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 easement, crop insurance, food labeling, copyright, and aquaculture issues.

Estate of Merrill P. Robbins v. Chebeague & Cumberland Land Trust et al, Docket: Cum–15–256, 2017 WL 370891 (Me. Jan. 26, 2017) concerned whether landowners “with no ownership or other rights to land on which a use is proposed may seek a judicial determination of whether the proposed use on that land is permitted by the terms of a conservation easement.” Plaintiff appealed dismissal for lack of standing and argued it had standing to enforce the terms of a conservation easement “because the Estate owns an interest in real property that is also burdened by the easement, even if the dispute does not concern a use proposed on the Estate’s property.” Court observed that “the [plaintiff] seeks to enforce the easement for its own benefit. The easement’s benefit, however, runs to the Land Trust . . . and the purpose of the easement is to benefit the public.” Court found plaintiff lacked standing and affirmed dismissal.

In Michael Adkins, et al., Plaintiffs, v. Thomas James Vilsack, Secretary, The United States Department of Agriculture, et al., Defendants, No. 1:15–CV–169–C, 2017 WL 76926 (N.D. Tex. Jan. 6, 2017), a group of wheat farmers sought judicial review of a decision of the Risk Management Agency (RMA), affirmed by the National Appeals Division (NAD). Issue was whether “NAD’s legal determination that the Actual Production History (APH) Yield Exclusion was not immediately available to Plaintiffs upon the passage of the Farm Bill on February 7, 2014, but was instead subject to RMA’s discretion as to the timing of implementation of that amendment.” Court observed that, “For Plaintiffs, the issue is one of applicability, but Defendants view it as one of implementation.” Court analyzed definitions of “apply” and “implement” and found NAD’s decision “arbitrary, capricious, or otherwise not in accordance with law.” Court reversed NAD decision to delay implementation of the APH Yield Exclusion for the 2015 crop year.

In Monica Sud, et al., Plaintiffs, v. Costco Wholesale Corporation, et al., Defendants, No. 15-cv-03783-JSW, 2017 WL 345994 (N.D. Cal. Jan. 24, 2017), plaintiffs alleged Costco sells farmed prawns from Asian countries with supply chain dependent upon slavery and human trafficking. Per plaintiff, Costco’s website provides misleading statements when it states it has a “supplier Code of Conduct which prohibits human rights abuses in our supply chain[.]” Court reasoned that, “Plaintiffs must demonstrate that the misrepresentation or omission was an ‘immediate cause of the injury-causing conduct.’” Court found plaintiffs did not allege they “read or relied on Costco’s Code of Conduct” and failed to demonstrate “they relied on any affirmative statements in that Code.”  Court concluded plaintiffs’ claims “must be limited to alleged omissions from product packaging.” Defendants’ motion to dismiss granted.

Alliance for Water Efficiency, Plaintiff, v. James Fryer, Defendant, No. 14 C 115, 2017 WL 201358 (N.D. Ill. Jan. 18, 2017) involved an award of attorneys’ fees under the Copyright Act. Plaintiff hired defendant, an environmental scientist, to “research and write a report on the extent to which water demand elasticity during future droughts would be affected by urban water agencies’ conservation programs.” Plaintiff claimed defendant’s report was was a “work made for hire” and that it owned the copyright to it. Issue was whether defendant “prevailed not on a contract construction matter, but on an action under the Copyright Act,” with respect to a settlement agreement between the parties. Court determined defendant prevailed in an earlier proceeding “ not because of the Copyright Act or any of the goals it seeks to achieve, but because . . . the lower court had, as a matter of contract interpretation, improperly concluded that the parties had agreed to something they had not.” Defendant’s motion for attorneys’ fees denied.

Todd McLendon and Shire Mclendon, Appellants, v. Gary R. Nikolits, as Property Appraiser for Palm Beach County, Florida, Appellee. No. 4D15–4003, 2017 WL 362555 (Fla. Dist. Ct. App. Jan. 25, 2017) concerned whether plaintiffs’ property qualified for an “agricultural tax exemption” for part of their parcel used for “aviculture.” Plaintiffs’ own a five-acre parcel and used the land to raise wild birds for sale as pets (aviculture). Property Appraiser had previously granted the property an agricultural tax classification because of its dual uses for aviculture and cattle grazing, but in 2012, “denied the agricultural tax classification for a requested 4.5 acres and instead issued the classification for only 2.25 acres.” Court considered relevant statutes and noted, “Although aviculture is not explicitly listed in either statute, ‘animals useful to humans’ being a ‘farm product’ authorizes the agricultural exemption, if [plaintiffs] are able to establish that aviculture serves a function useful to humans.” Court concluded the phrase “an ’animal useful to humans’ is plain in its broad meaning and intention, and encompasses [plaintiffs’] bird-breeding activities on its face.”

REGULATORY:

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Notice sets forth schedule and agenda of a forthcoming meeting of the Ocean Exploration Advisory Board. Info here.