A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu
JUDICIAL: NMFS, PACA, and real property issues.
David Goethel, et al. v. Penny Pritzker, et al., No. 15-CV-497-JL, 2016 WL 4076831 (D.N.H. July 29, 2016) involved challenges to the Magnuson-Stevens Fishery Conservation and Management Act (MSA), and actions by the National Marine Fisheries Service (NMFS). Plaintiffs challenged a requirement that “commercial fishermen must be accompanied by at-sea monitors (‘ASMs’) who collect fishing-related data.” Per NMFS, the ASM provision called for the industry to pay the costs of the monitors. Plaintiffs argued the “industry funding requirement is illegal” and defendants “lack the legal authority to require fishermen to pay the monitors’ costs.” The court declined to rule that the MSA prohibits industry funding of at-sea monitors and found no alleged Commerce Clause violation, noting “the costs of monitors are part of the permissible regulation of plaintiffs’ commercial fishing activities.” Defendants’ motion for summary judgment granted.
Chiquita Fresh N. Am., LLC, Dole Fresh Fruit Co., S. Katzman Produce Inc. & Katzman Berry Corp., Plaintiffs, v. Fierman Produce Exch. Inc. & Morris Okun Intervening Plaintiffs, v. Long Island Banana Corp., Suffolk Banana Co., Thomas J. Hoey, Yolanda Hoey, Brook Enterprises Ltd., H B Realty Corp. & Stuls Holdings Corp., Defendants., No. 14-CV-0982(ADS)(AKT), 2016 WL 4098546 (E.D.N.Y. July 28, 2016) concerned the Perishable Agricultural Commodities Act (PACA). Plaintiffs contend they sold defendants $718,515.85 worth of produce, for which defendants never paid. Under PACA, upon the defendants’ receipt of the produce, a statutory trust (“PACA Trust”) was created for plaintiffs’ benefit. Plaintiffs alleged they were entitled to recover the amounts due, plus costs. At issue was whether a house was an asset of the PACA Trust and whether proceeds from the sale of the house by defendant would be placed in an escrow account for PACA creditors. Defendant argued the property was purchased with funds unrelated to plaintiff’s claims. Court reasoned that defendant had to demonstrate that “(1) no PACA trust existed when (the property) was purchased; or (2) that if a PACA trust existed at that time, the property was not purchased with trust assets; or (3) that if a PACA trust existed when the property was purchased and the property was purchased with trust assets, the debtor thereafter paid all unpaid sellers in full prior to the transactions involving the [PACA] Creditors, thereby terminating the trust.” Court ruled for plaintiff declaring property an asset of the PACA Trust.
In the Matter of the Marriage of Barbara JOHNSON, Guardian ad litem & Conservator for Joanne M. Price, Petitioner-Respondent, & Gari W. PRICE, Respondent-Appellant, & PRICE FAMILY TRUST & Peter A. Price, Successor Tr. of Price Family Trust, Respondents below., No. 110747171, 2016 WL 4123931 (Or. Ct. App. Aug. 3, 2016) involved a divorce and land held in a family trust. Husband requested that the court order the sale of a conservation easement, while his wife opposed selling a conservation easement and wanted the family trust revoked. Husband challenged the court’s authority to divide the marital assets held in trust. Appellate court found lower court’s exercise of authority over the trust assets legally permissible, concluding that, “Because this was a dissolution proceeding and husband and wife were the trust’s only beneficiaries, the court had the authority to ‘exercise direct authority over the disposition of trust assets.’”
In PACIFIC DAWN LLC; JESSIE’S ILWACO FISH COMPANY, Plaintiffs-Appellants, & OCEAN GOLD SEAFOODS, INC.; CHELLISSA LLC, Plaintiffs, v. PENNY PRITZKER, Sec’y of the United States Dep’t of Commerce; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; NATIONAL MARINE FISHERIES SERVICE, Defendants-Appellees, MIDWATER TRAWLERS COOPERATIVE; TRIDENT SEAFOODS GROUP; DULCICH, INC., DBA Pac. Seafood Group; ARCTIC STORM MANAGEMENT GROUP, LLC; ENVIRONMENTAL DEFENSE FUND, Intervenor-Defendants-Appellees., No. 14-15224, 2016 WL 4120688 (9th Cir. Aug. 3, 2016), plaintiff, a fish harvester and processor, challenged a 2013 decision by the National Marine Fisheries Service (NMFS) “to calculate the amount of their initial share of the total allowable catch of Pacific whiting based on their participation in the fishery prior to 2003 and 2004, respectively, rather than on their much greater participation in the years immediately before 2010.” The court noted that NMFS “reiterated that it had ‘thoroughly explored’ the ‘issue of investment and dependence for more recent years.’ and had determined that “retaining the qualifying period ending in 2003 or 2004 would not unduly affect current dependence on the fishery because ‘most current harvesters and processors in the fishery were also historical participants during the qualifying periods for initial allocation.'” Appellate court concluded that NMFS considered required factors and “made a reasonable decision to use the 2003 and 2004 dates.” Judgment for defendant affirmed.
REGULATORY: Includes AMS, APHIS, EPA, NMFS and RBS rules and notices.
AGRICULTURAL MARKETING SERVICE:
Rule establishing a marketing agreement and order for pecans grown in the states of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas. Info here.
Rule AMS revises 41 U.S. Standards for Grades of fresh fruits and vegetables, fruits and vegetables for processing, nuts, and specialty crops by removing the “Unclassified” category from each standard. Info here.
Rule seeking comments on proposed amendment to Marketing Orders, regulating handling of cranberries grown in the states of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and New York. Details here.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE:
Rule proposing to amend regulations allowing importation of fresh mango fruit from Vietnam into the continental United States. Details here.
Rule proposing to amend the Animal Welfare Act (AWA) regulations in response to a 2014 Farm Bill amendment to the Act providing the Secretary of Agriculture with authority to determine that animal dealers and exhibitors are not required to obtain a license under the Act and regulations if the size of the business conducting AWA-related activities is determined to be de minimis by the Secretary. Details here.
ENVIRONMENTAL PROTECTION AGENCY: Rule notifying public as required by FIFRA that the EPA Administrator has forwarded to the Secretary of USDA a draft regulatory document concerning a Procedural Rule Amendment. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS implements final specifications for the 2016-2018 bluefish fishery, including catch restrictions for commercial and recreational fisheries. Info here.
Rule NMFS implements management measures for the 2016 summer flounder, scup, and black sea bass recreational fisheries, changes to the commercial scup incidental possession limit, and corrections to the summer flounder commercial fishery minimum mesh size regulations. Details here.
Rule NMFS prohibits directed fishing for dusky rockfish in the Western Regulatory Area of the Gulf of Alaska. Info here.
Rule NMFS prohibits directed fishing for northern rockfish in the Western Regulatory Area of the Gulf of Alaska. Details here.
Rule NMFS prohibits directed fishing for Pacific Ocean perch in the Western Regulatory Area of the Gulf of Alaska. Info here.
RURAL BUSINESS-COOPERATIVE SERVICE: Notice RBS will request an extension for a currently approved information collection in support of the Rural Cooperative Development Grants program. Details here.