JUDICIAL:
TURKEY KNOB GROWERS, INC., Plaintiff, v. EAST COAST IMPEX LLC, et al., Defendants. Additional Party Names: Srinivas Sathyavedu Kalyan, No. 118CV01295TSEIDD, 2019 WL 3729002 (E.D. Va. July 22, 2019)
Plaintiff is a Virginia company that sells wholesale quantities of perishable agricultural goods (“Produce”). Compl. ¶¶ 1-2. On October 16, 2018, Plaintiff filed this action for declaratory relief under the Perishable Agricultural Commodities Act of 1930 (“PACA”). The Complaint alleges six counts. The first and second counts allege that Defendant Impex, a trustee of the PACA trust assets for the benefit of Plaintiff, failed to pay for a shipment of Produce it received under a Sales Contract (“Contract”) between Plaintiff and Defendant Impex. Id. ¶¶ 7-9. The third count alleges that Defendants failed to maintain trust assets as required by PACA. Id. ¶¶ 21-27(a)-(c). The fourth count alleges that Defendant Kalyan breached his fiduciary duty by failing to maintain PACA trust assets. Id. ¶¶ 14, 32-33. The fifth count alleges that Defendant Kalyan converted and unlawfully retained PACA trust assets. Id. ¶¶ 38-41. Lastly, as Defendant Impex failed to pay for the total amount of Produce received, Plaintiff alleges enforcement of the Reparations Award provided by the USDA.
Boucher v. United States Dep’t of Agric., No. 16-1654, 2019 WL 3729270 (7th Cir. Aug. 8, 2019)
In the mid- to late-1990s, the late David Boucher cut down nine trees on his family farm in Indiana. For almost two decades, the United States Department of Agriculture (USDA) has disagreed, first with Mr. Boucher and now his widow, plaintiff Rita Boucher, about whether that modest tree removal converted several acres of wetlands into croplands, rendering the Bouchers’ entire farm ineligible for USDA benefits that would otherwise be available.
Since at least 1985, federal law and regulatory policy have tried to remove financial incentives for destruction of environmentally important wetlands. In this case, however, the record shows arbitrary and capricious action by the agency. The USDA repeatedly failed to follow applicable law and agency standards. It disregarded compelling evidence showing that the acreage in question never qualified as wetlands that could have been converted illegally into croplands. And the agency has kept shifting its explanations for treating the acreage as converted wetlands. The USDA’s treatment of the Bouchers’ acreage as converted wetlands easily qualifies as arbitrary, capricious, and an abuse of discretion. See 5 U.S.C. § 706(2)(A). We reverse the district court’s affirmance of the USDA’s final determination and remand the case to the district court to enter judgment granting appropriate relief to plaintiff Rita Boucher.
In Part I, the court summarizes the statutes, regulations, and agency guidance that govern the USDA’s wetland conservation enforcement efforts. In Part II, the court set forth the facts and history of this dispute. The Court then explained in Part III the legal standards for judicial review and explained in Part IV why this agency action was arbitrary, capricious, and an abuse of discretion. The court reversed and remanded the action.
REGULATORY
Notice: Farm Service Agency, USDA; The Farm Service Agency (FSA) is hosting two listening sessions for public input about the heirs’ property relending program and heirs’ property issues for landowners or farm operators providing proper documentation as the owner of the farm or land in order to obtain a farm number to be eligible for the FSA programs, as required by the Agriculture Improvement Act of 2018 (2018 Farm Bill). FSA is interested in your input and comments in resolving ownership and succession on farmland and undivided interest that has multiple owners. We invite you to participate in the listening session. The listening session is open to the public. Info HERE
Notice:Farm Service Agency and Commodity Credit Corporation, USDA;MFP provides payments to producers with commodities that have been impacted by trade actions of foreign governments resulting in the loss of exports. This NOFA announces the availability of MFP funds for eligible producers of specified agricultural commodities for 2019 that include certain non-specialty crops, specialty crops, dairy, and livestock as specified in this NOFA. On behalf of the Commodity Credit Corporation (CCC), the Farm Service Agency (FSA) will administer MFP. MFP dairy and livestock payments will be calculated on the eligible production amount multiplied by the participant’s share in the commodity multiplied by the MFP payment rate. MFP participants of non-specialty and specialty crops will receive an MFP payment based upon the participant’s ownership interest in the 2019 crop that was planted and reported to FSA for the 2019 crop year, including cover crops that are planted for harvest following a prevented planted non-specialty crop. The payment rate used by CCC to issue payments for non-specialty crops will be on a county-by-county basis and reflects the amount of damage incurred in a county by producers of the non-specialty crops from the imposition of tariffs by other countries on U.S. agricultural products. The payment rate for specialty crops will be on a state-by-state basis if sufficient data is available, otherwise payments will be on a national basis. This NOFA also announces the availability of 2018 MFP payments for a limited number of producers who are now eligible for assistance as the result of a provision of the Additional Supplemental Appropriations For Disaster Relief Act, 2019 (2019 Disaster Relief Act). Info HERE
Notice: Farm Service Agency and Commodity Credit Corporation, USDA; MFP provides payments to producers with commodities that have been impacted by trade actions of foreign governments resulting in the loss of exports. This NOFA announces the availability of MFP funds for eligible producers of specified agricultural commodities for 2019 that include certain non-specialty crops, specialty crops, dairy, and livestock as specified in this NOFA. On behalf of the Commodity Credit Corporation (CCC), the Farm Service Agency (FSA) will administer MFP. MFP dairy and livestock payments will be calculated on the eligible production amount multiplied by the participant’s share in the commodity multiplied by the MFP payment rate. MFP participants of non-specialty and specialty crops will receive an MFP payment based upon the participant’s ownership interest in the 2019 crop that was planted and reported to FSA for the 2019 crop year, including cover crops that are planted for harvest following a prevented planted non-specialty crop. The payment rate used by CCC to issue payments for non-specialty crops will be on a county-by-county basis and reflects the amount of damage incurred in a county by producers of the non-specialty crops from the imposition of tariffs by other countries on U.S. agricultural products. The payment rate for specialty crops will be on a state-by-state basis if sufficient data is available, otherwise payments will be on a national basis. This NOFA also announces the availability of 2018 MFP payments for a limited number of producers who are now eligible for assistance as the result of a provision of the Additional Supplemental Appropriations For Disaster Relief Act, 2019 (2019 Disaster Relief Act). Info HERE
