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: “Understanding the H-2A Temporary Agricultural Guest Worker Program.” Details available here.


JUDICIAL: Includes trademark, crop insurance, ag leases, water law, and food labeling issues.

DEERE & COMPANY, PLAINTIFF/COUNTER-DEFENDANT v. FIMCO INC., d/b/a/ SCHABEN INDUSTRIES, DEFENDANT/COUNTER-CLAIMANT, NO. 5:15-CV-105-TBR, 2017 WL 4582805 (W.D. Ky. October 13, 2017) involved alleged trademark violations wherein plaintiff claimed defendant produced and distributed  “trailed agricultural sprayers and applicators bearing green and yellow colors that are indistinguishable from the green and yellow colors [plaintiff] uses on its agricultural equipment.” Plaintiff sought a permanent injunction prohibiting defendant from “using the Deere Colors trademark in connection with its sprayers and wheeled agricultural equipment, as well as an injunction ordering [FIMCO] to cease using yellow tanks or wheels in connection with wheeled agricultural equipment having green vehicle bodies.” Court found defendant’s use of green and yellow on trailed agricultural sprayers and applicators “infringes on and dilutes Deere’s trademarks,” and that defendant “failed to prove the elements of its affirmative defenses of acquiescence and estoppel.” Court issued permanent injunction against defendant.

GLENN AUSMUS, RUSSELL L. AUSMUS, DWAYNE FRITZLER, SHIRLEY FRITZLER, BLAKE GOURLEY, FARA GOURLEY, DEAN JAGERS, and JEFF SELF, Plaintiffs, v. SONNY PERDUE,*Secretary of the United States Department of Agriculture, STEVEN C. SILVERMAN, Director, National Appeals Division, and HEATHER MANZANO,**Acting Administrator of the Risk Management Agency and Manager of the Federal Crop Insurance Corporation, Defendants, No 16-cv-01984-RBJ, 2017 WL 4564250 (D. Col. October 13, 2017) concerned whether the National Appeals Division (NAD) “properly determined that the Actual Production History (APH) Yield Exclusion . . . was not immediately available to Plaintiffs upon the passage of the [2014 Farm Bill], but was instead subject to the Risk Management Agency’s (RMA) discretion as to the timing of implementation of that amendment.” Plaintiffs sought to invoke the APH Yield Exclusion in time for the 2015 winter wheat crop, but were denied. Defendants argued the RMA “had not yet fully implemented the APH Yield Exclusion provision, so the denial of Plaintiffs’ request to invoke the APH Yield Exclusion was not a denial of any actualized right under the FCIA.” Appellate court reversed NAD ruling and concluded “[t]he agency’s decision to delay implementation of the APH Yield Exemption without clear Congressional direction constitutes legal error.”

Vernon MOODY and Anita Moody, Plaintiffs, v. The UNITED STATES, Defendant, No. 16–107C, 2017 WL 4564503 (Fed. Cl. October 13, 2017) concerned five agricultural leases entered into between plaintiffs and the Oglala Sioux Tribe. Plaintiffs claim defendant breached the leases by terminating them for failure to submit payments and other required documentation. Defendant moved to dismiss for a lack of jurisdiction. Court found that defendant was not a part of the lease at issue. Court granted defendant’s partial motion to dismiss and concluded that a lease is defined as a “written agreement between Indian landowners and a tenant or lessee, whereby the tenant or lessee is granted a right to possession of Indian land, for a specified purpose and duration.”

In DANREUTHER RANCHES, Claimant Farmers Cooperative Canal Company; Teton Cooperative Canal Company; Eldorado Cooperative Canal Company; United States of America (Bureau of Indian Affairs); Danreuther Ranches, Objectors, Farmers Coop Canal Company, Counter-Objectors, DA 16-0573, 2017 WL 4386074 (Mont. October 3, 2017), a ranch owner filed statements of claims in water adjudication process for irrigation and stockwater. Water Court upheld the claimed water rights and objectors appealed. Montana Supreme Court held that objector’s evidence was “insufficient to overcome statutory presumption in favor of truth of ranch owner’s claim of right to divert water from river for irrigation based on activities of owner’s predecessor in interest in 1880 and 1887.” Affirmed in part and remanded.

