A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

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JUDICIAL: Includes SNAP, discovery, NEPA, contract, and estate issues.

In Anderson v. United States, No. 214CV2307JAMCKDPS, 2016 WL 6611192, (E.D. Cal. Nov. 9, 2016), plaintiff challenged Food and Nutrition Service’s (FNS) decision to permanently disqualify him from participating in SNAP. Plaintiff was disqualified when his employee exchanged cash for SNAP benefits. Court noted that, “Under the governing statute and regulations, a single instance of trafficking is sufficient for permanent disqualification from the Food Stamp Program, even where the owner of the store is not personally involved in, knows of, or benefits from an employee’s trafficking.” Court considered undisputed evidence that plaintiff “received full reimbursement from the trafficking transaction” under dispute and ruled defendant was entitled to summary judgment.

United States Sec. & Exch. Comm’n v. Haab, No. 115CV00659JMSMJD, 2016 WL 6610851, (S.D. Ind. Nov. 9, 2016) concerned a securities fraud suit by the SEC against an investment firm. SEC alleged defendants fraudulently raised $15 million from investors to fund short-term operating loans for farms and then misused proceeds. Court appointed a receiver to preserve defendant’s assets and receiver issued defendant a subpoena seeking financial documents. Defendant wanted to quash subpoenas claiming the requested documents are protected by Indiana’s “accountant-client” privilege. The court considered this argument and concluded that “while this statutory privilege might apply in a state suit, there is no accountant-client privilege under the federal common law.” Court also found the subpoenas did not create an “undue burden” on defendants and denied their motion to quash.

In Wild v. Connaughton, No. 14-35251, 2016 WL 6092397, (9th Cir. Oct. 19, 2016), plaintiffs’ National Environmental Policy Act (NEPA) claims challenged U.S. Forest Service’s failure to prepare a “supplemental environmental impact statement” for a ski area project. Court observed, “NEPA requires agencies to prepare environmental impact statements for federal actions ‘significantly affecting’ the environment and requires agencies to prepare supplemental environmental impact statements when ‘[t]here are significant new circumstances or information relevant to environmental concerns” that bear on “the proposed action or its impacts.’” On appeal, plaintiffs identified five categories of new information they argued “trigger supplemental NEPA analysis.” Appellate court determined Forest Service “took a ‘hard look’ at each category of information and reasonably determined that no supplemental NEPA analysis was required.” Court ruled Forest Service “was not arbitrary or capricious in failing to prepare supplemental NEPA analysis here.”

First Dakota Nat’l Bank v. Eco Energy, LLC, No. 8:13-CV-270, 2016 WL 6603162, (D. Neb. Nov. 8, 2016) involved a breach of contract claim. A third party (Nedak) owned an ethanol plant that closed. Prior to closing, defendant pulled its railcars from the plant allegedly violating an agreement to let Nedak’s creditors (plaintiff) know Nedak was in default. Plaintiff sued for breach of the collateral assignment and sought damages. Court found plaintiff “failed to meet its burden on the final element of its breach of contract claim.”  Accordingly, although defendant “failed to satisfy its obligation under the 2007 Collateral Assignment, the evidence is insufficient to allow this Court to conclude that [plaintiff] would have exercised its right to cure had it received written notice.” Judgment for defendant.

Hinderks v. Hinderks, No. 15-2165, 2016 WL 6636893, (Iowa Ct. App. Nov. 9, 2016) concerned a son and father that farmed together at the family homestead. Over a period of years, they each bought machinery and tools and kept them in buildings on the family property. When the father died in 2001, he was survived by his wife, Luella. Son died intestate in September 2014 and was survived by his third wife. Luella sued son’s estate, filing an action for replevin to recover 230 items remaining on the homestead. The court observed that, “Replevin is an action to recover specific personal property that has been wrongfully taken or wrongfully detained, with an incidental right to damages caused by reason of such detention.” Appellate court sided with district court that “the disclaimer filed by Luella was meant to be all-encompassing in regards to the machinery and tools necessary to farm.” Judgment for plaintiff affirmed.

REGULATORY:

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is reallocating the projected unused amount of Pacific cod from catcher vessels using trawl gear and catcher vessels greater than or equal to 60 feet length overall using pot gear to catcher processors using hook-and-line gear and C/Ps using pot gear in the Bering Sea and Aleutian Islands management area. Info here.

Rule NMFS implements accountability measures for the gray triggerfish recreational sector in the exclusive economic zone of the Gulf of Mexico for the 2017 fishing year through this temporary rule. Info here.

Notice NMFS proposes revised summer flounder specifications for the 2017 and 2018 fishing years. Details here.