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 labor, class action, CAFO, environmental, procedural, and patent issues.
In United States Department of the Air Force, Luke Air Force Base, Arizona, Petitioner v. Federal Labor Relations Authority, Respondent, American Federation of Government Employees, Local 1547, Intervenor, No. 15-1208, 2016 WL 7480255 (D.C. Dec. 30, 2016), Federal Labor Relations Authority (FLRA) ordered Air Force to collectively bargain with its civilian employees over access to an on-base convenience store. Air Force argued issue was not a proper subject of bargaining because Congress “has given the military unfettered discretion to determine whether civilians may patronize commissaries and exchanges.” Air Force filed a “negotiability appeal” claiming the proposal was nonnegotiable because it “lacked a connection to employee working conditions.” Court agreed that “Congress has given the military unfettered discretion to determine whether civilians may patronize commissaries and exchanges,” and stated, “we cannot imagine that Congress intended to empower a civilian agency like the Federal Labor Relations Authority to second-guess the military’s judgment about non-military access to commissaries.” Court vacated FLRA order and granted Air Force’s petition for review.
Kaye W. Fisher, Dan Lewis And Daniel H. Lewis Farms, Inc., George Abbot, Robert C. Boyette and Boyette Farms, Inc., Kyle A. Cox, C. Monroe Enzor, Jr., Executor of the Estate of Crawford Monroe Enzor, Sr., Archie Hill, Kendall Hill, Whitney E. King, Cray Milligan, Richard Renegar, Linwood Scott, Jr. and Scott Farms, Inc., Orville Wiggins, Alford James Worley, Executor of the Estate of Dennis Anderson, Chandler Worley, Harold Wright, and Others Similarly Situated v. Flue-Cured Tobacco Cooperative Stabilization Corporation, No. 374A14, 2016 WL 7422383 (N.C. Dec. 21, 2016) involved class certification of flue-cured tobacco producers who were members of defendant’s cooperative between 1946 and 2004. Trial court found that the “central issue common to all Plaintiffs is whether they are entitled to share in the accumulated assets held by Defendant, which Defendant contends is held as a reasonable reserve.” Defendant argued that this issue involves a “challenge to its business judgment and therefore ‘constitutes a prototypical derivative claim.’” Court noted that, “A derivative proceeding is defined in pertinent part as ‘a civil suit in the right of a domestic corporation.’” Court concluded that, “Given the extremely large number of similarly situated class members . . . we cannot conclude that the trial court abused its discretion by ruling that a class action is superior to individual litigation.” Trial court’s order affirmed.
In re: The Matter Of, The Criminal Contempt of: Susan Turner (No. 4-16-0245), Contemnor-Appellant, In re: The Matter Of, The Criminal Contempt of: Karen L. Hudson (No. 4-16-0284), Contemnor-Appellant, NOS. 4-16-0245, 4-16-0284 cons, 2016 IL App (4th) 160245 (Ill. App. Ct. Dec. 28, 2016), concerned a jury trial involving concentrated animal feeding operations (CAFO). The “contemnors” in this case distributed material decrying concentrated animal feeding operations to members of the gallery and court held them in contempt of court for “distributing prejudicial material within the courtroom.” Contemnors appealed and court considered whether “there is sufficient evidence to support the finding of contempt,” and “whether the judge considered facts outside of the judge’s personal knowledge.” Court found trial court did not explain to contemnors their right to remain silent and they were not afforded procedural rights. Judgment vacated.
Pope Resources, LP, a Delaware limited partnership; OPG Properties, LLC., a Washington limited liability company, Appellants, v. The Washington State Department of Natural Resources, a Washington state agency, Respondent, No. 47861-7-II, 2016 WL 7449399 (Wash. Ct. App. Dec. 28, 2016) plaintiff sued defendant for contribution of cleanup costs for contamination at a mill site under Washington’s Model Toxic Control Act (MTCA). Court considered whether defendant is an “owner or operator” under MTCA. Defendant argued it is not an “owner or operator” of the site because the state owns the aquatic lands. Court found defendant liable under MTCA as an “owner or operator” of the site based on defendant’s “ownership interest” in the aquatic lands at the site.
