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VOLUME 19, NUMBER 4, WHOLE NUMBER 221 MARCH 2002

Neew Conserv
w Conser Reserve
vation Reser Prog
ve Pr ogr
og ra m
faith
good f reliance
aith r excessi
eliance and e xcessive
xcessi ve
ainfall
rainf rules
all rules
I NSIDE The Farm Service Agency (FSA) has published final rules in the Federal Register
amending the Conservation Reserve Program (CRP) regulations to permit the FSA
Deputy Administrator to except CRP participants from being sanctioned for their
breach of their CRP contract. In general, these exceptions apply in the following
circumstances:
• Conference Calendar 1. When the participant has violated the contract as a result of his or her good faith
reliance on action or advice of an USDA authorized representative; and
• Animal welfare 2.When the participant has failed to perform the contractual obligation to plant
or establish a crop as a result of excessive rainfall.
See 67 Fed. Reg. 2,131, 2,132 (Jan. 16, 2002) (to be codified at 7 C.F.R.§§ 1410.54,
• Notes on the USDA 1410.20(a)(2)).
Wildlife Habitat The CRP is one of the four major agricultural conservation programs. Its purpose
Incentives Program is to cost-effectively assist owners and operators in conserving and improving the
(WHIP) environment, mainly soil, water, and wildlife resources, by taking land out of
production and planting it to a long-term vegetative cover. Enrollment in the CRP
requires participants to enter into a 10 to 15 year contract during which land is taken
out of production in exchange for annual payments. Also, cost-share assistance is
available to help enhance certain conservation practices. See generally 7 C.F.R. Part
1410.

Good faith reliance
Under the first of the recently published rules, “[t]he Deputy Administrator may
Solicitation of articles: All AALA provide equitable relief to a participant who has entered into a contract under this
members are invited to submit chapter, and who is subsequently determined to be in violation of the contract, if the
articles to the Update. Please in- participant, in attempting to comply with the terms of the contract and enrollment
clude copies of decisions and leg- requirements, took actions in good faith reliance upon the action or advice of an
islation with the article. To avoid
Continued on page 2
duplication of effort, please no-
tify the Editor of your proposed
article.
Ninth Circuit dismisses suit c challenging
hallenging
Aggricultural
ricultur Mark
al Mar gr
keting A g reement Act
IN FUTURE producer
pr oducer-handler
oducer -handler eex
xemption
I SSUES The Ninth Circuit Court of Appeals has ruled that United Dairymen of Arizona
(“UDA”) and Shamrock Farms, who brought their action as Arizona milk producers,
lacked standing to bring a direct suit challenging the milk marketing order
producer-handler exemption in the Agricultural Marketing Agreement Act (AMAA)
of 1937, 7 U.S.C. §§601-626 (2001). United Dairymen of Arizona v. Veneman, 279
• State place of origin F.3d 1160 (9th Cir. 2002). The court reasoned that a producer had standing only
when a handler would not have standing to bring the action. Because the court found
labeling requirements that the challenge brought by UDA and Shamrock could have been brought by a
for agricultural handler, UDA and Shamrock—in their capacity as producers—lacked standing to
products seek judicial review. See id. at 1165-66. In addition, because the court also found that
UDA, a cooperative, was a handler as well as a representative of its producer
members and that Shamrock was related to the handler to whom it marketed its
milk, they should not be permitted to evade the required AMAA administrative
Continued on page 3

MARCH 2002 AGRICULTURAL LAW UPDATE 1
C R P/CONTINUED FROM PAGE 1

contract”. Id. at 2,132 (to be codified at 7 plant or establish to such cover is planted
authorized USDA representative ....” 67 C.F.R. 1410.54 (b)(3)). or established to such cover; and [the]
Fed Reg. at 2,132 (to be codified at 7 Equitable relief is not available when land the participant was unable to plant
C.F.R. 1410.54 (b)(1)). both the advised participant and the or establish such cover is planted or
As used in this rule, “equitable relief” USDA representative knew, or should established to such cover after the wet
means that the FSA may permit the have known, that their conduct clearly conditions that prevented the planting or
participant to do one or more of the violated the CRP provisions.Id. at 2,132 establishment subside.” Id. at 2,132 (to
following: (to be codified at 7 C.F.R. 1410.54 (b)(3)). be codified at 7 C.F.R. 1410.20(a)(2)(ii,iii)).
(i) Retain payments received under the This new rule applies only to contracts in The rule does not define “excessive
contract; effect on January 1, 2000, or thereafter. rainfall.” The amended regulations, how-
(ii) Continue to receive payments un- Id. at 2,132 (to be codified at 7 C.F.R. ever, add a new definition of the term
der the contract; 1410.54 (b)(4)). “violation.” The term “violation” now
(iii) Keep all or part of the land covered means “an act by the participant, either
by the contract enrolled in the appli- Excessive rainfall intentional or unintentional, that would
cable program ...; The second new rule is an amendment cause the participant to no longer be
(iv) Re-enroll all or part of the land to 7 C.F.R. §1410.20 that deals with the eligible for cost-share or annual contract
covered by the contract in the appli- obligations of the participants in imple- payments.” Id. at 2,132 (to be codified at
cable program ...; menting the conservation plan required 7 C.F.R. 1410.2).
