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 procedural, crop insurance, zoning, intellectual property, EPA, and SNAP issues.

Int’l Foodsource, LLC v. Grower Direct Nut Co., No. 16CV3140WHWCLW, 2016 WL 4150748 (D.N.J. Aug. 3, 2016) concerned two contracts for the sale of walnuts. With arbitration pending in California, plaintiff sought judgment declaring the arbitration provision unenforceable under New Jersey state law. Plaintiff claimed that the “mutual assent” requirement for arbitration agreements “is the same under New Jersey and California law.” The court found a conflict between New Jersey and California law as “New Jersey law requires an arbitration provision to contain waiver-of-rights language for parties to reach ‘mutual assent’ and California law does not.” Court further reasoned that California has “the more significant relationship,” and under New Jersey’s choice-of-law rules, “the Court will apply California law to the construction of the arbitration clause.” Plaintiff’s motion denied.

In Buckman v. Nau Country Ins. Co., No. 3:14-CV-00921-CRS, 2016 WL 4154463 (W.D. Ky. Aug. 4, 2016), plaintiff sued for negligent misrepresentation in the sale of a crop insurance policy. Parties did not dispute that agent misrepresented the policy terms that the county’s 2011 actual com crop yield was based on “harvested acres” and not “planted acres.” This calculation altered the number of bushels per acre in the final actual yield and decreased the “likelihood of triggering an indemnity payment.” The court found plaintiff’s reliance on the “relevant misrepresentation was not reasonable.” Summary judgment for defendant.

In Cotton Tree Serv., Inc. v. Zoning Bd. of Appeals of Westhampton, No. 15-P-1441, 2016 WL 4162065 (Mass. App. Ct. Aug. 5, 2016), a zoning board upheld orders prohibiting plaintiff from conducting commercial wood chipping and storage activities on its property without a special permit. Plaintiff appealed, claiming the orders impermissibly interfered with “protected agricultural activities” and defendant’s own zoning by-laws. Court considered whether plaintiff’s mulch and composting activity was protected as, and considered to be, a “primary agricultural activity.” Court determined that plaintiff’s mulch production “does not involve growing or harvesting any forest products,” and that its mulching “is incidental to any other agricultural or farming use.” Judgment for zoning board affirmed.

Bayer Healthcare, LLC v. Zoetis Inc., No. 12 C 00630, 2016 WL 4179087 (N.D. Ill. Aug. 8, 2016) involves the “506 patent” owned by plaintiff (Bayer) that covers a “process for treating bovine respiratory disease using ‘a pharmaceutically effective composition comprising a fluoroquinolone … in one high dose, single treatment.’” Among a number of motions, Bayer moved for summary judgment against defendant’s “prior invention” defense. Court found “a material dispute as to whether Pfizer first reduced to practice the single, high dose disclosed in the ’506 patent,” and denied plaintiff’s motion for summary judgment.

In FLORIDA WILDLIFE FEDERATION, et al., Plaintiffs, v. GINA MCCARTHY, et al., Defendants., No. 8:14-CV-3204-T-23JSS, 2016 WL 4183412 (M.D. Fla. Aug. 8, 2016), plaintiffs sued under both the Clean Water Act and the Administrative Procedure Act, claiming a “decision document” issued by the EPA exceeded their legal authority. Defendant countered that plaintiff’s complaint failed to identify the “statutory authority” exceeded by the EPA. The court agreed with defendant, noting the “complaint claims neither that the EPA promulgated a regulation without the notice-and-comment procedure required by the Administrative Procedure Act and nor that the EPA wields power in excess of that authorized by the Clean Water Act.” Plaintiffs’ claim dismissed.

Smith v. United States Dep’t of Agric., No. 15-CV-04497-TEH, 2016 WL 4179786 (N.D. Cal. Aug. 8, 2016) involved the USDA’s warning in September 2015 that Supplemental Nutrition Assistance Program (SNAP) benefits might not be provided during a government shutdown. Plaintiff sued on behalf of a nationwide class of SNAP beneficiaries, claiming violation of the Administrative Procedures Act and violation of the Food and Nutrition Act of 2008. Court found plaintiff’s claims moot and that “the exception for cases ‘capable of repetition, yet evading review’ does not apply.” USDA’s motion to dismiss granted.

REGULATORY: Includes APHIS, FNS, FTZ, FS, ITA and NMFS rules and notices.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice announcing decision to concur with the World Organization for Animal Health’s bovine spongiform encephalopathy risk designations for 14 regions. Details here.

Notice announcing decision to authorize the importation of fresh figs from Peru into the continental United States. Info here.

Notice announcing decision to authorize the importation of fresh pomegranates from Peru into the continental United States. Info here.

FOOD AND NUTRITION SERVICE:

Notice seeking comment on the proposed collection regarding a revision of the currently approved burden for the Supplemental Nutrition Assistance Program (SNAP): State Agency Options information collection. Info here.

Notice FNS is publishing for public comment a summary of a proposed information collection regarding revision of a currently approved collection for the Supplemental Nutrition Assistance Program (SNAP), the forms FNS-388, State Issuance and Participation Estimates, and FNS-388A, Project Area Data Format. Info here.

Notice seeking comment on a proposed information collection concerning the Third Access Participation Eligibility and Certification Study Series. Info here.

FOREIGN-TRADE ZONES BOARD: Notice the Givaudan Flavors Corporation submitted a notification of proposed production activity to the FTZ Board for its facility within FTZ 46—Subzone 46G in Cincinnati, Ohio. Info here.

FOREST SERVICE:

Notice that in the September 11, 2012 Federal Register the Forest Service announced its intention to prepare an Environmental Impact Statement in accordance with NEPA to improve water quality and reduce soil loss on the Daniel Boone National Forest. The draft environmental impact statement expected in December 2012 was not completed and FS withdraws the Notice of Intent to prepare. Details here.

Notice The Tehama County Resource Advisory Committee (RAC) will meet in Red Bluff, California. Info here.

Notice listing newspapers used by the ranger districts, forests and regional office of the Intermountain Region to publish legal notices required under 36 CFR 214, 219, and 218. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Department of Commerce preliminarily determines that countervailable subsidies are being provided to producers and exporters of pasta from Turkey. Review period is January 1, 2014 through December 31, 2014. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific ocean perch in the Western Aleutian district of the Bering Sea and Aleutian Islands management area by vessels participating in the BSAI trawl limited access fishery. Info here.

Notice NMFS announces the receipt of an application for an exempted fishing permit from Dr. David Die and Chiara Pacini at the University of Miami, Rosenstiel School of Marine and Atmospheric Science. Details here.