Appeals court rules against Obama's immigration plan

Posted November 11, 2015

A federal appeals court said that President Obama could not overhaul immigration rules by providing up to five million people with work permits and protection from deportation, according to The New York Times article available here.

A three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled 2 to 1 against the appeal from the Obama administration.

The ruling is the latest set back to the president’s efforts to circumvent congressional inaction on immigration, reshaping the way immigration laws are enforced.

The White House said in a statement that it strongly disagreed with the court and that the departments of Justice and Homeland Security will review the ruling to determine the "next steps" in the case, according to USA Today.

"The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws," the statement read. "This lawsuit is preventing people who have been part of our communities for years from working on the books, contributing to our economy by paying taxes on that work, and being held accountable."

The administration could ask for a re-hearing by the full 5th Circuit but the National Immigration Law Center urged an immediate Supreme Court appeal, according to CBS News.

"The most directly impacted are the 5 million U.S. citizen children whose parents would be eligible for temporary relief from deportation," Marielena Hincapie, executive director of the organization, said in a news release.

The 4.3 million undocumented immigrants deemed eligible for the program are at the mercy of the next president, making the panel's decision a major blow to Obama, who has hoped to overhaul the nation's immigration system before leaving office, according to USA Today.

"The most directly impacted are the five million U.S. citizen children whose parents would be eligible for temporary relief from deportation," said Marielena Hincapié, executive director of the National Immigration Law Center. "We now call on the Department of Justice to seek Supreme Court review immediately, where we are more likely to obtain justice for our communities."

Supreme Court rules raisin program is "unconstitutional"

Posted June 23, 2015

In a 8-1 vote, the Supreme Court denied a raisin price-support program that dates back to the New Deal, ruling it unconstitutionally requires growers to surrender their crop to the government for future sale, according to The Wall Street Journal article available here. USA Today also published an article available here and Reuters here.

The federal program violates the Fifth Amendment prohibition of taking private property “for public use without just compensation,” according to Chief Justice John Roberts.

While the government can regulate production in order to keep goods off the market, the chief justice said it cannot seize that property without compensation, according to USA Today.

"Selling produce in interstate commerce ... (is) n ot a special governmental benefit that the government may hold hostage, to be ransomed by the waiver of constitutional protection," Roberts said. "Raisins are not dangerous pesticides; they are a healthy snack."

The raisin program was defended by the Obama administration as a win-win proposition. Prices remain high for farmers, and their excess raisins can be donated to school lunch programs or sold overseas. If profits exceed administrative costs, the farmers share in the excess.

Justice Sonia Sotomayor, the sole dissenter, said a court precedent requires that "each and every property right be destroyed by governmental action" before a taking has occurred. The program, she added, "does not deprive the Hornes of all their property rights," according to Reuters.

The Hornes came up with a plan to circumvent the program by packing and marketing their own raisins in a move they said would make them exempt from it. The government disagreed and sanctioned the Hornes for the 2002-2003 and 2003-2004 seasons.

Chief Justice John Roberts said the government should pay the Hornes the market value of the raisins and relieve them of the fine that was imposed. The total value is around $700,000.

The Hornes' constitutional challenge to the program has lasted a decade and previously led to another Supreme Court case they won in 2013.

The case is Horne v. U.S. Department of Agriculture, U.S. Supreme Court, No. 14-275.

For more information on marketing orders, please visit the National Agricultural Law Center’s website here.

Regulatory Accountability Act Introduced

Posted January 9, 2015

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Congressman Collin Peterson (D-Minn.) have introduced H.R. 185, the Regulatory Accountability Act (RAA) as part of a jobs and economic growth package, according to Goodlatte release available here. American Farm Bureau Federation (AFBF) also published a release available here, and Farm Futures published an article available here.

The RAA requires federal bureaucrats to adopt the most costly efficient method to effectively implement the law.

“The Regulatory Accountability Act addresses the problem of escalating, excessive federal regulatory costs in a clear, commonsense way that we can all support. This legislation directs the Executive Branch to fulfill its statutory goals set by Congress and requires simply that they reach those goals in the least costly way with better public input to find the most efficient regulatory solutions,” said Goodlatte.

The AFBF also released a statement.

“The American Farm Bureau Federation strongly supports the Regulatory Accountability Act of 2015. We applaud the leadership of Reps. Robert Goodlatte and Collin Peterson in reintroducing this measure, which has traditionally received bipartisan support, and we will work actively for swift approval by Congress.”

