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 RICO, landowner liability, environmental and FOIA issues.
In Steven Nelson Plaintiff – Appellant v. James Nelson; Chris Feller; Randy Skjerven; AgCountry Farm Credit Servs., ACA Defendants – Appellees, No. 15-2610, 2016 WL 4394577 (8th Cir. Aug. 18, 2016), plaintiff claimed his brother stole money from the brothers’ farming business and sued his brother, his accountant, and his banker’s employer for violating the Racketeer Influenced and Corrupt Organizations Act (RICO). In considering a RICO violation, the court examined “the existence of an ‘enterprise’ whose affairs were supposedly conducted in such an illicit manner.” The court observed that an enterprise, “for RICO purposes, ‘includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.’” The court found “different subsets of the group pursuing their own ends separately—operating farming businesses, for example, or providing financial services for hire,” and found no evidence of defendants acting as “a coherent unit.” Case dismissed.
In Bradshaw v. Smith, No. 113,922, 2016 WL 4413956 (Kan. Ct. App. Aug. 19, 2016), plaintiff routinely cleaned up 500 acres of undeveloped land owned by defendant (corporation) and died after an explosive device detonated on the land. It was never determined how the device came to be on the land. Plaintiff’s widow sued defendant corporation and company president for wrongful death. District court granted summary judgment to defendants and plaintiff appealed. Appellate court found “no breach of the landowner’s duty of reasonable care and no evidence the landowner engaged in an abnormally dangerous activity.” Summary judgment for defendants affirmed.
Agency of Nat. Res. v. McGee, 2016 VT 90 (Vt. Aug. 19, 2016) concerned an environmental enforcement action. Plaintiff fined defendants $10,000 for “placing unpermitted fill in a Class II wetland.” Defendants contested the fine and Vermont’s Environmental Division concluded the land was “not exempt, upheld the violation, and reduced the penalty to $3647.” Defendants appealed, claiming the land is used for grazing horses and “meets requirements of the farming exemption in the wetlands regulations.” Appellate court affirmed, concluding, “the evidence supports the Environmental Division’s finding that the area had not been used consistently to grow food or crops since 1990 and therefore any exemption had expired.”
In People for the Ethical Treatment of Animals v. United States Dep’t of Health & Human Servs., No. 1:15-CV-309-CKK, 2016 WL 4401979 (D.D.C. Aug. 18, 2016), PETA submitted a Freedom of Information Act (FOIA) request to the Centers for Disease Control and Prevention (CDC) “seeking records submitted by importers of nonhuman primates to CDC.” The court observed that when responding to a FOIA request, federal agencies must: “(1) conduct an adequate search for that information through reasonable efforts; (2) provide the information to the requester, unless it falls within a FOIA exemption; and (3) provide to a requester any information that can reasonably be segregated from the exempt information.” Plaintiff challenged reasonableness of CDC’s search and argued CDC “failed to perform an adequate search in response to Plaintiff’s FOIA request.” Court reasoned that a FOIA search is sufficient if “the agency makes ‘a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’” Court ruled CDC complied with “the obligations imposed by the FOIA” and found for defendant on that issue.
REGULATORY: Includes AMS, FS, NOAA and RHS rules and notices.
AGRICULTURAL MARKETING SERVICE:
Rule amending the Beef Promotion and Research Order established under the Beef Promotion and Research Act of 1985 to add six Harmonized Tariff System codes for imported veal and veal products and update assessment levels for imported veal and veal products based on revised determinations of live animal equivalencies. Info here.
Rule would implement a recommendation from the Washington Apricot Marketing Committee to increase the assessment rate established for the 2016-17 and subsequent fiscal periods from $0.75 to $1.40 per ton of Washington apricots handled under the marketing order. Info here.
FOREST SERVICE:
Notice the Chippewa National Forest (NF) Resource Advisory Committee (RAC) will meet in Walker Minnesota. Details here.
Notice the Rogue and Umpqua Resource Advisory Committee (RAC) will meet in Roseburg, Oregon. Info here.
NATIONAL OCEANIC AND ATMOPSHERIC ADMINISTRATION:
Rule NMFS will implement annual management measures and harvest specifications to establish the allowable catch levels (i.e. annual catch limit (ACL)/harvest guideline (HG)) for Pacific mackerel in the U.S. exclusive economic zone (EEZ) off the West Coast for the fishing season of July 1, 2016, through June 30, 2017. Info here.
Notice the Department of Commerce invites comments on proposed and/or continuing information collections concerning the South Pacific Tuna Act. Details here.
RURAL HOUSING SERVICE:
Rule RHS is implementing its civil monetary penalty provision. Info here.
Notice USDA has submitted the following information collection requirement(s) to OMB for review and clearance. Title: 7 CFR 1924-F, Complaints and Compensation Defects. Details here.