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 PACA, landowner liability, zoning, agritourism, and administrative issues.
In S & H PACKING & SALES CO., INC., a California corporation, DBA Season Produce Co., Plaintiff, And G. W. PALMER & CO., INC.; ANDREW & WILLIAMSON SALES CO., INC., DBA Andrew & Williamson Fresh Produce; EAST COAST BROKERS AND PACKERS, INC.; GARGIULO, INC., Plaintiffs-Appellants, v. TANIMURA DISTRIBUTING, INC., a California corporation, Defendant, And AGRICAP FINANCIAL CORPORATION, a Delaware corporation, Defendant-Appellee. S & H PACKING & SALES CO., INC., a California corporation, DBA Season Produce Co., Plaintiff, And APACHE PRODUCE CO., INC., an Arizona corporation, DBA Plain Jane; O.P. MURPHY PRODUCE CO., INC., a Texas corporation, DBA Murphy & Sons; OCEANSIDE PRODUCE, INC., a California corporation; WILSON PRODUCE, LLC, an Arizona Limited liability company; FRANK DONIO, INC.; ABBATE FAMILY FARMS LIMITED PARTNERSHIP; J.P.M. SALES CO., INC., an Arizona corporation, Plaintiffs-Appellants, THOMSON INTERNATIONAL, INC., assignee, Tanimura Distributing, Inc., Creditor-Appellant, v. TANIMURA DISTRIBUTING, INC., Defendant, and AGRICAP FINANCIAL CORPORATION, a Delaware corporation, Defendant-Appellee, No. 14-56059, No. 14-56078, 2017 WL 744052 (Feb. 27, 2017), a group of growers sold produce on credit to a distributor. Distributor sold the produce on credit to third parties and, through a “factoring agreement,” transferred its own accounts receivable to defendant Agricap. Distributor went out of business and before growers received payment in full. Growers then sued Agricap. Agricap moved for summary judgment arguing that pursuant to Boulder Fruit Express & Heger Organic Farm Sales v. Transportation Factoring, Inc., “a commercially reasonable factoring agreement removes accounts receivable from the PACA trust without a trustee’s breach of trust, thus defeating the Growers’s claims.” Growers argued that a court should not review the commercial reasonableness of a factoring agreement unless the court first determines a true sale actually occurred. Growers argued that a PACA trustee’s true sale of trust assets happens when the trustee “transfers not merely the right to collect the underlying accounts, but also the risk of non-payment on those accounts.” District court rejected the “transfer-of-risk test” and appellate court affirmed.
In JUDY C. DREXLER, SURVIVING SPOUSE OF JEROME E. DREXLER, PLAINTIFF-APPELLANT, v. MCMILLAN WARNER MUTUAL INSURANCE COMPANY AND JAMES R. WEILAND, DEFENDANTS-RESPONDENTS, No. 2015AP2047, 2017 WL 702469 (Wis. Ct. App. Feb. 22, 2017), plaintiff, a surviving spouse, appealed a summary judgment after her husband was killed by a stampeding horse. Plaintiff argued defendant “had a duty to maintain and repair his fence, and was a ‘harborer’ of horses.” Trial court barred plaintiff’s negligence claim because it was “undisputed defendant was not the owner or keeper of the horse” that caused death of husband. Appellate court noted that “common-law liability of landowners and landlords for negligence associated with injuries caused by dogs is limited to situations where the landowner or landlord is also the owner or keeper of the dog causing injury.” Affirmed for defendant and his insurer.
In Southern States-Bartow County, Inc. et al v. Riverwood Farm Homeowners Association et al, S16A1716, 2017 WL 765890 (Ga. Feb. 27, 2017), County’s zoning ordinance ruled invalid in 1991 and two years later, County enacted new zoning ordinance addressing “vested rights for nonconforming use that were acquired during the absence of a valid zoning ordinance.” Issue was whether 1993 “vested-right provision” is unconstitutional. Court reasoned that applicable statute “is retrospective and injuriously impairs Southern States’ vested right to develop its land free from county use restriction.” Court declared provision unconstitutional and reversed trial court ruling. Case remanded.
In SHANNON P. SALMON, ET AL. v. JOHN R. EVANS, ET UX, No. 2235, Sept. Term, 2017 WL 747873 (Md. Ct. Spec. App. February 27, 2017), appellees applied for a “special events conditional use” of their property as a wedding venue. Nearby property owners protested, but Board approved the application. On appeal, issue was whether Board’s decision was “legally correct and supported by substantial evidence in the record.” Appellees maintained Board’s finding will not have a “substantial and undue adverse effect on traffic” and that “noise limitations are not unconstitutionally vague.” Court affirmed Board decision granting conditional use for weddings.
United States of America, ex rel, David H. Shepard, and William M. Marvel, appearing qui tam, Plaintiffs/Relators, v. Grand Junction Regional Airport Authority, Rex Tippetts, individually, Eddie Storer, individually, Jviation, Inc., Jason Virzi, individually, and Morgan Einspahr, individually, Defendants, No. 13–cv–00736–CMA, 2017 WL 749070 (D. Colo. Feb. 27, 2017) involved a dispute over a fence project at an airport funded by the Federal Aviation Administration (FAA). Plaintiffs sued on behalf of Government alleging payment for the fence was the product of false claims made to the FAA by the Airport Authority in violation of the False Claims Act (FCA). Government approved a settlement with the Airport Authority, but Relators objected, claiming the settlement was unfair. Relators argued the settlement ignores their claim the Airport Authority violated the FCA when it “falsely certified that it needed to erect the fence to control wildlife.” Court found Government was justified in not pursuing Relators’ contention that “Airport Authority falsely contrived the need for a wildlife fence.” Court found proposed settlement fair and reasonable.
REGULATORY: Includes FWS, FDA, FNS, and NOAA rules and notices.
FISH AND WILDLIFE SERVICE: Notice FWS received three applications for incidental take permits under the Endangered Species Act in Lake County, Florida. Details here.
FOOD AND DRUG ADMINISTRATION:
Rule FDA amends the animal drug regulations to reflect application-related actions for new animal drug applications and abbreviated new animal drug applications during November and December 2016. Info here.
Rule FDA withdraws approval of a new animal drug application and an abbreviated new animal drug application at the sponsors’ requests because the products are no longer manufactured or marketed. Details here.
Rule FDA reopens the comment period for the notice entitled “Fruit Juice and Vegetable Juice as Color Additives in Food; Draft Guidance for Industry.” Info here.
FOOD AND NUTRITION SERVICE: Rule FNS reopens the comment period for the proposed rule that would implement four sections of the 2014 Farm Bill affecting eligibility, benefits, and program administration requirements for the Supplemental Nutrition Assistance Program (SNAP). Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS proposes to implement management measures described in Framework Amendment 5 to the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region. Details here.
Notice NMFS will collect information about fishing expenses and catch distribution for the Mariana Archipelago small boat-based reef fish, bottomfish, and pelagics fisheries. Details here.
Notice the Hydrographic Services Review Panel will hold a public meeting. Info here.
Notice NOAA Office of Coast Survey has released a draft National Charting Plan. Info here.