The U.S. Chamber of Commerce also expressed support for bill because it updates the Administrative procedure Act (APA), according to Farm Futures.

Similar versions of the bill were passed in 2013 and 2014.

Congressman Peterson also issued a statement.

“This bill will streamline and bring transparency to the regulatory process, ensuring that our farmers, ranchers and small businesses are not regulated out of business. Increasing transparency and accountability will give those who will actually feel the impact of proposed regulations, rather than Washington bureaucrats, a larger voice in the process.”

For more information on administrative law, please visit the National Agricultural Law Center’s website here.

Eloy Farmer Fighting for Reclassification

Posted September 29, 2014

An Eloy farm owner, Michael McKenzie, is battling the Pinal County Assessor’s Office to prove his small-scale organic operation is an “active farm,” according to a TriValley Central article by Melissa St. Aude available here. Pinal Partnership also published Aude’s article here and Lucky Nickel Ranch here.

Last year, the Assessor’s Office revoked the agricultural land classification for the 32-acre farm. McKenzie is appealing the decision in fear of property taxes tripling if he is not successful.

“I’ve had my agricultural status for 15 years and suddenly, they’re revoking it, saying it’s not an active farm,” said McKenzie.

McKenzie is an organic certified produce grower and serves as an incubator site for aspiring farmers. The farm is also used as a teaching tool for students, and has been used in a veteran training program since 1999.

County Assessor Doug Wolf did not comment on McKenzie’s case, but he said that hundreds of people appeal the office’s valuation decisions each year.

“We want citizens to challenge us and appeal when they think we’re wrong,” said Wolf. “We want everybody’s valuation to be just and fair.”

The state requires the Assessor’s Office to re-examine classifications in about 25 percent of the county every four years.

The Board of Equalization rules in favor of the appellant in approximately 30 percent of cases.   

People who lose their appeal may challenge the board’s decision in state tax court, said Wolf.

McKenzie’s Board of Equalization hearing is scheduled for 1:20 p.m. on Wednesday in Pinal County Administration Building A, 31 N. Pinal St. in Florence. The hearing is open to the public.

For more information on administrative law, please visit the National Agricultural Law Center’s website here.

Stabenow to Create Foreign Acquisitions Legislation

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Posted September 17, 2014

Senate Agriculture Committee Chairwoman Debbie Stabenow is developing new legislation to change how the government reviews foreign investors’ purchases of American companies, according to an U.S. Senate Agriculture Committee release available here. Farm Futures also published an article available here and Politico here.

Stabenow’s concerns were voiced during a PBS Newshour Investigation highlighting the acquisition of Virginia-based Smithfield Foods by Shuanghui International, which would be the largest American company purchase by China.

“Food security is national security,” said Stabenow in the report available here. “And I can’t imagine that the American people will feel comfortable if they wake up someday and find that half of our food processors are owned by China. And I think there are some very, very tough questions that need to be answered.”

The Committee on Foreign Investment in the U.S. approved the sale even with concerns from the agriculture industry, according to Farm Futures.

Stabenow was “relatively skeptical” of the situation.

"I'm all about exports, I want to see us export our products but it seems to me removing the unfair barriers from China would be a lot quicker and more efficient than saying the only way they can get in is if they own our company. That just doesn't make sense to me," said Stabenow.

For more information, the two-part PBS Newshour investigation is available here.

For more information on international law and organizations, please visit the National Agricultural Law Center’s website here.

 

Vilsack Responds to ABA Concerns on Rulemaking Procedures

Posted April 7, 2014

Secretary of Agriculture Tom Vilsack recently responded to the American Bar Association’s (ABA) concerns regarding USDA’s revocation of a statement of policy on public participation in rulemaking in a letter dated March 20, 2014. 

On October 28, 2013, USDA published a Federal Register notice revoking a Statement of Policy titled “Public Participation in Rulemaking.”  The notice is available here. 

The Statement of Policy, published in the Federal Register on July 24, 1971, “required all USDA agencies to follow the public participation requirements of the Administrative Procedure Act” (APA), 5 U.S.C. § 553(b) and (c)) in rulemakings related to “public property, loans, grants, benefits, or contracts, even though the APA specifically exempts that class of rulemaking from such public participation requirements.”

USDA published a proposal to revoke the Statement of Policy and requested public comment in the Federal Register on June 3, 2013.

The ABA voiced its concerns over the revocation in a letter in January of 2014. 

