Federation of Southern Cooperatives: Response to Times Article on Pigford Settlement

Last week, the New York Times published an article that was highly critical of USDA efforts to settle longstanding discrimination claims and to compensate African-American, Native American, Hispanic, and Women farmers who showed evidence of discrimination under the farm loan programs.  U.S. Opens Spigot After Farmers Claim Discrimination, by Sharon LaFraniere. The article alleged widespread fraud in the Pigford case settlement with African American farmers.

I have submitted an editorial to the New York Times that corrects some of the errors and misleading inferences contained in the article.  If the Times declines my editorial, I will be posting it here.

In the meantime, the Federation of Southern Cooperatives produced a point-by-point analysis that refutes some of the specific allegations about Pigford contained in the article.  As the Times article is getting widespread coverage, I reprint the Q&A portion of the Federation's response below.  The original issuance and the press release is available on the Federation's website.

"Sharon LaFraniere got it Wrong!"  Response to the coverage of the Pigford Settlement in the

April 26, New York Times
 . . .

Article: "From the start, the claims process....encouraged people to lie"

Response: False. Claimants and the attorneys had to sign the claim form under penalty of perjury. Frivolous claims by underage individuals were screened out by the claims facilitator. While few documents existed, every claim was subject to scrutiny be a team of USDA officials. The claims were decided by experienced neutrals and, in the end, 30% of all claims were denied.

Article: "But critics, including some of the original black plaintiffs, say that is precisely what the government did when it first agreed to compensate not only those who had proof of bias, but those who had none."

Response: Every claimant had to prove bias to prevail on a claim, including identification of a similarly situat[ed] white farmer who received more favorable treatment than the black farmer.

Article: "Justice department lawyers worried about false claims....it was better to err on the side of giving money to people..."

Response: This was no giveaway. Initially 40% of all claims were denied. Some of these people appealed and, in the end, 30% of all claims were denied.

Article: "Claimants described how, at packed meetings, lawyers' aides would fill out forms for them on the spot, supplying answers..."

Response: This never happened at the 250+ meetings conducted by class counsel. They were instructed not to sign claim forms under penalty of perjury unless they believed that the individual had a valid claim. On average, they turned away 25% of the claimants and were criticized by many who believed that the claim process was too rigorous.

Article: "Accusations of unfair treatment could be checked against department files if claimants had previously received loans...but there was no way to refute what they said."

Response: Local USDA did refute claims even where no documentation existed. They often submitted affidavits disputing a claim that the person had applied for loans.

Article: "In Maple Hill .....dozens of other families shared addresses, phone numbers or close family connections."

Response: All claims were carefully screened by the EPIQ Systems, one of the foremost class action administrators in the country. Only one claim per farming operation was allowed. Multiple claims by family members were consolidated into one claim. Claims with same last names, same addresses, same telephone numbers were carefully screened to enforce the limit of one claim per farm operation.

Article: "But four-fifths of successful claimants had never done so [previously received loans]."

Response: What basis does the reporter have for making this claim? There is no data analysis on this issue. By implying that those persons are unworthy of relief or should be disregarded to avoid the possibility of fraud, that statement strikes at the very heart of this claims process-its goal of providing compensation to farmers who were excluded from USDA's programs. Of course, people who were excluded would not have previously received loans.

Article: But some critics, including some of the original black plaintiffs, say that is precisely what the government did [open up a Pandoras box] when it first agreed to compensate not only those who had proof of bias, but those who had none (emphasis added).

Response: That is incorrect. Each claim in Pigford I, to be successful, had to establish sufficient facts by the claimant's own declaration (which is proof in court like any testimony) that he or she suffered discrimination, including the names of white farmers who got the specific farm loan benefit he or she was denied. Then, USDA could, and in many cases did, submit evidence that it believed contradicted the claimants declaration. All this evidence was evaluated by a trained adjudicator. This process simply cannot be described as one in which the farmer can win without any proof of bias.

Article: Just five months after the lawsuit was filed, and without the investigative step of discovery, the Justice Department opened settlement negotiations.

Response: That statement suggests there was no discovery or litigation after five months. That is wrong.  Both sides engaged in discovery and typical pre-trial motions practice for a year before substantive settlement negotiations commenced in August 1998. And the negotiations really got serious only after plaintiffs won their motion for class certification in October 1998, some 14 months after the case was filed.

