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December 16, 2016 CapitalPress.com Raisin confiscation lawsuit to proceed Lion Farms seeking crop compensation from USDA By MATEUSZ PERKOWSKI Capital Press A major California raisin producer can proceed with a lawsuit that demands reim- bursement from USDA for raisins that were confiscat- ed under an unconstitutional marketing order program. In 2015, the U.S. Supreme Court ruled that a marketing order requiring farmers to turn over a portion of their raisins to USDA to prevent market surpluses violated the consti- tutional ban against govern- mental takings of property without just compensation. That ruling inspired Lion Farms, a raisin grower and processor in Selma, Calif., to seek financial compensation for raisins taken by the agency between 2006 and 2009. The company lost 10- 15 percent of its crop to the marketing order during those years, with the raisins valued at roughly $1,200 to $1,300 per ton, according to the firm’s complaint. The raisins collected from growers by the government were sold in overseas markets Associated Press File Farmworkers near Fresno, Calif., pick paper trays of dried raisins off the ground and heap them onto a trailer in the final step of raisin harvest. A California farm has won an appeal allowing it to seek remuneration from the USDA for raisins that were confiscated under the industry’s marketing order. and school lunch programs, with the funds paying for the marketing order’s administra- tion. Any leftover cash was sup- posed to be returned to farm- ers, but none was available to disburse to Lion Farms and other growers. A six-year statute of limita- tions on such claims was seen as a major obstacle when the lawsuit was filed, but Senior Judge Loren Smith of the U.S. Court of Federal Claims has now ruled that limit doesn’t apply to Lion Farms’ case. The company could not have reasonably filed a law- suit seeking reimbursement for the raisins until the Su- preme Court’s decision made clear the marketing order was unconstitutional, Smith said 5 in a ruling denying the US- DA’s motion to dismiss the lawsuit. “It would certainly raise ethical questions for an attor- ney to file litigation in a case where the client was sure to lose,” he said. “In such a case the attorney would be wasting the client, the government, and the court’s time and re- sources.” The ruling may inspire other raisin farmers to seek reimbursement for raisins turned over before the six- year statute of limitations, said Jim Burling, an attorney with the Pacific Legal Foun- dation property rights group that has followed the case. The judge seems to imply the statute of limitations be- gins accruing from the time of the Supreme Court’s decision last year, he said. “It does strike me as creat- ing a significant potential lia- bility across the board for the agency,” Burling said. A major caveat is USDA will almost certainly chal- lenge the decision before the U.S. Court of Appeals for the Federal Circuit, he said. That appellate court is of- ten where rulings favorable to property owners on un- constitutional takings “go to die,” since they’re often over- turned, Burling said. Lawsuit seeks reconsideration of BLM sage grouse rules Harney Soil and Water Conservation District calls regulation burdensome A lawsuit seeks to force the Bu- reau of Land Management to review a management plan that BLM has unilaterally revised. The plan is aimed at protecting the greater sage grouse. By MATEUSZ PERKOWSKI Associated Press File Capital Press ous legal settlement) and didn’t have time,” she said. The U.S. Interior Depart- ment, which oversees BLM, doesn’t comment on pending litigation but believes the plan amendment was based on the best available science and was developed collaboratively with state and local partners, an agency spokeswoman said in an email. “We continue to believe the plans are both balanced and ef- fective — protecting key sage- grouse habitat and providing for sustainable development,” the email said. “The plans are critical to the (U.S. Fish and Wildlife Service’s) determina- tion that the greater sage-grouse does not need the protection of the Endangered Species Act, and we look forward to imple- menting them in collaboration with states and stakeholders.” The amended regulations contain unrealistic grass height requirements for cattle to be allowed to graze, Budd-Falen said. “In a lot of areas, the grass doesn’t grow that high no mat- ter what.” BLM is also adopting a new method of monitoring range- land health that will require re-training of agency employ- ees, she said. If resources aren’t sufficient to monitor certain regions with the new method, that will pro- vide environmental groups with fodder for lawsuits to block grazing, Budd-Falen said. Ranchers depend on graz- ing allotments on federal land, since they don’t have any ready alternatives for forage while the BLM calibrates its new monitoring strategy, she said. “These grazing allot- ments are part of these guys’ ranches.” It would be more difficult for ranchers to build range- land improvements due to re- strictions on possible perches for predators that would hunt the sage grouse, she said. In the best case scenario for the lawsuit, a judge would remand the amended plan to BLM, which would then in- corporate recommendations in the rural community alter- native that are less onerous to ranchers, Budd-Falen said. “The Trump administra- tion can’t predetermine a de- cision,” but it can re-start the process, she said. 51-1/#7 51-7/#6 The Harney Soil and Wa- ter Conservation District in Eastern Oregon hopes that new sage grouse regulations will be revised under the upcoming Trump administration. To that end, the district has filed a lawsuit that seeks a court order requiring the U.S. Bureau of Land Management to recon- sider the rules, which ranchers see as overly burdensome. The BLM amended Ore- gon’s “resource management plan” for federal lands last year as part of a broader push to pro- tect greater sage grouse habitat and prevent further declines in the bird’s population. The agency unlawfully ig- nored a “rural community alter- native” focused on preventing wildfire and invasive species — the greatest threat to sage grouse — developed by local BLM officials, scientists and ranchers, according to Harney SWCD’s complaint. Instead, BLM adopted a plan that will likely cause graz- ing curtailments, the complaint said. The rural community alter- native was disregarded not for scientific reasons, but for expe- diency, which isn’t a valid rea- son to ignore the law, said Kar- en Budd-Falen, the district’s attorney. “The BLM ignored it be- cause they said they were under court deadlines (from a previ-