In response, Secretary Vilsack stated that the USDA has “no plans to reconsider the revocation, which was finalized on October 28, 2013.”  Vilsack explained, “USDA’s revocation…does not signal that the Department has decided never to use notice-and-comment rulemaking procedures.”  “Rather, the revocation is intended to provide USDA agencies with the flexibility to select the most appropriate process for each particular rulemaking” area which does not require notice-and comment rulemaking.

Vilsack continued, stating that increased flexibility will reduce the “potential for unnecessary delays and costs in program implementation” and “promote transparency.”  “USDA will continue to use formal notice-and-comment procedures where appropriate given the nature or scope of the action or where required by other law.”

For more information on administrative law, please visit the National Agricultural Law Center’s website here.

Federal Court Dismisses HSUS Lawsuit over Pork Slogan Sale

Posted September 30, 2013

A U.S. District Court has dismissed a lawsuit filed by the Humane Society of the United States (HSUS) which challenged Secretary of Agriculture Tom Vilsack’s approval of the National Pork Board’s purchase of the marketing slogan, “Pork: The Other White Meat,” according to an article by MeatPoultry.com, available here.  A Capital Press article on the case is available here.

In Humane Society of the United States, et al. v. Tom Vilsack, Secretary of the U.S. Department of Agriculture, No. 12-1582 (D.D.C. Sept. 25, 2013), HSUS alleged that the National Pork Producers Council (NPPC) sold the marketing slogan to the National Pork Board and unlawfully used the $60 million to lobby against animal welfare campaigns.  Plaintiffs argued that the sale violated the Administrative Procedure Act (APA), 5 U.S.C. § 706, alleging that the Secretary's approval was “arbitrary, capricious, an abuse of discretion, and contrary to law.”  Specifically, plaintiffs claimed the contract associated with the sale resulted in the use of pork checkoff dollars for purposes of influencing legislation and government policy, when “the Board is prohibited from using pork producers’ contributions for that purpose.”  Plaintiff Harvey Dillenburg, a hog farmer, claimed that he had standing because the purchase diminished the return on investment of his checkoff dollars.  The complaint is available here.  The text of the opinion is available here.

U.S. District Judge Amy Berman Jackson ruled that the plaintiffs lacked standing to challenge how the National Pork Board spends money collected from hog producers.  Judge Jackson said the plaintiffs failed to show that that they have “suffered an injury” that “can be redressed by this lawsuit.”  Judge Jackson also ruled that plaintiff, Harvey Dillenburg, did not have standing because his claim was only hypothetical and he was not “injured in fact” by the NPPC’s lobbying efforts. 

Judge Jackson stated that “lobbying is what these organizations do, so being prompted to do it can hardly qualify as an injury that confers constitutional standing.”  She continued, “the fact that [the organizations] have decided to redirect some of their resources from one legislative agenda to another is insufficient to give them standing.”

USDA oversees the checkoff program and can reject expenditures that are in violation of federal laws or regulations. 

Checkoff programs are also referred to as research and promotion programs which promote and provide research and information for a particular agricultural commodity without reference to specific producers or brands.  Producers and handlers usually finance these programs for assessments charged on a per unit basis of the marketed commodity.  For more information on Checkoff programs, please visit the National Agriculture Law Center’s website, here.

Eighth Circuit Issues Opinion in 4-H Lawsuit

Posted September 25, 2013
In Kroupa v. Nielsen, et al, No. 12-2843 (8th Cir. Sept. 25, 2013), a three judge panel from the United States Court of Appeals for the Eighth Circuit Court of Appeals issued an opinion that will be of interest to anyone involved in 4-H and similar agricultural youth programs in South Dakota and other states.  This post provides a brief overview of the Eighth Circuit decision, which was issued earlier today. Please check back with this blog as this item will be updated in the near future.   

To read the full opinion click here.

Future updates on this story will also be available via the Center's Facebook and Twitter accounts.  Also, you can sign up to receive the Center eNewsletter and updates here.