And finally,

• The story is largely anecdotal - sure there are people at USDA who are vested in the system who refuse to admit the undeniable legacy of discrimination at the department.

• The presentation of data is misleading. The number of farms operating in 1997 is essentially irrelevant. The case covers a 16 year period during which there were over 125,000 African Americans engaged in farming at one time or another.

• Minimal documentation was required because 1) USDA destroyed the denied loan applications and civil rights complaints; 2) the case went back to 1981 so many folks had lost or destroyed their own records. It went back to 1981 because USDA shut down its civil rights office in the arly 80's so minorities were denied the opportunity to present their claims at a time when they would have had records.

• Out of 503 cases referred to the FBI, they chose to investigate 60 - 3/10 of 1 percent of the 22000 claims. That is minuscule.

• The denial of credit and benefits has had a devastating impact on African American farmers. According to the Census of Agriculture, the number of African American farmers has declinedfrom 925,000 in 1920 to approximately 18,000 in 1992. [USDA Civil Rights Action Team Report] CRAT Report at 14. The farms of many African American farmers were foreclosed upon, and they were forced out of farming. Those who managed to stay in farming often were subject to humiliation and degradation at the hands of the county supervisors and were forced to stand by powerless, as white farmers received preferential treatment.

The Food Dialogues: Chicago

With a huge hat tip to The Food Dialogues, the BIO International Convention, and BIOtechNOW, Agricultural Law is pleased to rebroadcast the April 22, 2013, Food Dialogues, presented at the 2013 BIO convention in Chicago, by the U.S. Farmers & Ranchers Alliance®.

Colleen Lerro's article for BIOtechNOW presents the key details:

The Food Dialogues: Chicago panel on April 22 at the BIO Convention is called, “The Straight Story on Biotech In Agriculture: The Media and its Impact on Consumers.” Experts from multiple disciplines, including farmers, media, industry and acedmia will make up the dynamic panel to answer some of the toughest questions surrounding GMOs. They’ll discuss what more can be done by all sides – including those who are not in favor of the technology – to give consumers access to information that matters.

Ron Insana, senior analyst, CNBC and financial industry expert, will lend his expertise as the panel moderator. Panelists include:

• Emily Anthes, journalist and author, Frankenstein’s Cat
• Dr. Bob Goldberg, plant molecular biologist currently using genomics to identify all of the genes required to “make a seed,” UCLA
• Melinda Hemmelgarn, M.S., R.D., freelance writer, speaker, columnist and radio host, Food Sleuth
• Pam Johnson, Iowa corn farmer
• Michael Olson, Producer/Host, Food Chain Radio
• Jerry Slocum, Mississippi soybean farmer
• Steve Smith, Chairman, SaveOurCrops.Org

This event is designed to answer America’s questions on some of today’s most provocative issues surrounding food and agriculture. The panelists will explore the many questions consumers have about biotechnology in agriculture – known more commonly to consumers as GMO. In particular, they will address what additional information consumers need access to as interest in this topic continues to grow.

Gender Disparities in Farm Transmission

The North Dakota Law Review has jut published an article called "Rural Inheritance:  Gender Disparities in Farm Transmission."  This is a thoughtful gendered critique of why sons rather than daughters tend to inherit family farms.  It concludes that families and rural society groom boys to farm, but do not cultivate this interest in nor pass the know-how on to girls in the same way.  Gender stereotyping and its consequences remain the culprit, even in the face of changes to the Uniform Probate Code that made it gender-neutral.

The author of "Rural Inheritance" is Hannah Alsgaard, a 2012 graduate of the University of California, Berkeley, School of Law (Boalt Hall), who is currently clerking for Judge Roberto Lange of the District of South Dakota, in Pierre.  Ms. Alsgaard grew up in Yankton, South Dakota, so she knows well the milieu of which she writes.  The abstract for the article follows, and you can download the full text here:

