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 antitrust, food law, FSA, international trade and inverse condemnation issues.

Buccaneer Energy (USA) Inc., Plaintiff–Appellant, v. Gunnison Energy Corporation; SG Interests I, Ltd.; SG Interests VII, Ltd., Defendants–Appellee, No. 15-1396, 2017 WL 460969 (10^th Cir. Feb. 3, 2017) concerned an antitrust case involving natural gas producers. Plaintiffs sued after unsuccessfully seeking an agreement to transport natural gas on defendants’ jointly owned pipeline system at a price plaintiff considered reasonable. Plaintiffs alleged that by refusing to provide reasonable access to the system, defendants conspired in restraint of trade and an in violation of the Sherman Act. District court granted summary judgment to defendants, concluding plaintiff could not establish antitrust claims and lacked antitrust standing. Appellate court found plaintiff failed to present sufficient evidence to create a genuine issue of fact on each of its claims. Affirmed for defendant.

Chartis Specialty Insurance Company, Plaintiff, v. Vaughan Foods, Inc., et al., Defendants, No. 4:16CV280 RLW, 2017 WL 448595 (E.D. Mo. Feb. 1, 2017) involved romaine lettuce allegedly contaminated with E.coli. Plaintiff sued for breach of implied warranty for a particular purpose, claiming the lettuce was used for the particular purpose of being sold in a raw, unprepared state in salad bars. Defendant argued plaintiff’s claim should be dismissed because the lettuce was used for its normal and ordinary purpose, human consumption for salads, and not for “particular purpose.” Court observed that, “While Plaintiff attempts to convert the use of lettuce to something unique by virtue of its sale in Schnucks salad bars, the Court finds that the location does not alter the ordinary use of the lettuce, which is sold in its raw state and consumed in salads.” Court ruled plaintiff “failed to demonstrate that the lettuce was purchased for a special purpose” and granted defendant’s motion to dismiss that claim.

In Lorrie Marquis, Plaintiff, v. Farm Service Agency, United States Department of Agriculture, Thomas Orgo, Cynthia Foister, and Paul Hlubik, Defendants, No. 14-6715, 2017 WL 465856, (D.N.J. Feb. 3, 2017), plaintiff claimed she was sexually harassed as an employee of the Farm Service Agency (FSA) and defendant committed fraud in the ensuing investigation. Plaintiff sued the USDA, the FSA and three FSA employees for fraud. Defendant argued the court lacked subject-matter jurisdiction because the Federal Tort Claims Act (FTCA) “is a limited waiver of sovereign immunity that provides the exclusive remedy for tort claims against the United States.” Court ruled plaintiff’s claim was “impermissible” and observed, “The FTCA provides that the limited waiver of sovereign immunity . . . shall not apply to ‘any claim arising out of’ certain enumerated torts committed by federal employees, including “assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” Plaintiff’s claim for fraud dismissed.

AN GIANG FISHERIES IMPORT AND EXPORT JOINT STOCK COMPANY ET AL., Plaintiffs and Consolidated Plaintiffs, and ANVIFISH JOINT STOCK COMPANY ET AL., Plaintiff-Intervenors and Consolidated Plaintiff-Intervenors, v. UNITED STATES, Defendant, and CATFISH FARMERS OF AMERICA ET AL., Defendant-Intervenors and Consolidated Defendant-Intervenors, No. 15-00044, 2017 WL 438228 (Ct. Intl. Trade Jan. 23, 2017) involved challenges to the U.S. Department of Commerce’s (Commerce) final determination in the tenth administrative review of an antidumping duty order covering frozen fish fillets from Vietnam. Plaintiffs challenged Commerce’s selection of Indonesia as the “primary surrogate country for valuing respondent’s FOPs on the grounds that Indonesia is not economically comparable to Vietnam.” Court observed that “Commerce generally calculates normal value (‘NV’) using the best available information to value respondents’ FOPs . . . ‘in a market economy country or countries considered to be appropriate by [Commerce].’” Court reasoned that, “Commerce has authority to consider countries proposed by interested parties . . . that it reasonably concludes are nonetheless economically comparable.” Court found that, “Commerce reasonably found that Indonesia is economically comparable to Vietnam, a significant producer of comparable merchandise,” and sustained defendant’s “primary surrogate country selection.”