In this case, plaintiff Greg Kroupa brought an action on behalf of his fifteen year old daughter – “B.K.” – against defendants Peter A. Nielsen, Assistant Director of 4-H Youth Development, and Rod Geppert, Brule County Extension 4-H representative.   Kroupa brought the lawsuit after B.K. received a letter from the South Dakota State University Cooperative Extension Service that stated that she was prohibited from showing livestock at future 4-H exhibitions.  Or, as the Eighth Circuit explained, “[g]iving no notice or opportunity to be heard, a secret committee of the South Dakota State University . . . Cooperative Extension Service barred B.K. . . . from further showing livestock at 4-H exhibitions.”  In particular, the letter stated that the prohibition was punishment for B.K. having misrepresented the ownership of her winning swine entry “Moe” at the 2011 South Dakota State Fair.  Following the 2011 State Fair, “several members of B.K.’s 4-H club accused her of cheating, claiming the pig she showed at the State Fair was not Moe another belted barrow swine with a cauliflower ear that had come from another state fair.”

At trial, Kroupa testified that neither he nor his daughter were notified of the meeting discussing the allegations of cheating and, therefore, did not have the opportunity to respond to the allegations.  Kroupa filed a lawsuit against the defendants, arguing that 42 U.S.C. § 1983 had been violated.  The United States District Court for the District of South Dakota granted Koupa’s request for a preliminary injunction against the defendants’ decision, which was appealed to the Eighth Circuit. 

For reasons that will be included in an update to this blog post, the Eighth Circuit affirmed the federal district court’s issuance of the preliminary injunction. In reaching its decision, the Eighth Circuit concluded:

The district court explicitly weighed the competing educational and financial harm to B.K. if she was not allowed to compete and ultimately prevailed on the merits at the end of protracted litigation, against the harm to 4-H and the public interest if a preliminary injunction was granted and it is ultimately determined that B.K. was allowed to compete for prizes to which she was not entitled. . . . This weighing was within the sound discretion of the district court.  We add two observations.  First the damage to B.K.’s reputation from this defamatory state action overwhelms the balance-of-harms factor.  Being publicly labeled a cheat by a well-respected government institution without a chance to be heard would be devastating to anyone, and certainly to a teenager committed to benefitting from 4-H membership and activities.  Second, the injunction by its terms lasts “until further order of the court.” It remains within defendants’ discretion to promptly give B.K. whatever “process is due,” rather than await a final disposition of Kroupa’s procedural due process claim on the merits, if in defendants’ view that would best serve the public interest in 4-H government-sponsored activities.

Judge Rules EPA Can Enforce Nutrient Standards in Chesapeake Bay

Posted September 19, 2013

A federal judge upheld the Environmental Protection Agency’s plan to set and enforce nutrient standards in the Chesapeake Bay, according to an article by AgProfessional, available here.

U.S. District Court Judge, Sylvia Rambo, ruled that the EPA can enforce Total Maximum Daily Load (TMDL) nutrient standards on six states and Washington D.C., which have waters flowing into the Chesapeake Bay.  The text of the opinion is available here. 

Judge Rambo granted the EPA’s motion for summary judgment, stating that the plaintiffs failed to meet the “heavy burden of showing that the issuance of the Bay TMDL was arbitrary and capricious, and that EPA’s use of modeling and data bore no rational relationship to the realities they purport to represent.”  Judge Rambo said that “the ecological and economic importance of the Chesapeake Bay is well documented” and that the EPA’s actions are consistent with the Clean Water Act and the Administrative Procedure Act (APA).  Judge Rambo continued, noting that as “the largest estuary in the United States, the Chesapeake Bay is essential for the well being of many living things.”

In 2010, the EPA began an “aggressive cleanup effort” that required Chesapeake Bay states to upgrade sewers to limit the amount of nutrient pollution that pours into the bay, according to a Washington Post article, available here.  The EPA also required states to find ways to stop runoff from cattle feed operations, chicken houses, and other farms.  This resulted in “plans for fences to prevent cattle from wading into streams, sheds to store animal waste and other conservation upgrades that many farmers said they could not afford.”

The AFBF filed a lawsuit in early 2011 in the U.S. District Court for the Middle District of Pennsylvania to stop the EPA’s enforcement of TMDL standards.  Many organizations including the Fertilizer Institute, National Pork Producers Council, and National Chicken Council joined the lawsuit.  The plaintiffs argued that the cleanup of the bay was the “sole responsibility” of states and the EPA lacked authority to establish a “pollution diet” costing “taxpayers and farmers billions by its full implementation in 2025.”  Planitiffs also said that the EPA did not give adequate public notice for the plan, arguing that the 45-day comment period was too short.

In a statement made after the decision, the EPA said that the ruling was “a victory for the 17 million people in the Chesapeake Bay watershed” and that its partners can refocus on achieving clean-water goals, “building on the progress already happening.”