(v) Any other equitable relief the Deputy under a CRP contract. The new provision — Ada Popescu, Graduate Fellow,
Administrator deems appropriate. provides that a CRP “contract will not be National Center for Agricultural L a w
Id. at 2,132 (to be codified at 7 C.F.R. terminated for failure to establish an Research and Information, University
1410.54 (b)(2)). approved vegetative or water cover on of Arkansas School of Law
Equitable relief is available only to the land if as determined by the Deputy This material is based upon work sup-
participants who take the actions re- Administrator: (i)The failure to plant or ported by the U.S. Department of Agri-
quired by the Deputy Administrator “to establish such cover was due to excessive culture, under Agreement No. 59-8201-
remedy any failure to comply with the rainfall or flooding ....” Id. at 2,132 (to be 9-115. Any opinions, findings, conclu-
codified at 7 C.F.R. 1410.20(a)(2)(i)). This sions, or recommendations expressed in
protection against contract termination this publication are those of the author
is conditioned by the requirement that and do not necessarily reflect the view of
“[t]he land subject to the contract on the U.S. Department of Agriculture.
which the participant could practicably

VOL. 20, NO. 4, WHOLE NO. 221 March 2002
Correction
Correction
AALA Editor..........................Linda Grim McCormick
The FCIC’s Standard Reinsurance Agree- the U.S. Department of Agriculture, un-
2816 C.R. 16, Alvin, TX 77511 ment by Scott Fancher that appeared as der Agreement No. 59-8201-9-115. Any
Phone: (281) 388-0155 an In Depth article in last month’s Agri- opinions, findings, conclusions, or rec-
FAX: (281) 388-0155
E-mail: lgmccormick@teacher.esc4.com cultural Law Update was sponsored ommendations expressed in this
by the National Center for Agricultural publication are those of the author and do
Contributing Editors: Terence J. Centner, The
University of Georgia, Athens, GA; Ada Popescu, Law Research and Information not necessarily reflect the view
University of Arkansas, Fayetteville, AR; Harrison M. (NCALRI) at the University of Arkansas of the U.S. Department of Agriculture.”
Pittman, University of Arkansas School of Law,
Fayetteville, AR.
School of Law, Fayetteville, Any reproduction or republication
Arkansas. Acknowledgement of this spon- of this article must be accompanied by an
For AALA membership information, contact Donna sorship was inadvertently omitted, as acknowledgment of its sponsorship
French Dunn, Executive Director, 4115 South Duff
Avenue, Suite C, Ames, IA 50010-6600. Phone: (515) was the following disclaimer: “This ma- and this disclaimer.
956-4255. terial is based on work supported by
Agricultural Law Update is published by the
American Agricultural Law Association, Publication
office: Maynard Printing, Inc., 219 New York Ave., Des
Moines, IA 50313. All rights reserved. First class postage
A M A A/Cont. from p. 1
paid at Des Moines, IA 50313. processes for challenging milk market- tage cheese, and ice cream and Class III
ing orders available to handlers. Id. at products such as butter, powdered milk,
This publication is designed to provide accurate and
authoritative information in regard to the subject matter 1166. and some hard cheeses. Class III milk
covered. It is sold with the understanding that the The AMAA authorizes the regulation commands the lowest price. Despite the
publisher is not engaged in rendering legal, accounting,
or other professional service. If legal advice or other of regional raw milk prices through fed- different class prices, milk producers are
expert assistance is required, the services of a competent eral milk marketing orders. Milk mar- guaranteed a uniform minimum price for
professional should be sought.
keting orders establish minimum prices their milk. This price is known as the
Views expressed herein are those of the individual that milk processors must pay producers “blend price.” See id.
authors and should not be interpreted as statements of for milk within the order region. Under The blend price is based on a weighted
policy by the American Agricultural Law Association.
the AMAA, these processors are known average of all the class prices of the milk
Letters and editorial contributions are welcome and as “handlers.” See id. at 1162. marketed within the order region. A pool-
should be directed to Linda Grim McCormick, Editor,
2816 C.R. 163, Alvin, TX 77511. The minimum prices established by ing mechanism commonly known as the
milk marketing orders are based on the producer-settlement fund is used to en-
Copyright 2002 by American Agricultural Law
Association. No part of this newsletter may be
particular “class” for which the milk is sure that all handlers contribute equita-
reproduced or transmitted in any form or by any means, used. Milk used for drinking is consid- bly to the sums that will be used to pay
electronic or mechanical, including photocopying, ered Class I milk, and it commands the the minimum blend price to producers.
recording, or by any information storage or retrieval
system, without permission in writing from the highest price. Milk not used for fluid Id. In general, handlers who use milk for
publisher. purposes is manufactured into Class II Class I and Class II products pay into the
soft dairy products such as yogurt, cot- producer-settlement fund while handlers
Cont. on p.3

2 AGRICULTURAL LAW UPDATE MARCH 2002
we
Animal w far
elf are
are
Numerous groups have expressed a view- Other groups have more focused agen- producer is unaware of an injured ani-
point that some of the changes occurring das. The group, People for the Ethical mal. Third, confinement may lead to
in the production of animals threaten the Treatment of Animals, has been quite physical and psychological deprivation
well-being of humanity. Some European successful in bringing examples of as- for animals. These conditions have caused
countries have placed restrictions on the serted animal mistreatment before the some to argue for a new ethic to address
use of animals for research, outlawing public and forcing corporations to alter the welfare of confined animals. In
the production of animals for fur, and practices. McDonald’s, Burger King, and Florida, a group advocating the humane
preclude egregious confinement situa- Wendy’s have ended practices following treatment of animals is seeking to amend
tions. In the U.S., groups are calling for intense pressure from this animal rights the state constitution to ban the caging of
legislation eliminating the use of ani- group. pregnant sows.