In BUSH LAND DEVELOPMENT COMPANY, A Wyoming Corporation, and VICTORIA BUSH, as the president and director of Bush Land Development Company, and in her individual capacity, Appellants (Plaintiffs), v. CROOK COUNTY WEED & PEST CONTROL DISTRICT, CROOK COUNTY WEED & PEST CONTROL DISTRICT BOARD OF DIRECTORS, RANDALL OTWELL, in his official capacity, LEE HAUBER, in his official capacity, LEROY CURREN, in his official capacity, DAVID MOLINE, in his official capacity, FRANK HAWKEN, in his official capacity, CROOK COUNTY WEED & PEST CONTROL DISTRICT SUPERVISOR, BOB GILBERT, in his official and individual capacities, CHASE WADLEY, in his official and individual capacities, GAVIN HOLLAND, in his official and individual capacities, and KIRK BRODERSON, in his official and individual capacities, Appellees (Defendants), S-16-0149, 2017 WL 474103 (Wyo. February 3, 2017), issue was whether plaintiffs failed to exhaust administrative remedies before claiming inverse condemnation. Plaintiffs appealed dismissal of their statutory claim for inverse condemnation claiming they were “entitled to just compensation for the loss of many trees on its property as a result of defendant’s improper application of herbicides.” Court reasoned that “there is a specific administrative process set forth” in Wyoming statutes “for resolving claims that a weed and pest district has damaged a landowner’s property.” Court found appellants did not exhaust their “administrative remedies” and therefore, an inverse condemnation action “was not properly before the district court.” Case dismissed.

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

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes a tolerance for residues of 2,4-D in or on cotton, gin byproducts and amends the existing tolerance on cotton, undelinted seed. Info here.

Rule establishes a tolerance for residues of propamocarb in or on potato. Bayer CropScience requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.

FISH AND WILDLIFE SERVICE: Notice the meeting of the Wildlife and Hunting Heritage Conservation Council scheduled for Tuesday, February 7, 2017, and Wednesday, February 8, 2017, is cancelled. Info here.

FOOD AND DRUG ADMINISTRATION: Rule delaying  the effective date of the final rule (“Clarification of When Products Made or Derived From Tobacco Are Regulated as Drugs, Devices, or Combination Products; Amendments to Regulations Regarding `Intended Uses’ ”), which published on January 9, 2017, from February 8, 2017, until March 21, 2017. Info here.

FOREST SERVICE: Notice the Juneau Resource Advisory Committee will meet in Juneau AK. Info here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION:

Rule GIPSA is extending the public comment period and delaying the effective date of a rule published on December 20, 2016. This interim final rule adds a paragraph to § 201.3 addressing the scope of sections 202(a) and (b) of the Packers and Stockyards Act. Details here.

Rule GIPSA is extending by 30 days the public comment period for a proposed rule, which was published on December 20, 2016. The proposed rule identifies criteria that the Secretary may consider when determining whether a live poultry dealer’s use of a poultry grower ranking system for ranking poultry growers for settlement purposes is unfair. Details here.

Rule GIPSA is extending by 30 days the public comment period for this proposed rule, which was published on December 20, 2016. This proposed rule would clarify the conduct by packers, swine contractors, or live poultry dealers that GIPSA considers unfair. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS published a “Stay of final rule” on January 31, 2017 to delay the effective date of the final rule NMFS published on December 29, 2016. This notification corrects the effectiveness date from “March 21, 2017” to “February 10, 2017.” Info here.

Rule NMFS published a “Stay of final rule” on January 31, 2017 to delay the effective date of the final rule NMFS published on December 28, 2016. This notification corrects the effectiveness date from “March 12, 2017” to “March 11, 2017.” Info here.

Rule NMFS is prohibiting directed fishing for Pacific cod by catcher vessels less than 60 feet length overall using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area. Details here.

Rule NMFS is opening directed fishing for pollock in Statistical Area 610 of the Gulf of Alaska. Details here.

Rule establishes the 2017-2018 harvest specifications and management measures for groundfish taken in the U.S. exclusive economic zone off the coasts of Washington, Oregon, and California. Details here.