AFBF president Bob Stallman issued a statement responding to the court’s decision: “We believe the ruling is incorrect and has huge implications for farmers and many others in the Bay area and nationwide.  Win or lose in this lawsuit, farmers care deeply about our natural environment and want to do our part to improve water quality.”  The AFBF press release is available here.

FCIC Announces Catastrophic Risk Protection Endorsement Final Rule

Posted September 4, 2013

The Federal Crop Insurance Corporation (FCIC) announced that it has finalized the Catastrophic Risk Protection Endorsement in a final rule.  The federal register announcement is available here. 

 

The FCIC intends to “clarify existing policy provisions and to incorporate changes that are consistent with those made in the Common Crop Insurance Policy Basic Provisions.”  The rule also incorporates “provisions regarding catastrophic risk protection coverage for area yield plans from the Area Risk Protection Insurance (ARPI) Basic Provisions.”  Changes become effective for the 2014 and succeeding crop years “for all crops with a contract change date on or after” this rule’s effective date.  Changes become effective for the 2015 and succeeding crop years for crops with a contact change date prior to the rule’s effective date.  The effective date for the final rule is September 26, 2013. 

The announcement also includes comments, responses, and the final rule, which amends 7 C.F.R. § 402.

Oil Industry Requests Reduction in Renewable Fuel Standard

Posted August 16, 2013

On Tuesday, the American Petroleum Institute (API) and the American Fuel and Petrochemical Manufacturers (AFPM) petitioned the U.S. Environmental Protection Agency (EPA) to reduce the Renewable Fuel Standard (RFS) for 2014. 

According to Christopher Doering of the Des Moines Register, the groups are requesting a reduction from 18.15 billion gallons of renewable fuels to 14.8 billion gallons for 2014.  The RFS requires refiners to blend a certain amount of renewable fuels (corn, soybeans, and other products) to “reduce the country’s dependence on foreign energy.”  The groups argue that a “failure to lower the mandate would result in ‘severe economic harm’ to consumers and the U.S. economy” due to a breach of the “blend wall.”  Refiners argue that the higher standard will require them to blend more ethanol into the fuel, exceeding the 10 percent threshold accepted in all cars and trucks.  Since consumers are driving less and vehicles are more efficient, consumers are using less fuel.

This is the third request by a group to waive the RFS.  Previous similar petitions -- by Texas Gov. Rick Perry in 2008 and several states last year -- were both rejected.

The Des Moines Register article is available here. 

The EPA recently announced changes to the 2013 standard and stated that it will reduce the standard for 2014, but has not released details on when or how the 2014 reduction will take place.  A recent post from this blog on that issue is available here. 

Bloomberg reports that supporters of the RFS “say this petition is just an attempt by the oil industry to limit the competition.”  The EPA has 90 days to respond to the waiver petition.

For more information on the RFS, please visit the National Agricultural Law website, here.  For information on waiver authority under the RFS, visit the Center Website here. 

Upcoming: American Agricultural Law Association Annual Meeting

Posted:  July 24, 2013

The 34th Annual Conference of the American Agricultural Law Association will be held October 31 - November 2, 2013 at the Concourse Hotel in Madison, Wisconsin.  The AALA annual conference is an excellent opportunity for students, attorneys, policymakers, government employees, and other professionals to network and learn about new and emerging issues in agricultural and food law. 

This three-day event is recognized as one of the best opportunities for relevant agricultural law continuing education.  The AALA's symposia have featured presentations by national and international experts providing extensive and relevant information on agricultural and food law.  Attendees include national academic, governmental, corporate, and private practitioner experts in many areas of agricultural law.  For registration, or to learn more about AALA, visit the AALA at www.aglaw-assn.org. 

Becoming a member of AALA is very easy, and new members and AALA welcomes new and student members. For information about joining AALA, visit the AALA site here. If you have any questions about AALA, joining, and/or membership benefits, please contact AALA Executive Director Robert Achenbach at RobertA@aglaw-assn.org.

Upcoming: 34th Annual Meeting of the American Agricultural Law Association

Posted:  July 1, 2013

The 34th Annual Conference of the American Agricultural Law Association will be held October 31 - November 2, 2013 at the Concourse Hotel in Madison, Wisconsin.  The AALA annual conference is an excellent opportunity for students, attorneys, policymakers, government employees, and other professionals to network and learn about new and emerging issues in agricultural and food law. 