mals for research and for the elimination More serious concerns exist about ge- While enacting new legislation forbid-
of certain confinement practices. Other netically modifying animals. Genetic ding certain practices may be forthcom-
issues include animal cruelty in circuses, modifications for the purpose of studying ing, a more likely response will be con-
rodeos, and other settings. a disease can have negative effects or sumer movements towards “greener”
Value systems have expanded so that unintended effects that cause the ani- crops. All natural, antibiotic-free prod-
some people are concerned with how ani- mals to suffer. Genetic manipulation to ucts are now available under a label from
mal production takes place, whether we produce organs for transplant into hu- the American Humane Association’s
should be allowed to genetically manipu- mans presents a more dramatic example “free-farmed” certification. Similar stan-
late animals, and duties owed to ani- of animals serving as objects for human dards are prescribed by the British Royal
mals. A major issue is the suffering of the benefit. Society for the Prevention of Cruelty to
25 million vertebrate animals currently For concentrated animal feeding op- Animals. While antibiotics are allowed
held in U.S. laboratories for biomedical erations, the question for animal rights for disease treatment for individual ani-
research, for testing drugs, vaccines and activists is not whether producers are mals, subtherapeutic antibiotics and
consumer products, and for education. being cruel to their animals, but, rather, mammalian-derived protein is prohib-
Groups such as the Humane Society of are animals suffering. Three production ited. Other regulations cover items such
the United States promote non-animal procedures have been proposed as indi- as castration, tail docking, weaning, and
research methods to reduce and elimi- cators of excessive suffering. First, ani- housing conditions.
nate harm to animals, such as forgoing mal diets and conditions may exacerbate — Terence J. Centner, Professor, The
the use of mice for producing monoclonal diseases. Second, the lack of individual University of Georgia
antibodies. attention to animals may mean that a

A M A A/Cont. from p. 2
who use milk for Class III products with- adversely affected by the producer-han-
draw from the fund. See Kenneth W. dler exemption granted to Sara Farms Confer
Conf erence
erence
Bailey, Marketing and Pricing of Milk Dairy, L.L.C. Their challenge, however,
and Dairy Products in the United States was directed at the producer-handler Calendar
130 (1997). exemption itself. They alleged that the
Producer-handlers are vertically inte- producer-handler exemption is invalid KSU-Southern Plains Agricultural
grated dairy businesses that process and under the AMAA and that it violates the Law Symposium.
market dairy products from milk pro- equal protection guarantees of the Fifth May 9-10, 2002.
duced by their own cows. Under the Amendment. See id. at 1162-63. Because Plaza Inn, Garden City, Kansas.
AMAA, producer-handlers are neither the court ruled that UDA and Shamrock Sponsored by Kansas State Univer-
required to participate in the producer- lacked standing to bring this action, the sity.
settlement fund nor to pay the minimum merits of these contentions were not ad- Topics include: farm income taxa-
prices established by the marketing or- dressed by the court. tion; the structural transformation of
der for their region. This exemption gives UDA’s and Shamrock’s standing was agriculture, private property rights,
producer-handlers the advantage of real- at issue because the AMAA does not estate planning and others.
izing the higher prices commanded by provide for an administrative mecha- For more information, call Marcella
Class I milk products without having to nism whereby producers can challenge a Budden, 285-532-1501.
pay the minimum order price or to con- milk marketing order. Only handlers have
tribute to the producer-settlement fund. an express right to challenge marketing Protecting Our Farmland Work-
See United Dairymen of Arizona, 279 orders through administrative review. shop.
F.3d at 1162. In addition to giving pro- See id. at 1164 (citing 7 U.S.C. § May 21-23, 2002.
ducer-handlers this advantage over non- 608(c)(15)(A). The final agency order re- Oklahoma State Regents Confer-
exempt handlers, the exemption also re- sulting from that review is subject to ence Center, Poteau, Oklahoma.
duces the blend price paid to producers. judicial review. See id. Sponsored by: The Kerr Center for
See id. at 1163. The question presented, therefore, was Sustainable Agriculture; The Ameri-
In United Dairymen of Arizona, plain- whether UDA, a producer who was also a can Farmland Trust; and The Trust
tiff UDA was a cooperative that pro- handler, and Shamrock, a producer who for Public Land.
cessed milk produced by its members. was associated with a handler, could For more information, call 918-647-
Thus, as the court observed, it was “rep- challenge the producer-handler exemp- 9123.
resenting its producers’ interests [and] tion through a direct action. The Ninth
also its handler[’s] interests.” Id. at 1164. Circuit, in affirming the district court’s
Plaintiff Shamrock was a producer, but it dismissal of the action, ruled they could
was related to a separate business, Sham- not.
rock Foods, that purchased its milk. Both The Ninth Circuit drew much of its
apparently contended that they were Cont. on p.7

MARCH 2002 AGRICULTURAL LAW UPDATE 3
ildlife
Notes on the USDA W ildlif Incentives
e Habitat Incenti Prog
ves Progr
og ram (WHIP)
By Ada Popescu

“Fifty percent of the United States, 907 land and farmsteads. The Environmen- million was distributed in 1998 for 4,600
million acres, is cropland, pastureland, tal Quality Incentive Program (EQIP) projects affecting 672,000 acres and $20
and rangeland owned and managed by replaced ACP in 1996. million in 1999 for 3,855 projects on
farmers and ranchers and their fami- The ACP was followed by other conser- 721,249 acres. WHIP projects averaged
lies.” The management of this vast vation initiatives. In 1985, Congress au- 146 and 187 acres in size in 1998 and
amount of the nation’s land affects more thorized the Conservation Reserve Pro- 1999, respectively, and $4,600 in cost-
than the prosperity of the nation’s agri- gram and enacted commodity program share expenditures.
