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 Thursday, January 19, at 12 noon (ET) for a free webinar: Major Market Approval and the Syngenta China Corn Class Action. Details and sign-in information here.

JUDICIAL: Includes food stamp, easement, landowner liability, and patent issues.

In Petition of Kelly Hagenbuch (New Hampshire Department of Health and Human Services), No. 2015–0079, 2017 WL 127751 (N.H. Jan. 13, 2017), petitioner challenged termination of her food stamp benefits. Department terminated benefits when it found petitioner’s income exceeded the maximum amount permitted by the program. In calculating petitioner’s income, Department included distributions from an irrevocable trust. Petitioner argued the trust distributions “should have been excluded from her income” when determining food stamp benefits. Court considered “whether a distribution made by the trustee of an irrevocable trust to third parties counts as income to the trust beneficiary for the purpose of determining food stamp benefits.” In reversing the Department’s decision, the Court agreed with petitioner’s argument that “even assuming that the trust distributions otherwise come within the definition of income, the distributions are not counted as income because they were not owed to her and were, therefore, excluded vendor payments.”

BUCKS HILL REALTY, LLC, Plaintiff, v. DAVID J. GILL, STEPHEN A. SCHAIRER, GRACE D. SCHAIRER, DONNA MACLURE, KENNETH MACLURE, DONNA RICCARDI GAHAN, and RICHARD E. GAHAN, Individually and as Members of the Saddle Back Road Homeowners Association, Defendants, No. 15 MISC 000175 (GHP), 2017 WL 119543 (D.Mass. Jan. 11, 2017) involved an easement dispute. Defendants each have a title interest in a strip of land over which plaintiff’s easement runs. Plaintiff sought declaration that it has an express appurtenant easement to use the road for passage by vehicle and foot to get between plaintiff’s parcel and the public street. Court observed that a party “asserting the benefit of an easement has the burden of proving its existence … its nature, and its extent.” Court found the “scope and location” of the easement ambiguous and found no evidence of a “long term plan” to use the easement. Judgment for defendants.

In Joel Mangiaracina, et al., Plaintiffs, v. Bnsf Railway Company, et al., Defendants, Case No.16-cv-05270-JST, 2017 WL 130250 (N.D.Cal. Dec. 12, 2017), plaintiffs were injured when their vehicle was struck by a train at a crossing near an area used for fishing and boating. Plaintiffs argued County created a dangerous condition by “negligently failing to install warning devices such as automated gates or flashing lights to warn of the Crossing.” County argued it was entitled to “trail immunity” and did not have a duty “to keep the property safe for recreational use.” Court observed that, “The plainly stated purpose of immunity for recreational activities on public land is to encourage public entities to open their property for public recreational use.” Court found no evidence the subject area was “specifically put aside and developed for recreational uses,” and concluded that the access route in question was not necessarily a “trail,” per statute. Defendant’s motion to dismiss denied.

KRAFT FOODS GROUP BRANDS LLC, Plaintiff, v. TC HEARTLAND, LLC d/b/a HEARTLAND FOOD PRODUCTS GROUP and HEARTLAND PACKAGING CORPORATION, Defendant, C.A. No. 14-28-LPS, 2017 WL 134705 (D. Del. Dec. 12, 2017) involved a patent dispute concerning a “flavored liquid beverage concentrate.” Plaintiff moved for summary judgment and argued defendant’s product “literally infringe the patents-in-suit.” Court observed that, “In analyzing literal infringement, the Court must first interpret the claims of the patent, and then compare the allegedly infringing product to the claims as construed.” Plaintiff presented evidence showing similarities “in the pH and both the relative and absolute amounts of the ingredients in Heartland’s accused products.” Defendant argued plaintiff’s measurements were “inaccurate” and “unreliable.” Court found that “there is a genuine dispute of material fact as to whether the accused products meet the pH limitations.” Plaintiff’s motion for summary judgment denied.

LEGISLATIVE:

S. Res. 12: A resolution expressing the sense of the Senate that clean water is a national priority, and that the June 29, 2015, Waters of the United States Rule should be withdrawn or vacated. Resolution’s text is now available.

H.R. 238: Commodity End-User Relief Act. Bill’s text for status passed the House on Jan. 12 and is now available.

