A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

CASE LAW: Today’s cases include the APA, Black Farmers Discrimination Litigation, False Claims Act, PACA, and Access Regulation.

In United States Army Corps of Engineers v. Hawkes Co., Inc., the U.S. Supreme Court  affirmed the decision of the Eighth Circuit and held that a jurisdictional determination is a final agency action that is reviewable by the courts under the Administrative Procedures Act.  A copy of the opinion is here.

In Atchison v. U.S. Dist. Courts, No. CV 14-2045 (RC), 2016 WL 3034152 (D.D.C. May 27, 2016), plaintiff sued defendants associated with class-action litigation brought by African-American farmers alleging racial discrimination by the USDA. The court found the complaint failed to state a claim and dismissed the case against all defendants.

In the Matter of Application for Permit No. 36-16979 in the name of N. Snake Ground Water Dist., et al. N. Snake Ground Water Dist., Magic Valley Ground Water Dist. & Sw. Irrigation Dist., Petitioners-Respondents on Appeal, v. Idaho Dep’t of Water Res. & Gary Spackman, in his official capacity as Dir. of the Idaho Dep’t of Water Res., Respondents-Respondents on Appeal, v. Rangen Inc., Intervenor-Appellant on Appeal., No. 43564, 2016 WL 3043949 (Idaho May 27, 2016) concerned an application to appropriate water filed in 2013 by some water districts in Idaho. The districts applied to appropriate 12 cfs of water from springs and a local creek to mitigate irrigation and fish propagation. Here, the court affirmed an earlier decision that the districts’ application was not speculative. The court also concluded that the districts have statutory authority to condemn real property to obtain legal access for mitigation purposes.

In UNITED STATES OF AMERICA EX REL. BRANDON BARRICK, Plaintiff/Relator, v. PARKER-MIGLIORINI INTERNATIONAL, LLC; PARKER INTERNATIONAL, INC. aka PMI FOODS-USA; COTTONWOOD TRADING, LLC; FORTUNA FOODS, LLC; JOHN AND JANE DOES 1-10, Defendants., No. 2:12-CV-00381-DB, 2016 WL 3029933 (D. Utah May 1, 2016), plaintiff contended false export certificates were obtained for U.S. beef products “claiming beef was destined for Costa Rica, Honduras, and Moldova when the true destinations were Japan or China.” The court found that plaintiff’s claims did not fall within the False Claims Act which is violated “when the government pays money it shouldn’t have or when the government doesn’t receive money it should have.”

In JAMES TELZROW & NANCY TELZROW, Plaintiffs, v. UNITED STATES, Defendant., No. 15-1359C, 2016 WL 3034436 (Fed. Cl. May 26, 2016) plaintiffs alleged breach of contract by the USDA regarding wetlands conservation on their farm. Defendant claimed plaintiff’s complaint sought an “open-ended indemnity,” and failed because the deed contained no express indemnity clause. The court, however, found that plaintiff’s complaint sought damages caused by the government’s “alleged breach of its promise to undertake restoration at its own expense,” and not an open-ended indemnity.

Oyens Feed & Supply, Inc. v. Primebank, No. 15-0806, 2016 WL 3030828 (Iowa May 27, 2016) involved certified questions of law regarding the security interest of feed producers in hogs fed a supplier’s feed. The court determined that an agricultural supply dealer’s financing statement “cannot perfect a lien for quantities of feed sold on credit after the statement is filed.” The court also concluded the “acquisition price” is zero when livestock are born in the farmer’s facility.

HEEREN, LLC d/b/a RIDGEKING APPLE PACKAGING AND STORAGE, Plaintiff, v. CHERRY GROWERS, INC., Defendant., No. 1:15-CV-47, 2016 WL 3027194 (W.D. Mich. May 27, 2016) involved a claim under the Perishable Agricultural Commodities Act, 7 U.S.C. § 499 (“PACA”). The court found that the contractual arrangement between plaintiff and defendant allowed the defendant to make payments whenever possible. The court concluded that the plaintiff did not preserve its PACA trust rights because PACA “is intended to protect only those produce sellers making short-term credit arrangements.”

In Oregon Nat. Desert Ass’n v. Jewell, No. 13-36078, 2016 WL 3033674 (9th Cir. May 26, 2016) the plaintiffs challenged a wind-energy development claiming the U.S. Bureau of Land Management’s (“BLM”) environmental review of the project did not address impacts to the greater sage grouse bird. The court concluded that BLM’s review “did not adequately assess baseline sage grouse numbers during winter” where the wind turbines would be installed and reversed the district court’s entry of summary judgment in favor of the BLM.

In CEDAR POINT NURSERY & FOWLER PACKING CO., Plaintiffs, v. WILLIAM B. GOULD IV, et al., Defendants., No. 116CV00185LJOBAM, 2016 WL 3019277 (E.D. Cal. May 26, 2016), plaintiffs claimed the “Access Regulation” allowing union organizers access to worksites for limited periods of time is unconstitutional. They argued the regulation lets third parties take property without providing compensation and permits “unlawful seizure of property rights.” The court denied plaintiffs’ motion for a preliminary injunction and concluded that they failed to show the Access Regulation “caused or will cause a ‘meaningful interference’ with their possessory interests.”

REGULATORY: Includes new CFTC and EPA rules.

COMMODITY FUTURES TRADING COMMISSION:

Notice soliciting comments on duties of CFTC registrants to design and implement policies identifying relevant red flags (the “Identity Theft Red Flags Rules”), and to notify cardholders of identity theft risks. Info here.

Rule that Commission adopts a rule addressing cross-border application of the Commission’s margin requirements for CSEs’ (“Covered Swap Entities”) uncleared swaps. Info here.

Notice soliciting comments on a new information collection that applies to CSEs. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishing tolerances for residues of fluensulfone in or on multiple commodities. Details here.

Rule that EPA revokes tolerances in follow-up to canceled product registrations or uses for acephate, aldicarb, azinphos-methyl, etridiazole, fenarimol, imazamethabenz-methyl, tepraloxydim, thiazopyr, and tralkoxydim. Info here.

Rule that EPA issued a final rule in the Federal Register of April 8, 2016, concerning the addition of certain commodities. Vegetable cucurbit, group 9 was inadvertently omitted. Info here.