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 Wednesday, February 15, at 12 noon (ET) for our next Agricultural & Food Law Consortium webinar: Legal Checkup on Checkoffs: Recent & Emerging Legal Issues in Federal & State Checkoff Programs. Details available here.
JUDICIAL: Includes FLSA, PACA, SNAP, and renewable energy issues.
In Martin Rico Murillo, et al., Plaintiff, v. Tracy Dillard, Bruce Dillard, and Carolyn Dillard, Defendants, NO. 1:15-CV-00069-GNS, 2017 WL 471570 (W.D. Ky. Feb. 3, 2017), plaintiffs, 24 migrant agricultural workers who are citizens of Mexico, sued defendants for violations of the Fair Labor Standards Act and breach of contract. Defendants wanted a protective order, “prohibiting Plaintiffs from conducting their trial depositions in Mexico,” arguing that the undue burden of traveling to Mexico to take the depositions of all 24 Plaintiffs in a case involving nominal damages “establishes ‘good cause’ for granting the requested protective order.” Court determined the desired depositions “will provide evidence that is relevant to the claims and defenses in this action and proportional to the needs of this case.” Defendants’ motion for protective order denied.
In In re: GOLD DIGGER APPLES, INC., Debtor, Case No. 16-01783-FPC7, 2017 WL 508209 (Bankr. E.D. Wash. Feb. 7, 2017), “U.S. Bank” objected to five PACA claims made by fruit growers against debtor, a cooperative association that filed bankruptcy. U.S. Bank is debtor’s largest creditor holding a security interest in debtor’s assets. U.S. Bank disputed whether the PACA notices were sufficient “to preserve the Non-Member Growers’ rights as PACA trust beneficiaries and argued the PACA notices were not timely and failed to provide the requisite information.” Court observed the PACA statute requires only that the unpaid seller give “written notice of intent to preserve the benefits of the trust to the commission merchant … in sufficient detail to identify the transaction subject to the trust.” The court also found that the “Invoice Method” preserved the PACA rights at issue “and the only timing relevant to that method is whether the parties expressly agreed to payment terms beyond thirty (30) days.” Court allowed the five PACA claims.
In Herbert F. Madara, Petitioner v. Department of Human Services, Respondent, No. 2695 C.D. 2015, 2017 WL 474041 (Pa. Commw. Ct. Feb. 6, 2017), petitioner sought review of a Philadelphia County Assistance Office (CAO) decision reducing his Supplemental Nutrition Assistance Program (SNAP) benefits from $129 to $113 due to a change in income. CAO concluded an increase in Petitioner’s Social Security income required the SNAP decrease. Petitioner also argued he is an “Extended SNAP household,” and changes in his income “cannot be considered when calculating his SNAP benefits.” Court found the record unclear as to “whether Petitioner’s SNAP benefits were correctly calculated” and that “fair hearings procedures were not adhered to.” Earlier ruling vacated and case remanded.
In Acciona Windpower North America, LLC, Plaintiff–Appellee v. City of West Branch, Iowa, Defendant–Appellant, No. 16-1735, 2017 WL 490412 (8th Cir. Feb. 7, 2017), plaintiff, a wind turbine manufacturer, sued alleging City breached a tax increment financing (TIF) development agreement for an urban renewal project. City appealed after a lower court held City was obligated by TIF development agreement to pay tax rebate to manufacturer “once it paid its taxes for given fiscal year,” and that the TIF agreement “did not impermissibly limit city’s ability to decline to pay rebates.” City claimed that under the agreement it “had the power to decide not to pay the rebates obligated for appropriation up until the moment the rebate checks were sent.” Court was not persuaded and conclude that “a legal obligation to pay rebates that have been obligated for appropriation by the city council and approved as part of the city’s budget arises under the agreement once [plaintiff] pays its taxes for a given fiscal year.” Ruling for plaintiff affirmed.
REGULATORY: Includes AMS, USDA, FWS, FS, and NOAA rules and notices.
AGRICULTURAL MARKETING SERVICE: Rule delaying the effective date for 60 days for the Organic Livestock and Poultry Practices rule. Info here.
AGRICULTURE DEPARTMENT:
Notice USDA has submitted information collection requirement(s) to OMB for review and clearance. Title: Specified Risk Materials. Info here.
Notice USDA has submitted information collection requirement(s) to OMB for review and clearance. Title: Cotton Ginning Survey. Details here.
Notice USDA has submitted information collection requirement(s) to OMB for review and clearance. Title: Phytosanitary Export Certification. Info here.
Notice USDA has submitted information collection requirement(s) to OMB for review and clearance. Title: Discharge and Delivery Survey Summary and Rate Schedule Forms. Details here.
FISH AND WILDLIFE SERVICE: Rule FWS proposes to establish the 2017-18 hunting regulations for certain migratory game birds. Info here.
FOREST SERVICE: Rule delaying the effective date of a final rule titled, “Roadless Area Conservation; National Forest System Lands in Colorado,” that reinstated the North Fork Coal Mining Area exception to the Colorado Roadless Rule. Details here.
NATIONAL OCEANIC AND ATMOPSHERIC ADMINISTRATION:
Rule delays the final rule NMFS published on January 19, 2017, at 82 FR 6309, until March 21, 2017. Details here.
Rule NMFS is reallocating the projected unused amounts of the Community Development Quota pollock directed fishing allowance from the Aleutian Islands subarea to the Bering Sea subarea. Details here.
Rule delays the effective date of the final rule NMFS published on January 19, 2017, at 82 FR 6221, until March 21, 2017. Details here.