LORI COWEN, ROCHELLE IBARROLA, and AVA ADAMES, individually and on behalf of all others similarly situated , Plaintiffs, v. LENNY & LARRY’S, INC., Defendant, No. 17 CV 1530, 2017 WL 4572201 (N.D. Ill. October 12, 2017) involved a class action suit wherein plaintiff alleged defendant’s labels on its cookies contain a number of misrepresentations, including overstating the product’s protein content, in violation of the Food, Drug, and Cosmetic Act (FDCA). Defendant argued plaintiffs lack standing “for any variety of the Complete Cookie that they did not purchase.” Plaintiffs countered they “may bring claims for products that are substantially similar to those they did purchase.” Court found for defendant’s on this claim, concluding that “a named plaintiff cannot acquire standing to sue by bringing his action on behalf of others who suffered injury which would have afforded them standing had they been named plaintiffs, because a person cannot predicate standing on injury which he does not share.”


LEGISLATIVE:

S. 190: Power And Security Systems (PASS) Act. This bill’s text for status Passed Congress (Oct 17, 2017) is now available.

H.R. 1769: San Luis Unit Drainage Resolution Act. This bill’s text for status Reported by House Committee (Oct 16, 2017) is now available.


REGULATORY: Includes USDA, EPA, FWS, GIPSA, ITA, NOAA and RUS rules and notices.

AGRICULTURE DEPARTMENT: Notice that Executive Order 12862 directs Federal agencies to provide service to the public that matches or exceeds the best service available in the private sector. Title: Fast Track Generic Clearance for the Collection of Qualitative Feedback on Customer Satisfaction Surveys. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve a state implementation plan (SIP) revision submitted by the District of Columbia. Info here.

Rule EPA is approving the Illinois Environmental Protection Agency’s (Illinois EPA’s) request to redesignate the Chicago and Granite City nonattainment areas to attainment for the 2008 national ambient air quality standards for lead, also identified as Pb. Details here.

Rule EPA is approving the regional haze progress report under the Clean Air Act (CAA) as a revision to the Illinois State Implementation Plan. Info here.

Rule EPA is approving the Michigan regional haze progress report under the Clean Air Act (CAA) as a revision to the Michigan State Implementation Plan. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on an application for a permit to conduct activities intended to enhance the propagation or survival of endangered species. Info here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION:

Rule GIPSA is withdrawing the interim final rule (IFR) published in the Federal Register on December 20, 2016. Had the IFR become effective, it would have added a paragraph to the regulations issued under the Packers and Stockyards Act (P&S Act) addressing the scope of sections 202(a) and (b) of the P&S Act, which enumerate unlawful practices under the Act. Info here.

Rule GIPSA, Packers and Stockyards Program (P&SP) is notifying the public that after review and careful consideration of the public comments received, GIPSA will take no further action on the proposed rule published on December 20, 2016. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice Department of Commerce is initiating new shipper reviews (NSR) of the antidumping duty order on freshwater crawfish tail meat from the People’s Republic of China (PRC) with respect to Anhui Luan Hongyuan Foodstuffs Co., Ltd. (Anhui Luan) and Kunshan Xinrui Trading Co., Ltd. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is exchanging unused flathead sole and rock sole Community Development Quota (CDQ) for yellowfin sole CDQ acceptable biological catch (ABC) reserves in the Bering Sea and Aleutian Islands management area. Info here.

Notice Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Details here.

Notice in accordance with the Oil Pollution Act of 1990 (OPA), the National Environmental Policy Act (NEPA), and a Consent Decree with BP Exploration & Production Inc. (BP), entered in: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179 in the United States District Court for the Eastern District of Louisiana, the Deepwater Horizon Federal and State natural resource trustee agencies for the Texas Trustee Implementation Group (Texas TIG) have prepared the Final 2017 Restoration Plan and Environmental Assessment: Restoration of Wetlands, Coastal, and Nearshore Habitats; and Oysters. Info here.

RURAL UTILITIES SERVICE: Notice RUS is soliciting Letters of Intent and opening a window for a pilot program to refinance a loan, or any part thereof, consisting of one or more whole but not partial advance(s), made under a loan by the Federal Financing Bank (FFB) and guaranteed by RUS. Details here.