H.R. 525: To modify the prohibition on United States assistance and financing for certain exports to Cuba under the Trade Sanctions Reform and Export Enhancement Act of 2000. Bill referred to the House Committee on Agriculture, House Committee on Financial Services, and one other committee. Sponsor: Rep. Eric “Rick” Crawford [R-AR1].

H.R. 574: To lift the trade embargo on Cuba. This bill was referred to the House Committee on Agriculture, House Committee on Energy and Commerce, and 5 other committees. Sponsor: Rep. José Serrano [D-NY15].

H.R. 560: To amend the Delaware Water Gap National Recreation Area Improvement Act to provide access to certain vehicles serving residents of municipalities adjacent to the Delaware Water Gap National Recreation Area. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Tom Marino [R-PA10].

H.R. 553: To redesignate Gravelly Point Park, located along the George Washington Memorial Parkway in Arlington County, Virginia, as the Nancy Reagan Memorial Park. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Jody Hice [R-GA10].

H.R. 527: To provide for the conservation and preservation of the Greater Sage Grouse by facilitating State recovery plans, and for other purposes. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Rob Bishop [R-UT1].

H.R. 572: To facilitate the export of United States agricultural products to Cuba as authorized by the Trade Sanctions Reform and Export Enhancement Act of 2000. Bill referred to the House Committee on Agriculture, House Committee on Financial Services, and 3 other committees. Sponsor: Rep. José Serrano [D-NY15].

H.R. 581: To provide for the issuance of a semipostal to support Department of Agriculture conservation programs. Bill referred to the House Committee on Agriculture and House Committee on Oversight and Government Reform. Sponsor: Rep. David Young [R-IA3]

H.R. 520: To require the Secretary of the Interior and the Secretary of Agriculture to more efficiently develop domestic sources of the minerals and mineral materials of strategic and critical importance to the economic and national security and manufacturing competitiveness of the United States. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Mark Amodei [R-NV2].

MEETING: Senate Committee on Energy and Natural Resources. Hearings to examine nomination of Rick Perry, of Texas, to be Secretary of Energy. January 19 at 10 a.m. Location: SD-366.

REGULATORY: Includes APHIS, EPA, FWS, FDA, and NOAA rules and notices.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Rule reopening comment period for a proposed rule allowing importation of Hass avocados from Colombia into the United States. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule seeking to establish a risk-based screening process and criteria that EPA will use to identify chemical substances as either High-Priority Substances for risk evaluation, or Low-Priority Substances for which risk evaluations are not warranted at the time. Info here.

Rule EPA proposes to make conforming changes to existing drinking water regulations based on the Reduction of Lead in Drinking Water Act of 2011 and the Community Fire Safety Act of 2013. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on applications to conduct activities with endangered species. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule announcing availability of a revised draft guidance for industry entitled “Control of Listeria monocytogenes in Ready-To-Eat Foods.” Info here.

Notice announcing the availability of a draft guidance for industry entitled “Compliance Policy for Required Warning Statements on Small-Packaged Cigars.” Info here.

Notice announcing a draft guidance for industry entitled “Interpretation of and Compliance Policy for Certain Label Requirement; Applicability of Certain Federal Food, Drug, and Cosmetic Act Requirements to Vape Shops.” Details here.

Notice announcing a public hearing regarding FDA initiatives for enhancing the safety of foods imported into the United States. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice seeking comment on continuing information collections regarding Atlantic Sea Scallops Amendment 10 Data Collection. Details here.

Notice that Katherine Mansfield, Ph.D., University of Central Florida, has applied for a permit to take loggerhead, Kemp’s ridley, green, hawksbill and leatherback sea turtles for scientific research. Details here.

Notice NMFS announces received an application for an exempted fishing permit from Dr. David Kerstetter of Nova Southeastern University to evaluate pelagic longline catch and bycatch rates from within two different sub-areas in the northern portion of the East Florida Coast Pelagic Longline Closed Area. Details here.

RURAL UTILITIES SERVICE:  Notice RUS announces the application window, requirements and funding for loans available for Fiscal Year 2017 under the Guarantees for Bonds and Notes Issued for Electrification or Telephone Purposes Program. Details here.