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, November 16 at 12 noon (ET) for a free webinar: The Veterinary Feed Directive Rules and How They Will Affect You. Details and sign-in information here.  


JUDICIAL:

ALTA WIND I OWNER-LESSOR C, & ALTA WIND I OWNER-LESSOR D, et al., Plaintiffs, v. THE UNITED STATES, Defendant., No. 13-402T, 2016 WL 6427674, (Fed. Cl. Oct. 24, 2016) involved six wind farms near Los Angeles that sued United States in Court of Federal Claims in 2013, claiming government miscalculated how much it should have paid them (as owners of renewable energy facilities) under the American Recovery and Reinvestment Act of 2009. Plaintiffs argued they should receive 30 percent of the “basis” of their properties. Government contended it would calculate the value of each farm’s parts and their development and construction costs to determine the grants. At issue was a $200 million gap between what plaintiffs claimed they were owed and amount government paid. Court reasoned that “the basis of a property is its cost to its owner and that because the wind farm owners bought the farms, rather than build them from scratch, their basis is the purchase price of the farms.” The court stated, “If Congress had intended some other definition of ‘basis’ to apply in situations like this, then it should have said so when it drafted the statute. In the absence of such guidance, the court finds that plaintiffs have calculated the basis of their wind farm assets in the least imperfect way possible.” In ruling for plaintiffs, court rejected government’s argument that “the fair value of the properties cannot be determined by the amount the owners paid, because that price included property ineligible for the grants.” A copy of the opinion is available here.

FDIC v. Kansas Bankers Surety Company, 15-1390 (10th Cir. Nov. 1, 2016) involved a cow-leasing scheme resulting in bankruptcy. A bank loan officer created massive fraud by funneling loans through a dairy. The dairy went bankrupt and sued the bank. FDIC was appointed receiver for the bank and sued bank’s surety (which held a “financial institution crime bond”) to recover losses. Insurer denied FDIC’s claim arguing that “a full proof of loss had not been submitted and accepted before the FDIC took over the bank, so the bond was terminated and no more claims could be made against it.” Appellate court found that “FDIC’s claim of ‘non-standard language’ in the bond’s contract is not valid, nor is the FDIC’s claim that Colorado law required it only to be in ‘substantial compliance’ with proof-of-loss requirements to make a claim on the bond.” Plaintiff’s appeal denied. A copy of the opinion is available here.


REGULATORY: Includes FWS, FDA, and ITA rules and notices.

FISH AND WILDLIFE SERVICE:

Rule FWS is amending the List of Endangered and Threatened Wildlife by adding: three foreign coral species, dusky sea snake, Banggai cardinalfish, the Tanzanian distinct population segment of African coelacanth, Nassau grouper, and three angelshark species. Info here.

Notice announcing availability of a Finding of No Significant Impact for the final Environmental Assessment under the National Environmental Policy Act for the issuance of a take permit for golden eagles pursuant to the Bald and Golden Eagle Protection Act. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule announcing establishment of a docket to receive comments on the appropriate reference amount customarily consumed and product category for flavored nut butter spreads, and products that can be used to fill cupcakes and other desserts. Details here.

Notice announcing availability of a draft revised guidance for industry (GFI) #170 entitled “Animal Drug User Fees and Fee Waivers and Reductions.” Info here.

Notice announcing a forthcoming public advisory committee meeting of the Science Board to the Food and Drug Administration. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Department of Commerce determines countervailable subsidies are being provided to producers and exporters of ammonium sulfate from China. Info here.