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Serio files appeal on behalf of farmers
By BRUCE HOTCHKISS
Senior Editor
The papers and necessary documents requesting an appeal have been filed with the USDA’s National Appeals Division.
Now, the owners of three large Eastern Shore farm operations and the 12 landowners for whom they custom till can only wait to learn if they have to return a total of almost $1 million in grants they received from USDA under the old Conservation Security Program.
It may be a while.
An NRCS official has said that most appeals are decided within 60 to 90 days.
The appeal — contained in 10 pages prepared by noted ag attorney Robert Serio — makes the case that the Hutchison Brothers and Mike Elben of Cordova and Sonny Eaton of Queen Anne and a total of 12 landowners whose land they work were approved for the CSP contracts under what was then the policy of the program.
Those contracts only became invalid and improper, in the view of the U.S. Office of the Inspector General, five years later when the policy was changed, the appellants claim.
The policy in 2006, attorney Serio argues, was that crop-share landlords were entitled to have their own CSP contracts even though the farming operation was being conducted by a tenant.
“There can be no other conclusion,” Serio’s appeal declares, “ but that NRCS changed its policy concerning the eligibility criteria for landlords to participate in CSP in 2010 after pressure from OIG.”
Serio concludes his argument: “The law is well settled that a governmental agency is given deference in interpreting its regulations unless the interpretation is plainly erroneous and inconsistent with the regulation that the agency is attempting to apply.
“When an agency’s decision or hearing officer’s decision is unsupported by substantial evidence, is arbitrary, capricious, and is not in accordance with the law then that decision must be set aside. A decision is arbitrary and capricious if the explanation offered for the decision is counter to the evidence presented or implausible.
“The decision reached to allow appellant to participate in CSP was a policy decision and not an error in the approved process.”
For the appealing farmers, one of the troubling aspects of the case has been that two NRCS staffers, one in the Talbot County office and the other in the state office in Annapolis, both of whom guided the farmers in drafting the original contracts which, five years later, were ruled improper and invalid by the U.S. Office of the Inspector General, have not testified.
Quizzed about that, and about whether the two had been subpoenaed, Sylvia Rainford, public affairs specialist for NRCS in Washington, D.C., said that the staffer at the Annapolis office “was requested to appear as a witness voluntarily by the attorney representing the CSP participants prior to the NAD hearings. (He) declined to do so. (He) said that he would only appear at a NAD hearing if a subpoena was issued by NAD, an entity independent of NRCS.
“No subpoenas were issued by NAD in the hearings involving the CSP participants in Maryland …”
Rainford made no mention of the staffer in the Talbot County office.
By BRUCE HOTCHKISS
Senior Editor
The papers and necessary documents requesting an appeal have been filed with the USDA’s National Appeals Division.
Now, the owners of three large Eastern Shore farm operations and the 12 landowners for whom they custom till can only wait to learn if they have to return a total of almost $1 million in grants they received from USDA under the old Conservation Security Program.
It may be a while.
An NRCS official has said that most appeals are decided within 60 to 90 days.
The appeal — contained in 10 pages prepared by noted ag attorney Robert Serio — makes the case that the Hutchison Brothers and Mike Elben of Cordova and Sonny Eaton of Queen Anne and a total of 12 landowners whose land they work were approved for the CSP contracts under what was then the policy of the program.
Those contracts only became invalid and improper, in the view of the U.S. Office of the Inspector General, five years later when the policy was changed, the appellants claim.
The policy in 2006, attorney Serio argues, was that crop-share landlords were entitled to have their own CSP contracts even though the farming operation was being conducted by a tenant.
“There can be no other conclusion,” Serio’s appeal declares, “ but that NRCS changed its policy concerning the eligibility criteria for landlords to participate in CSP in 2010 after pressure from OIG.”
Serio concludes his argument: “The law is well settled that a governmental agency is given deference in interpreting its regulations unless the interpretation is plainly erroneous and inconsistent with the regulation that the agency is attempting to apply.
“When an agency’s decision or hearing officer’s decision is unsupported by substantial evidence, is arbitrary, capricious, and is not in accordance with the law then that decision must be set aside. A decision is arbitrary and capricious if the explanation offered for the decision is counter to the evidence presented or implausible.
“The decision reached to allow appellant to participate in CSP was a policy decision and not an error in the approved process.”
For the appealing farmers, one of the troubling aspects of the case has been that two NRCS staffers, one in the Talbot County office and the other in the state office in Annapolis, both of whom guided the farmers in drafting the original contracts which, five years later, were ruled improper and invalid by the U.S. Office of the Inspector General, have not testified.
Quizzed about that, and about whether the two had been subpoenaed, Sylvia Rainford, public affairs specialist for NRCS in Washington, D.C., said that the staffer at the Annapolis office “was requested to appear as a witness voluntarily by the attorney representing the CSP participants prior to the NAD hearings. (He) declined to do so. (He) said that he would only appear at a NAD hearing if a subpoena was issued by NAD, an entity independent of NRCS.
“No subpoenas were issued by NAD in the hearings involving the CSP participants in Maryland …”
Rainford made no mention of the staffer in the Talbot County office.