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 tax, insurance, evidence, workers’ compensation, discovery, negligence, and contract issues.

In Johnson v. Clark Cty. Bd. of Revision, 2016-Ohio-7518, plaintiff appealed decision regarding taxable value of his farm. Plaintiff owns commercial farm and disputed the valuation of his property by county for tax purposes. Court observed, “When a party seeks an increase or decrease in valuation of property, that party bears the burden of proving that proposed value to the board of revision.” Court further reasoned that since plaintiff’s property “is a commercial farm, its value for tax purposes may be determined using its current agricultural use value (CAUV), rather than its ‘highest and best use’ or fair market value.” Critically, plaintiff did not show county’s valuation was “unreasonable or unlawful” and court affirmed decision for defendant.

In VOLUSIA COUNTY CATTLEMEN’S ASSOCIATION, INC., Plaintiff, v. WESTERN WORLD INSURANCE COMPANY, Defendant., No. 615CV1239ORL41DAB, 2016 WL 6436657, (M.D. Fla. Oct. 28, 2016), plaintiff sued its insurer claiming defendant had a duty to defend and indemnify plaintiff in a tort dispute.  A third party was injured by a roaming bull at plaintiff’s annual “Cracker Day” event. Court considered two policy exclusions to determine if insurer owed plaintiff a duty. Court noted that, “In order for an insurance contract to be found ambiguous, ‘[t]here must be a genuine inconsistency, uncertainty, or ambiguity in meaning that remains after resort[ing] to the ordinary rules of construction.’” Court determined plaintiff’s actions were excluded from the policy and granted defendant’s motion for summary judgment.

In The People of the State of Colorado, Plaintiff-Appellee, v. Valerie Christine Harris, Defendant-Appellant., 2016 COA 159, Humane Society found malnourished animals on defendant’s property and she was convicted of twenty-two counts of cruelty to animals. On appeal, court considered “whether an animal protection agent who is an employee of the Humane Society is authorized to obtain a search warrant to investigate the suspected mistreatment of horses.” Court concluded agent “exceeded her statutory authority,” but the “suppression of the evidence seized in executing the warrant is not required.”

In Hebert v. Richard, 2016-427 (La. App. 3 Cir. 11/2/16), plaintiff was injured when he fell from a helicopter owned by defendant, his employer. Defendant was in the business of “aerial herbicide application,” but also supplied helicopters for fish and game surveys. At issue was whether whether defendant or its insurer was “entitled to an offset for workers’ compensation benefits already paid.” Court determined plaintiff “was not in the course and scope of his employment, so [defendant] is not responsible for workers’ compensation benefits. [Defendant] is only liable to Mr. Hebert for tort damages.”

Sunoco, Inc. v. United States, No. 15-587T, 2016 WL 5848909, (Fed. Cl. Oct. 6, 2016) concerned tax treatment of the alcohol fuel mixture credit. Plaintiff sought internal IRS documents it argued would help court determine whether (tax) Notice 2015–56 is entitled to “Skidmore deference.” The court observed that, “Under Skidmore, courts may give deference to an agency’s interpretation of its governing laws even when the agency does not use its rulemaking authority.” The court further reasoned that “In deciding whether to give deference to an agency interpretation, courts should consider the interpretation’s “thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” The court found plaintiff’s requested documents “unnecessary” and denied its motion to compel.

In Johnson v. Almida Land & Cattle Co., LLC, No. 1 CA-CV 15-0416, 2016 WL 6520062 (Ariz. Ct. App. Nov. 3, 2016), court considered “whether a permittee operating on federal land owes a duty of care to the public when it erects improvements on the land.” The United States Forest Service (FS) granted permit allowing defendant to graze cattle on federally owned land. Defendant put up a fence in its grazing area and plaintiff hit the fence while riding a motorcycle on an “unimproved, non-Forest Service route” and sued defendant for negligence. Superior court granted summary judgment for defendant claiming no duty of care owed to plaintiff.  Appellate court observed that the relevant statute “addresses the entire topic of liability, not merely the single concept of duty,” and ruled that “a duty exists as a matter of law.” Summary judgment for defendant reversed.

In DANISH CROWN AMBA, Plaintiff, v. RUPARI FOOD SERVICES, INC., Defendant., No. CV104603MASTJB, 2016 WL 6495514 (D.N.J. Oct. 31, 2016), two merchants entered into an installment contract. Contract was for the purchase of wide back ribs. Plaintiff, a company located in Denmark, processes meat and defendant imports and distributes pork products in the U.S. Defendant received numerous shipments of non-conforming goods and eventually rejected shipments. Jury awarded plaintiffs over $2 million in damages and defendant moved for judgment as a matter of law, arguing court should “enter judgment in its favor on the breach of contract claim.” Court found that “testimony elicited and exhibits admitted into evidence at trial contained sufficient detail from which the jury could calculate to a reasonable certainty the damages associated with the contract claim.” Defendant did not meet its “heavy burden” of showing that ‘a miscarriage of justice would result if the verdict were to stand.’” Defendant’s motion denied.

REGULATORY: Includes AMS, FDA, FS, ITA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule AMS proposes to amend its regulations to better reflect the current needs of Quality Systems Verification Program activities and to implement changes created by the merger of the AMS Livestock and Seed Program and the AMS Poultry Programs. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA seeks public comment on the collection of information contained in the agency’s Tobacco Product Violations Reporting Form. Info here.

FOREST SERVICE: Notice FS will prepare an Environmental Impact Statement to disclose the environmental effects of commercial and non-commercial vegetation management activities, prescribed burning, watershed and recreation improvement activities. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice of issuance of an amended Export Trade Certificate of Review to Northwest Fruit Exporters. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS informs persons of their eligibility to vote and referendum voting period in the fishing capacity reduction program referendum for a second loan in the Southeast Alaska Purse Seine Salmon Fishery. Info here.

Notice Gulf of Mexico Fishery Management Council will hold a meeting of its Standing and Reef Fish Scientific and Statistical Committees via webinar. Info here.