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 real property, FDA and APA issues.

Cty. of Aitkin v. Blandin Paper Co., No. A15-1666, 2016 WL 4382528 (Minn. Aug. 17, 2016) involved a conservation easement effect on taxes. Here, a tax court used the “unit-rule method” of valuation in a property tax proceeding to value defendant’s forest land. Plaintiff argued Minnesota law does not permit the use of the unit-rule method. Appellate court defined the unit rule method as “a method that values the property within a particular jurisdiction based on the fair share of the value of an operating enterprise of which the property is an integral part.” Plaintiff argued unit-rule method “is generally unavailable in a property tax proceeding, and specifically that the property tax statutes require valuation on a parcel-by-parcel basis.” Court ruled appraisal evidence that uses unit-rule method to determine the fair market value of real property may be admissible in a property tax proceeding, “provided that the evidence has foundational reliability and the method used results in a determination of the fair market value of each parcel before the tax court.”

MARY SWEARINGEN, et al., Plaintiffs, v. SANTA CRUZ NATURAL, INC., Defendant., No. 13-CV-04291-SI, 2016 WL 4382544 (N.D. Cal. Aug. 17, 2016) involved a consumer class action suit against a beverage manufacturer which used the term “organic evaporated cane juice” (ECJ) on its soda products. Plaintiffs alleged they “did not know that the ingredient ‘evaporated cane juice’ was sugar and that using the term “ECJ” violates FDA regulations requiring food labels to reflect ‘the common or usual name’ of an ingredient.” Plaintiffs claimed the usual name for ECJ is “sugar,” and that defendant used the term “ECJ” to make its products appear healthier to consumers. Plaintiffs further alleged that defendant’s failure to comply with FDA regulations violated California’s Sherman Food, Drug, and Cosmetic Law. Defendant moved to dismiss arguing that plaintiffs cannot meet the “reasonable consumer” test of the UCL, FAL, and CLRA. The court observed that per this test, plaintiffs must show “potential deception of consumers acting reasonably in the circumstances — not just any consumers.” Plaintiffs countered they “did not know that the ingredient ‘evaporated cane juice’ was, in reality, sugar at the time they made their purchases,” and court denied defendant’s motion to dismiss plaintiffs’ claims based on “reasonable consumer test.”

In Curtis Johnson Plaintiff – Appellant v. Dep’t of Agric., Tom Vilsack, Sec’y (USDA); Gary Cochran; Hendra Woodfork; Shirley Moore; Dotson Collins; James G. Culpepper; Dianna Shook; Linda Newkirk; Dennis L. Stephens; Linda Baker; Thomas Brown; M. Terry Johnson; John Doe; Jane Does Defendants – Appellees, No. 15-1796, 2016 WL 4394572 (8th Cir. Aug. 18, 2016), a district court dismissed plaintiff’s discrimination claims against USDA on the basis of claim preclusion. Plaintiff claimed FSA’s denials of his debt settlement applications were racially discriminatory. The district court dismissed plaintiff’s Equal Credit Opportunity Act (ECOA) claims asserting they were precluded by Office of the Assistant Secretary for Civil Rights’ (OASCR) administrative proceedings. Plaintiff appealed and appellate court considered whether the USDA’s decision pursuant to the administrative procedures at 7 C.F.R. Pt. 15d precluded plaintiff’s ECOA claims. The court observed that there is “no litmus test for deciding whether agency procedures are extensive enough to warrant granting them preclusive effect,” and that “Each agency proceeding must be considered on its own terms to see whether its procedures sufficiently resemble those of the courts.” Ruling for the plaintiff, the appellate court determined that the USDA’s internal anti-discrimination complaint procedures do not preclude a plaintiff from “later bringing federal-law claims in court, or that the existence of those procedures insulates the USDA from constitutional claims.” A copy of the opinion is available here.

REGULATORY: Includes EPA, FDA, FNS, FS and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY: Rule establishing an exemption from the requirement of a tolerance for residues of butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate; when used as an inert ingredient (emulsifier or binder) in a pesticide chemical formulation. Info here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is announcing that a proposed collection of information has been submitted to OMB for review and clearance regarding Abbreviated New Animal Drug Applications. Details here.

Notice FDA seeks public comment on the information collection requirements of the Animal Generic Drug User Fee Act (AGDUFA) cover sheet. Info here.

Notice FDA announces a proposed collection of information was submitted to OMB for review and clearance. Title: Substances Prohibited From Use in Animal Food or Feed. Info here.

FOOD AND NUTRITION SERVICE: Notice USDA submitted information collection requirement(s) to OMB for review and clearance. Title: State Agency (NSLP/SNAP) Direct Certification Rate Data Element Report (FNS-834). Info here.

FOREST SERVICE: Notice Foresthill Public Utility District submitted an application to the Tahoe National Forest to amend their existing Special Use Permit for Sugar Pine Dam and Reservoir to increase water storage capacity of the reservoir and improve stability of Foresthill’s water supply by installing radial steel gates in the spillway of the dam. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces its approval of the State of North Carolina transferring a portion of its 2016 commercial bluefish quota to the State of New York. Details here.

Rule NMFS is adjusting the 2016 fishing year sub-annual catch limits for commercial groundfish vessels, including sector allocations based on the final Northeast multispecies sector rosters submitted as of May 1, 2016. Info here.

Rule NMFS is adjusting the 2016 C seasonal apportionments of the total allowable catch for pollock in the Gulf of Alaska by re-apportioning unharvested pollock TAC in Statistical Areas 610, 620, and 630 of the GOA. Info here.

Notice the New England Fishery Management Council is scheduling a public meeting of its Ecosystem Based Fishery Management Committee to consider actions affecting New England fisheries in the exclusive economic zone. Details here.

Notice NMFS has completed a Draft Environmental Assessment to consider the potential impacts of authorizing an exempted fishing permit for longline vessels to fish within the U.S. West Coast exclusive economic zone. Details here.