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Grapes (and raisins) of wrath: Supreme Court may hear farm program cases

  • McClatchy Newspapers
  • Published Monday, Nov. 19, 2012, at 3:59 p.m.
  • Updated Tuesday, Nov. 20, 2012, at 5:11 p.m.

— Supreme Court justices on Tuesday will chew over several challenges to farm programs filed by disgruntled California raisin and table grape growers.

One case to be considered behind closed doors Tuesday touches on the state-run California Table Grape Commission. The other challenges a federal raisin-marketing order. In both cases, justices will decide whether the appeals of lower court decisions merit full-bore consideration next year.

In both cases, the legal questions seem arcane, while the consequences affect the real world. They represent the latest fronts in a long-running dispute between farmers who like programs that promote collective action and those who prefer to go their own way.

“These programs were created in a different era,” said Steffen Johnson, a lawyer who wrote a brief in support of some dissident raisin farmers, “and frankly, it was an era when farmers didn’t have access to international markets.”

The grape commission case started with plant patents developed by federal scientists and subsequently licensed to the Fresno-based commission. The legal question now is whether the U.S. Agriculture Department can be sued.

The raisin case began when Fresno-area farmers challenged the authority of a government program that requires them to set aside part of their crop in reserve. The pressing legal questions now include when and how individuals can pursue claims against the government.

“The question is very important,” Johnson said. “If you’re going to require giving these crops to the government, you’re going to have to pay for it.”

At least four justices must agree for the court to accept any case, and most petitions are rejected without comment. At first blush, the cases lack the sizzle of others that will be considered Tuesday. These include Idaho’s refusal to allow the insanity defense in criminal trials and the sentencing of a convicted Texas murderer.

But for farmers, they could have long-term consequences. At their core are several dozen marketing orders at the state and federal level, which began during the New Deal as a way to manage fluctuations in farm supplies and prices. The programs cover crops that range from California almonds to Washington state potatoes.

The raisin marketing order requires “handlers” who process and pack raisins to place part of their product in reserve, with an industry committee to decide how much they’re to be paid for this set-aside tonnage. Raisin handlers set aside 47 percent of their crop during the 2002-03 season and 30 percent for 2003-04, but they were paid for only part of what they gave up.

“The federal government, without providing the just compensation required by the Fifth Amendment, extracts title to a hefty portion of a farmer’s annual raisin crop as a condition for giving the farmer permission to sell the remainder of his crop on the market,” attorney Michael W. McConnell, a former federal appellate judge, wrote in a brief for Fresno-area farmers Marvin and Laura Horne.

Unhappy with the raisin program, the Hornes and others formed what the Obama administration termed a “scheme” ostensibly to exempt themselves from the set-aside requirement. The Agriculture Department subsequently ordered the Hornes and their coalition to pay more than $650,000 in fees and penalties.

In a brief defending the department, Solicitor General Donald Verrilli wrote that the farmers “identify no reason why the imposition of a civil penalty and other assessments for noncompliance with a regulatory scheme constitutes a taking of property without just compensation.”

Many growers, moreover, support the marketing order as good for the raisin industry, which the 9th U.S. Circuit Court of Appeals noted last year “has long been an important one in California.”

The appellate court rejected the Hornes’ challenge, saying farmers were regulated only after they “voluntarily chose to send their raisins into the stream of interstate commerce.”

By contrast, a lower appellate court sided with dissident farmers who are challenging the California Table Grape Commission over different issues.

Grape grower Dan Gerawan joined Delano Farms and others in disputing patents licensed to the table grape commission. Gerawan, whose prior farm program challenges have reached the Supreme Court as well, and other dissidents say the three varieties of grapes already had been put into public use before being patented. The legal question is whether the Agriculture Department has sovereign immunity from the lawsuit challenging the patents.

“Only this court can resolve this matter and bring clarity to this important area of the law,” Randolph D. Moss, a former assistant attorney general, wrote on behalf of the grape commission.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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