A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu
CASE LAW: Includes PACA, discovery, First Amendment, and SNAP issues.
In CHIQUITA FRESH NORTH AMERICA, LLC, DOLE FRESH FRUIT COMPANY, S. KATZMAN PRODUCE INC., & KATZMAN BERRY CORP., Plaintiffs, & FIERMAN PRODUCE EXCHANGE INC. & MORRIS OKUN, INC., Intervenor Plaintiffs, v. LONG ISLAND BANANA CORP., SUFFOLK BANANA CO., INC., THOMAS J. HOEY, YOLANDA HOEY, BROOK ENTERPRISES LTD., H B REALTY CORP. & STULS HOLDING CORP., Defendants., No. 14-982 (ADS) (AKT), 2016 WL 3686661 (E.D.N.Y. July 7, 2016), plaintiffs sued to enforce Perishable Agricultural Commodities Act (PACA) trust provisions regarding proceeds from the sale of real property. Court considered whether the property was a PACA asset and reasoned that the defendant had to prove that “(1) no PACA trust existed when the [the property was] purchased; or that (2) even though a PACA trust existed at that time, [the property was] not purchased with trust assets; or that (3) although a PACA trust existed when [the property was] purchased and [the property was] purchased with trust assets the debtor thereafter paid all unpaid sellers in full prior to the transactions involving the [PACA] Creditors, thereby terminating the trust.” Court found the property was a PACA asset and recommended defendant return sale proceeds.
IN RE: NC SWINE FARM NUISANCE LITIGATION, No. 5:15-CV-00013-BR, 2016 WL 3742135 (E.D.N.C. July 7, 2016) concerned litigation encompassing 26 cases alleging damages involving hog farms in North Carolina. Plaintiff served notice for the need of a “de bene esse deposition” due to their expert witness’ declining health. Defendant challenged “propriety of using a de bene esse deposition for an expert witness, as opposed to a fact witness.” Court found good cause for plaintiff’s de bene esse deposition and determined potential prejudice to defendant from the expedited deposition could be minimized “through an expert deposition prior to the de bene esse deposition.” Defendant’s motion to quash denied.
In WESTERN WATERSHEDS PROJECT; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; NATURAL RESOURCES DEFENSE COUNCIL, INC., PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.; & CENTER FOR FOOD SAFETY, Plaintiffs, vs. PETER K. MICHAEL, in his official capacity as Attorney Gen. of Wyoming; TODD PARFITT, in his official capacity as Dir. of the Wyoming Dep’t of Envtl. Quality; PATRICK J. LEBRUN, in his official capacity as Cty. Attorney of Fremont Cty., Wyoming; JOSHUA SMITH, in his official capacity as Cty. Attorney of Lincoln Cty., Wyoming; CLAY KAINER, in his official capacity as Cty. & Prosecuting Attorney of Sublette Cty., Wyoming, Defendants., No. 15-CV-00169-SWS, 2016 WL 3681441 (D. Wyo. July 6, 2016), plaintiffs challenged constitutionality of some Wyoming trespass statutes “prohibiting collection of ‘resource data’ on ‘open lands’ without express permission or authorization.” Plaintiff asserted Free Speech and Equal Protection claims. Court found “no constitutionally protected First Amendment right to enter upon the private lands of another for the purposes of collecting data,” and also determined the statutes at issue “were not promulgated out of animus toward a particular group.” Defendant’s motion to dismiss for failure to state a claim granted.
JB EXPRESS MART, Plaintiff, v. UNITED STATES OF AMERICA, Defendant., No. 3:15-CV-037 JD, 2016 WL 3685113 (N.D. Ind. July 12, 2016) concerned plaintiff’s permanent disqualification from participation in the Supplemental Nutrition Assistance Program (SNAP). USDA investigators used SNAP funds to purchase cash from plaintiff. The exchange of SNAP funds for cash, known as trafficking, “presumptively results in permanent disqualification from participation in the SNAP program.” The court noted that “a retailer must be permanently disqualified from participation in the SNAP program upon even a single violation for trafficking,” and granted defendant’s motion for summary judgment.
H.R. 5718: To direct the Secretary of Agriculture to acquire and to convey certain lands or interests in lands in Utah, and for other purposes. Bill referred to the House Committee on Natural Resources for review before it goes to the House. Sponsor: Rep. Jason Chaffetz [R-UT3]
H.R. 5733: To amend the Agricultural Act of 1961 to modify the limitations applicable to qualified conservation loan guarantees, and for other purposes. Bill referred to the House Committee on Agriculture for review before it goes to the House. Sponsor: Rep. Mike Bost [R-IL12]
REGULATORY: Includes AMS, APHIS, FSIS, and NMFS rules and notices.
AGRICULTURAL MARKETING SERVICE: Notice AMS invites catfish producers, suppliers, processors, retailers, foodservice operators to provide background information to assist in development of voluntary U.S. Standards for Grades of Catfish and Catfish Products. Info here.
ANIMAL AND PLANT HEATLH INSPECTION SERVICE:
Rule amending regulations regarding importation of mangoes from India clarifying requirements regarding inspection of the mangoes. Details here.
Notice APHIS will request approval of a new information collection associated with the National Animal Health Monitoring System’s studies on antimicrobial use in cattle feedlot and swine operations. Info here.
Notice APHIS prepared a final environmental assessment and finding of no significant impact relative to the field release of a gall-forming fly into the continental U.S. to reduce the severity of Cape-ivy. Details here.
FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS announces availability of its final Establishment-Specific Data Release Strategic Plan for sharing data on federally inspected meat and poultry establishments with the public. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS reapportions seasonal apportionments of the 2016 Pacific halibut prohibited species catch limits for trawl deep-water and shallow-water species fishery categories in Gulf of Alaska. Info here.
Notice NMFS publishes notification of a 1.60 percent fee for cost recovery under the Bering Sea and Aleutian Islands Crab Rationalization Program. Info here.
Notice the Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, made preliminary determination that an Exempted Fishing Permit application contains all required information warranting further consideration. Info here.