Farmers are farmers’ sons. Notable in our modern day, heralded by many as a gender-neutral society, it is farmers’ sons, not farmers’ daughters, who become farmers and take over ownership and management of the family farm. It has long been true that agricultural knowledge and land have passed through generations of men. In contrast, daughters, even today, are neither considered to be farmers nor likely to inherit family farmland. This Article begins by chronicling how farmland is inherited (by sons) then discusses why the pattern of excluding women continues. There have been substantial legal changes in the United States impacting land inheritance and ownership, culminating with the Equal Protection Clause’s extension to gender discrimination and the gender-neutral Uniform Probate Code. Social changes have also been tremendous, but even legal and social developments have been unable to correct gender disparity in farm inheritance. After exploring many legal and social factors, I conclude it is grooming – at the familial, governmental, and social levels – that plays the most vital role in training future farmers and mainly accounts for the gender difference in farm inheritance and the farming profession. This Article ultimately proposes girls must be groomed to farm in order to rectify the vast gender disparity in the ownership and management of family farms. A three pronged approach will be needed to remedy the situation, specifically: changing the role of lawyers, educating girls and women, and educating testators. What remains most important is that daughters are given the same opportunity as sons to farm based on merit, rather than being excluded from farm inheritance merely because of their gender.

Cross-posted to Legal Ruralism.

Giving Credit & the National Strawberry

Yesterday, I posted on the Strawberry Sustainability project underway at the University of Arkansas, Regrowing a Regional Food System.  My post included a particularly well done video that tells the story.  I wanted to emphasize the importance of agricultural research directed toward sustainable production and local farming efforts.

Today, I offer a follow-up post. Additional information about the project reveals that the Walmart Foundation donated $3 million to the University of Arkansas Division of Agriculture for the project. The goal of the donation is "fresher strawberries for consumers and an economic boost for local farmers throughout the country."  A related goal could be more local strawberries sold at Walmart.  That seems like a win-win to me.

The donation went to the Center for Agricultural and Rural Sustainability, (CARS). The center will create and manage a national competitive grants program, awarding money to other public universities with agricultural research and outreach programs with projects to "expand where strawberries can be grown, enabling shorter trips for the berries between farm and consumer."

CARS involves interdisciplinary efforts across campus, beyond the horticulture experts mentioned in the video, and the strawberry project is similarly collaborative. "The ongoing collaboration between land grant universities, agricultural producers, food companies, and retailers is critical to improving quality, safety and efficiency, and reducing negative impacts across the agricultural supply chain," said professor Marty Matlock, engineering program director for CARS.  Marty is also the Executive Director of the Office of Sustainability at the University of Arkansas; his commitment to sustainability runs deep.

CARS will seek project proposals through its strawberry sustainbility initiative and will award grants in May to coincide with National Strawberry Month.

Regrowing a Regional Food System

Strawberries don't have to come from California in plastic boxes. We can grow this delightful fruit in many different areas. In fact, a number of other regions, including Northwest Arkansas, used to be known for fruit production.

Researchers are now trying to help recreate that regional food supply while also expanding the growing season to meet consumer demand.  This excellent short-takes video from the University of Arkansas talks about the current research to restore and expand regional strawberry production.  To me, these folks are heros -  and their work reminds me of how important agricultural research can be as we try to chart our way forward to build a more sustainable food system.

Ag Industry Caught in Legislative Embarrassment: Not the Way A Democracy Should Work

In late March, Congress was finally able to agree on budget legislation that would avoid a government shut down and provide funding for 6 months. The Consolidated and Further Continuing Appropriations Act, 2013 was passed by both Houses of Congress and signed by the President.

Section 735 of the bill - now known as the "Monsanto Protection Act" was one of several unrelated "riders" that were tacked on to the appropriations bill in the Senate. It's inclusion prompted a firestorm of criticism about the ability of powerful industries to influence the government and provoked numerous write-in campaigns.

The text of the now infamous provision is as follows:

In the event that a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act is or has been invalidated or vacated, the Secretary of Agriculture shall, notwithstanding any other provision of law, upon request by a farmer, grower, farm operator, or producer, immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act, which interim conditions shall authorize the movement, introduction, continued cultivation, commercialization and other specifically enumerated activities and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any, relevant to the Secretary’s evaluation of the petition for non-regulated status, while ensuring that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities in a timely manner: Provided, That all such conditions shall be applicable only for the interim period necessary for the Secretary to complete any required analyses or consultations related to the petition for non-regulated status: Provided further, That nothing in this section shall be construed as limiting the Secretary’s authority under section 411, 412 and 414 of the Plant Protection Act.

