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-