UPDATED: Judge Continues TRO in CRP Haying/Grazing Case

July 16, 2008 07:00 PM

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Judge to issue another decision next week

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A U.S. District Court Judge continued his temporary restraining order which blocked the haying and grazing of Conservation Reserve Program (CRP) acres, according to a report in the Seattle Post Intelligencer.

Here's what the paper is reporting:

"U.S. District Judge John C. Coughenour temporarily blocked the agency's decision last week. During a hearing Thursday, he extended his temporary restraining order until next week, calling the USDA's cursory environmental review of its decision a 'joke.'

"But the judge also said he appreciates the plight of farmers and ranchers. He said next week he plans to issue an injunction limiting how much of the conservation land can be opened to haying and grazing."

Following is the text of the ruling issued today by Judge Coughenour:

This matter comes before the Court on Plaintiffs' Motion for Preliminary Injunction. (Dkt. No. 2.) The Court has carefully considered Plaintiff's Motion, Defendants' Responses (Dkt. Nos. 9 & 13), Plaintiffs' Reply (Dkt. No. 47), together with all of the declarations and exhibits filed in conjunction therewith and relevant portions of the record, as well as the various amicus briefs filed by several interested and effected parties. The Court has now heard oral argument on this matter and, being fully apprised of the issues before it, makes the following preliminary ruling.

Plaintiffs have demonstrated a strong likelihood that they will succeed on their claim that the Farm Service Agency (FSA) violated the National Environmental Policy Act (NEPA), in that it acted arbitrarily and capriciously and not in accordance with law. However, as the Ninth Circuit most recently emphasized in The Lands Council v. McNair,___ F.3d___, No. 07-35000, 2008 WL 2640001, at *21 (9th Cir. July 2, 2008), "[o]ur law does not . . . allow us to abandon a balance of harms analysis just because a potential environmental injury is at issue.” That decision further stressed that hardships related specifically to the potential impact on employment and local economies, as well as the public interest, must be weighed against the potential environmental harm in determining whether an injunction should issue. Id. There are substantial competing hardships, whose impact could be devastating to citizens who trusted that their government was acting legally in implementing the Critical Feed Use (CFU) initiative, as well as to the nation and the world economy at large, if the Court issues the injunction that Plaintiffs urge, which would suspend all haying and grazing under CRP-598 until Defendants have completed an Environmental Assessment. A district court has "broad latitude in fashioning equitable relief when necessary to remedy an established wrong,” High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 641 (9th Cir. 2004), and to this end, the Court ORDERS the following:

1. The parties will meet and confer in an attempt to agree on a modified preliminary injunction that takes into account all of the relevant hardships. If they are unable to agree, they shall nevertheless produce suggestions for mitigating these hardships. The parties might consider limiting the total acreage that can be hayed and grazed under the CFU initiative to the 2.5 million acres that Deputy Administrator John Johnson predicts will be the total number of acres actually affected by this initiative; a provision that would forbid the Secretary from reviving this program without first conducting an Environmental Impact Statement (EIS) or a Programmatic EIS; a provision that would forbid participation by land that has been hayed or grazed within a certain number of years; as well as any other provisions that the parties conclude would serve to mitigate the relevant harms.

2. The parties are to report back to the Court with their suggestions by filing them no later than Tuesday, July 22, 2008, at 12:00 p.m. The Court will issue a final modified preliminary injunction on that same day.

3. The Temporary Restraining Order currently in place shall remain until the Court issues the modified preliminary injunction.

A written order further explaining the Court's decision shall issue shortly.

SO ORDERED this 17th day of July, 2008.

So who is Judge Coughenour? The Seattle Times and Post Intelligencer have both used the phrase "maverick" in their coverage of this jurist who rides a Harley Davidson and still tries to visit those he has imprisoned.

In a 2001 profile, the Post Intelligencer said the judge was raised in the Midwest -- Pittsburg, Kan., -- earning his law degree from the University of Iowa in 1966. He was appointed to the federal bench in 1981 at the age of 39 by President Ronald Reagan, and became chief judge in 1998. He is also said to have "little time" for lawyers he views as not respecting the legal process.

Here's a link to read a piece from the Seattle Times, dated Aug. 1, 2006, on the judge.

Comments: Some in the livestock industry say this is somewhat of a "victory" for them in that the judge has recognized the plight that livestock producers are facing right now relative to feed prices and supply. His decision also offers some suggestions as to what the parties involved (USDA and the wildlife-group plaintiffs) could suggest as a solution to the matter. It's interesting that USDA also currently estimates that 2.5 million acres of CRP ground would actually be hayed or grazed under USDA's initial decision, especially when applications were still being processed or even were yet to be filed when the judge issued his ruling.

And, this doesn't address what may happen to those producers who took actions such as buying haying equipment or in some cases, drilling wells so that livestock producers who were poised to graze animals on these acres were ready to put their animals on these acres.

The judge's calling USDA's actions on this front relative to the environmental assessment a "joke" is probably being kind because this clearly is another issue where USDA has dropped the ball.

This should also mean the CRP penalty-free early out decision will be put on hold even further as the legal matters relative to the haying and grazing effort are sorted out.

Meanwhile, USDA Secretary Ed Schafer leaves today to lead a delegation to Colombia , but he will return to the US on Sunday, so the journey should in no way impact the coming CRP early-out decision.

NOTE: This column is copyrighted material, therefore reproduction or retransmission is prohibited under U.S. copyright laws.

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