Judge orders second hearing on CRP case | TSLN.com

Judge orders second hearing on CRP case

Chris Clayton
DTN Staff Reporter

OMAHA (DTN) – A federal judge in Seattle has ordered attorneys for USDA and the National Wildlife Federation to again appear before him on Thursday after the two sides failed to reach a compromise on how haying and grazing for critical-feed use could be allowed on Conservation Reserve Program land.

U.S. District Judge John Coughenour ordered Tuesday that his temporary restraining order against haying and grazing remains in place at least until after Thursday’s hearing at the U.S. District Court for the Western District of Washington in Seattle.

The National Wildlife Federation and six state affiliates sued USDA late last month to block the opening of CRP acres to temporary haying and grazing this summer. USDA announced the program in late May, stating at the time that it could provide as much as 24 million acres of critical feed for livestock producers and was needed due to the high price of commodities for livestock feed.

Coughenour issued the restraining order July 8 blocking livestock producers from taking advantage of the program. Coughenour stated at a hearing last week that he would likely issue a preliminary injunction that would place tighter controls on the acreage and usage of CRP land in the critical-feed use program. He said he would likely restrict potential haying and grazing acreage to about 2.5 to 3 million acres. Coughenour said last week he realized he needed to strike a balance between the impacts on the environment and wildlife with the impacts on livestock producers who are facing tough economic times.

In a joint court filing Tuesday from the National Wildlife Federation and the U.S. Department of Justice, USDA officials stated they did not intend to concede that a court injunction is warranted or consent to any provision.

When it comes to an acreage cap, USDA argued that, at a minimum, any cap should allow at least three million acres to be “touched by livestock or a hay baler.” That was stated because the notice creating the critical-feed program restricted haying to 50 percent of a field. USDA planned to first enroll acres for landowners who had already applied, then split the acres among the states for the initiative. The NWF wanted a tighter cap based largely on the applications received by USDA that amounted to 1.78 million acres.

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A key part of the lawsuit by the NWF is that USDA did not follow environmental laws when announcing the critical-feed program. The National Environmental Policy Act requires an environmental impact statement by government agencies, and the NWF wants USDA to be required to conduct such an environmental impact statement when there are any programmatic changes or amendments to CRP contracts or altering of the CRP program. USDA’s position is the department does not believe any provision on future compliance is needed, given the time-limited nature of the critical-feed use program.

USDA and NWF appeared to agree on the ending dates for the critical-feed use program of Oct. 15 for haying and Nov. 10 for grazing. The dates for starting the critical-feed use program varied across the country and were set in each state based on the ending of the primary nesting season for birds. For some states, that was as early as July 1, while in other states, it was as late as Aug. 15.

In a friend of the court brief, the American Farm Bureau, National Cattlemen’s Beef Association and National Pork Producers Council explained that the scope of a preliminary injunction could affect producers differently depending on the state in which they live.

The agricultural groups argued that because primary nesting dates differed across the country, so did participation rates in the critical feed program. States that opened land to haying or grazing at the beginning of July, such as Oklahoma and New Mexico, had changes to enrollment contracts of 15.4 percent and 23.9 percent, respectively. Meanwhile, some states that opened land after Aug. 1 had enrollment of less than 1 percent of the contracts. As such, the agricultural groups argued against an absolute cap on acreage. “Any absolute cap on the total number of acres affected by the initiative will disproportionately and unfairly harm producers based on where they live,” the ag groups wrote.

Farm Bureau, NCBA and NPPC argued for a “state-by-state approach” that would limit the number of acres actually affected to 60 percent of the general CRP acreage in each state. That’s twice the highest acreage percentage enrolled in the initiative in New Mexico, which has 30 percent of its acres signed up for haying or grazing.

“Doubling that number should be sufficient to ensure that all farmers and ranchers in states with later start dates who have relied on the (critical-feed initiative) will have equal opportunity to participate,” attorneys for the ag groups wrote.

Nationally, 60 percent equates to about 20.5 million acres of the program.

The agricultural groups also agree with the court on other restrictions, such as USDA being forced in future years to follow the environmental laws when creating such a critical-feed program.

Chris Clayton can be reached at chris.clayton@dtn.com