Final rule: Commodity Credit Corporation, Agricultural Marketing Service, Food and Nutrition Service, and Farm Service Agency, USDA; The Commodity Credit Corporation (CCC) is revising the regulations to implement a Trade Mitigation Program (TMP) for producers of 2019 agricultural commodities that have been significantly impacted by trade actions of foreign governments resulting in the loss of exports. As part of TMP, the Market Facilitation Program (MFP) regulation specifies the eligibility requirements, payment calculations, and application procedures. The details for specific commodities and the relevant application start dates will be announced in applicable notices of funds availability (NOFAs). As part of TMP, the Expanded Domestic Commodity Donation Program (EDCDP) regulation specifies disposition of surplus commodities through outlets not currently used in existing Food and Nutrition Service (FNS) programs, the application process, eligibility, and use of grants or cooperative agreements. The details for specific commodities and conditions will be announced in applicable notices of commodity availability (NOCAs). This rule adds new subparts to the TMP regulation to address the 2019 agricultural commodities. Info HERE
Notice: Agricultural Marketing Service, USDA; Pursuant to the Federal Advisory Committee Act, this constitutes notice of the upcoming meeting of the Agricultural Marketing Service (AMS) Grain Inspection Advisory Committee (Advisory Committee). The Advisory Committee meets no less than once annually to advise the AMS on the programs and services delivered under the U.S. Grain Standards Act. Recommendations by the Advisory Committee help AMS better meet the needs of its customers who operate in a dynamic and changing marketplace. The realignment of offices within the U.S. Department of Agriculture authorized by the Secretary’s Memorandum dated November 14, 2017, eliminates the Grain Inspection, Packers and Stockyards Administration (GIPSA) as a standalone agency. The grain inspection activities formerly part of GIPSA are now organized under AMS. Info HERE
Notice: Food and Nutrition Service (FNS), USDA; In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This is a revision of a currently approved information collection request for the electronic submission of programmatic and financial data through the Food Programs Reporting System (FPRS). The data is currently collected on approved Office of Management and Budget (OMB) forms. Info HERE
Notice: Environmental Protection Agency (EPA); This notice announces the availability of EPA’s proposed interim registration review decisions and opens a 60-day public comment period on the proposed interim decisions for the following pesticides: 2,4-DB, 3-Methyl-2-cyclohexen-1-one, alkyl imidazolines, bromoxynil, dikegulac sodium, fluthiacet-methyl, imazalil, inorganic polysulfides (also known as lime sulfur), IR3535, linuron, octenol, o-benzyl-p-chlorophenol, p-Menthane-3,8-diol (PMD), pyridaben, starlicide, uniconazole-P, tri-n butyl tetradecyl phosphonium chloride, zinc and zinc salts, and zoxamide. This notice also announces the availability of EPA’s human health and ecological risk assessments for the pesticides alkyl imidazolines, uniconazole-P, dikegulac sodium (ecological risk assessment only), and zoxamide, and opens a 60-day public comment period on the risk assessments. Info HERE
Correcting amendment: Rural Utilities Service, USDA; The Rural Utilities Service (RUS or Agency) published a final rule in the Federal Register on July 9, 2019, entitled “Streamlining Electric Program Procedures,” to make revisions to several regulations to streamline its procedures for Electric Program borrowers, including its loan application requirements, approval of work plans and load forecasts, use of approved contracts and system design procedures. The Agency found an error in this publication, after the published rule became effective. This document will correct the final regulation. Info HERE
Notice of proposed new fee sites: Chequamegon-Nicolet National Forest, USDA Forest Service; The Chequamegon-Nicolet National Forest is proposing new recreation fee sites and increasing fees at 15 of the 45 developed campgrounds. Fees are assessed based on the level of amenities and services provided, cost of operations and maintenance, and market assessment. These fees are proposed and will be determined upon further analysis and public comment. Funds from fees would be used for the continued operation and maintenance and improvements to the facilities within the recreation areas. An analysis of nearby recreation facilities with similar amenities shows that the proposed fees are reasonable and typical of similar sites in the area. Info HERE
Notice of filing of petition and request for comment: Environmental Protection Agency (EPA); This document announces the Agency’s receipt of an initial filing of a pesticide petition requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities. Info HERE
Notice of opportunity to object to the Revised Land Management Plan for the Rio Grande National Forest: The Forest Service is revising the Rio Grande National Forest’s Land Management Plan (Forest Plan). The Forest Service has prepared a Final Environmental Impact Statement (FEIS) for its revised Forest Plan and a draft Record of Decision (ROD). This notice is to inform the public that the Rio Grande National Forest is initiating a 60-day period where individuals or entities with specific concerns about the Rio Grande National Forest’s revised Forest Plan and the associated FEIS may file objections for Forest Service review prior to the approval of the revised Forest Plan. This is also an opportunity to object to the Regional Forester’s list of species of conservation concern (SCC) for the Rio Grande National Forest. Info HERE
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