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: Cases include APA, Fourth Amendment, class action, crop insurance and trademark issues.
Ohio Valley Envtl. Coal., Inc. v. McCarthy, No. CV 3:15-0271, 2016 WL 3406133 (S.D.W. Va. June 17, 2016) case concerned the EPA’s Motion for Reconsideration of an order requiring them to supplement the administrative record in this agency review case. The plaintiffs sued the EPA for failing to perform a non-discretionary duty under the CWA, “to reject the West Virginia Department of Environmental Protection’s decision to not develop Total Maximum Daily Loads for some West Virginia streams identified as ‘biologically impaired’ due to ‘ionic stress.’” The EPA countered that the court “applied an inapplicable APA framework to plaintiffs’ motion to supplement, and the Court ordered supplementation based on incorrect assumptions that EPA made certain judicially-reviewable, official administrative findings and decisions.” EPA’s motion for reconsideration was denied.
In Mayfield v. Bethards, No. 15-3074, 2016 WL 3397503 (10th Cir. June 20, 2016), plaintiffs claim defendant, a deputy, violated their Fourth and Fourteenth Amendment rights by killing their dog. The defendant claimed qualified-immunity and moved to dismiss the complaint for failure to state a claim. The district court denied the deputy’s motion and he appealed. The appellate court affirmed, ruling that the complaint stated a plausible Fourth Amendment claim as killing plaintiff’s dog was an unreasonable seizure.
In In re: Imprelis Herbicide Mktg., No. 11-MD-02284, 2016 WL 3406236 (E.D. Pa. June 15, 2016), the plaintiffs moved for a declaration that they had opted out of a class action herbicide settlement and that some claims in their state lawsuit for damages would be excluded from the settlement. District Court denied plaintiffs’ motion finding plaintiffs did not opt out of the settlement as their letter to defendant, proposing to opt out of the settlement, was “ambiguous.”
SPRING CREEK FARMING COMPANY, Plaintiff-Appellant, v. FEDERAL CROP INSURANCE CORPORATION, RISK MANAGEMENT AGENCY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, U.S. DEPARTMENT OF AGRICULTURE, SECRETARY, U.S. DEPARTMENT OF AGRICULTURE, Defendants-Appellees., No. 15-14818, 2016 WL 3538822 (11th Cir. June 29, 2016) concerned whether the Risk Management Agency (RMA) “acted arbitrarily and capriciously by rejecting a peanut farmer’s crop insurance claim that the crops did not get enough rain.” The RMA considered weather data from multiple sources and evidence crops got less rainfall than data revealed. The agency also relied on a peanut farming expert’s opinion. Court did not find the RMA’s decisions “arbitrary and capricious.”
QUOC VIET FOODS, INC., Plaintiff, v. VV FOODS, LLC, et al., Defendants., No. SACV1202165CJCDFMX, 2016 WL 3536708 (C.D. Cal. June 14, 2016) involved a trademark dispute concerning soup base for the Vietnamese noodle soup, pho. Plaintiff created a soup base for consumers to create pho broth and labeled it “c, { t”. Defendant subsequently began selling a similar soup base and plaintiff applied for a trademark for the label “c, { t”. The parties disputed the meaning of “c‚{ t” and defendant filed motion for judgment as a matter of law, contending plaintiff’s mark is not protectable because it is “merely descriptive” and lacks the “required distinctiveness” to warrant protection. Court granted defendant’s motion for judgment as a matter of law.
LEGISLATIVE: Includes salmon and wetland issues.
H.R. 4582: Save Our Salmon Act. This bill’s text for status Reported by House Committee is now available.
H.R. 5605: To amend the Food Security Act of 1985 with respect to the administration of wetland determinations, and for other purposes. Bill was referred to the House Committee on Agriculture which for review before it goes to the House. Sponsor: Rep. Kristi Noem [R-SD0]
REGULATORY: Includes AMS, APHIS, FCIC, FSIS and FS rules and notices.
AGRICULTURAL MARKETING SERVICE: Rule published in the Federal Register (81 FR 14022) on March 16, 2016, regarding the Beef Promotion and Research Order is withdrawn. Details here.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE:
Rule proposing to amend the phytosanitary treatment regulations to establish generic criteria allowing for approval of new cold treatment facilities in the Southern and Western States of the United States. Info here.
Notice Secretary of Agriculture will reestablish National Wildlife Services Advisory Committee for a 2-year period. Details here.
FEDERAL CROP INSURANCE CORPORATION: Rule FCIC finalizes the General Administrative Regulations affected by changes mandated by the 2014 Farm Bill. Info here.
FOOD SAFETY AND INSPECTION SERVICE:
Notice to public of the sanitary and phytosanitary standard-setting activities of Codex, in accordance with section 491 of the Trade Agreements Act of 1979, as amended, and the Uruguay Round Agreements Act. Info here.
Notice of public meeting regarding agenda items to be discussed at the 28th Session of the Codex Committee on Processed Fruits and Vegetables, taking place in Washington, DC, September 12-16, 2016. Details here.
Notice USDA will renew the National Advisory Committee on Meat and Poultry Inspection (NACMPI). Info here.
FOREST SERVICE:
Notice FS seeks comments on renewal of a currently approved information collection. Title: Appeal of Decisions Relating to Occupancy or Use of National Forest System Lands and Resources. Info here.
Notice FS will revise the Santa Fe National Forest Land and Resource Management Plan and prepare an EIS. Details here.
Notice the Deschutes Provincial Advisory Committee will meet in Bend, Oregon on July 29. Details here.