cultural sector. It also has an impact on provisions designed to conserve highly
wildlife populations because “land use is erodible lands and wetlands, respectively General W H I P requirements
the principal factor affecting [wildlife] known as the “sodbuster” and “swamp- The WHIP regulations generally pro-
habitat.” buster” provisions. Although these pro- vide that potential participants who own
There are an estimated 100,000 native grams affect wildlife habitat, their stated or control eligible land and who are will-
species of wildlife in the United States. purposes either omit wildlife habitat pro- ing to join the program must prepare and
Some of these species have thrived on or tection as a goal or couple wildlife habitat apply in practice a wildlife habitat devel-
near agricultural lands. Others have not protection with other desired ends. The opment plan. The NRCS will evaluate
fared as well. Agriculture has been iden- swampbuster provisions and the subse- the plan and its wildlife benefits. If the
tified as a contributing factor for endan- quently created Wetland Reserve Pro- plan is viable, the NRCS will provide
gering or threatening forty-two percent gram, for example, coupled wildlife habi- participants with the technical and fi-
of the 631 plant and animal species listed tat protection with water purification as nancial assistance they need to efficiently
as endangered or threatened in the United program goals. implement the practices that will en-
States in 1998. Agriculture, along with The only program under the USDA’s hance wildlife habitat development on
other human activities that alter natural jurisdiction that specifically and prima- their land. In addition, if the landowner
landscapes, has also played a role in the rily addresses wildlife habitat conserva- agrees, state wildlife agencies and non-
decline in biodiversity in North America. tion is the Wildlife Habitat Incentives profit or private organizations may pro-
For example, the monarch butterfly, “an Program (WHIP). This program, which vide expertise or extra funding to help
indicator species reflective of the general is administered by the USDA’s Natural complete a project or improve its perfor-
threat to biodiversity,” faces habitat losses Resources Conservation Service (NRCS), mance.
that include those resulting from the use provides cost-sharing assistance to land- More specifically, WHIP participants
of pesticides on and near the milkweed owners for developing habitat for upland must do the following:
plants that are essential for its nourish- and wetland wildlife, threatened and 1. Establish and comply with a Wildlife
ment and reproduction. endangered species, fish, and other types Habitat Development Plan;
Just as agriculture can adversely af- of wildlife. 2. Enter into a cost-share agreement
fect wildlife, some wildlife species can with the NRCS;
harm agriculture. Cormorants, for ex- The W H I P 3. Provide the NRCS with evidence of
ample, have caused substantial financial The WHIP is a relatively new program. ownership or legal control over the land
losses for aquaculture operations in the It was created in 1996 with the enact- to be enrolled in the program for the
South and elsewhere because of their ment of the Federal Agriculture Improve- enrollment period, unless an exception is
growing population and appetite for farm- ment and Reform Act of 1996 (FAIR Act). made by the NRCS Chief;
raised fish. Nevertheless, many wildlife The FAIR Act directed the Secretary to 4. Provide the NRCS with information
species and agriculture can coexist, and establish the WHIP under the supervi- necessary to assess the project and its
the presence of wildlife on our nation’s sion of the NRCS. Congress also provided future benefits; and
farms and ranches can provide economic that the Secretary was to use WHIP to 5. Allow NRCS representatives access
and non-economic benefits to farmers “make cost-share payments to landown- to the land for periodic monitoring of the
and ranchers. ers to develop upland wildlife, wetland implementation of the WHDP.
For most of its history, the United wildlife, threatened and endangered spe-
States Department of Agriculture (USDA) cies, fish, and other types of wildlife Eligible land
has not administered programs designed habitat approved by the Secretary.” The In general, all lands can be enrolled in
to improve wildlife habitat on agricul- authorized funding of $50 million for the WHIP except:
tural lands. Instead of focusing on wild- fiscal years 1996 through 2002 was drawn • Federal land;
life populations, the USDA conservation from funds that previously had been au- • Land currently enrolled in a conser-
programs have been directed primarily thorized for the Conservation Reserve vation program such as the Conservation
at conserving soil and water and improv- Program. Reserve Program, the Wetlands Reserve
ing water quality. The oldest of these The NRCS published final rules imple- Program, or the Water Bank Program
programs, the Agricultural Conservation menting the WHIP on September 19, where wildlife habitat objectives have
Program (ACP), began in 1936. The ACP 1997. These rules are now codified at 7 been sufficiently met;
provided cost-share funds and technical C.F.R. Part 636. • Land subject to an Emergency Wa-
assistance to farmers who carried out Following the promulgation of the fi- tershed Protection Program floodplain
approved conservation and environmen- nal WHIP rules, WHIP funds were allo- easement; and
tal protection practices on agricultural cated among the states based on plans • Land where the NRCS determines
developed by the NRCS State Conserva- that a conservation plan will not be suc-
tionists in consultation with their re- cessful as a result of on-site and off-site
Ada Popescu is a Graduate Fellow at the spective State Technical Committees. conditions or that a conservation plan
National Center for Agricultural Law Special consideration was given to lo- will adversely affect threatened and en-
Research and Information, University of cally led initiatives with substantial out- dangered species.
