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 SNAP, tax, and class action issues.

In United States v. Jeffs, No. 2:16-CR-82 TS, 2016 WL 6745951, (D. Utah Nov. 15, 2016), government alleged that food items were provided to defendant’s church members, Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), who did not qualify to receive Supplemental Nutrition Assistance Program (SNAP) benefits. Defendants charged with conspiracy to commit SNAP benefits fraud and conspiracy to commit money laundering. Defendants sought dismissal under the Religious Freedom Restoration Act (RFRA) and the First Amendment. Court reasoned that, “To make out a prima facie RFRA defense, a criminal defendant must show by a preponderance of the evidence that government action (1) substantially burdens (2) a religious belief, not merely a philosophy or way of life, (3) that the defendant sincerely holds.” Court found that the government refuted defendant’s RFRA defense and that the government “met its burden of demonstrating that the SNAP statutes and regulations are the least restrictive means of achieving its compelling interests.” Defendant’s motion to dismiss indictment denied.

In United States v. Jeffs, No. 2:16-CR-82 TS, 2016 WL 6759773, (D. Utah Nov. 15, 2016), government filed motion in limine to exclude evidence members of the FLDS Church have a right to donate Supplemental Nutrition Assistance Program (SNAP) benefits to the FLDS Storehouse. Government argued SNAP statutes “necessarily prevent FLDS leaders from systematically requiring members to donate their SNAP benefits to the FLDS Church to be used outside of the authorized households as the church leaders see fit.” Court found that the government’s motion “seeks a determination that Defendants’ alleged conduct is not authorized by the SNAP statues and regulations. Because of the unique nature of the SNAP statutes, this determination would necessarily implicate issues that are solely within the province of the jury.” Government’s motion denied.

In United States v. Jeffs, No. 2:16-CR-82 TS, 2016 WL 6760367, (D. Utah Nov. 15, 2016), defendant alleged Supplemental Nutrition Assistance Program (SNAP) statutes are overbroad. Court noted that under the overbreadth doctrine, litigants “are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” The court further reasoned that, “The overbreadth doctrine does not apply where there is no significant difference between the claim that the ordinance is invalid because of overbreadth and the claim that it is unconstitutional when applied to the plaintiff’s own activities.” Defendant’s motion to dismiss denied.

In United States v. Moughawech, No. 15-1999-CR, 2016 WL 6242826, (2d Cir. Oct. 25, 2016), defendant managed a dollar store and his co-defendant (owner of the store) defrauded the Supplemental Nutrition Assistance Program (SNAP) by letting customers redeem food stamps for cash. Defendant was convicted of conspiracy to commit food stamp fraud and appealed, arguing district court abused its discretion “in declining to charge the jury on lesser included offenses.” Court reasoned that “even if . . . a rational jury could find that [defendant] conspired serially with customers, . . . we think it extremely unlikely that a jury would do so on this record in light of the language of the indictment, the instructions the jury received, and the overt acts alleged.” District court ruling affirmed.

In William J. Montgomery, Respondent, v. Spartanburg Cty. Assessor, Appellant., No. 2013-002697, 2016 WL 6776298, (S.C. Ct. App. Nov. 16, 2016), plaintiff owns a tree farm that includes three “agricultural use” buildings. For the 2011 tax year, the assessor valued plaintiff’s property for taxation purposes by valuing the land using the “soil capability valuation method” and valuing the structures on the land using the “fair market value of the improvements.” Plaintiff appealed assessor’s valuation and was granted summary judgment by the Administrative Law Court (ALC). Assessor appealed claiming ALC erred in its definition of “fair market value for agricultural purposes.” Appellate court noted that “the ALC’s reliance on previous versions of the valuation statute is misplaced.” The court also found that “the legislative history supports the Assessor’s argument that the General Assembly intended to continue valuing only the land based upon the soil capability.” Judgment for plaintiff reversed.

