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 bankruptcy, evidence, due process, environmental, and procedural issues.

SHIGEZO HAWAII, INC., a Hawai‘i Corp., Plaintiff-Appellant, v. SOY TO THE WORLD INCORPORATED, a Hawai‘i Corporation; INOC CORPORATION, a Hawai‘i Corp., dba SOY TO THE WORLD; EMI YAMADA, dba HANA SOY; MUNEHIRO YAMADA; YUJI IWATA; YOSHIHIRO WATANABE; FUJIYA HONPO, INC., a Hawai‘i Corporation; ADAMAYS, LLC; Defendants-Appellees, & JOHN DOES 1-20; JANE DOES 1-20; DOE PARTNERSHIPS 1-20; DOE CORPORATIONS 1-20; DOE GOVERNMENT ENTITIES 1-20, Defendants, No. CAAP-14-0000920, 2016 WL 4542016 (Haw. Ct. App. Aug. 31, 2016) involved a business dispute and alleged fraudulent transfer of business assets, including a tofu making machine, by defendant to a third party. Plaintiff and defendant (a tofu maker) discussed an agreement to establish a business relationship and plaintiff gave defendant $50,000.00, but no formal agreement was reached. Defendant purchased a tofu machine and transferred ownership to a third party. Plaintiff sued claiming transfer of the tofu machine was voidable under the Hawaii Uniform Fraudulent transfer Act (HUFTA). Lower court ruled the transfer was not voidable under the HUFTA because plaintiff did not provide “sufficient evidence to prove that the transferee of the machinery (1) had not provided reasonably equivalent value for the transfer and (2) had acted in bad faith.” The lower court further ruled that plaintiff failed to “present competent evidence of its damages on its HUFTA claims.” Appellate court reversed, ruling that it was defendant’s burden to prove the transfer was not voidable.

In In re: Processed Egg Prod. Antitrust Litig., No. 08-MD-2002, 2016 WL 4547207 (E.D. Pa. Aug. 31, 2016), the nation’s major egg producers are accused of conspiring to control and limit the country’s supply of eggs. Plaintiffs moved to exclude the testimony of defendants’ animal welfare expert. Court considered the expert’s “qualifications, reliability, and fit” in determining admissibility of his testimony. Plaintiffs argued the expert’s opinions “are not based on any methodology, let alone a reliable one, and that his opinions usurp the function of the jury and therefore do not fit the case.” Court found that plaintiff’s criticisms of defendants’ expert witness applied to the weight of his testimony and “not to its admissibility.” Ruling for defendants, court reasoned that plaintiffs can cross examine the expert witness and will have “ample opportunity to present their own experts’ analysis, as well as to lay out any limitations in defendants’ expert’s analysis.”

Tennessee Commercial Roe Fishermen’s Ass’n v. Tennessee Wildlife Res. Comm’n, No. M201501944COAR3CV, 2016 WL 4567198 (Tenn. Ct. App. Aug. 30, 2016) involved an appeal by commercial fishermen associations claiming proclamations enacted by the Tennessee Wildlife Resources Commission (TWRC) violated the Open Meetings Act (OMA) and procedural due process. The court observed the OMA provides “all meetings of any governing body are declared to be public meetings open to the public at all times,” and that “the burden of proof was upon the plaintiffs, not the defendants, to establish that the notice provided for the TWRC meetings at which proclamations were passed was insufficient or that decisions were made in secret.” Appellate court was not persuaded by plaintiff’s arguments and affirmed judgment for defendants.

RENE UMBERGER, MIKE NAKACHI, KA’IMI KAUPIKO, WILLIE KAUPIKO, CONSERVATION COUNCIL FOR HAWAI‘I, HUMANE SOCIETY OF THE UNITED STATES, & CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs-Appellants, v. DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I, Defendant-Appellee, No. CAAP-13-0002125, 2016 WL 4555838 (Haw. Ct. App. Aug. 31, 2016) concerned whether Hawaii’s Department of Land and Natural Resources (DLNR) must require aquarium fish permit applicants to comply with environmental review procedures in the Hawai‘i Environmental Policy Act (HEPA) before issuing a permit. Plaintiffs sought an injunction “enjoining collection under existing aquarium fish permits and enjoining defendant from approving any additional permits until it fully complied with HEPA.” Court considered whether “aquarium collection . . . is an ‘action’ under HEPA,” and observed that “the issue of whether aquarium collection pursuant to a DLNR-issued permit constitutes a program or project is a question of statutory interpretation.” Court concluded that “to interpret ‘program or project’ so sweepingly as to require individual aquarium fish permit applicants to undertake the EA process is not a ‘rational, sensible and practicable interpretation’ of HEPA and would create an unreasonable, impractical, and absurd result.”  In affirming summary judgment for defendant, the court held that “aquarium collection under an aquarium fish permit issued by DLNR . . . is not an ‘applicant action’ under HEPA.”

