Extension Granted in CRP Case

On July 24, the Federal District Court for the Western District of Washington ruled that some producers may be able to hay and graze CRP land as part of the USDA's Critical Feed Use Program. While the court stated that USDA had violated the National Environmental Policy Act by determining that the Critical Feed Use Program would not damage the environment and, therefore, should have engaged in a risk-assessment study, the court's issuance of a permanent injunction does allow haying and grazing in certain circumstances. For example, the injunction specifies that haying and grazing will be allowed on CRP land for which an application had been submitted before the court issued a temporary restraining order in the matter on July 8, for applications that are ultimately approved. Also, CRP landowners who had already received FSA approval to hay or graze the land before July 8 may proceed with haying or grazing. In addition, haying and grazing will be allowed on CRP land where the producer can establish detrimental reliance on utilization of the Critical Feed Use Program, and an investment of more than $4,500 in materials and equipment (made before July 8, 2008) necessary to prepare for haying and grazing.

It is believed that the court's restrictions on eligibility of CRP land for the Critical Feed Use Program will severely limit eligible land and will only open up a small fraction of the available 24 million acres for haying and grazing.

Producers that use their CRP ground for haying or grazing, according to the court's order, will be barred from using the CRP land for either five or ten years after this season (depending on the contract).

Background

On July 8, 2008, the Federal District Court for the Western District of Washington issued a temporary restraining order that stops grazing and hay production on approximately 24 million acres of land enrolled in the Conservation Reserve Program (CRP). The court ruled that the USDA Secretary may not open CRP land without first preparing an environmental assessment. That decision was based on the court’s finding that the Ag Secretary’s decision to authorize haying and grazing could cause irreparable harm to wildlife habitat. National Wildlife Federation, et al. v. Schafer, No. CV08-1004-JCC (W.D. Wash. Jul. 8, 2008).

The court’s decision impacts USDA’s Critical Feed Use Program (which Iowa CRP land would have become eligible for on August 1), but does not involve the USDA’s Emergency Grazing Program. To be eligible under that program, a county must be declared to be in a state of disaster as a result of drought, and eligible participants must forfeit 25 percent of their annual CRP contract payment. Also not impacted by the litigation is the USDA’s Managed Grazing Program, under which eligible producers are allowed to graze a field every five years (or every three years if grandfathered in), but with the forfeiture of 25 percent of the annual CRP contract payment. The Managed Grazing Program, for this year, began on July 16.

In the CRP case, the court, on July 17, ordered the parties to reach a compromise by noon on July 22. Until then, the court extended the temporary restraining order. Such a compromise, the court hinted, could include a limitation on the acres involved in the Critical Feed Use Program with a prohibition on additional acres unless an environmental review is conducted, as well as a prohibition on CRP land that has already been recently hayed or grazed. The court is scheduled to issue an order by July 25 implementing a modified version of the Critical Feed Use Program.

The parties failed to reach a settlement on July 22, and the judge did not issue an opinion. The court set another hearing on the matter for July 24, and issued its most recent ruling later that day.