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 this Wednesday, October 19, at 12 noon (ET) for a free webinar: Harmful Algal Blooms and Agricultural Nutrients: State Responses to a Growing Issue. Details and sign-in information here.  

JUDICIAL: Includes PACA, FSA, right to farm, and real property issues.

In MEZA SIERRA ENTERPRISES, INC. AND VALDEMAR MEZA, Appellants, v. KINGDOM FRESH PRODUCE, INC. Appellee., No. 13-13-00119-CV, 2016 WL 5941890 (Tex. App. Oct. 13, 2016), defendant sold tomatoes to plaintiff and plaintiff resold them, but defendant claimed he was not paid. Plaintiff told defendant he used the money from the tomato sale to pay ransom for his own kidnapping in Mexico. Defendant filed Perishable Agricultural Commodities Act (PACA) claim for plaintiff’s failure to pay. Defendant granted summary judgment and plaintiff appealed. Court observed Texas law providing that “when an action is founded on an open account on which a systematic record has been kept and is supported by an affidavit, the account shall be taken as prima facie evidence of the claim, unless the party resisting the claim files a written denial under oath.” Court concluded that trial court erroneously granted summary judgment against plaintiff considering that “he did not file a verified denial on a suit on a sworn account.” Trial court reversed.

In IN RE: MAUREEN DENISE MCOUAT, DEBTOR, No. 15-05150-5-SWH, 2016 WL 5947229 (Bankr. E.D.N.C. Oct. 13, 2016), Farm Service Agency (FSA) loaned debtor money to purchase a farm sought to recover on the promissory notes. Debtor failed to answer complaint and judgment entered for the government. The judgment became a lien on debtor’s property and debtor sought relief under chapter 13 of Bankruptcy Code. Debtor wanted sanctions against government for violation of automatic stay. Court observed that claims brought under False Claims Act “fall within the regulatory and police powers exception to the automatic stay.” Court ruled government did not violate automatic stay and denied motion for sanctions.

In Vimont v. Christian Cty. Health Dep’t, No. SD 34414, 2016 WL 5922849 (Mo. Ct. App. Oct. 11, 2016), plaintiff wanted to sell and distribute raw milk from any location of his choosing, citing Missouri’s constitutional right to farm statute. He lost on summary judgment and appealed. Court noted plaintiff’s “constitutional farming rights, whatever they may be, are subject to local-government powers,” and the County Commission was “authorized to manage all legal county business, exercising such powers as the legislature saw fit to delegate.” Plaintiff’s “theory of right-to-farm supremacy fails.” Judgment for defendant affirmed.

STATE OF NEW JERSEY, STATE AGRICULTURE DEVELOPMENT COMMITTEE, COUNTY OF HUNTERDON & TOWNSHIP OF FRANKLIN, Plaintiffs-Respondents, v. QUAKER VALLEY FARMS, LLC & DAVID DEN HOLLANDER, Defendants-Appellants., No. A-5710-12T3, 2015 WL 12656957 (N.J. Super. Ct. App. Div. July 24, 2015) involved defendants’ land-grading activity on twenty acres of a 120-acre farm “subject to a deed of easement (DOE) executed pursuant to the Agriculture Retention and Development Act (ARDA).” Defendants graded part of their farmland to achieve slopes to accommodate placement of some hoophouses. Appellate court considered whether defendants took needed steps to conserve soil disrupted by the land-grading. Court found factual issues remain and “fact that defendants permanently altered the soil profiles . . . does not appear to be sufficient to establish a violation of the DOE.” Summary judgment for plaintiffs reversed.

Platt v. Rimmer, 2016-223 (La. App. 3 Cir. 10/12/16) concerned siblings that signed Act of Partition partitioning 1,000 acres. Plaintiff sought declaratory judgment arguing the “right of passage” on defendant’s adjoining property was “predial” and requested rights of passage be determined for herself and future purchasers of the property. Plaintiff maintained “that the issue is whether the partitioning of her property into separate tracts requires that [defendant’s] property must provide a predial servitude in her favor because the partitioning creates a landlocked portion.” Appellate court affirmed judgment finding plaintiff’s servitude is personal and amended the judgment to clarify that plaintiff “has the right to use the road and to allow others to use the road in order to sell her property.”

REGULATORY: Includes FWS, FDA, FS, GIPSA, ISB, and NOAA rules and notices.

FISH AND WILDLIFE SERVICE:

Rule FWS determines threatened species status under the Endangered Species Act of 1973 for the Columbia River distinct population segment of Columbian white-tailed deer. Info here.

Rule presenting an updated list of plant and animal species foreign to the United States that FWS regards as candidates for addition to the Lists of Endangered and Threatened Wildlife and Plants under the Endangered Species Act of 1973. Info here.

FOOD AND DRUG ADMINISTRATION: Notice seeking comments on the paperwork burden of requesting a waiver or reduction of fees under Animal Drug User Fee Act. Info here.

FOREST SERVICE: Notice the Angeles National Forest and the Watershed Conservation Authority WCA are lead agencies preparing a joint Draft Environmental Impact Statement/Environmental Impact Report to evaluate the San Gabriel River Confluence with Cattle Canyon Improvements Project. Info here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION:

Notice GIPSA announces designation of the Washington State Department of Agriculture to provide official services under the United States Grain Standards Act. Info here.

Notice GIPSA proposes eight stockyards now operating subject to the P&S Act be posted. Details here.

INDUSTRY AND SECURITY BUREAU: Rule amends a license exception to allow cargo aboard aircraft to transit Cuba when that cargo is bound for destinations other than Cuba. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements accountability measures for commercial king mackerel in the western zone of the Gulf of Mexico exclusive economic zone through this temporary rule. Info here.

Rule NMFS proposes to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, as prepared by the Gulf of Mexico Fishery Management Council. Details here.