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 bankruptcy, GIPSA, pesticides, FDA, and energy issues. 

In In re WILLIAM MATTHEW DUGO, Debtor. BANK OF STOCKTON, Appellant, v. WILLIAM MATTHEW DUGO, Appellee., No. BR 14-02152, 2016 WL 4126757 (E.D. Cal. Aug. 3, 2016), plaintiff, a bank, appealed a bankruptcy court’s exclusion of its “Alternate Direct Testimony declarations and exhibits.” Plaintiff argued bankruptcy court’s exclusion of the declarations and exhibits was “tantamount to a terminating sanction for a discovery violation and that the bankruptcy court failed to consider important factors for imposing such a severe sanction.” Appellate court reasoned a bankruptcy court “must consider whether the claimed noncompliance involved willfulness, fault, or bad faith and the availability of less severe sanctions before imposing sanctions. . . that effectively terminate the adversary proceeding.” Appellate court found bankruptcy court abused its discretion and reversed the court’s order for defendant.

In United States v. Gentry, No. 1:12-CV-215-SA-DAS, 2016 WL 4132248 (N.D. Miss. Aug. 2, 2016), USDA sought summary judgment against a livestock dealer under the Packers and Stockyards Act for “failing to timely pay full purchase price for livestock or for failing to maintain adequate bond coverage.” The court noted that “The Packers and Stockyards Act provides civil monetary penalties for a ‘stockyard owner, market agency, or dealer who knowingly fails to obey’ an order of the Secretary of Agriculture.” Overwhelming evidence revealed defendant made a number of unlawful livestock transactions. Summary judgment granted for the statutory penalties as “undisputed evidence” demonstrated defendant “violated the Secretary’s order and is subject to the civil penalties prescribed by the Act.” Court ordered a separate hearing regarding injunction sought by USDA.

In Bloomfield v. Beier, 2016-Ohio-5167, plaintiffs alleged negligence in application of pesticides on a neighboring property which settled onto their property in May 2013 and appealed lower court’s grant of summary judgment for defendant. Defendants raised defense of res judicata and claim preclusion arguing plaintiffs’ claims were settled in small claims court in March 2014. Plaintiffs had amended their complaint alleging permanent injury was diagnosed in December 2014 and raised “fundamental fairness and due process” arguments as to why res judicata should not bar their common pleas action. Plaintiffs relied on Davis v. Wal-Mart Stores, Inc., in which the court determined that plaintiffs were not barred by res judicata “from bringing a spoliation of evidence claim where evidence of spoliation was not discovered until after the conclusion of the primary, intentional tort action.” Court concluded plaintiffs did not present “ sufficient arguments to demonstrate how any of their current claims are independent of the alleged negligent acts of May 2013.” Summary judgment for defendant affirmed.

Animal Legal Def. Fund v. U.S. Food & Drug Admin., No. 13-17131, 2016 WL 4120696 (9th Cir. Aug. 3, 2016) was ordered “reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3,” upon the vote of a majority of nonrecused active judges. The court also noted that the three-judge panel opinion “shall not be cited as precedent by or to any court of the Ninth Circuit.”

In Ellis-Hall Consultants v. Pub. Serv. Comm’n, 2016 UT 34, plaintiff developed wind power projects to sell power to utility companies. In this case, a utility company was required by to provide “indicative pricing” to plaintiff who sought a power purchase agreement. Plaintiff received an indicative pricing proposal, but the utility company later rescinded that proposal and “refused to proceed with negotiations on a power purchase agreement under its earlier indicative pricing.” Plaintiff challenged that decision in a proceeding before the Commission (defendant) and sought to rely on the old indicative pricing proposal, but defendant disagreed. Court reversed the Commission’s ruling against plaintiff, reasoning that “A prior pricing proposal ceases to be indicative if it is subject not just to an “update” or to new “calculations” but to a fundamental change in methodology.” Court concluded plaintiff  “is not required to submit a request for new indicating pricing” and  “is entitled to proceed in reliance on the methodology set forth in the indicative pricing proposal it received.”

REGULATORY includes AMS, USDA, FNS, FS, ITA and NMFS rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule AMS amends the Cotton Board Rules and Regulations, decreasing the value assigned to imported cotton for purposes of calculating supplemental assessments collected for use by the Cotton Research and Promotion Program. Info here.

AGRICULTURAL DEPARTMENT: Notice USDA announces the solicitation for nominations to fill vacancies on the National Agricultural Research, Extension, Education, and Economics Advisory Board and its subcommittees. Info here.

FOOD AND NUTRITION SERVICE:

Notice announcing the annual adjustments to the national average payment rates for meals and snacks served in child care centers, outside-school-hours care centers, at-risk afterschool care centers, and adult day care centers. Details here.

Notice announcing annual adjustments to the “national average payments,” the amount of money the Federal Government provides States for lunches, afterschool snacks and breakfasts served to children participating in the National School Lunch and School Breakfast Programs. Details here.

FOREST SERVICE:

Notice The Siskiyou County Resource Advisory Committee (RAC) will meet in Yreka, California. Info here.

Notice FS seeks comments on the new information collection, Cooperative Wildland Fire Management and Stafford Act Response Agreements. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice Department of Commerce finds that revocation of the antidumping duty order on certain raw pistachios from Iran would likely lead to continuation or recurrence of dumping at the rates identified in the “Final Results of Review” section of this notice. Info here.

Notice The Department of Commerce is conducting the first administrative review of the antidumping duty order on MSG from China covering the period of review May 8, 2014 through October 31, 2015. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS closes the northern area Angling category fishery for large medium and giant Atlantic bluefin. Details here.

Notice The New England Fishery Management Council is scheduling a joint public meeting of its Monkfish Advisory Panel to consider actions affecting New England fisheries. Info here.