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 taxation, landowner liability, class action, and NEPA issues.

Diversified Ingredients, Inc., Plaintiff–Appellant v. Joseph W. Testa, Ohio State Tax Commissioner, Defendant–Appellee, No. 16-2791, 2017 WL 279503 (8^th Cir. Jan. 23, 2017) involved the Interstate Income Act (IIA). Plaintiff, a Missouri corporation, was assessed $561,448.00 in unpaid taxes by the Ohio Department of Taxation under Ohio’s Commercial Activity Tax (CAT). Plaintiff sells and ships “pet food ingredients” to destinations directed by customers. All contracts are negotiated and executed outside Ohio, plaintiff has no employees in Ohio, and is not registered to do business in Ohio. Issue concerned plaintiff’s sales to customers directing delivery of products to manufacturing plants in Ohio. Plaintiff claimed the IIA “divests Ohio of jurisdiction to assess the CAT against [plaintiff’s] out-of-state sales that are delivered to its customers in Ohio.” Plaintiff argued district court “erred in failing to determine whether the IIA bars Ohio from imposing the CAT on plaintiff’s out-of-state sales because federal courts have exclusive jurisdiction to interpret and enforce the IIA’s ‘federally conferred tax immunity.’” Court affirmed district court decision and concluded the IIA “divests state legislatures of the power to impose net income taxes on certain out-of-state transactions, but it does not divest state courts of jurisdiction to decide whether the IIA bars a particular state tax assessment, levy, or collection.”

In S. Raup, Plaintiff, v. Vail Summit Resorts, Inc., Defendant. Civil Action No. 15–cv–00641–WYD–NYW, 2017 WL 345671 (D. Colo. Jan. 23, 2017), plaintiff was injured on a ski chairlift at defendant’s resort and sued under Colorado’s Premises Liability Act. Defendant argued plaintiff’s claim was barred by a liability waiver agreed to when she used a lift ticket to ride the chair. Court considered waiver issue and noted, “In determining whether a waiver of liability clause is valid, the court must consider the following four factors: ‘(1) the existence [or nonexistence] of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.’” Court ruled for defendant on the issue, finding that “this was a recreational activity, and . . . Plaintiff did not enter into the contract from an inferior bargaining position.”

In re Korean Ramen Antitrust Litigation, Case No. 13-cv-04115-WHO, 2017 WL 235052 (N.D. Cal. Jan. 19, 2017) involved an alleged conspiracy to raise the price of Korean Noodles in Korea and in the U.S. Two groups of plaintiffs, Direct Purchaser Plaintiffs (DPPs) and Indirect Purchaser Plaintiffs (IPPs), moved for class certification arguing the conspiracy “impacted the price of Korean Noodles sold in the United States and that they paid more for Korean Noodles than they would have in a competitive market.” Defendants opposed certification arguing econometric models used by the DPPs’ expert “are unreliable and the inputs they use in their models are counter-factual, so their opinions as to classwide injury and damages are without basis and excludable.” Defendants further maintained plaintiffs cannot prove injury on a “classwide basis.” Court reasoned it needed “to determine that the experts’ methodologies and opinions are sufficiently reliable to support certification of the class by a preponderance of the evidence and that the experts’ opinions are admissible.” Court found plaintiffs met burden for certification and granted their motions.

In Arthur S. West, Appellant v. Loretta E. Lynch, Attorney General of the United States, et al., Appellees, No. 15-5107, 2017 WL 191953  (D.C. Jan. 18, 2017), appellant was a medical marijuana user opposed to legalization of marijuana in Washington state. In 2013, Department of Justice (DOJ) issued a guidance memorandum regarding enforcement of the Controlled Substances Act in cases involving marijuana. Appellant alleged DOJ violated National Environmental Policy Act (NEPA) by “failing to prepare an environmental impact statement before announcing its non-enforcement policy.” Appellant argued Washington’s laws and the memorandum “subject him to injuries from the wider availability of recreational marijuana and new restrictions on medical marijuana.” Appellant sought to have the 2013 memorandum “’void[ed]’ and that all defendants ‘be compelled to comply with … NEPA’ in connection with the ‘federal … response’ to the state’s legalization of recreational marijuana.” With respect to his NEPA claim, court ruled appellant “has not sufficiently alleged that any adverse environmental effects of recreational marijuana on his own particularized interests are traceable to the memorandum.” Complaint dismissed.

REGULATORY:

AGRICULTURE DEPARTMENT: Notice USDA proposes to revise a system of records notice now titled, USDA/OCIO-2 eAuthentication Service. Info here.

FISH AND WILDLIFE SERVICE: Rule FWS is delaying the effective date of a rule to revise regulations concerning enhancement-of-survival permits issued under the Endangered Species Act of 1973 associated with Candidate Conservation Agreements with Assurances. Info here.