Unpacking the legalese, the provision applies in a situation where the USDA has approved a genetically-engineered crop by granting it "non-regulated" status, but a federal court finds that it is likely that the USDA action was inappropriate or at least premature under the applicable federal statutes. In this situation, a court would ordinarily have the authority to decide whether or not to issue a temporary injunction that would essentially stop the effect of the agency action until the case was resolved.  Section 735 provides that regardless of what the court holds, the USDA must immediately grant any farmer's request for "temporary permit(s) or temporary deregulation" to "authorize the movement, introduction, continued cultivation, [and] commercialization" of the product.

In a previous post, I expressed my personal views on the genetic engineering debate, Thoughts on the Regulation of Genetically Engineered Food Products.

My comments here on Section 735 relate directly to process, the checks and balances built into our legal system, and the danger of using inappropriate means to achieve political ends.

Checks and Balances:  The Authority of the Courts

The ability of the federal courts to review the actions of administrative agencies such as the USDA is a fundamental component of the checks and balances that make up our legal system.

Consider, for example, the Administrative Procedure Act (APA), 5 U.S.C. § 501 et seq., the hallmark of U.S. administrative law since it was enacted in 1946. The APA specifically sets up a process for U.S. federal courts to directly review agency decisions, determining whether they are "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law."

Any law that interferes with the ability of a court to enjoin an agency action that is unlawful disrupts the careful balance of our legal system.  If a federal court determines that the law has been violated with respect to the approval of any new product or substance, that court should have the ability to enjoin the release. Any decision regarding the balance of harm and injury that might be caused by an injunction should be left the authority of the court. To deny the court this authority is to completely undercut the review process.

An Offense to the Legislative Process

Congress's practice of slipping unrelated provisions into massive appropriations bills is not new. But, it is a practice that should be severely limited. The facts that underlie the enactment of Section 735 provide a bold and egregious example of a process gone awry.

Section 735 was anonymously slipped into the bill during committee. Senator Mikulsi, chair of the appropriations committee was initially blamed for the inclusion, but she denied involvement. The Baltimore Sun reported that she "understands the anger over this provision. She didn’t put the language in the bill and doesn’t support it, either." Mikulski says she doesn't support 'Monsanto rider' in funding bill.

Lawmakers on both sides of the aisle disavowed any knowledge of Section 735 despite the fact that Senator Tester, joined by Senators Boxer, Gillibrand and Leahy attempted to delete Section 735 by amendment. They were unable to obtain a vote on their amendment.  Senator Tester's impassioned plea to reject Section 735 on the Senate floor has been reprinted in a number of blogs. See, e.g., Natural Capital by Duncan Gromko, Section 735 of the 2013 Appropriations Act: AKA The Monsanto Protection Act.

Eventually, Politico reported that Senator Roy Blunt from Missouri owned up to having authored Section 735 and other ag-related riders. Big Agriculture Flexes its Muscle, by David Rogers.  After the fact, lawmakers argued that they had no choice to pass the entire bill, including Section 735, or risk government shutdown.

To understand the public's reaction to this type of Congressional shenanigans, one needs only watch the Jon Stewart Daily Show discussion of this issue.  It's the first segment in the episode available here on hulu, The Daily Show with Jon Stewart, April 3 and is embedded below. Does anyone need wonder why public approval ratings for Congress are so low?

The Dangers of Using Inappropriate Means to Achieve Political Ends

Consider the far reaching powers of administrative agencies. Environmentalists and anti-regulation advocates alike have both used the authority of the courts to challenge agency action.

In this case, the provision that undercuts the authority of the court is favored by many in the biotechnology industry and opposed by those who seek additional regulation.  The tables could easily be turned.  Consider an effort to challenge a regulation or to seek court action to stop an agency from regulating any activity.  Should Congress be allowed to pass a law that would hamper judicial authority and force the agency to continue with its challenged activity while the matter is tied up in court?

The ability of a court to decide a particular matter, including the issuance of a temporary injunction, on the merits of the case is not a matter with which Congress should interfere.  Particularly when Congress is unable or unwilling to openly debate the matters that it passes into law.