Arkansas School of Law. side funding and partnership participa- WHIP funds are intended to enhance
tion. Of the available $50 million, $30 wildlife habitat on private lands. Never-

4 AGRICULTURAL LAW UPDATE MARCH 2002
theless, an NRCS State Conservationist, wildlife habitat goals and include a list of ments may be assigned.
in collaboration with the State Technical practices to be used to meet these goals.
Committee, can enroll other lands. Non- A schedule for implementing the speci- WHIP area restrictions and
federal public lands can be enrolled when fied practices is also required. The par- agreement termination
significant wildlife habitat gains can be ticipant must explain in detail how wild- After enrolling in the program, partici-
achieved only by installing practices on life benefits will be achieved and secured pants still retain control over their land.
them. For instance, an aquatic habitat during the life of the cost-share agree- The NRCS, however, can restrict the use
restoration project could involve the en- ment. The plan can be only a part of a of certain practices or activities in the
rollment of state lands if the state owned larger conservation plan or an indepen- WHIP area. These restrictions can in-
the affected stream or the lake bottom. dent one. The NRCS has the power to clude deferring haying until after nest-
Federal land, however, can be enrolled approve the modification of the initial ing season is over, limiting grazing at
only when its enrollment is necessary to plan if the modification is acceptable to certain times of the year to provide brood
achieve wildlife benefits on private land. the parties and will achieve the desired cover, excluding livestock to allow woody
Tribal lands, even if they are federal goals. planting to develop, and prohibiting burn-
trust lands, are eligible for enrollment in ing in areas close to inhabited areas.
the WHIP. The cost-share agreement A cost-share agreement can be termi-
If the WHDP is approved, the prospec- nated by the mutual consent of the par-
Priority for enrollment tive participant is eligible to enter into a ties in three specific situations:
Because WHIP funds are limited, not cost-share agreement with the NRCS. 1. The parties are unable to comply
all eligible lands can be enrolled in the This agreement stipulates the rights and with the terms of the agreement as a
WHIP. NRCS State Conservationists, in obligations of the parties. result of conditions beyond their control;
collaboration with their respective State The duration of the agreement can 2. Parties will suffer serious hardship
Technical Committees, may restrict en- vary between five to ten years. The term if they continue to comply with the con-
rollments to specific geographic areas or can be less than five years if the NRCS tractual terms; or
target only certain habitats and species Chief determines that “wildlife habitat is 3. Termination of the agreement is in
of wildlife. threatened as a result of a disaster and the public interest, as determined by the
In general, however, priorities for en- emergency measures are necessary to State Conservationist.
rollment are established according to the address the potential for dramatic de-
following criteria: clines in one or more wildlife popula- In these situations, the State Conser-
(1) Contribution to resolving an identi- tions.” vationist can allow the participant to
fied habitat problem of national, regional, The agreement must incorporate the keep all cost-share payments previously
or state importance; approved WHDP. In addition, the agree- received in an amount proportionate to
(2) Relationship to any established ment must contain the requirements for the participant’s efforts toward comply-
wildlife or conservation priority areas; operating and maintaining the wildlife ing with the agreement.
(3) Duration of benefits to be obtained habitat as provided in the plan.
from the habitat development practices; The initial agreement can be modified Violations and sanctions
(4) Self-sustaining nature of the habi- with NRCS approval as long as WHIP Even though program participation is
tat development practices; objectives are met and the parties agree. voluntary, participants have to comply
(5) Availability of other partnership The agreement can also be modified to with the cost-share agreement once they
matching funds or reduced funding re- reflect a change in the ownership or op- are parties to it. Non-complying partici-
quest by the person applying for partici- eration of the land if the new owner or pants face sanctions meant to ensure
pation; operator agrees to assume the responsi- that participants abide by the agree-
(6) Estimated costs of wildlife habitat bilities borne by the owner or operator ment.
development activities; and under the agreement. When the NRCS discovers a violation,
(7) Other factors determined appropri- it will notify the participant and give the
ate by NRCS to meet the objectives of the Cost-share payments participant an opportunity to correct the
program. The NRCS may provide up to 75% of violation within thirty days of the date of
the costs incurred by the participant when the notice. Additional time will be pro-
Some or all of these criteria will be implementing the conservation plan. This vided at the discretion of the NRCS.
taken into account when determining percentage can be reduced if another The sanction for non-compliance with
whether land will be enrolled. If these federal agency is providing direct assis- the notice is the refund of all or part of
criteria are not sufficiently met, the State tance to the project, except if the State any assistance received by the partici-
Conservationist, in consultation with the Conservationist determines that an in- pant, plus interest and the forfeiture of
State Technical Committee, may deny an crease is merited to achieve the goals of all rights for future payments. The same
application. NRSC representatives are the WHIP. sanction applies if the participant mis-
granted this power to allow them to deny Cost-share payments may be used to represents facts affecting program de-
cost-share funds to projects that are tech- establish new practices or additional prac- terminations.
