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 FOIA, insurance, administrative, and intellectual property issues.

In Am. Farm Bureau Federation; Nat’l Pork Producers Council, Plaintiffs – Appellants, v. U.S. Envtl. Prot. Agency; Gina McCarthy, Adm’r of the U.S. Envtl. Prot. Agency, Defendants – Appellees, Food & Water Watch; Envtl. Integrity Project; Iowa Citizens for Cmty. Improvement, Intervenor Defendants – Appellees, Nat’l Fed’n of Indep. Bus. Small Bus. Legal Ctr., Amicus on Behalf of Appellant(s)., No. 15-1234, 2016 WL 4709117 (8th Cir. Sept. 9, 2016), plaintiffs appealed ruling that they lack Article III standing to bring a “reverse” Freedom of Information Act (“FOIA”) suit challenging EPA’s disclosure of information about concentrated animal feeding operations (CAFO). Defendants argued the disclosure is an “unlawful release of their members’ personal information.”  Court found plaintiffs established “injury in fact traceable to the EPA’s action and redressable by judicial relief.”  Court concluded district court erred in dismissing the case for lack of standing and that the EPA abused its discretion in deciding that the information at issue was “not exempt from mandatory disclosure under Exemption 6 of FOIA.” Cased reversed and remanded to district court to consider injunctive relief.

In TRIDENT SEAFOODS CORPORATION, a Washington corporation, Plaintiff-Appellant, v. ACE AMERICAN INSURANCE COMPANY, a foreign insurance company, Defendant-Appellee., No. 13-36035, 2016 WL 4709871 (9th Cir. Sept. 9, 2016), plaintiff sought indemnification from its insurer after settling product complaints from a customer which claimed plaintiff’s fish oil product made its farmed fish unusable. Plaintiff settled with the third party for $5 million, but defendant denied plaintiff insurance coverage based on a “watercraft exclusion term” in its policy. Here, plaintiff appealed dismissal of its breach of contract claim. Appellate court observed that defendant’s policy “excludes coverage for ‘bodily injury’ or ‘property damage’ arising out of the ownership … of any aircraft, ‘auto’ or watercraft owned or operated by … any insured.” Court rejected plaintiff’s negligence theory, stating it “invites but-for causation analysis inappropriate for interpreting ‘arising out of’ exclusions.” Ruling for defendant affirmed.

In re Application of Buckeye Wind, L.L.C., 2016-Ohio-5664, involved an appeal by a county contesting an order of the Ohio Power Siting Board permitting Buckeye Wind, L.L.C. to amend a siting certificate for a wind farm. The county argued the board “unlawfully approved Buckeye’s requested amendment without holding a hearing on all proposed changes in the amendment application.” The relevant statute provides that the board must hold a hearing on an application “if the proposed change in the facility would result in any material increase in any environmental impact of the facility.” Court found that the county failed to timely object to the board’s decision limiting the scope of the hearing to only certain proposed changes and therefore, “forfeited its right to appeal.” Court also found board’s decision to limit the scope of the hearing to “certain proposed changes was reasonable and lawful.” Decision of board affirmed.

In King v. Am. Fish Attractor, No. 5:16-CV-5128, 2016 WL 4699707 (W.D. Ark. Sept. 7, 2016), plaintiff holds a patent and trademarked logo for an artificial fish habitat used to attract fish. Plaintiff claimed defendant’s product infringes on its fish habitat patent and trademarked logo. Defendant counterclaimed seeking a declaration of non-infringement regarding plaintiff’s patent and trademark, and alleged “trademark misuse” by plaintiff. Regarding defendant’s counterclaim for trademark misuse the court observed that “the defense of patent misuse may not be converted to an affirmative claim for damages simply by restyling it as a declaratory judgment counterclaim.” The court further noted that, “This principle applies equally in the context of trademark misuse.” Plaintiff’s motion to dismiss granted per the trademark misuse counterclaim.

LEGISLATIVE: 

H.R. 4576: Ensuring Access to Pacific Fisheries Act. This bill has been added to the House’s schedule for the coming week. Last Action: Committees assigned to this bill sent it to the House or Senate as a whole for consideration on July 13, 2016.

REGULATORY: Includes AMS, FS, ITA, NOAA and RBCS rules and notices.

AGRICULTURAL MARKETING SERVICE: Notice that no changes will be made to the current distribution of domestic National Dairy Promotion and Research Board members in 12 regions as outlined in Section 1150.131(b) of the Dairy Research and Promotion Order. Info here.

FOREST SERVICE: Notice the Southern New Mexico Resource Advisory Committee will meet in Socorro, New Mexico. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice On March 10, 2016, the Department of Commerce published the preliminary results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp from India. Details here.

Notice the Department of Commerce is initiating a changed circumstances review of the antidumping duty order on certain pasta from Italy with respect to Tamma. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is exchanging unused rock sole Community Development Quota for yellowfin sole CDQ acceptable biological catch reserves in the Bering Sea and Aleutian Islands management area. Details here.

Rule the North Pacific Fishery Management Council submitted Amendment 47 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs to NMFS for review. Info here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice RBCS is accepting fiscal year 2016 applications for the Delta Health Care Services Grant Program as authorized by the Consolidated Appropriations Act of 2016. Info here.