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 ESA, animal welfare, FLSA, international trade, bankruptcy, animal ID, and nuisance issues.

In Alliance for the Wild Rockies and Native Ecosystems Council, Plaintiffs-Appellants, v. Faye Krueger, Regional Forester of Region One of the U.S. Forest Service; et al., Defendants-Appellees, No. 14-35350, 2016 WL 7030690 (9^th Cir. Dec. 2, 2016), plaintiffs sought to enjoin Forest Service from implementing a vegetation project in the National Forest in Montana, alleging violations of the Endangered Species Act (ESA), the National Forest Management Act (NFMA), and the National Environmental Policy Act (NEPA). Plaintiffs appealed district court’s grant of summary judgment to defendants. Court reasoned defendants relied on “the best available science, and we can find no record evidence that it ignored other relevant data.” Court also found the “Forest Plan met NFMA requirements,” and determined threats to the grizzly population by the project were unfounded. Summary judgment for defendants affirmed.

In UNITED STATES OF AMERICA, Plaintiff, v. APPROXIMATELY 64 DOGS, Defendants, Case No. 4:16-cv-04074-SLD, 2016 WL 7046613 (C.D. Ill. Dec. 2, 2016), plaintiff wanted authorization to euthanize 2 pit-bull dogs pursuant to the Animal Welfare Act. The dogs were seized as part of a dog fighting investigation and the dogs’ owners filed claims seeking their return. The court observed that the Animal Welfare Act makes it illegal “to knowingly sell, buy, possess, train, transport, deliver, or receive any animal for purposes of having the animal participate in an animal fighting venture.” The court further noted that, “[A]ny animal which there is probable cause to believe was involved in any violation of this section” may be seized by the United States and “shall be liable to be proceeded against and forfeited to the United States.” Court concluded that based on the dogs’ health, euthanasia fell within the “necessary care that a veterinarian may provide.” Motion granted.

In Victor Santacruz, Luis Santacruz, Cirilo Mancinas Lopez, Raymundo Martinez, Lucia Garcia, and William Alcantar, Plaintiffs, v. Southbank Dairies, LLC, a Washington Limited Liability Company, and Jerry D. Foster, an individual, Defendants, CASE NO. C16-5200 RJB, 2016 WL 6997086 (W.D. Wash. Nov. 30, 2016), plaintiffs sued under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, and moved to quash defendant’s subpoena duces tecum. Defendants sought records from the housing project where plaintiffs resided. Court determined subpoena was overbroad and required “disclosure of privileged information or other protected matter and subjects La Casa and its management agent to undue burden.” The court also noted defendants “have not shown that the information sought is relevant to any party’s claim or defense and proportional to the needs of the case.” Plaintiffs’ motion to quash subpoena granted.

SPECIALTY COMMODITIES INC., Plaintiff, v. UNITED STATES, Defendant, Court No. 11-00091, Slip Op. 16-114, 2016 WL 7048013 (Ct. Intl. Trade Dec. 2, 2016) involved international trade issues and proper classification of pine nut seeds. Plaintiff, a U.S. importer of raw pine nuts, imported merchandise described as “Chinese Pinenut Kernels” and Customs rejected plaintiff’s classification. Plaintiff moved for summary judgment and court considered proper classification of plaintiff’s items. Court observed plaintiff “has the burden of establishing that the [G]overnment’s classification is wrong,” and, “the court must determine whether Customs’ ‘classification is correct.’” Court reasoned that “the dispute involves whether the subject merchandise, seeds of the Pinus koraiensis tree, is properly classified under the ‘Pignolia’ subheading or the basket provision ‘Other,’” and eventually found that plaintiff failed to provide an established meaning for “Pignolia.” Plaintiff’s motion for summary judgment denied.

In In re: Central Illinois Energy Cooperative, Debtor. A. Clay Cox, not individually but as Trustee for the estate of Central Illinois Energy Cooperative, Plaintiff, v. Michael W. Smith, Defendant, Case No. 09–81409, Adv. No. 11–8027, 2016 WL 7099783 (C.D. Ill. Dec. 6, 2016), defendant moved to dismiss complaint filed by Chapter 7 trustee on behalf of a bankrupt agricultural co-op. Defendant argued plaintiff failed to state a claim as “special circumstances duties owed to creditors upon insolvency have never been imposed by any Illinois court upon an officer or director of an agricultural cooperative association.” Trustee argued “agricultural cooperative associations are more akin to for-profit corporations,” and a court would likely apply “the same special circumstances fiduciary duties that apply to the officers and directors of a for-profit corporation, to the officers and directors of a nonprofit agricultural cooperative association.” Court found “no reason why the full panoply of common law duties and rules that apply to for-profit and other nonprofit corporations should not, as a general matter, apply equally to agricultural cooperative associations.” Defendant’s motion to dismiss denied.

