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, EPA, intellectual property, family law, and PACA issues.
In ANIMAL LEGAL DEFENSE FUND, Plaintiff-Appellant, v. U.S. FOOD & DRUG ADMINISTRATION, Defendant-Appellee., No. 13-17131, 2016 WL 4578362 (9th Cir. Sept. 2, 2016), an appellate court reconsidered its own precedent on the standard of review applicable to summary judgment decisions in cases brought under the Freedom of Information Act (FOIA). Court reasoned that on appellate review, it employs “the same standard used by the trial court under Federal Rule of Civil Procedure 56(c). See Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). The court further reasoned that per that standard, “we view the evidence in the light most favorable to the nonmoving party, determine whether there are any genuine issues of material fact, and decide whether the district court correctly applied the relevant substantive law.” Court ruled appropriate standard of review is de novo and the case was remanded to three-judge panel.
HELPING HAND TOOLS; ROB SIMPSON, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; GINA MCCARTHY, in her capacity as Adm’r of the U.S. Envtl. Prot. Agency; DEBORAH JORDAN, in her capacity as Dir. of the Air Div. of U.S. Envtl. Prot. Agency Region IX, Respondents, SIERRA PACIFIC INDUSTRIES, INC., Respondent-Intervenor. CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; GINA MCCARTHY, in her official capacity as Adm’r of the United States Envtl. Prot. Agency; JARED BLUMENFELD, in his official capacity as Reg’l Adm’r of Region 9 of the United States Envtl. Prot. Agency; DEBORAH JORDAN, in her official capacity as Dir. of the Air Div. of Region 9 of the United States Envtl. Prot. Agency, Respondents, SIERRA PACIFIC INDUSTRIES, INC., Respondent-Intervenor., No. 14-72553, 2016 WL 4578364 (9th Cir. Sept. 2, 2016) involved plaintiff’s petition for review of EPA’s decision granting Sierra Pacific a “prevention of significant deterioration (PSD) permit for construction of a new biomass-burning power plant” at its lumber mill in California. Plaintiffs argued EPA issued the PSD permit in violation of the Clean Air Act. The court observed that in order to obtain a PSD permit, “the applicant must demonstrate that the proposed facility utilizes the best available control technology (BACT) for every pollutant subject to regulation by the Clean Air Act.” Plaintiffs argued that EPA was required “to consider solar power and a greater natural gas mix as clean fuel control technologies in the BACT analysis.” The court noted that, “Drawing the line between control technology and redefining the source is a technical determination to which a court should defer to EPA.” The court further concluded that “Requiring the EPA and Sierra Pacific to consider solar power, a completely different fuel source . . . an incidental fuel source, would redefine the source.” Court ruled EPA “did not act arbitrarily or capriciously” and denied plaintiff’s petition.
Marical Inc. v. Cooke Aquaculture Inc., No. 1:14-CV-00366-JDL, 2016 WL 4579074 (D. Me. Sept. 2, 2016) involved a patent dispute among salmon farmers. Plaintiffs alleged defendants raised salmon by methods that infringed four patents and a dispute arose regarding the definitions of industry terms as defined by a magistrate judge’s recommended decision. The court observed that “the initial stage in a patent infringement action . . . involves construction of the patent claim,” and proceeded to define a number of terms, including “Freshwater,” “At least one PVCR modulator … in an amount,” “Significantly increased level,” and “Person of Ordinary Skill in the Art.” Court affirmed the claim constructions issued by the magistrate’s recommended decision.
DOLORES MARIE SHOPE, Plaintiff, v. RICHARD WAYNE PENNINGTON, Defendant., No. COA15-1249, 2016 WL 4608197 (N.C. Ct. App. Sept. 6, 2016) concerned a divorce and equitable distribution issues. Defendant owned a home and farm prior to the marriage and worked the farm during the marriage while plaintiff worked at McDonald’s. Plaintiff appealed claiming trial court’s awarding an unequal distribution of 99% in defendant’s favor was “nonsensical.” Appellate court noted that “A trial court must follow a three-step analysis when it makes an equitable distribution: ‘(1) identify the property as either marital, divisible, or separate property after conducting appropriate findings of fact; (2) determine the net value of the marital property as of the date of separation; and (3) equitably distribute the marital and divisible property.’” Plaintiff argued defendant’s hard work, alone, “cannot logically support a 1:99 distribution in defendant’s favor,” and that the “1:99 distribution is the functional equivalent of rescheduling marital property as Defendant’s separate property.” Ruling for defendant, the appellate court stated, “We simply lack a judicially manageable standard to make a better fairness determination than the trial court, and no other standard is suggested by Plaintiff to review equitable decision of the trial court.”
Classic Harvest LLC v. Freshworks LLC, No. 1:15-CV-2988-WSD, 2016 WL 4607860 (N.D. Ga. Sept. 6, 2016) concerned a Perishable Agricultural Commodities Act (PACA) action. When produce is sold, PACA requires the buyer to hold assets “in trust for the benefit of all unpaid suppliers or sellers of such [Produce].” Plaintiff sought to enforce payment from a PACA trust. A dispute arose regarding assets within the trust and defendant was enjoined from using any funds in the trust. Defendant objected, claiming a “factual misunderstanding” and that the trust included “monies indisputably received from [non-plaintiff] clients, and therefore not part of the res being enjoined here.” Defendant argued the injunction should not apply to all funds in its possession. The court observed that (“[T]he mere fact that non-trust funds were temporarily parked in an account containing trust funds is not enough to convert those non-trust funds into trust assets, as it is permissible to commingle PACA trust assets with non-trust assets.” Injunction modified and defendant ordered to maintain funds in a “separate, segregated” account.
REGULATORY: Includes AMS, EPA, FDA, FS, NOAA and BSEE rules and notices.
AGRICULTURAL MARKETING SERVICE: Notice AMS announces a meeting of the Fruit and Vegetable Industry Advisory Committee. Info here.
ENVIRONMENTAL PROTECTION AGENCY:
Rule EPA approves modification of the ocean dredged material disposal site offshore of Charleston, South Carolina pursuant to the Marine Protection, Research and Sanctuaries Act. Details here.
Rule establishing tolerances for residues of chlorantraniliprole in or on multiple commodities. Info here.
FOOD AND DRUG ADMINISTRATION: Notice FDA is requesting comments related to the regulatory status of vinpocetine. Info here.
FOREST SERVICE: Notice the Uinta-Wasatch-Cache Resource Advisory Committee will meet in South Jordan, Utah. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule removing the medium and large vessel bottomfish prohibited fishing areas in the Commonwealth of the Northern Mariana Islands. Info here.
Notice Department of Commerce will submit to OMB for clearance the following proposal for collection of information: Alaska American Fisheries Act (AFA) Permits. Info here.
Notice the Gulf of Mexico Fishery Management Council will hold a meeting of its Ad Hoc Red Snapper Charter Advisory Panel. Info here.
Notice the Gulf of Mexico Fishery Management Council will hold two Coral Grant Stakeholder Engagement Meetings to educate fishermen using bottom contacting gear on the importance of coral reef habitats and to gather input on potential coral protection mechanisms and proposed areas that may warrant Habitat Area of Particular Concern designation. Details here.
SAFETY AND ENVIRONMENTAL ENFORCEMENT BUREAU:
Rule the BSEE is amending and updating the regulations regarding oil and natural gas production safety on the Outer Continental Shelf by addressing issues such as: safety and pollution prevention equipment design and maintenance, production safety systems, subsurface safety devices, and safety device testing. Info here.