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


ANNOUNCEMENT: Join us Wednesday, November 16 at 12 noon (ET) for a free webinar: The Veterinary Feed Directive Rules and How They Will Affect You. Details and sign-in information here.  


JUDICIAL: Includes Fourth Amendment, land use, administrative, PACA and environmental  issues.

In DARREN E. COX; COX HONEY OF UTAH, LLC, a Utah limited liability company, Plaintiffs – Appellants, v. CACHE COUNTY, a Utah municipal corporation; BOX ELDER COUNTY, a Utah municipal corporation; MARTIN JAMES, individually and in his official capacity as county bee inspector of Cache County and Box Elder County; ELMER JAMES, an individual; SOLARTRAC, INC., d/b/a Slide Ridge Honey, a Utah corporation, Defendants – Appellees, No. 14-4123 (10th Cir. Nov. 2, 2016), defendant intended to spray field with pesticide and inspected some beehives on adjoining land to determine ownership. Plaintiff claimed defendant violated the Fourth Amendment when he inspected plaintiff’s apiary without a warrant. District court held defendant was entitled to qualified immunity and granted him summary judgment and plaintiff appealed. Appellate court observed alleged search took place in an “open field.” Court noted that that “the Fourth Amendment protects apiaries, as personal ‘effects,’ from unreasonable searches,” but concluded, “there are no facts in this case that suggest that [defendant] undertook anything close to such a full-blown inspection during the two to three minutes he looked at plaintiff’s hives.” Court found no Fourth Amendment violation. A copy of the opinion is available here.

In Iowa Arboretum, Inc. v. Iowa 4-H Found., No. 15-0740, 2016 WL 6351611, (Iowa Oct. 28, 2016), plaintiff and defendant agreed to develop an arboretum on 300 acres of land. The parties entered into a ninety-nine-year lease agreement for the same tract of land, with some land suitable for agriculture. Plaintiff used most of the land as a public arboretum. Defendant claimed land is agricultural and ninety-nine-year lease is void and violates the “constitutional proscription on agricultural leases exceeding a term of twenty years.” District court ruled land not agricultural and declared the lease valid. Defendant appealed and court observed that, “When a lease of land is made ostensibly for purposes other than agricultural and the land so leased cannot by the terms of the lease, either express or implied, be put to agricultural uses by the lessee, the purpose of the statute has been satisfied, and the land in effect ceases to be agricultural land within the meaning of the law.” Court found land in question was not agricultural land and the lease enforceable.

In Utah Physicians for a Healthy Env’t v. Exec. Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT 49, plaintiffs challenged a permit allowing changes at a refinery approved by defendant, claiming defendant “conducted a legally insufficient analysis.” Defendant had appointed an Administrative Law Judge (ALJ) to conduct the “permit review adjudicative proceedings” and ALJ recommended plaintiffs’ challenge be dismissed. Defendant adopted ALJ’s findings and plaintiffs appealed. Court found that, “Because the Petitioners did not address alleged deficiencies in the Executive Director’s final order in their opening brief . . . they failed to meet their burden of persuasion on appeal.” Court also found that “the failure to address that final order was not ‘harmless error.’” Plaintiffs’ appeal dismissed.

In San Miguel Produce, Inc. v. L.G. Herndon Jr. Farms, Inc., No. CV 616-035, 2016 WL 6403964, (S.D. Ga. Oct. 27, 2016), defendant sought to enforce a “forum-selection clause” contained in a grower-shipper agreement it entered into with plaintiff. Defendant filed complaint with USDA under the Perishable Agricultural Commodities Act (PACA) based on plaintiff’s failure to pay per the agreement. Plaintiff countered defendant waived its right to enforce the forum-selection clause when it acted “in a way that is inconsistent with the right or [its] intention to rely upon the right.” Citing case law, defendant argued that a waiver exists only if “the party seeking to enforce the clause acted inconsistently with the clause’s right,” and the “inconsistent acts have prejudiced the other party.” Court found defendant “waived its right to enforce the forum-selection clause when it filed the PACA complaint.” Defendant’s motion denied.

In DON MANRO, Plaintiff & Appellant, v. CITY OF TULARE et al., Defendants & Respondents., No. F073201, 2016 WL 6426390, (Cal. Ct. App. Oct. 31, 2016), defendant updated its general plan and produced an environmental impact report (EIR) “examining environmental effects of the update.” Defendant approved general plan and certified the EIR. Plaintiff sought writ of mandate that EIR was “inadequate” under the California Environmental Quality Act (CEQA). Trial court denied plaintiff’s petition and plaintiff appealed. The court observed that an “EIR must include discussion of a possible environmental impact if substantial evidence in the administrative record supports a fair argument that the impact will be significant.” Court found no abuse of discretion by defendant and declared EIR sufficient. Ruling for defendant affirmed.


REGULATORY: Includes USDA and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Successful Approaches to Reduce Sodium in School Meals. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is reallocating the projected unused amount of Pacific cod from catcher vessels using trawl gear and American Fisheries Act trawl catcher processors to catcher vessels less than 60 feet LOA using hook-and-line or pot gear, C/Ps using hook-and-line gear, and Amendment 80 C/Ps in the Bering Sea and Aleutian Islands management area. Info here.

Rule implementing Amendment 19 to the Atlantic Sea Scallop Fishery Management Plan, which the New England Fishery Management Council adopted and submitted to NMFS for approval. Info here.

Notice NMFS has received 15 scientific research permit application requests relating to Pacific salmon, steelhead, eulachon, and green sturgeon. Details here.

Notice OAA announces its intention to prepare an EA in accordance with the National Environmental Policy Act of 1969, for the proposed relocation of NOAA/OAR facilities in Oak Ridge, TN. Details here.