In Cornelia HAJDINYAK and another 1 v. Lisa–Marie O’CONNELL, No. 16–ADMS–40001, 016 WL 6948091 (D. Mass. Nov. 14, 2016), alleged owners of a dog sued for replevin against dog’s finder. District court held plaintiffs did not establish ownership of the dog when found. Court observed that, “To recover in replevin, a plaintiff must prove “(1) the goods in question have a value greater than twenty dollars; (2) the goods are unlawfully taken or detained; and (3) the owner or person entitled to possession is deprived of the goods.” Plaintiffs argued trial judge did not recognize a “coownership agreement between the plaintiffs that was subject to the apostille procedure of an international convention.” Court concluded, however, that “the apostille only goes to verify a signatory was whom she or he claimed to be, and not the truth of the content of the document bearing a signature.” Judgment for defendant affirmed.

KEN LAUBENSTEIN and BILLIE WALLACE, Plaintiffs/Appellees, v. BODE TOWER, L.L.C., Defendant/Appellant, Case Number: 112105, 2016 WL 7102738 (Okla. Dec. 6, 2016) concerned a nuisance action involving cell towers. Plaintiff claimed defendant’s proposed cellular tower was a public and private nuisance impacting his efforts to “build a pristine and isolated personal wildlife refuge around his home.” At trial, defendant established “full compliance with all state and federal regulatory requirements prior to installation of the tower.”  Court noted that, “Nuisance claims founded solely on aesthetic harm are not actionable,” and determined plaintiff’s “entire case hinged on the cellular tower being visually unpleasant.” Court ruled defendant’s tower was not a “nuisance.”

LEGISLATIVE:

S. 3495: A bill to amend the Food, Agriculture, Conservation, and Trade Act of 1990 to designate certain research and extension grants to increase participation by women and underrepresented minorities. Bill referred to Senate Committee on Agriculture, Nutrition, and Forestry which will consider it before sending it to the Senate. Sponsor: Sen. Steve Daines [R-MT].

S. 3497: A bill to provide the force and effect of law for certain regulations relating to the taking of double-crested cormorants to reduce depredation at aquaculture facilities and protect public resources. Bill referred to the Senate Committee on Environment and Public Works which will consider it before sending it to the Senate. Sponsor: Sen. Tom Cotton [R-AR].

REGULATORY: Includes EPA, FDA, FSIS, FS, DOI, NOAA, and RUS rules and notices.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA will extend implementation deadline for facilities subject to the final rule establishing pretreatment standards under the Clean Water Act for discharges of pollutants into publicly owned treatment works from onshore unconventional oil and gas extraction facilities. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA announces availability of a guidance for industry and FDA staff entitled “Third-Party Certification Body Accreditation for Food Safety Audits: Model Accreditation Standards.” Details here.

Notice FDA announces availability of data extracted from adverse event reports from January 2004 to the present involving food and cosmetics regulated by Center for Food Safety and Applied Nutrition. Info here.

FOOD SAFETY AND INSPECTION SERVICE:

Notice FSIS seeks nominations for membership on the National Advisory Committee on Microbiological Criteria for Foods. Info here.

FOREST SERVICE: Notice FS wants to convey two adjacent parcels of land, and the associated water rights and mineral estate in El Jebel, Colorado pursuant to the Forest Service Facility Realignment and Enhancement Act of 2005. Details here.

INTERIOR DEPARTMENT: Rule that DOI will promulgate regulations under the Paleontological Resources Preservation Act. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule correcting rule document 2016-28905 beginning on page 876971 in the issue of Friday, December 2, 2016. Details here.

Notice Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in January, February, and March of 2017. Info here.

RURAL UTILITIES SERVICE:

Notice RUS announces its Revolving Fund Program application window for Fiscal Year 2017. Info here.

Notice RUS announces its Household Water Well System Grant Program application window for fiscal year 2017. Details here.