USDA must limit CRP haying and grazing
July 18, 2008
SEATTLE (DTN) – A temporary restraining order will remain in place this week blocking livestock producers from haying and grazing Conservation Reserve Program land under a special USDA program and a federal judge likely will place tight controls on any haying or grazing next week.
USDA cannot unilaterally modify Conservation Reserve Program contracts across the country without doing a more open environmental impact study than the one done before the department announced the critical-feed use initiative in May, U.S. District Judge John Coughenour told attorneys in a hearing Thursday morning.
USDA announced in May that landowners with CRP contracts could apply to hay or graze on up to 24 million acres that would be open after the primary nesting season for birds ended in each state. That prompted a lawsuit by the National Wildlife Federation and ultimately led Coughenour to issue a restraining order last week. The wildlife group argues there could be long-term harm to wildlife if USDA allows wholesale haying and grazing on ground set aside to help the environment.
After listening to arguments, Coughenour said he will likely issue a preliminary injunction next week that would place tighter controls on the acreage and usage of CRP land in the critical-feed use program. Coughenour said he would restrict potential haying and grazing acreage to about 2.5 million to three million acres.
“I have in mind a cap here,” Coughenour said about the acreage.
USDA officials at the hearing told the Justice Department attorneys that a tighter cap on the acreage involved in the critical-feed use program would be feasible. As of Tuesday, landowners had enrolled about 1.7 million acres, though the court case and temporary restraining order may have caused some chilling of enrollment.
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Coughenour said he wants either an agreement between USDA and the Wildlife Federation on possible parameters in the haying and grazing program and/or separate final court briefs by Tuesday before he would issue his injunction.
“In all likelihood I will issue a modified (preliminary injunction) on that day,” Coughenour said.
Coughenour said acreage should be capped and also spread across the different states or regions of the country to limit possible environmental impact in one area and ensure livestock producers across the country would have a chance to enroll. Participation should also likely be limited on land that has been hayed or grazed in recent years, he said.
In defining how he would rule, the judge said he had to strike a balance between the impact on the environment and wildlife from haying and grazing and the economic hardship that livestock producers face if no haying or grazing is allowed.
Coughenour earlier called it “breathtaking” for U.S. Agriculture Secretary Ed Schafer to make a decision on 24 million acres without conducting an environmental impact study. He added that it is likely that the National Wildlife Federation would win on the argument that USDA ignored federal law and USDA regulations that require such a study. A Justice Department attorney argued USDA complied with its regulations by doing an “environmental evaluation,” but Coughenour did not agree.
“The EE (environmental evaluation) can charitably be classified as a joke when it relates to compliance with NEPA,” the judge said.
Department of Justice attorney Donna Fitzgerald said the environmental evaluation is “not your typical NEPA document,” but still complied with the rules. The evaluation took months to do and was not “ginned up” just for the courts, she said.
“The Secretary of Agriculture had to make a very difficult decision in a short period of time,” Fitzgerald said.
Ron France, an attorney for the National Wildlife Federation, argued USDA cannot make such decisions without including major stakeholders, including the public, other government agencies and conservation groups.
“There were many different kinds of alterations that could have been fashioned to limit the impacts of this,” France said.
While there were only a small number of people listening to the hearing, three ranchers who are affected by the temporary restraining order did attend Thursday. Ryan Raymond of Helix, OR, planned to hay 100 acres on Tuesday when the primary nesting season ended in his state. Raymond said after the hearing he is concerned that the quality of hay will drop quickly as the legal wrangling continues.
“July 15 is pushing it,” Raymond said. “I was going to hay and was planning to cut in on July 15. It’s already dry and we don’t know what the quality will be.”
Ron Nordby, a rancher from Mansfield, WA, planned to graze 1,000 acres of CRP ground. He said he thinks CRP needs to be refined to allow occasional haying or grazing, which would improve wildlife cover.
“If they could figure out a way to pasture it every now and then that could improve the stand and deal with weed control,” Nordby said.
As attorneys made their arguments, Coughenour informed them that he had been “off the asphalt,” and had a farm background. Coughenour said he grew up in rural Kansas where he “cut hay, chucked corn” and spent his childhood “plowing wheat fields.”
The court case does not affect emergency haying and grazing enrollment in counties considered disaster areas or contiguous to disaster areas. Landowners in large swaths of the country have been able to enroll in those programs because of flooding, drought and other natural disasters this year.
The lawsuit, however, could affect the way USDA chooses to create any early-out program for CRP acres to increase production of commodities. Conservation groups including the National Wildlife Federation have cautioned USDA against opening up CRP contracts while livestock and commodity groups are asking for USDA to move ahead with a decision. USDA officials say Schafer could make a decision on early out very soon.
Chris Clayton can be reached at firstname.lastname@example.org