Petersen v. Costco Wholesale Co., No. SACV131292DOCJCGX, 2016 WL 6768911, (C.D. Cal. Nov. 15, 2016) involved consumer class action wherein plaintiffs claimed risk of exposure to hepatitis A virus from frozen berry seed mix purchased at Costco. Defendants argued the class should be “decertified” because the class representatives “no longer meet the typicality requirement and because individual issues predominate.” The court observed that “a class representative’s claims or defenses must be ‘typical of the claims or defenses of the class.’” Court not persuaded by defendants’ arguments and noted that, “named Plaintiffs need not raise identical claims to all the possible claims in the class,” and “named Plaintiffs claims need be only ‘reasonably co-extensive with those of absent class members.’” Court did not rule on “predominance” issue and “conditionally denied” defendants’ motion to decertify class.

LEGISLATIVE:

S. 3395: Prescribed Burn Approval Act of 2016. Bill’s text for status Passed the Senate (Nov. 17, 2016) is now available.

S. 3110: American Energy and Conservation Act of 2016. Cloture on Motion to Proceed rejected 51/47.

H.R. 4366: San Luis Unit Drainage Resolution Act. Ordered to be Reported (Amended) by the Yeas and Nays: 27 – 12.

H.R. 5032: To allow certain property in the town of Louisa, Virginia, to be used for purposes related to compliance with water quality standards, and for other purposes. Bill’s text for status Reported by House Committee (Nov. 16, 2016) is now available.

H.R. 6331: Coral Reef Sustainability Through Innovation Act of 2016. Bill referred to the House Committee on Natural Resources and House Committee on Science, Space, and Technology which will consider it before sending it to the House. Sponsor: Rep. Tulsi Gabbard [D-HI2].

H.R. 6330: Naugatuck River Valley National Heritage Area Study Act. Bill referred to the House Committee on Natural Resources which will consider it before sending it to the House. Sponsor: Rep. Rosa DeLauro [D-CT3].

H.R. 845: National Forest System Trails Stewardship Act. Bill’s text for status Passed Congress/Enrolled Bill (Nov 18, 2016) is now available.

REGULATORY: Includes USDA, APHIS, CCC, FWS, FDA, ITA, NOAA, and RBCS rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Interstate Shipment of Meat and Poultry. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice announcing the international standard-setting activities of the World Organization for Animal Health, the Secretariat of the International Plant Protection Convention, and the North American Plant Protection Organization. Details here.

COMMODITY CREDIT CORPORATION: Rule making amendments to the final rule published in the Federal Register on March 9, 2015, that established regulations for the Pima Agriculture Cotton Trust Fund and the Agriculture Wool Apparel Manufacturers Trust Fund programs. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS announces receipt and availability of three proposed low-effect habitat conservation plans and incidental take permit applications for take of Alabama beach mouse habitat incidental to construction in Orange Beach and Gulf Shores, Alabama. Info here.

FOOD AND DRUG ADMINISTRATION: Notice announcing availability of a draft guidance for FDA staff entitled “Compliance Policy Guide Sec. 540.750 Use of The Seafood List to Determine Acceptable Seafood Names.” Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice that on August 12, 2016, the Department of Commerce published the preliminary results of the administrative review and new shipper review of the antidumping duty order on solid urea from Russia. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is closing the directed herring fishery in management Area 1B, limiting catch from that area to 2,000 lb per trip and prohibiting landing more than once per calendar day, because it projects that 92 percent of the 2016 annual seasonal catch limit for that area will have been caught by the effective date. Details here.

Rule closing the Georges Bank Cod Trimester Total Allowable Catch Area to Northeast multispecies common pool vessels and adjusts the Georges Bank cod possession and trip limit for common pool vessels for the remainder of Trimester 2, through December 31, 2016. Details here.

RURAL BUSINESS-COOPERATIVE SERVICE:

Notice announcing acceptance of applications from newly-formed Rural Business Investment Companies or new funds from existing RBICs who are interested in obtaining a licensed fund as non-leveraged RBICs under the Agency’s Rural Business Investment Program. Info here.

Notice inviting applications for grants to provide Technical Assistance for Rural Transportation systems under the Rural Business Development Grant program, subject to the availability of funding to provide Technical Assistance for RT systems and for RT systems to Federally Recognized Native American Tribes. Details here.