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 evidence, easement, ESA, water rights and administrative law issues.
In re: Processed Egg Products Antitrust Litig., No. 08-MD-2002, 2016 WL 3912843 (E.D. Pa. July 19, 2016) concerns accusations that major egg producers are conspiring to limit the supply of eggs and thereby, increase egg prices. Plaintiff moved to exclude testimony from defendant’s expert economist witness, contending his testimony is both irrelevant and unnecessary. Court found exclusion of the expert’s testimony “premature” and concluded it would be helpful considering that “the topics covered, and the analysis provided, exceeds the common knowledge of the average juror.” Court denied plaintiff’s motion to exclude the testimony.
In Orange Cty. Land Trust, Inc. v. Tamira Amelia Farm, LLC, No. 2014-10995, 2016 WL 3910476 (N.Y. App. Div. July 20, 2016), plaintiff claimed defendant violated a conservation easement and sought removal of a barn and access road on the property at issue. The court reasoned that a conservation easement “should be interpreted so as to give effect to the intent of the parties as expressed by the language employed.” In interpreting the easement terms, the court determined defendant had the right to construct unpaved access roads in the farm area without the plaintiff’s prior permission and noted that “even if the plaintiff’s permission had been required, after agreeing to consider a retroactive application for construction of the access road, the plaintiff unreasonably withheld its permission under the terms of the easement and the circumstances.”
In Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., No. 14-31008, 2016 WL 3568093 (5th Cir. June 30, 2016), private landowners in Louisiana sought declaratory and injunctive relief against the Fish and Wildlife Service (FWS) challenging the inclusion of their land in “critical-habitat designation” under the Endangered Species Act for the dusky gopher frog. Plaintiffs appealed after lower court granted summary judgment to FWS. Appellate court found that the FWS reasonably determined “that designating occupied habitat alone would be inadequate to ensure the conservation of the dusky gopher frog” and that the land area at issue “is essential for the conservation of the frog.” Court affirmed upholding the critical-habitat designation.
In Magner v. Brinkman, 2016 S.D. 50, plaintiff claimed defendant caused an increased amount of water drainage on plaintiff’s land by altering the natural flow of water across defendant’s property. Lower court ruled in favor of plaintiff and granted a permanent injunction requiring defendant to reverse any alterations made to the drainage pattern. On appeal, plaintiff demonstrated defendant drained water onto plaintiff’s property by way of a water course that was “neither natural nor established.” Appellate court reversed the injunction, however, finding that the plaintiffs had “an adequate remedy at law” and could have avoided future litigation “by seeking compensation for past and future damages in one action.”
In Friends of Animals v. Jewell, No. 15-5223, 2016 WL 3854010 (D.C. Cir. July 15, 2016), appellate court considered whether plaintiff had informational standing under Article III of the Constitution to challenge the failure of the Secretary of Interior to act in accordance with a deadline in Section 4 of the Endangered Species Act. Appellate court found that because the deadline provision does not require disclosure of any information, plaintiff did not suffer an informational injury and therefore, did not have informational standing. Dismissal of complaint affirmed.
Ctr. for Biological Diversity v. Dep’t of Fish & Wildlife, No. B245131, 2016 WL 3679241 (Cal. Ct. App. July 11, 2016) concerned an appeal by defendant, a developer, contending that the appellate court should issue its own writ of mandate and supervise compliance with its orders. Defendant based its argument on language in the California Public Resources Code. Appellate court determined it did not have the authority to issue its own writ of mandate and concluded “our duty is to decide issues pertinent to the writ of mandate’s scope, insofar as possible, and then remit the matter to the trial court.”
REGULATORY: Includes USDA, FSIS, FS, ITA, NMFS and RUS rules and notices.
AGRICULTURE DEPARTMENT: Notice requesting comments on changes to the USDA Registration Form to Request Electronic Access Code information collection allowing USDA customers to share data and receive services electronically. Info here.
FOOD SAFETY AND INSPECTION SERVICE: Notice the Office of the Deputy Under Secretary for Food Safety, USDA, and the FDA, are sponsoring a public meeting on September 22, 2016. Details here.
FOREST SERVICE:
Notice the Ashley National Forest initiates the first phase of the forest planning process pursuant to the National Forest System Land Management Planning rule. Details here.
Notice the Gogebic Resource Advisory Committee will meet in Watersmeet, Michigan. Info here.
Notice the Missoula Resource Advisory Committee will meet in Frenchtown, Montana. Info here.
Notice the Tuolumne and Mariposa Counties Resource Advisory Committee will meet in Sonora, California. Info here.
INTERNATIONAL TRADE ADMINISTRATION:
Notice Department of Commerce rescinds, in part, antidumping duty administrative reviews for the antidumping duty order on frozen warmwater shrimp from Vietnam for the periods February 1, 2014, through January 31, 2015, and February 1, 2015, through January 31, 2016 with respect to sales made by the Minh Phu Group. Details here.
Notice on July 18, 2016, Department of Commerce issued final determination under a section 129 proceeding regarding the antidumping duty order on frozen warmwater shrimp from Vietnam. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS issues regulations implementing Amendment 17A to the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico. Info here.
Notice Caribbean Fishery Management Council will hold public hearings on Amendments to the U.S. Caribbean Reef Fish, Spiny Lobster, and Corals and Reef Associated Plants and Invertebrates Fishery Management Plans. Details here.
Notice announces 12-month finding and listing determination on a petition to list the Caribbean electric ray as threatened or endangered under the Endangered Species Act. Info here.
RURAL UTILITIES SERVICE: Rule RUS corrects its portion of USDA’s uniform federal assistance final rule, published in the Federal Register on February 16, 2016 by revising the procurement methods section. Info here.