This three-day event is recognized as one of the best opportunities for relevant agricultural law continuing education.  The AALA's symposia have featured presentations by national and international experts providing extensive and relevant information on agricultural and food law.  Attendees include national academic, governmental, corporate, and private practitioner experts in many areas of agricultural law.  For registration, or to learn more about AALA, visit the AALA at www.aglaw-assn.org. 

Becoming a member of AALA is very easy, and new members are welcomed and greatly appreciated. For information about joining AALA, visit the AALA site here. If you have any questions about AALA, joining, and/or membership benefits, please contact AALA Executive Director Robert Achenbach at RobertA@aglaw-assn.org.

 

Supreme Court Rules that Agricultural Marketing Agreement Act of 1937 Withdraws Tucker Act Jurisdiction; Takings Claim Can Be Raised as Affirmative Defense in USDA Enforcement Proceeding

Posted:  June 11, 2013

 

In action involving a constitutional challenge to the California Raisin Marketing Order under the Agricultural Marketing Agreement Act of 1937(AMAA), 7 U.S.C. §§ 701-714, §§ 671-674 Horne v. United States Dep’t of Agric., No. 12-123, 2013 WL 2459521, -- S. Ct. – (June 10, 2013), the United States Supreme Court held in Horne v. United States Dep’t of Agric., No. 12-123, 2013 WL 2459521, -- S. Ct. – (June 10, 2013) that the AMAA withdrew Court of Federal Claims jurisdiction arising under the Tucker Act.  The Court further held that the petitioners’ takings claim could be raised as an affirmative defense against the USDA’s enforcement proceeding against them.  In so holding, the Court reversed the decision of the United States Court of Appeals for the Ninth Circuit and remanded the matter to the Ninth Circuit for further proceedings consistent with its opinion.

In 2004, USDA brought an enforcement action against Marvin and Laura Horne, et al., (hereinafter petitioners) that alleged that the petitioners were “handlers” under the raisin marketing order and that they had failed to comply with several requirements under the order.  The petitioners asserted, inter alia, that they were not “handlers” and, therefore, excluded from coverage of the marketing order.  In addition, the petitioners argued that the marketing order violated the Fifth Amendment of the U.S. Constitution as a taking without just compensation.

 

In 2006, an Administrative Law Judge (ALJ) held that petitioners were “handlers” under the AMAA and that they had, as alleged by  USDA, violated several marketing order requirements.  The ALJ rejected the petitioners’ takings claim as well.  On appeal, a Judicial Officer affirmed the decision that the petitioners were handlers, but declined to render a decision on the petitioners’ takings claim.  The matter was appealed to federal district court where it was held that the petitioners were handlers and that the marketing order did not constitute a takings.  

On appeal, the Ninth Circuit affirmed the federal district court ruling that the petitioners were handlers.  The Ninth Circuit further held that when a handler raises a takings claim against marketing orders promulgated under the AMAA, the Court of Federal Claims jurisdiction under the Tucker Act is removed by the AMAA.  Interestingly, however, the Ninth Circuit determined that the petitioners were “producers” – instead of handlers – for purposes of their takings claim and, therefore, there was nothing in AMAA that prohibited the petitioners from raising their takings claim in the Court of Federal Claims.  And, on that basis, the Ninth Circuit held that the petitioners’ takings claim was not ripe for adjudication.

In reaching its decision, the Supreme Court stated the following:

Under the AMAA's comprehensive remedial scheme, handlers may challenge the content, applicability, and enforcement of marketing orders. Pursuant to §§ 608c(15)(A)-(B), a handler may file with the Secretary a direct challenge to a marketing order and its applicability to him. We have held that “any handler” subject to a marketing order must raise any challenges to the order, including constitutional challenges, in administrative proceedings. See United States v. Ruzicka, 329 U.S. 287, 294, 67 S.Ct. 207, 91 L.Ed. 290 (1946). Once the Secretary issues a ruling, the federal district court where the “handler is an inhabitant, or has his principal place of business” is “vested with jurisdiction ... to review [the] ruling.” § 608c(15)(B). These statutory provisions afford handlers a ready avenue to bring takings claim against the USDA. We thus conclude that the AMAA withdraws Tucker Act jurisdiction over petitioners' takings claim. Petitioners (as handlers) have no alternative remedy, and their takings claim was not “premature” when presented to the Ninth Circuit.

