th Cir. May 15, 2017), defendant was convicted of concealing her business partner’s submission of false statements to the USDA Rural Development Program regarding a federal grant application. Defendant appealed her conviction claiming the government failed to prove “she knew the conduct she concealed constituted a felony.” Court observed the government “must prove not only that the defendant knew the principal engaged in conduct that satisfies the essential elements of the underlying felony, but also that the defendant knew the conduct was a felony.” Court found that per that standard, there was sufficient evidence defendant had requisite knowledge and affirmed her conviction.

In Cheng SONG, Appellant-Cross-Appellee, v. Thomas IATAROLA and Theresa Iatarola, Appellees-Cross-Appellants, No. 64A03-1609-PL-2094, 2017 WL 1908400 (Ind. Ct. App. May 10, 2017), plaintiff intended to purchase land from defendant until he discovered the land was zoned for agricultural use, rather than for industrial use, as defendant represented to him. Plaintiff sued defendant for money placed in escrow and a jury awarded him his money. On appeal plaintiff sought attorney fees, while defendants countered trial court erred in denying their motion for summary judgment. Regarding plaintiff’s fraud claim, defendant argued plaintiff had “plenty of time to investigate the zoning and taxes from public record,” and that a fraud action regarding zoning representation must fail because “how real estate is zoned is public record, and therefore any representation does not constitute a past or existing fact that a party can claim to have relied on.” In denying defendant’s motion for summary judgment, court concluded that because “information is a matter of public record is not, in and of itself, sufficient to preclude a constructive fraud claim.”

Coren J. MILLER, Plaintiff-Appellee, v. Bill BARDOS, a/k/a William Bardos, and Lola Bardos, Defendants-Appellants, NO. 5-16-0237, 2017 IL App (5th) 160237-U (Ill. App. Ct. May 11, 2017) involved a boundary dispute between owners of two adjoining parcels of real estate. Plaintiff filed suit claiming adverse possession of a portion of defendant’s land adjoining her parcel. Circuit court granted plaintiff adverse possession and defendant appealed arguing the court “abused its discretion in allowing the admission of an aerial photograph over their foundation objection because the evidence did not establish the date on which the photograph was taken.” Appellate court found the admission of the aerial photograph of the property “was not an abuse of discretion where testimony established that the photograph fairly and accurately depicted the property during a relevant time period.” Affirmed for plaintiff.

In Jimmy R. NICKS and James Earl Patrick, individually and on behalf of all persons similarly situated, Plaintiffs, v. KOCH MEAT CO., INC., d/b/a Koch Foods, Koch Foods of Mississippi, LLC, and Jet Poultry Services, Inc., Defendants, No. 16-cv-6446, 2017 WL 2080420 (N.D. Ill. May 15, 2017), plaintiffs, (members of live-haul chicken catching crews), sued for relief under the Fair Labor Standards Act (FLSA) and defendants moved to dismiss for improper venue. Addressing the issue of improper venue, the court found plaintiffs “sufficiently alleged that the Koch Defendants have uniform corporate policies and practices relating to their chicken catching operations and live-haul crews.” The court determined that per the “alter ego theory,” plaintiffs “sufficiently alleged that the Koch Defendants operate as a single, integrated entity,” and therefore, have standing to sue “against the multiple defendants that form that single entity, regardless of their corporate alter egos.” Defendants’ motion to dismiss for lack of standing denied.

In FLINT RIVERKEEPER, INC., et al., Plaintiffs, v. SOUTHERN MILLS, INC., d/b/a TenCate Protective Fabrics, Defendant, No. 5:16-CV-435 (CAR), 2017 WL 2059659 (M.D. Ga. May 12, 2017), plaintiffs claim defendant’s discharge of industrial wastewater violates the Clean Water Act (CWA) and defendant moved to dismiss. Defendant, a manufacturer, irrigates pretreated wastewater allowing vegetation and soil bacteria to break down pollutants. Defendant argued court should dismiss the CWA claim because it possesses a National Pollutant Discharge Elimination System (NPDES) permit “authorizing its discharge of wastewater.” Court observed that, “Although Defendant’s NPDES permit authorizes the discharge of storm water mixed with certain pollutants, it does not authorize the discharge of storm water mixed with “process wastewater” created during manufacturing.” Defendant’s motion to dismiss denied.


REGULATORY: Includes USDA, FWS, FSIS, FS, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Tobacco Reports. Details here.

FISH AND WILDLIFE SERVICE: Rule would establish regulations for hunting and trapping seasons, harvest limits, and methods and means related to taking of wildlife for subsistence uses during the 2018-19 and 2019-20 regulatory years. Details here.

FOOD SAFETY AND INSPECTION SERVICE:

Rule FSIS seeks comment on its plan to adjust inspection coverage at official establishments that slaughter fish of the order Siluriformes, which include catfish, from all hours of operation to once per production shift. Info here.

Rule the Office of the Deputy Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), is sponsoring a public meeting on June 26, 2017. Details here.

FOREST SERVICE: Rule would establish regulations for hunting and trapping seasons, harvest limits, and methods and means related to taking of wildlife for subsistence uses during the 2018-19 and 2019-20 regulatory years. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is adjusting the Atlantic bluefin tuna (BFT) General category daily retention limit from the default limit of one large medium or giant BFT to four large medium or giant BFT for June 1 through August 31, 2017. Info here.

Rule NMFS implements an accountability measure (AM) for the commercial sector for vermilion snapper in the South Atlantic exclusive economic zone. Info here.

Notice NMFS has received an application for an enhancement of survival permit under the Endangered Species Act and a request for entry into an associated Safe Harbor Agreement between the applicant and NMFS. Details here.