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 business organization, NEPA, labeling, PACA and contract issues. 

In John R. BAUR, Plaintiff–Appellant, v. BAUR FARMS, INC., and Robert F. Baur, Defendants–Appellees. No. 14–1412, 2016 WL 4036105 (8^th Cir., July 27, 2016), plaintiff appealed district court’s decision denying petition for dissolution of a closely-held family farm corporation based on “oppressive conduct.” District court ruled corporation’s decision not to purchase plaintiff’s shares of stock “for an amount in excess of the fair value of his interest in the corporation did not show oppression by the corporation.” Citing the Iowa Supreme Court, appellate court reasoned that “majority shareholders act oppressively when, having the corporate financial resources to do so, they fail to satisfy the reasonable expectations of a minority shareholder by paying no return on shareholder equity while declining the minority shareholder’s repeated offers to sell shares for fair value.” Here, plaintiff’s offer to sell his shares exceeded the fair value of his interest and the corporation’s failure to accept his offer “did not show oppression.” District court decision affirmed.

In FRIENDS OF ANIMALS, Plaintiff, vs. JAMES SPARKS, in his official capacity as Billings Field Officer Manager; THE UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the United States, Defendants., No. CV 15-59-BLG-SPW, 2016 WL 4082631 (D. Mont. July 29, 2016), plaintiffs sued to stop a planned round-up of wild horses at a horse range contending the planned gather violated the Wild Free-Roaming Horses and Burros Act (Wild Horse Act) and the National Environmental Policy Act (NEPA). The court explained that when the Bureau of Land Management (BLM) determines “that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals,” the Wild Horse Act requires the BLM to “immediately remove excess animals from the range so as to achieve the Appropriate Management Levels (AML).” The Court found that BLM made a binding commitment in a 2009 Record of Decision to recalculate the 2009 Appropriate Management Levels (AML) within five years and concluded that “BLM’s failure to adhere to this commitment is a violation of process prohibited by NEPA.” Summary judgment for plaintiff on its NEPA claim.

ERIKA THORNTON, individually & on behalf of all others similarly situated in Missouri, Plaintiff, v. PINNACLE FOODS GROUP LLC, Defendant., No. 4:16-CV-00158 JAR, 2016 WL 4073713 (E.D. Mo. Aug. 1, 2016), involved a class action for violation of the Missouri Merchandising Practices Act (MMPA) and unjust enrichment, alleging a box of muffin mix was labeled as containing “Nothing Artificial,” while containing monocalcium phosphate and xanthan gum. Defendant moved to dismiss based on the pleadings, but the court found that plaintiff “plausibly alleged a claim under the MMPA,” and that it is “generally permissible to pursue alternative theories at the pleading stage.” Defendant’s motion to dismiss denied.

C.H. ROBINSON WORLDWIDE, INC., Plaintiff, v. JOSEPH AIELLO & SONS, INC.; & JOSEPH AIELLO, JR., Defendants., No. 115CV1321GTSDJS, 2016 WL 4076964 (N.D.N.Y. Aug. 1, 2016) concerned the Perishable Agricultural Commodities Act (PACA). Plaintiffs, seeking default judgment, alleged defendants failed to maintain a PACA trust, failed to pay PACA trusts funds, breached their fiduciary duty, and breached their contract. Court granted plaintiff’s motion with respect to liability noting that notice of a default judgment was given to the defendants, no answer was ever filed, and no one appeared on behalf of defendants.  Furthermore, the court found “the factual allegations of Plaintiff’s Complaint are sufficient to state a claim upon which relief can be granted.”

In GROW LAND AND WATER, LLC et al., Plaintiffs & Appellants, v. MCCARTHY FAMILY FARMS, INC. et al., Defendants & Appellants., No. 09C0378, 2016 WL 4073940 (Cal. Ct. App. Aug. 1, 2016), defendants challenged a judgment holding them liable for breach of, and intentional interference with, two option contracts. A jury awarded plaintiffs $73.4 million in compensatory damages plus punitive damages. Defendants argued neither the liability findings nor damages awarded were supported by the evidence. Appellate court found the liability findings were supported by the record, but not the damages, reasoning that, “Proof of the value of real property may only be shown through the opinions of a qualified expert or the owner of the property in question.” Here, plaintiffs failed to present “competent opinion testimony and therefore did not meet their burden of proof.” Appellate court affirmed liability findings, but reversed compensatory and punitive damages awards.

REGULATORY: Includes AMS, APHIS, CCC, EPA, FSA, FAS, FS, ITA and NMFS rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule addresses recommendations submitted to the Secretary of Agriculture by the National Organic Standards Board following their April 2015 meeting. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice the Secretary of Agriculture will renew the charter for the Secretary’s Advisory Committee on Animal Health for a 2-year period. Info here.

Notice APHIS proposed to alter an existing system of records in its inventory of record systems subject to provisions of the Privacy Act of 1974. Info here.

Notice APHIS will prepare an environmental impact statement evaluating environmental impacts that may result from approval of a new petition for nonregulated status of glyphosate-resistant creeping bentgrass from the Scotts Company and Monsanto Company following withdrawal of their 2003 petition. Details here.

COMMODITY CREDIT CORPORATION: Rule FSA is consolidating, updating, and amending its regulations implementing the National Environmental Policy Act of 1969, as amended (NEPA). Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is promulgating revisions to its Regional Consistency regulations addressing implications of adverse federal court decisions resulting from challenges to locally or regionally applicable actions. Details here.

FARM SERVICE AGENCY: Rule FSA is consolidating, updating, and amending its regulations implementing the National Environmental Policy Act of 1969. Info here.

FOREIGN AGRICULTURAL SERVICE: Notice announcing FAS’s intention to request extension for an information collection supporting the Dairy Tariff-rate Import Quota Licensing program. Info here.

FOREST SERVICE:

Notice The Forest Resource Coordinating Committee will meet via teleconference. Details here.

Notice The Ketchikan Resource Advisory Committee will meet in Ketchikan, Alaska. Info here.

Notice The White Pine-Nye Resource Advisory Committee will meet in Eureka, Nevada. Info here.

Notice Beaverhead-Deerlodge National Forest will prepare a Supplemental Environmental Impact Statement to the 2009 Beaverhead-Deerlodge Forest Plan. Info here.

Notice Regional Forester for the Pacific Northwest Region prepared a Final Environmental Impact Statement and draft Record of Decision for establishment of two Research Natural Areas. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice of correction of the Antidumping Duty New Shipper Review Federal Register notice regarding frozen fish fillets from Vietnam. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements an accountability measure for the commercial sector for the lesser amberjack, almaco jack, and banded rudderfish complex in the South Atlantic for the 2016 fishing year. Info here.

Rule revising procedures for filing import, export, and re-export documentation for fishery products to meet requirements for the SAFE Port Act of 2006, the Magnuson-Stevens Fishery Conservation and Management Act, and obligations arising from U.S. participation in regional fishery management organizations to which the United States is a contracting party. Details here.

Rule NMFS proposes modifications to commercial retention limits for blacknose sharks and non-blacknose small coastal sharks in the Atlantic region. Info here.

Notice Gulf of Mexico Fishery Management Council will hold a Post Council Meeting Briefing for the public via webinar. Info here.

Notice New England Fishery Management Council scheduled a public meeting of its Habitat Committee to consider actions affecting New England fisheries in the exclusive economic zone. Details here.