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 marketing order, SNAP, urb & ag, and PACA issues.
In TRINIDAD RAMIREZ et al., Plaintiffs and Appellants, v. TULARE COUNTY DISTRICT ATTORNEY’S OFFICE et al., Defendants and Respondents. KHAMFONG CHAMPAHEUANG et al., Plaintiffs and Appellants, v. TULARE COUNTY DISTRICT ATTORNEY’S OFFICE et al., Defendants and Respondents. RICHARD SANCHEZ et al., Plaintiffs and Appellants, v. TULARE COUNTY DISTRICT ATTORNEY’S OFFICE et al., Defendants and Respondents, F071223, 2017 WL 1007953 (Cal. Ct. App. March 15, 2017), plaintiffs sought return of property seized during arrests for drug activity. Defendants claimed plaintiffs failed to “exhaust administrative remedies.” Court observed that, “[I]f an administrative remedy is provided by statute, such remedy must be exhausted before judicial review of the administrative action is available.” To bolster their case, defendants relied on United States v. Superior Court (1941) 19 Cal.2d 189, in which certain shippers and orange growers sought to enjoin the enforcement of a marketing order issued by the United States Secretary of Agriculture pursuant to the Agricultural Marketing Agreement Act of 1937. In that case, the court held that growers “could not evade the requirement to exhaust their administrative remedies by merely alleging that the order issued by the Secretary of Agriculture was ‘void’ on the ground it was not approved by the requisite number of growers.” Here, the court distinguished that case by reasoning that, “Exhaustion of administrative remedies does not apply . . . because the supposed forfeiture proceedings do not carry any force of law since the persons initiating them were devoid of statutory authority to act.” Trial court judgment reversed.
In FELICIA PIERCE, Appellant v. DEBBIE BLALACK, ET AL., Appellees, No. 06-17-00027-CV, 2017 WL 1018608 (Tex. App. March 16, 2017), appellant claimed she was unable to pay county court costs involving a dispute and trial court held that her appeal was “frivolous.” On appeal, she provided evidence that her three children were eligible for free meals at school and that the family received government assistance through the Supplemental Nutrition Assistance Program (SNAP). Court noted she also received income from a publishing business, but ultimately determined that trial court erred in dismissing the “totality” of appellant’s claims. Trial court ruling reversed.
In Clifford Leon LEE, II, Plaintiff, v. Keith COLLINS, Defendant, No. COA16-789, 2017 WL 900009 (N.C. Ct. App. March 7, 2017), plaintiff sued for injuries suffered when he jumped into his pickup truck after being chased by defendant’s pit bull. Plaintiff appealed ruling of summary judgment for defendant claiming “a genuine issue of material fact existed as to whether Defendant was negligent.” Plaintiff provided no evidence dog had “violent tendencies,” and admitted that he had “no knowledge at all concerning the dog” prior to the incident. Plaintiff also failed to rebut defendant’s statement that “[n]either of the dogs in my possession had ever exhibited any viciousness or aggressiveness towards anyone.” Summary judgment for defendant affirmed.
CHONG’S PRODUCE, INC.,, Plaintiff, v. PUSHPAK RESTAURANTS INC., et al., Defendants, No.15-cv-04923-HRL, 2017 WL 990585 (N.D. Cal. Feb. 27, 2017) involved violations of the Perishable Agricultural Commodities Act (PACA). Plaintiff sought a default judgment and attorney fees. Court enumerated seven factors established in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986), that should be considered in determining whether to grant default judgment. Court also observed that although no statutory basis for attorneys’ fees exists under PACA, the contract in this case provided for attorney fees. However, plaintiff’s attorney provided no evidence that her hourly rate ($380) was “reasonable.” In ruling that plaintiff’s attorney’s hourly rate was reasonable, the court noted that attorney was admitted to the California Bar in 1996 and her rate “has been found reasonable by courts in this district in similar PACA cases.”
REGULATORY: Includes AMS, EPA, FWS, FDA, FS, and NOAA rules and notices.
AGRICULTURAL MARKETING SERVICE: Notice AMS will request approval for an extension of the currently approved information collection for Tobacco Report (OMB No. 0581-0004). Info here.
ENVIRONMENTAL PROTECTION AGENCY: Rule EPA Region 4 is publishing final Notice of Deletion for the Perdido Ground Water Contamination Superfund Site from the National Priorities List. Details here.
FISH AND WILDLIFE SERVICE: Notice FWS announces availability of a draft comprehensive conservation plan and environmental assessment for Massasoit National Wildlife Refuge for public review and comment. Info here.
FOOD AND DRUG ADMINISTRATION: Rule FDA is revising regulations to reflect changes to the Agency’s organizational structure, including dissolution of the Regional Food and Drug Director position. Details here.
FOREST SERVICE: Notice the Missouri River Resource Advisory Committee will meet in Helena, Montana. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS closes the southern area Angling category fishery for large medium and giant Atlantic bluefin tuna. Details here.
Rule NMFS has received a request from the Monterey Bay National Marine Sanctuary for authorization to take marine mammals incidental to commercial fireworks displays permitted by the Sanctuary in California. Details here.
Notice NMFS announces receipt of an exempted fishing permit application for 2017 and 2018 that would continue work done in 2015 and 2016. Details here.