TOBIAS BERMUDEZ CHAVEZ, et al., v. DOLE FOOD COMPANY, INC., et al. JULIO ABREGO ABREGO, et al., v. DOLE FOOD COMPANY, INC., et al. ALVARADO ALFARO MIGUEL FRANCISCO, et al., v. DOLE FOOD COMPANY, INC., et al. JORGE LUIS AGUILAR MORA, et al., v. DOLE FOOD COMPANY, INC., et al. EDWIN AGUERO JIMENEZ, et al., v. DOLE FOOD COMPANY, INC., et al. GONZALEZ ARAYA FRANKLIN, et al., v. DOLE FOOD COMPANY, INC., et al. TOBIAS BERMUDEZ CHAVEZ, et al., Appellants, No. 13-4144, 2016 WL 4578641 (3d Cir. Sept. 2, 2016) involved cases arising from the use of the pesticide dibromochloropropane (DBCP) on banana farms in Central America. Plaintiffs allege they were exposed to DBCP beginning in the 1960s and exposure to the chemical caused serious health problems. The plaintiffs have sought settlement for their injuries since 1993 and the central issue here was whether a Delaware District Court’s “prejudice-based dismissals were a proper exercise of its discretion under the first-filed rule.” The court considered a number of cases that applied the “first-to-file” rule and noted that a court “exercising its discretion under the first-filed rule should be careful not to cause unanticipated prejudice to the litigants before it.” Per the facts in this case, the court concluded that the plaintiffs “were not trying to game the system by filing duplicative lawsuits. They were trying to find one court, and only one court, willing to hear the merits of their case.” Court held the Delaware District Court abused its discretion under the first-filed rule by dismissing these cases with prejudice and vacated its earlier dismissal of the cases.

LEGISLATIVE:

H.R. 3881: Cooperative Management of Mineral Rights Act of 2015. This bill was added to the House’s schedule for the coming week. The committees assigned to this bill sent it to the House or Senate as a whole for consideration on June 15, 2016.

H.R. 4202: Fort Ontario Study Act. This bill was added to the House’s schedule for the coming week. The committees assigned to this bill sent it to the House or Senate as a whole for consideration on June 15, 2016.

H.R. 4245: To exempt importation and exportation of sea urchins and sea cucumbers from licensing requirements under the Endangered Species Act of 1973. This bill was added to the House’s schedule for the coming week. The committees assigned to this bill sent it to the House or Senate as a whole for consideration on June 15, 2016.

H.R. 4510: Bolts Ditch Access and Use Act. This bill was added to the House’s schedule for the coming week. The committees assigned to this bill sent it to the House or Senate as a whole for consideration on June 15, 2016.

H.R. 5577: Innovation in Offshore Leasing Act. This bill was added to the House’s schedule for the coming week. The committees assigned to this bill sent it to the House or Senate as a whole for consideration on July 13, 2016.

REGULATORY: Includes USDA, FS, ITA and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA announces it is extending the solicitation period for applications published in notice FR Doc. 2016-16099 for individuals to be considered for membership. Details here.

FOREST SERVICE:

Notice FS, Medicine Bow-Routt National Forests and Thunder Basin National Grassland, is preparing an Environmental Impact Statement to consider and disclose the anticipated environmental effects of implementing projects proposed by Steamboat Ski and Resort Corporation  at Steamboat Ski Resort. Info here.

Notice the Eastern Washington Cascades Provincial Advisory Committee (PAC) will meet in Wenatchee, Washington. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice the Department of Commerce is rescinding the administrative review of the antidumping duty order on solid fertilizer grade ammonium nitrate (ammonium nitrate) from Russia. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS is opening directed fishing for Pacific cod by catcher/ processors using trawl gear in the Central Regulatory Area of the Gulf of Alaska. Info here.

Notice NMFS is reallocating the projected unused amounts of Pacific cod from American Fisheries Act (AFA) trawl catcher/processors (C/Ps) to Amendment 80 C/Ps in the Bering Sea and Aleutian Islands management area. Details here.