The Court further held that “[a]lthough petitioners' claim was not 'premature' for Tucker Act purposes, the question remains whether a takings-based defense may be raised by a handler in the context of an enforcement proceeding initiated by the USDA under § 608c(14). We hold that it may.”

 

D.C. Circuit Holds That EPA Can Withdraw §404 Permit Site Specifications Post-Permit

Posted:  June 7, 2013

In Mingo Logan Coal Co. v. U.S. E.P.A., 714 F.3d 608, the United States Court of Appeals, District of Columbia Circuit, held that the EPA had authority under Clean Water Act to withdraw a §404 disposal site specification permit issued approximately three years earlier by the United States Army Corps of Engineers (Corps). 

Plaintiff Mingo Logan Coal Company applied for and was granted a §404 permit (33 U.S.C. §1344) by the Corps.  The permit allowed plaintiff to discharge dredged or fill material from a coal mine into three streams and at least some of their tributaries, thereby approving those streams as disposal sites for §404 purposes.  Four years later, EPA asserted its authority under §404(c) to “withdraw” the disposal site specifications for two of the streams.  Plaintiff was thereby prohibited from discharging into those two streams, and subsequently filed a legal action in the United States District Court for the District of Columbia to challenge EPA’s action. 

Plaintiff argued that EPA lacked statutory authority to withdraw a site specification post-permit and that EPA’s decision to “withdraw” was arbitrary and capricious and, therefore, not allowed under the Administrative Procedure Act.  The district court granted summary judgment in favor of the plaintiff on the grounds that EPA lacked statutory authority to withdraw the site specification post-permit.  It did not rule on whether the EPA’s action was arbitrary or capricious. The matter was appealed to the D.C. Circuit. 

The D.C. Circuit reversed the lower court ruling, holding that under the Clean Water Act the EPA had the authority to withdraw site specifications post-permit.  The D.C. Circuit did not consider plaintiff’s argument that EPA’s action was arbitrary and capricious.  Instead, it remanded the matter for further proceedings. 
 

In reaching its conclusions, the D.C. Circuit stated, in part, the following:

Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’s specification but instead expressly empowers him to prohibit, restrict, or withdraw the specification “whenever” he makes a determination that the statutory “unacceptable adverse effect” will result. . . . Using the expansive conjunction “whenever,” the Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time.  . . . . Thus, the unambiguous language of subsection  404(c) manifests the Congress’s intent to confer on EPA a broad veto power extending beyond the permit issuance.  This term is further buttressed by subsection 404(c)’s authorization of a “withdrawal” which, as EPA notes, is “a term of retrospective application.”  EPA can withdraw a specification only after it has been made.

Eighth Circuit Affirms Dismissal of Producers' Lawsuit Claiming that USDA Improperly Calculated Farmers' SURE Payments

Posted:  June 6, 2013

In Bartlett v. United States Dep’t of Agric., No. 12-3087,2013 WL 2420501 (8^th Cir. June 5, 2013), the United States Court of Appeals for the Eighth Circuit affirmed a federal district court decision to dismiss an action brought by more than three dozen corn and soybean farmers claiming that the defendants improperly calculated their Supplemental Assistance Payments Program (SURE) payments.  This case is noteworthy, in part, because it contains important statements of administrative law relative to USDA National Appeals Division (NAD) decision-making and the issue of “matters of general applicability.” 

The United States District Court for the Northern District of Iowa dismissed the plaintiffs’ lawsuit for failure to exhaust their administrative remedies prior to filing their lawsuit in federal district court.   On appeal, the plaintiffs argued that they were not required to exhaust their administrative remedies because “further appeal within the USDA would have been futile, their claim raised a purely legal question, and the Iowa FSA’s misconduct equitably estops the Government from asserting the failure to exhaust defense.”  After individually examining each of the plaintiffs’ claims, the Eight Circuit concluded that “[b]ecause the Producers are unable to demonstrate any of the limited exceptions to the administrative exhaustion requirement apply, the district court did not err in dismissing their suit for failure to exhaust.” 

In its decision, the Eighth Circuit reemphasized its position – previously espoused in Ace Prop. & Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992 (8^th Cir. 2006) -- that 7 U.S.C. § 6912(e) is non-jurisdictional.  This is important for several reasons, including that it differs from Bastek v. Fed. Crop Ins. Corp., 145 F.3d 90 (2d Cir. 1998), which held that § 6912(e) is jurisdictional in nature and, therefore, a bar to judicial review.

