Monday, August 12, 2013

Greg Herden v. United States

Aug 9: In the U.S. Court of Appeals, Eighth Circuit, Case No. 11-3530. Appealed from United States District Court for the District of Minnesota in Minneapolis. In an split, en banc decision, the Appeals Court explains that Greg Herden, Roger Herden, and Garrett Herden (the Herdens) sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. They alleged their cattle operation suffered damage because of a seed mixture an employee of the United States Department of Agriculture (USDA) directed them to plant on their land. The district court dismissed the Herdens' claims, concluding the Federal employee's conduct fell within the FTCA's discretionary-function exception. The Appeals Court indicates that, "After a divided panel of this court reversed the district court, the en banc court granted the government's petition for rehearing. We now affirm the district court."
    The case involves the Herdens who operate a three-generation cattle farm in northern Minnesota. In May 2004, the Herdens chose to participate in the Environmental Quality Incentives Program (EQIP). EQIP is a program run by the USDA through the Natural Resource Conservation Service (NRCS). In this case, the Herdens agreed to plant a mix of grasses and legumes on some of their pasture lands, and the government agreed to reimburse the Herdens 90% of the costs associated with planting the seed mixture chosen by the NRCS. In Minnesota, William Hunt served as the NRCS's State Conservationist. Hunt delegated seed mixture planting decisions to his staff, including State Grazing Specialist Howard Moechnig. Moechnig was the particular staff member who visited the Herdens' ranch to select a seed mixture.

    After Moechnig chose the seed mixture for the pasture in Section 11, Greg Herden said he complained to Moechnig about the high amount of Alsike Clover in the mixture because the clover can create toxic hay for cattle. Moechnig does not recall Herden complaining about Alsike Clover toxicity, but does remember Herden asking for permission to plant a mix containing alfalfa. Moechnig denied permission to plant an alfalfa mix, explaining that alfalfa is hard to establish on wet soils and therefore would neither meet NRCS's environmental goals nor be a good investment for the government. The Herdens chose to comply with Moechnig's seed mixture decision because failure to do so would have resulted in losing the federal funding under EQIP.
    The Herdens claim toxic hay began to injure their cattle in the spring of 2007. Several calves were stillborn, and others died shortly after birth. Adult cattle also died. The Herdens attribute the illnesses and deaths of their cattle to the Alsike Clover in the hay harvested from the Section 11 pasture. They claim the losses to their cattle herd have virtually destroyed their multi-generational farming operation. The NRCS contests the Herdens' claims and instead believes mold in improperly stored hay caused the problems with the cattle herd.

    The Majority reasoned that, "On one hand, the Herdens believed a seed mixture containing alfalfa would have better advanced the statutory goal of agricultural production, as well as one of Code 512's stated purposes of improving or maintaining livestock nutrition and/or health. On the other hand, Moechnig believed a seed mixture containing Alsike Clover would better advance the statutory goal of environmental quality, and at least one of Code 512's stated purposes of reducing soil erosion by wind and/or water. The fact that Moechnig was required to balance those competing interests in order 'to optimize environmental benefits,' 16 U.S.C. § 3839aa, clearly demonstrates the decision he ultimately made was susceptible to policy analysis and thus the type of decision Congress meant to shield from judicial second-guessing. A federal employee implementing EQIP at the local, operational level must have the discretion to balance environmental protection and cattle production in order for the program to be worth the government's significant investment. . . Moechnig's job required him to balance protecting the environment with providing nutritious cattle forage, while at the same time being cognizant of the cost to the Herdens and the federal government. We therefore conclude this case involves the type of discretionary decision Congress meant to shield from judicial second-guessing."
    Three Justices dissented saying, ". . .Moechnig's decision in this case is not the type of decision Congress intended to shield from suit. Decisions are not shielded from suit merely because it is possible to identify policy issues behind the government program at issue. Rather, there must be 'real and competing policy considerations implicated,' C.R.S. ex rel. D.B.S. v. United States, 11 F.3d 791, 802 (8th Cir. 1993), at the general level of decision-making challenged in the lawsuit. This 'is what separates' protected from unprotected conduct. Id. It is our task to carefully distinguish those cases involving meaningful policy considerations from cases like this, that bear only the superficial trappings of such considerations. . . Moechnig's limited authority did not extend to the type of discretion Congress intended to shield from suit."
    Access the complete opinion and dissent (click here). [#Agriculture, #Land, #CA8]

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