nically eligible but do not meet the wild- tices. They may also be used to maintain
life goals of WHIP. existing practices or replace earlier ones WHIP successes
if the NRCS determines that they are To date, the WHIP has been focused on
The Wildlife Habitat Development needed to meet WHIP objectives or that three main types of habitat: upland
Plan (WHDP) the original practice failed to improve wildlife habitat, wetland wildlife habi-
The Wildlife Habitat Development Plan wildlife habitat for reasons beyond the tat, and riparian and in-stream aquatic
(WHDP) is a central part of the cost- participant’s control. habitat. These different habitats have
share agreement between the participat- Payments are made after the practice required different practices.
ing landowner and the NRCS. The WHDP has been installed according to the speci- Upland wildlife habitat, especially
is developed by the participant with the fications in the WHDP. The Sate Conser- grasslands, has required various types of
assistance of the NRCS or other public or vationist or State Technical Committee seeding and planting, fencing, livestock
private natural resource professionals. specialists will inspect the land and as- management, prescribed burning, and
The plan must describe the landowner’s sess the practices. WHIP cost-share pay- Continued on p. 6

MARCH 2002 AGRICULTURAL LAW UPDATE 5
Crop insuranceCont. from page 5 and sheltering different species of native payments based on specific needs and
shrub thickets with shelterbelts. Prac- trees, shrubs, and grasses adjacent to a higher potential benefits contribute to
tices on forest lands have included creat- body of water. the success of the WHIP.
ing forest openings, different types of In Kentucky, the WHIP was used to If there is a shortcoming in the WHIP,
disking and mowing, woody cover con- restore and protect grasslands and wet- it is its limited funding. Congress autho-
trol, aspen stand regeneration, and the lands habitat for bobwhite quail, eastern rized only $50 million for the WHIP for
exclusion of feral animals. cottontail rabbit, eastern kingbird, log- fiscal years 1996 through 2002. These
The protection of wetland habitat has gerhead shrike, prairie warbler, grass- funds were spent in two years, 1998 and
included the installation of culverts or hopper sparrow, and many more. The 1999. As a result, many landowners who
other water control structures, fencing, program generated outstanding interest wanted to participate did not have the
moist soil unit management, invasive from over 750 landowners across the opportunity to do so. Oklahoma, for ex-
plant control, and the creation of green- state. Habitat was improved on over ample, was one of the five states in the
tree reservoirs and shallow water areas. 13,300 acres, mainly native grassland/ country with 428 WHIP applicants. Yet,
Riparian and in-stream habitat pro- prairie. In addition, a special partner- only seventy-four were funded as a con-
tection was needed mainly in the south- ship was established between the NRCS sequence of lack of financing.
eastern United States and required tree and the Kentucky Department of Fish Many interest groups, including those
plantings, seeding, fencing, in-stream and Wildlife Resources, intended to fur- advocating for the interests of farmers,
structures, stream bank stabilization and ther develop WHIP plans and assist its have lobbied Congress for increases in
protection, stream deflectors, alterna- applicants. One of the partnership’s goals WHIP funding. The National Corn Grow-
tive watering facilities, the creation of is to ensure that wildlife benefits will be ers Association, National Association of
small pools and fish passages, installa- part of planning for all USDA conserva- State Departments of Agriculture, Inter-
tion of buffers, the removal of dams, and tion programs in Kentucky. national Association of Fish and Wildlife
the establishment of in-stream struc- In Iowa, WHIP plans were designed to Agencies, National Association of Con-
tures such as logs or rocks. support shelterbelts, riparian corridors, servation Districts, Wildlife Management
These different activities are ultimately and grassland restoration and develop- Institute, and Ducks Unlimited have
interrelated with respect to ecosystem ment. The main focus was on rebuilding urged Congress to increase WHIP fund-
improvement. “For instance, proposed habitat for the prairie chicken and on ing.
work on a native plant communities in enhancing natural trout reproduction in The International Association for Fish
longleaf pine ecosystem also was recorded twenty-five streams around the state. and Wildlife Agencies, for example, has
as applying to economically important Both projects have had good results and urged that WHIP funding should be au-
and threatened and endangered species have opened the way to other initiatives thorized at $100 million annually. It has
(e.g., northern bobwhite quail and red- concerning wildlife protection. pointed out that substantial financial
cockaded wood-pecker, respectively).” WHIP funding was also used in the resources were generated for the pro-
Although NRCS offices have adopted Souadabscook Stream Restoration Project gram by the close partnerships between
different approaches in their WHIP plans in Maine, which involved the removal of NRCS and non-governmental organiza-
based on the unique needs of their area’s a small, out-service-dam to restore the tions.
wildlife habitats, some interstate coop- Atlantic salmon and trout habitat and Whether Congress will respond to these
eration has occurred. One example is the scenic beauty of the landscape. In requests in the new farm bill is currently
Connecticut River watershed restoration Washington state, a Walla Walla River uncertain. The Senate version of the 2002
project. This project used WHIP funds to conservation project was initiated under farm bill authorizes WHIP funding at
restore and protect the riparian ecosys- the WHIP. After 700 hours of volunteer $225 million in fiscal year 2003; $275
tem of Connecticut River in four states: work, buffers were installed and the million in fiscal year 2004; $325 million
Connecticut, Massachusetts, New Hamp- banks of the river were planted with a in fiscal year 2005; $355 million in fiscal
shire, and Vermont. A unique, multi- mix of trees and shrubs that in time will year 2006; and $50 million in fiscal year
state cooperative agreement, the Con- shade the river and help maintain a 2007. The House bill authorizes lower
necticut River Conservation District Coa- constant low water temperature. The funding for the program than the Senate
lition (CRCDC), was formed as part of result will be highly beneficial for bull bill, extended over a ten-year period.
