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 SNAP, environmental, lease, and checkoff issues.

In UNITED STATES OF AMERICA, Appellee, v. AHMED A. ALGAHAIM, MOFADDAL M. MURSHED, Defendants-Appellants. Nos. 15-2024(L)15-2069(Con), 2016 WL 7009034 (2d Cir. Dec. 1, 2016), defendants gave customers cash when they used EBT cards to redeem Supplemental Nutrition Assistance Program (SNAP) benefits at their store. Defendants appealed their criminal conviction and sentences. Appellate court considered whether facts entitled one of the defendants to a “mitigating role adjustment.”  Regarding the sentencing at issue, the court observed that, “Where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.” Case remanded to permit the sentencing judge to consider “whether the significant effect of the loss enhancement, in relation to the low base offense level, should result in a non-Guidelines sentence.”

CECELIA KESNER, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; PNEUMO ABEX, LLC, Real Party in Interest. CECELIA KESNER, Plaintiff and Appellant, v. PNEUMO ABEX, LLC, Defendant and Respondent; JOSHUA HAVER, et al. Plaintiffs and Appellants, v. BNSF RAILWAY COMPANY, Defendant and Respondent. S219534, S219919, 2016 WL 7010174 (Cal. Dec. 1, 2016) concerned two consolidated cases questioning “whether employers or landowners owe a duty of care to prevent secondary exposure to asbestos.”  Plaintiffs alleged “take-home exposure” to asbestos contributed to their relatives’ deaths and their employers had a duty to prevent this exposure. Defendants argued users of asbestos “have no duty, either as employers or as premises owners, to prevent nonemployees who have never visited their facilities from being exposed to asbestos used in defendants’ business enterprises.” Court examined evidence of employees that carried asbestos fibers on their work clothing and tools and held “the duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers.” Critically, the court noted that such duty extends “only to members of a worker’s household.”

In Seth Raymond SNYDER and Meghan Lea Snyder, Plaintiffs–Appellees, v. Michael T. BAKER, Defendant–Appellant, No. 15–0440, 2016 WL 6902322 (Iowa Ct. App. Nov. 23, 2016), plaintiffs entered into a farm lease with defendant allowing plaintiffs to farm 58 acres of land. The parties later entered into an agreement for plaintiffs to purchase 111 acres of real estate, including the land they were renting. At closing, defendant refused to close because he was concerned plaintiff had farmed “outside of the boundaries plaintiff had certified with the Farm Service Agency (FSA),” and defendant was concerned he would be “on the hook” for any penalties. District court ruled plaintiffs were excused from making additional rent payments and defendant appealed. Appellate court noted defendant did not contact FSA to discuss his concerns and did not share them with his attorney, while plaintiffs took “all necessary steps to close the real estate sale within the sixty days contemplated by the farm rental agreement.” Court ruled defendant “had no credible reason for the delay as of the scheduled closing.” Affirmed for plaintiffs.

In Resolute Forest Products, Inc., Plaintiff, v. U.S. Department of Agriculture, et al., Defendants, No. 14–2103 (JEB), 2016 WL 7008991 (D.D. C. Nov. 30, 2016), plaintiff challenged a Softwood Lumber Checkoff order issued by USDA and demanded a refund of all dues paid under the order. In a colorful opinion, the court considered whether “the United States’ sovereign immunity bars that monetary relief as a remedy, and . . . to what extent a court may (or should) trim the potential refund.” Court examined what relief plaintiff could be entitled and observed that under the Commodity Promotion, Research, and Information Act of 1996 (CPRIA), “If a company does not pay, the Secretary may seek to enforce the assessments in district court. At the same time, that company may proceed separately to obtain administrative (and then judicial) relief for its marketing-order obligations.” The court noted that “defendant here concedes that a long line of cases has found that the Agricultural Marketing Agreement Act is not one of those statutes and does not in any way forbid a refund.” USDA countered that “the CPRIA is different because its judicial-review provision does not mention refunds and only vaguely empowers district courts to direct the Secretary ‘to take such further action as, in the opinion of the court, the law requires.’” Eventually, the court found, “As there appears to be no way to distinguish this refund case from the plethora of others relating to marketing orders, the Court concludes that sovereign immunity does not bar a refund.” Court ordered USDA to issue plaintiff a full refund of its assessments under the Softwood Lumber Checkoff Order.

LEGISLATIVE:

H.R. 6410: To prohibit the commercial harvesting of Atlantic striped bass in the coastal waters and the exclusive economic zone. Bill referred to the House Committee on Natural Resources which will consider it before sending it to the House. Sponsor: Rep. Frank Pallone [D-NJ6].

MEETING: House Committee on Agriculture. 1890 Land-Grant Institutions: Recruitment Challenges and Scholarship Opportunities. December 7, 10 a.m. (Location: LHOB 1300).

REGULATORY: Includes USDA, EPA, FWS, and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA will submit information collection requirement(s) to OMB for review. Title: Generic Fruit Crops, Marketing Order and Agreement Division. Info here.

Notice announcing meeting of The Council for Native American Farming and Ranching, a public advisory committee of the Office of Tribal Relations. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule establishing tolerances for residues of bicyclopyrone in or on wheat and barley. Info here.

FISH AND WILDLIFE SERVICE: Rule FWS presents an updated list of plant and animal species native to the U.S. regarded as candidates for addition to the Lists of Endangered and Threatened Wildlife and Plants under the Endangered Species Act of 1973. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements accountability measures for Atlantic migratory group cobia that are sold and harvested from the exclusive economic zone of the Atlantic. Info here.

Rule NMFS issues regulations implementing management measures described in Amendment 45 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. Info here.

Rule NMFS announces re-opening of the recreational sector for the other jacks complex in the exclusive economic zone of the South Atlantic. Details here.

Rule NMFS issues regulations under the Tuna Conventions Act to implement provisions of two Resolutions adopted by the Inter-American Tropical Tuna Commission. Details here.

Notice NMFS informs interested parties that the Aleutian Island Golden (Brown) King crab sub-loan in the fishing capacity reduction program for the Bering Sea and Aleutian Islands King and Tanner Crab Fisheries was repaid. Info here.