Judge Puts No Acreage Limit on CRP Haying/Grazing, But...

Published on: 14:09PM Jul 24, 2008

By Jim Wiesemeyer

via a special arrangement with Informa Economics, Inc.

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Shortened period for haying & grazing
Updating to include comments from the National Wildlife Federation

Both sides are claiming victory on the issue of haying and grazing of Conservation Reserve Program (CRP) acres. U.S. District Judge John Coughenour has issued a ruling from the bench in the case brought by the National Wildlife Federation and several state organizations, contacts tell me.

What the judge ruled: That there be no acreage cap on the critical feed use (CFU) effort as the wildlife groups sought, but any haying of CRP ground via CFU has to be completed by Sept. 30 and grazing must be completed by Oct.15.

Background: USDA announced May 27 that CRP contract holders could apply to hay or graze their CRP acres after the wildfowl nesting season ended in their particular state. Under the CFU effort, producers could only harvest hay on 50% of the CRP ground and could only graze 75% of their CRP acres and would have to complete those efforts by Nov. 10.

The following is the court order:

This matter comes before the Court on Plaintiffs’ Motion for a Preliminary Injunction. (Dkt. No.
2.) With the parties’ concurrence, the Court has advanced the trial on the merits and consolidates it with the hearing held today, pursuant to Federal Rule of Civil Procedure 65(a)(2). The Court has carefully reviewed all of the papers filed by both the parties and various amici curiae, and has heard the parties at two separate hearings.
Being therefore fully apprised of the matter, the Court hereby VACATES the Temporary
Restraining Order ("TRO") it issued on July 8, 2008 (Dkt. No. 12), and, for the reasons explained in its Order issued on July 18, 2008 (Dkt. No. 60), FINDS that Defendants violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., acting arbitrarily, capriciously, and unreasonably, when they decided, on the basis of the "Environmental Evaluation" produced, that the Critical Feed Use initiative would have no significant adverse environmental consequences, and accordingly concluded that an EA or EIS was not necessary.
The Court, therefore, GRANTS Plaintiffs’ Motion for a Injunction IN PART (Dkt. No. 2),
ORDERING entry of the following permanent injunction:
1. All haying and grazing pursuant to CRP-598 is suspended, except:
a. Those CRP participants who, prior to the Court’s issuance of the TRO on July 8, 2008,
had already applied to and received approval from the Farm Service Agency ("FSA") to
hay and graze pursuant to CRP-598, may immediately proceed with the approved activity,
subject only to certain limitations discussed below.
b. The FSA may also proceed to process and, where appropriate, approve, the remaining
applications that were filed by CRP participants prior to the issuance of the TRO. Once
approved, these CRP participants may also proceed to conduct whatever activity the FSA
approves, subject to the limitations discussed below.
c. No additional applications to hay or graze pursuant to CRP-598 may be accepted by FSA
unless the applicant can make a showing of significant reliance on CRP-598, to be shown
1) Documentary proof of investment of $4,500 toward haying or grazing equipment or preparation made prior to the issuance of the TRO; and
2) A declaration from the contract holder attesting to his reliance on CRP-598 in making the above defined investment. The FSA shall maintain this documentation for each additional application it approves, and make it available for inspection upon the Court’s request.
2. All haying and grazing authorized by and conducted in compliance with a Critical Feed Use
modification pursuant to CRP-598 in 2008 as permitted by this injunction and discussed in section 1, above, shall be subject to the following additional restrictions:

a. End Dates:
1. Where the application was submitted and approved prior to the issuance of the TRO, all haying and grazing shall be completed by November 10, 2008.
2. For all subsequent approvals, haying for Critical Feed Use under CRP-598 shall be
completed by September 30, 2008. All grazing for Critical Feed Use under CRP- 598 shall be completed by October 15, 2008.
b. Frequency: Applicants participating in a Critical Feed Use modification pursuant to CRP- 598 in 2008 as permitted by this Order may not hay or graze lands enrolled in CRP again except pursuant to a managed haying or grazing contract modification that is consistent with the haying and grazing frequencies established by 7 CFR Part 1410 and the Stipulation of Settlement in NWF v. Johanns, No. 04-2169-TSZ (W.D. Wash. Sept. 29, 2006). For purposes of compliance with these frequencies, haying or grazing this year will
"restart" the clock.
c. No Rental Reduction: No rental fee reduction shall be assessed on any applications submitted or approved pursuant to this Order, other than the $75 modification fee as per the original provisions of CRP-598.
3. Defendants are further ordered to inform all CRP participants who have already or will, consistent with this Order, receive CRP contract modifications pursuant to CRP-598 of this Order and the restrictions herein.
SO ORDERED this 24th day of July, 2008.

The South Dakota National Wildlife Federation sees the ruling as a "big victory" for them, as per the following, according to a contact:

"As you all know, Judge John Coughenour issued an opinion last week that held FSA violated NEPA in approving the Critical Feed Use Program. Over the last week, we've gone back and forth with the government's lawyers about what should and should not be enjoined as a result of the violation of law.
This morning, the Court held a hearing on the injunction. Things started very badly. I spent two hours at the airport only to be told my flight to Seattle was cancelled. But the day improved rapidly when I attended the hearing via speaker phone. Judge Coughenour asked for any comments over and beyond the proposed order that we filed and then proceeded to read his permanent injunction and final order into the record. He accepted everything we proposed.