the WHIP operative plan. The main trout proliferation and for the endan- Specifically, it provides for funding lev-
sources of financial assistance and tech- gered steelhead migration. els of $30 million in fiscal years 2003 and
nical expertise to participating landown- Successes such as these are largely 2004; $ 35 million in fiscal years 2005 and
ers were the NRCS and United States attributable to the well-defined WHIP 2006; $40 million in fiscal year 2007; $45
Department of Interior’s Silvio O. Conte goal of improving wildlife habitat in a million in fiscal years 2008 and 2009; and
Fish and Wildlife Refuge. Enthusiastic manner that allows for flexibility and $50 million in fiscal years 2010 and 2011.
watershed landowners and private groups avoids administrative complexity. The As this article is written, the Senate and
became involved by submitting projects WHIP has also benefitted from sustained House bills are being reconciled in con-
in all four states for which the costs and cooperation and coordination between ference committee.
benefits of the riparian habitat restora- the NRSC and other governmental agen- The WHIP holds considerable prom-
tion would be shared. cies, conservation districts, non-govern- ise, but adequate funding will be neces-
The WHIP has provided cost-sharing mental organizations, environmental and sary for its potential to be realized. For
for eight different ecosystems. Signifi- wildlife associations and other private those who are interested in preserving
cant riparian forestland projects were entities, and WHIP participants. Because biodiversity, the WHIP represents an
implemented along the Ashuelot River in participation in the WHIP is voluntary, important new policy initiative.
New Hampshire and the West River in participants are generally receptive to
Vermont. Significant grassland projects the advice and assistance provided by This material is based upon work sup-
have been started in Amherst, Massa- experienced specialists in biology, zool- ported by the U.S. Department of Agri-
chusetts, and Northwest Park, Connecti- ogy, conservation, and environmental culture, under Agreement No. 59-8201-
cut. These ecosystems were identified as protection in the formulation of project 9-115. Any opinions, findings, conclu-
having high environmental potential, plans. Also, the use of priorities in select- sions, or recommendations expressed in
serving as food, cover, and nesting sites ing projects for cost-share assistance and C ont. on p. 7
for many migratory birds and mammals the option of adjusting the amount of

6 AGRICULTURAL LAW UPDATE MARCH 2002
WHIP/Cont. from p.6 ronmental groups and professional societies. The available at http://www.nhq.nrcs.usda.gov/CCS/
this publication are those of the author agency is linked with all 3,000 conservation districts, FB96OPA/WhipQ&A.html
34
and do not necessarily reflect the view of almost one in every county. In this way, NRCS can See 7 C.F.R. § 636.11(a).
35
acknowledge local needs and priorities, being able to See id. § 636.11(b).
the U.S. Department of Agriculture. 36
find solutions and provide assistance when needed. See id. § 636.12(a)(1).
37
1
For more information on the NRCS, see See id. § 636.12(a)(2).
United States Dep't of Agric., Natural <http://www.nrcs.usda.gov>. 38
See id. § 636.13.
Resources Conservation Serv., America's Pri- 11
16 U.S.C. § 3836a(b). 39
See Hackett, supra note 14, at 118.
vate land: A Geography of Hope 7 (1996). 12
See id. § 3836(c). 40
USDA, NRCS, Connecticut River Watershed
2
Id. at 53. 13
62 Fed. Reg. 49,357-49,368 (Sept. 17, 1997)(fi- available at http://www.nhq.nrcs.usda.gov/PRO-
3
Id. nal rules to be codified at 7 C.F.R. Part 636). GRAMS/whip/succ-ct.htm
4
See id. at 54, The Endangered Species Act, 14
See Ed Hackett, The Wildlife Habitat Incentives 41
Id.
16 U.S.C. §§ 1531-1543, seeks to preserve plants Program: A Summary of Accomplishments, 1998- 42
USDA, NRCS, Success Story-Kentucky, avail-
and animals by requiring the listing of threatened 1999, in L. Pete Heard et al., A Comprehensive able at http://www.nhq.nrcs.usda.gov/PROGRAMS/
species. See 16 U.S.C. § 1531. Review of Farm Bill Contributions to Wildlife Con- whip/succ-ky.html
5
Commission for Environmental Cooperation, The servation, 1985-2000 (USDA, NRCS, Tech. Rep. 43
USDA, NRCS, 1999 Wildlife Habitat Incentives
North American Mosaic: A State of the Environment WHMI-2000, Dec. 2000) at 117 [hereinafter Hackett]. Program (WHIP) Accomplishments, Iowa, available
Report 37 (2002). 15
See 7 C.F.R. § 636.4 (2001). at http://www.nhq.nrcs.usda.gov/PROGRAMS/whip/
6
Sce David Bennett, Agencies Differ on Cormo- 16
See id. § 636.4(b), (c). whip-IA.html
rant Control: Official Critical of Interior Department's 17
See 62 Fed. Reg. 49,362 (September 19, 44
USDA, NRCS, Souadabscook Stream Restora-
No-Kill Philosophy, Delta Farm Press, Mar. 8, 2002, 1997)(prefatory comments to final rules to be codified tion Project, available at http://
at 30. at 7 C.F.R. Part 636). www.nhq.nrcs.usda.gov/PROGRAMS/whip/
7
See Roger Claassen et al., Agri-Environmental 18
See 7 C.F.R. § 636.5(b). Souadabscook.htm
Policy at the Crossroads: Guideposts on a Changing 19
Id. § 636.5(c). 45
USDA, NRCS, Conservation Success Stories,
Landscape (USDA Econ. Resesarch Serv., AER 20
See id. § 636.5(d). Fish Habitat Improved on Walla Walla River, Wash-
Rep. No. 794, 2001) at 57, 21
See 62 Fed. Reg. 49,363 (September 19, ington, available at http://www.wa.nrcs.usda.gov/pas/
8
See id. at 57-58. 1997)(prefatory comments to final rules to be codified Fish_Habitat_Improved.htm
9
Pub. L. No. 104-127, tit. III, § 387, 110 Stat. 888, at 7 C.F.R. Part 636). 46
Anne Hazlett, Conservation and The Next Farm
1020 (codified at 16 U.S.C. § 3836a). 22
7 C.F.R. § 636.7. Bill: Introduction and Status of H.R. 2646, "The
10
Id. (codified at 16 U.S.C. § 3836a(a)). The 23
See id. § 636.9(a), (c). Farm Security Act of 2001" 25 (2001)(unpublished
NRCS is the successor to the Soil Conservation 24
See id. § 636.8(b)(2). manuscript).