Attorneys Sought Nationwide To Assist Claimants in USDA Hispanic and Women Farmers and Ranchers Claims Process

Farmers Legal Action Group, Inc. (FLAG) and the National Agricultural Law Center (NALC) are assisting in the development of a legal assistance network of attorneys to assist claimants in the completion of the official Claims Form for the USDA Hispanic and Women Farmers and Ranchers Claims Process. The Legal Assistance Network listing will be widely available, including being listed on the National Agricultural Law Center website here so that claimants and others can easily access the information and make contact. For background information on the USDA HWFRCP, please see the information below and/or visit the official Claims Process website at www.farmerclaims.gov.

Please note, however, that a claimant is not required to be assisted by an attorney in order to complete and submit the official USDA HWFRCP Claim Form. In addition, the attorney need not be listed in the legal assistance network in order to assist a claimant.

 

For an attorney to be listed in the Legal Assistance Network, he or she must provide via email to nataglaw@uark.edut three items of information:

 

(1) a statement from the attorney that he or she has viewed the attorney training video, which is available upon request made to nataglaw@uark.edu;

 

(2) a statement indicating the state(s) in which the attorney is licensed to practice along with the corresponding bar number(s) for those states; and

 

(3) appropriate contact information. Once this information is received, the attorney's name, contact information, and state(s) in which he or she is licensed to practice will be included on the legal assistance network list published on the National Agricultural Law Center website.

 

Once listed in the network an attorney can be removed at any time upon request.

If you are an attorney interested in being listed in the Legal Assistance Network, please send an email to nataglaw@uark.edu that indicates the state(s) in which you are licensed to practice along with the corresponding bar number(s) for those states, along with a request for a copy of the training video.

 

The Farmers Legal Action Group, Inc. and the National Agricultural Law Center will also be available to respond to your questions regarding the Claims Form and the USDA Loan and Loan Servicing Programs that may arise while you are providing assistance to potential claimants. You may contact contact either with your questions by email at HWFRCP@flaginc.org or nataglaw@uark.edu, or by phone to Lynn Hayes at (651) 223-5400 or Harrison Pittman at (479) 575-7640.

 

USDA HWFRCP Background Information:

 

 

The United States Government has established a Claims Process to make available up to $1.33 billion or more to farmers who alleged discrimination by the U.S. Department of Agriculture (USDA) based on being female, or based on being Hispanic, in making or servicing farm loans during certain periods between 1981 and 2000. Claimants who qualify and who submit a timely claim could receive an award of up to $50,000 or up to $250,000 in cash, depending on the evidence submitted. USDA will also provide a total of up to $160 million in debt relief to successful Claimants who currently owe USDA money for eligible farm loans. In addition, successful Claimants may also receive an additional amount, equal to 25% of the combined cash award plus the principal amount of debt relief, to help pay federal taxes that may be owed.

New Article Published Covering Arbitration in Federal Crop Insurance

While farmers and others are likely familiar with federal crop insurance, many are not as familiar with the arbitration requirement that appears under the Common Crop Insurance Policy or the arbitration process.   Crop insurance has long been an important component of risk management in agriculture, but has taken on new significance due to the 2012 drought and emphasis in the ongoing 2012 Farm Bill debate.  Consequently, crop insurance is playing a significant role in the lives of producers and others in the nation's agricultural community and it is important that those affected have an understanding of key aspects of federal crop insurance. 

A recently published article, What is Arbitration, When is it Required, and How Does it Work? explains arbitration and its operation within the federal crop insurance program. Areas discussed in the article include arbitration as a form of dispute resolution, when arbitration is required in the context of a crop insurance dispute, whether an arbitration award can be appealed, and state law actions against an insurance provider.

The article is written by Grant Ballard, Center Research Consultant and associate with the Banks Law Firm, PLLC.  Mr. Ballard earned a J.D. and an LL.M. in Agricultural Law at the University of Arkansas School of Law and works in the areas of federal crop insurance litigation, farm programs, and other agricultural-related legal areas.  He has authored several articles regarding federal crop insurance, including Prevented Planting Crop Insurance: Overview, Drought, and Excessive Moisture, The Federal Crop Insurance Program: Administration, Structure, and Operation, and Filing a Crop Insurance Claim: An Overview for Producers.  His law review article Practitioner's Guide to the Litigation of Federally Reinsured Crop Insurance Claims will be published in the Drake Journal of Agricultural Law in the Fall of 2012.