"The Judge :

1) approved our proposal that farmers who had approved contract modifications could move forward immediately.
2) approved our proposal that FSA should process pending applications
3) found that no additional applications could be accepted unless a producer could show reliance on CRP-598. and investment of at least $4500.
4) found that all critical feed use of CRP lands should end by Nov. 10 for approved contract modifications and Oct. 15 for pending applications.
5) held that all producers who elect to hay or graze this year pursuant to CRP-598 cannot hay or graze again except pursuant to the managed haying and grazing schedule that we established in National Wildlife Federation v. Johanns.

"With this order, the case is over unless USDA chooses to appeal to the Ninth Circuit. With the decision, we've taken a program that USDA targeted at 24 millions acres and scaled it back to 1.8 million, we reconfigured the program to make it part of the managed haying and grazing schedule which has wildlife friendly haying and grazing frequencies, and we forcefully reminded USDA that CRP is a conservation program and that government agencies need to comply with the law.

"As I told my law clerk Amanda Hill, she will practice law for many decades before she sees another case that is filed, briefed and decided as quickly as this one has been, especially one that has been so successful. The success has occurred because of great teamwork. Amanda did great work on the complaint and the briefs, as did my co-counsel Sarah McMillan.

"Sue Scaggs provided her usual invaluable editing and formatting. Ben Deeble, July Sibbing and Duane Hovorka filled a lot of gaps and handled most of the outreach. Carl Madsen, Chris Hesle and Clait Braun provided important declarations in the case. We had a lot of support from key NWF leaders and affiliates. While I don't think we're done with USDA initiatives to undermine Farm Bill conservation, we've got a great team in place for the next round. My thanks to all."

Comments: Well, as you can see, both sides are claming victory. While the haying and grazing must be completed earlier than USDA originally had proposed (Nov. 10 was the original completion date via CFU), so wildlife interests did get somewhat of a victory on that front.

Also, some speculate this could give USDA the "go ahead" to move forward with doing a penalty-free early out on CRP contracts to bring land back into production for the 2009 growing season. But that is not the impression one would get from the wildlife group's commentary!

One source told me, "With respect to the early out of CRP acres, this Judge’s order does not necessarily help. The bottom line is that USDA needs to do a solid NEPA evaluation of any such decision. The Judge made it clear that with respect to the haying and grazing provision, USDA had not followed their own rules on NEPA. The two main talking points for USDA are: (1) Do the early out because we need more crop acres if we are to have any chance of enough land to provide a buffer against a short grain or bean crop and to give us some marginal relief on price; and (2) Do your NEPA evaluation correctly."

Also, Senate Ag Chairman Tom Harkin (D-Iowa) today said he was against early out of CRP acres without penalty, noting there would be a financial disparity if some farmers can break a contract without penalty while others paid large amounts in the past to gain access to the land. "The release of CRP land for crop acres next year, I'm opposed to it," Harkin said. "It's inequitable."

A source told me the following insight:

"1) Producers with approved revisions can immediately go ahead and start
haying and grazing. They can continue till original November 10 date.

"2) Producers who have applied but haven't been approved yet will have applications processed. New dates on haying and grazing apply.

3) Producers who haven't applied yet will still be able to apply if they can include with application statement to the effect that they had relied on haying and grazing order and made adjustments or investments in future production plans as a result that amount to at least $4500.

"Need to see written order to better understand how this will play out."

So, what's the final verdict on the ruling?

Wins for USDA:
1. Those approved prior to TRO can restart haying/grazing with original deadline on completion -- Nov. 10.

2. Applications submitted but not yet approved by the initial TRO date of July 8 can be processed by FSA (subject to date limitations)

3. New applications can be submitted if the producer can prove they would rely on this and spent $4,500 to utilize this and they follow the new date limitations.

4. USDA does not have to go back and do an EIA or EIS.

Wins for the Wildlife folks:

1. Date limitations put on yet-to-be approved applications.

2. Got the judge to side with them that USDA was "arbitrary and capricious" in its decision to not do an EIA/EIS.

Update: Julie M. Sibbing, Senior Program Manager for Agriculture and Wetlands Policy, National Wildlife Federation, in an email message to me, wrote, "You should read Monday's communication to the judge to determine who the real winners and losers are. It includes what NWF and USDA agreed on, and what we didn't agree on. Judge gave NWF just about everything we asked for - except the earlier haying and grazing ending dates, which were actually proposed by USDA in a bid to get a 3 million acre cap."

Bottom line:
To me, this isn't as big of a win for wildlife as they are making it out to be. But it's not a total victory for USDA as there are some limits on the effort. But all those still wanting to do this have to do is "prove" (big question is how they have to prove) they need it and spend $4,500 in anticipation of utilizing CFU. The really big winners are (1) those who did the paperwork and were approved by USDA before the TRO and (2) those whose applications are still pending even though they lose some time to utilize the CRP acres, and (3) agribusiness firms who supply haying equipment or those selling livestock containment devices and well-drilling/water-handling equipment.

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