Service (SCS). See Federal Crop Insurance and De- 25
Id. § 636.8(c). 47
Id. at 23-25.
partment of Agricultre Reorganization Act of 1994, 26
Id. § 626(b)(1), (4). 48
Id. at 24.
Pub. L. No. 103-354, tit. II, § 246, 108 Stat. 3178, 27
Id. § 636.9(b), (c). 49
S. 1731 (as amended), 107th Cong. §
3223-25. The SCS was created in response to the Dust 28
Id. § 636.10(a), (b). 1240M(g)(2002). See also Jeffrey A. Zinn, Resource
Bowl of the 1930s when a federal agency was needed 29
Id. § 636.6(a). Conservation Title: Comparison of Current Law with
to deal with soil erosion. Today, the NRCS is the 30
Id. § 636.6(c). House and Senate Farm Bills, at 28, (January 25,
leading conservation agency within the USDA. NRCS 31
See id. § 636.6(b). 2002).
relies on many partners to help meets its conservation 32
See id. § 636.14(b). 50
H.R. 2646, 107th Cong. § 252 (2002).
goals, from other state and federal agencies to envi- 33
USDA, NRCS, WHIP: Questions and Answers,

AMAA/Cont. from p.3 v. Block, 765 F.2d 827 (9th Cir. 1985). the dairy division’s application of the
support for its ruling from Stark v. There, it interpreted Stark as permitting producer-handler exemption.” Id. (cita-
Wickard, 321 U.S. 288 (1944), and Block producers to bring a direct suit only when tion omitted).
v. Community Nutrition Inst., 467 U.S. their interests were not represented by Noting that UDA was a handler as well
340 (1984). In Stark, milk producers chal- the interests of handlers. This interpre- as a representative of its producer-mem-
lenged the Secretary’s practice of deduct- tation, reasoned the court, was consis- bers and that Shamrock was related to
ing certain expenses from the producer- tent with the holding in Community Nu- another business that was a handler, the
settlement fund before calculating the trition.See id. court concluded that their direct suit
blend price that they would be paid. The In light of these decisions, the court would have the effect of evading “the
Court held that the producers had stand- turned to the question of whether han- statutory requirement that they first
ing to obtain judicial review of the dlers would have an interest in challeng- exhaust their administrative remedies.”
Secretary’s actions because the AMAA ing the producer-handler exemption. It Id. Given the complexity of milk market-
had given producers “‘definite, personal determined that they would based on a ing orders and the expertise possessed
rights’” and that handlers would lack letter sent by the law firm representing within the USDA, the court observed
standing to assert their rights because UDA and Shamrock to the Dairy Divi- that “[t]his case is the perfect example of
handlers had no financial interest in the sion Director. The letter stated, in part, when a party should first exhaust admin-
fund or its use. Id. at 1164 (quoting that “it is apparent that handlers ad- istrative remedies before judicial review.”
Stark, 321 U.S. at 309). Conversely, in versely affected by significant producer- Id.
Community Nutrition, which presented handler competition are no longer will- —Harrison M. Pittman, Graduate
the question of whether consumers of ing to accept minimum pricing regula- Fellow, National Center for Agricul-
dairy products had standing to obtain tion under a system from which one or tural Law Research and Information,
judicial review of milk marketing orders, more of their major competitors are ex- University of Arkansas School of Law
the Court held that consumers did not empt.” Id. at 1165. The court concluded This material is based upon work sup-
have standing because, among other rea- that it was evident that the handler ported by the U.S. Department of Agri-
sons, “consumers’ interests are similar to “element of the dairy business in this culture, under Agreement No. 59-8201-
those of handlers, and, therefore, actions case has a significant interest in pursu- 9-115. Any opinions, findings, conclu-
affecting consumers would also affect ing Sara Farms and their exempt sta- sions, or recommendations expressed in
handlers who would take steps to chal- tus.” Id. at 1166. The court also observed this publication are those of the author
lenge those decisions.” Id. at 1165. that “the non-exempt handlers here have and do not necessarily reflect the view of
The court also found support for its standing because of their expressed fi- the U.S. Department of Agriculture.
ruling in its earlier decision in Pescosolido nancial interest that is being affected by

MARCH 2002 AGRICULTURAL LAW UPDATE 7
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MARCH 2002 AGRICULTURAL LAW UPDATE 9