In FRONT RANGE EQUINE RESCUE; THE HUMANE SOCIETY OF THE UNITED STATES; MARIN HUMANE SOCIETY; HORSES FOR LIFE FOUNDATION; RETURN TO FREEDOM; RAMONA CORDOVA; KRYSTLE SMITH; CASSIE GROSS; DEBORAH TRAHAN; BARBARA SINK; CHIEF DAVID BALD EAGLE; CHIEF ARVOL LOOKING HORSE; TANYA LITTLEWOLF; ROXANNE TALLTREE-DOUGLAS; FOUNDATION TO PROTECT NEW MEXICO WILDLIFE; SANDY SCHAEFER, Plaintiffs – Appellees, and STATE OF NEW MEXICO, Intervenor Plaintiff – Appellee, v. TOM VILSACK, Secretary, United States Department of Agriculture; ELIZABETH A. HAGEN, Under Secretary for Food Safety, United States Department of Agriculture; ALFRED A. ALMANZA, Administrator, Food Safety and Inspection Services, United States Department of Agriculture, Defendants, RESPONSIBLE TRANSPORTATION, LLC; CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION; RAINS NATURAL MEATS; CHEVALINE, LLC; INTERNATIONAL EQUINE BUSINESS ASSOCIATION; NEW MEXICO CATTLEGROWERS’ ASSOCIATION; SOUTH DAKOTA STOCKGROWERS ASSOCIATION; RANCHERS-CATTLEMEN ACTION LEGAL FUND UNITED STOCKGROWERS OF AMERICA; MARCY BRITTON; BILL WOOD; JAN WOOD; LEROY WETZ; SHIRLEY WETZ; DOUG JOHNSON; JUDY JOHNSON; KUJYUKURI, LTD; UNITED HORSEMEN; SCENIC VIEW RANCH, Intervenors Defendants, and VALLEY MEAT COMPANY, LLC, Intervenor Defendant – Appellant, No. 16-2054, 2017 WL 33537 (10th Cir. January 4, 2017), plaintiffs sued USDA seeking a declaration that “grants of inspection generally violated the National Environmental Policy Act (NEPA) and requesting that the court set aside the specific grants of inspection to Valley Meat and Responsible Transportation.” An injunction was issued against defendant Valley Meat and they eventually appealed a denial of damages. Court observed that, “As a prerequisite to the issuance of a preliminary injunction . . . the moving party must post a security bond ‘to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.’” Court concluded there was never a finding of “wrongful enjoinment” and district court did not abuse its discretion declaring Valley Meat “could not collect damages.” District court ruling affirmed.
EX PARTE JOHN R. ANDERSON JR., JOHN H. JANSEN, HARRISON R. HAKES, BARRY K. GOODWIN, NICHOLAS E. PIGGOTT, AND DAVID J. RHYLANDER, Appeal 2014-008410, Application 11/731,8091, 2016 WL 7634994 (Patent Tr. & App. Bd. Dec. 28, 2016) concerned a patent claim involving calculating a rate for a crop insurance policy. Court observed that “the claims are directed to collecting and analyzing information” and stated, “We treat collecting information as within the realm of abstract ideas.” The court also noted that “the Federal Circuit has found claims directed to a stable value insurance policy to be directed to an ineligible abstract idea.” Court concluded “the claims at issue amount to nothing significantly more than an instruction to apply the abstract idea of calculating a rate for a crop insurance policy using some unspecified, generic computer. That is not enough to transform an abstract idea into a patent-eligible invention.”
REGULATORY: Includes EPA, FWS, FDA, FNS, FSIS, ITA, and NOAA rules and notices.
ENVIRONMENTAL PROTECTION AGENCY: Rule extending a time-limited tolerance for combined residues of the fungicide propiconazole and its metabolites in or on avocado at 10 parts per million for an additional 3-year period. Info here.
FISH AND WILDLIFE SERVICE:
Rule FWS wants to remove Hidden Lake bluecurls from the Federal List of Endangered and Threatened Plants. Details here.
Notice FWS announces a public meeting of the Advisory Council on Wildlife Trafficking. Info here.
FOOD AND DRUG ADMINISTRATION:
Notice FDA seeks comment on the collection of information involving the Public Health Security and Bioterrorism Preparedness and Response Act of 2002. Details here.
Notice FDA published a draft guidance for industry entitled “Questions and Answers on the Nutrition and Supplement Facts Labels Related to the Compliance Date, Added Sugars, and Declaration of Quantitative Amounts of Vitamins and Minerals.” Info here.
Notice FDA published a draft guidance for industry entitled “Reference Amounts Customarily Consumed: List of Products for Each Product Category.” Details here.
Notice FDA published a draft guidance for industry #243 entitled “Studies to Evaluate the Metabolism and Residue Kinetics of Veterinary Drugs in Food-Producing Species: Study Design Recommendations for Residue Studies in Honey for Establishing MRLs and Withdrawal Periods.” Details here.
Notice FDA published the the FDA Tribal Consultation Policy. Details here.
FOOD AND NUTRITION SERVICE:
Rule proposes to revise requirements for processing of donated foods. Details here.
Notice invites comment on a proposed information collection. Title: Evaluation of the School Meal Data Collection Process. Info here.
FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS will collect information from federally-assisted State Meat and Poultry Inspection programs to ensure that their programs operate in a manner equal to FSIS’s Federal inspection program. Info here.
INTERNATIONAL TRADE ADMINISTRATION: Notice Department of Commerce published its Preliminary Rescission for the new shipper review of the antidumping duty order on certain preserved mushrooms from China on August 8, 2016. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule the Caribbean Fishery Management Council submitted Amendment 8 to the Fishery Management Plan (FMP) for the Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands for review by NMFS. Details here.
Notice Department of Commerce invites comment on proposed information collections involving U.S. participation in the Inter-American Tropical Tuna Commission. Details here.
Notice NMFS adopts an Endangered Species Act Recovery Plan for the Cook Inlet beluga whale distinct population segment found in Cook Inlet, AK. Info here.