Animals and Agricultural Production: Law and Policy

The University of Nebraska College of Law will be offering a course in May that was formerly taught at the University of Oklahoma College of Law, under the direction of Drew Kershen.  This course is designed to help students understand the existing legal structure and theory involved in modern animal production.  The types of animal production we will examine include those which serve anthropocentric ends, including medical research and meat consumption.

This is a valuable preparation course and learning experience for students interested in agriculture and the ongoing debate about agriculture as a production system. Students will learn how to analyze legal arguments, statutes, regulations, and judicial opinions related to animals and agricultural production. Students will learn how to respond in a professional and accurate fashion to the legal, public policy, and scientific issues involved in the use of animals in agricultural production.  Such issues are often at the forefront of the  animal rights movement.

Eligible students include those enrolled in accredited law schools who have completed their first year. Enrollment is limited to 24 students.  Twelve will be accepted from the University of Nebraska College of Law.  The remaining twelve will be accepted from the law schools at the University of Oklahoma; the University of Arkansas, Fayetteville; Penn State University; and Drake University.  These students will be admitted on a first‐come, first‐served basis.  Registration begins on March 26th.  If seats remain available after April 15th, students from other law schools in the U.S. may seek enrollment before April 30th, when all registration will end.

In the near future, interested students will be able to find the course syllabus and more information about enrollment, fees, housing, map and travel information at: http://law.unl.edu/facstaff/faculty/resident/aschutz.shtml

In the meantime, if you need any information, contact Professor Schutz at anthony@unl.edu.

Why Agriculture Should Oppose "Ag-Gag Laws"

There is a disturbing trend in state legislation -  laws that attempt to criminalize efforts to expose animal abuse in the raising and slaughtering of livestock.  See, e.g., the recent New York Times article, The Taping of Farm Cruelty is Becoming a Crime.

I understand that a business may feel betrayed when a worker takes a position with ulterior motives.  But, the agricultural industry is making a huge mistake if they believe that this issue is about vegan activists, as some mistakenly claim.  The livestock industry needs to step back, engage in some soul-searching self reflection, and listen to their customers.

Do producers and processors really want their message to be -  "yes, all these illegal activities are going on, but the problem is that no one should be taking pictures?"  Is that really the problem?

The video exposes that have involved workers have provided evidence of illegal activity. State legislatures that "go after" those who took the pictures are, in effect, stating that there is illegal activity going on -  we just don't want anyone to alert the press or the officials.  Is that really the message the meat industry wants to send?

The issue of animal welfare in livestock production has been on a path destined for conflict for a number of years.

Animal science in the larger sense has been producing phenomenal studies that show that animals have far more sentience, cognition, and even emotion than ever before realized.  These studies are not just being reported in the science journals and espoused by animal welfare advocates.  Consider last week's Wall Street Journal article, The Brains of Animals, with the headline, "New research shows that we have grossly underestimated both the scope and the scale of animal intelligence."

Meanwhile the livestock industry has catapulted in the opposite direction.  We have devised ways to crowd animals into even smaller spaces, concentrate them into larger and larger flocks and herds, and developed new methods of containment. When disease and behavior problems result, we confine them more rigorously, clip and trim them, and feed them antibiotics. From an economic standpoint, it has worked.  It has produced the cheapest meat that the world has ever purchased. There are problems other than animal welfare, such as antibiotic resistance and concentration of manure, but let's just consider the animal welfare issues.

What the industry needs and what consumers are asking for is an honest discussion of how we can reconcile these very different trajectories.  What does it mean to raise an animal humanely?  The livestock industry can bury its head in the sand and pretend that this issue is all about vegetarians, or it can wake up and engage in the issue with honesty, transparency, and self-reflection.  And, the animal science world can and should debate why there is such a wide divergence between scientists on the issues of animal welfare.

I know many farmers that have become uncomfortable with the way that they were raising their livestock. They are not vegetarians; they are not animal rights activists.  They are farmers who want to be good stewards of the animals under their care, and they are being pushed by economic pressures to operate in ways that they are uncomfortable with. Some have gone out of the livestock business because of this.

Same with ordinary consumers.  See, e.g., Pork growers: Don't Ignore Customers - Restaurants will Begin Eliminating the Product from Menus if Changes Aren't Made. 

Now, is the time for dialogue and transparency, not for state laws criminalizing those who deliver the message.