Any debt relief minority farmers were expecting in 2021 has come to a grinding halt under proposed court schedules pitched by lawyers for white farmers and Department of Justice attorneys representing USDA officials.
Agriculture Secretary Tom Vilsack, speaking to DTN on Wednesday, said the litigation involving white farmers who sued USDA over the program will now have to move through the U.S. District court, then almost certainly will go to federal appeals courts, and perhaps all of the way to the Supreme Court.
That goes way beyond initial schedules of discovery and briefs proposed by both sides on Tuesday.
"We're talking about a lengthier period of time than that, so yes it's going to take awhile," Vilsack said.
The Supreme Court ruled this past week on a California agricultural case and an ethanol case. One case took four years to reach the High Court and the other took closer to six years.
With the preliminary injunction against the debt-relief program issued last week by federal Judge Marcia Morales Howard in the U.S. District Court for Middle Florida, Howard also ordered attorneys for both parties to submit proposed schedules on the case to her court. The two sides filed a joint notice late Tuesday stating they had conferred but could not reach an agreement on a schedule. For Howard, the two sides pitched the possibility of a court ruling as early as mid-October, or as late as next spring.
The multiple lawsuits filed across at least seven federal district courts have tied up nearly $4 billion in debt relief to farmers who were defined as socially disadvantaged under a 1990 definition created by Congress. This includes producers who identify as one or more of the following: Black/African American, American Indian, Alaskan Native, Hispanic/Latino, Asian American, or Pacific Islander. The aid provision was in the American Rescue Plan, which passed in March. The debt relief involves Farm Service Agency loans and guaranteed loans and for an estimated 16,000 farmers.
USDA sent out letters to farmers in late May informing them they were eligible for debt relief. Then the litigation moved forward with a temporary restraining order in Wisconsin, followed by a more extensive preliminary injunction in Florida last week to block USDA from moving ahead with the debt relief.
If courts were to rule that the Biden administration must pay off debt relief for all farmers with outstanding FSA loans, the cost of the debt relief plan would increase to about $31.7 billion for nearly 145,000 borrowers.
The plaintiff in the Florida case, Scott Wynn, had challenged the provision in the American Rescue Plan that directed the debt relief for socially disadvantaged farmers based on their race. Howard granted the preliminary injunction and in doing so also raised questions about USDA's defense of the provision and how it is structured. Wynn's attorneys from the Pacific Legal Foundation pitched a more aggressive schedule, citing that "many key facts in this case will be undisputed," and should lead to an expedited discovery period. Wynn's attorneys proposed a court schedule of motions and briefs that would wrap up on October 15.
Department of Justice lawyers representing USDA officials, citing that Wynn's lawyers want to permanently block USDA from redressing "the lingering consequences of a long history of discriminating against socially disadvantaged farmers and ranchers. USDA expects it will take "several months" to develop a full record for the court. Further, the government expects to rely heavily on expert testimony, and it will take time to identify and retain those experts to review "data reaching back decades and spanning the entire country." With that, the government seeks to push back with a list of expert reports, rebuttals and motions for summary judgement that will stretch into at least April 1, 2022. The DOJ lawyers cited one reason there is no need to further accelerate the case is that the plaintiffs already have a preliminary injunction against further action.
Howard will now have to decide on a schedule in which to move forward with the case.
Vilsack added to DTN, "At this point, we are committed to try to figure something out here to help people who have for far too long been denied the impact and effect of all of the programs at USDA throughout the entire history of the department. As a result, we now have a system that is out of balance in terms of availability of resources for socially disadvantaged producers, specifically." The debt-relief provision "was a step designed to address that cumulative impact."
The courts will not have to determine whether Congress in defining the class of people to receive this assistance was narrowed and tailored enough, and whether there is a compelling state interest in aiding those specific producers, Vilsack said. "I think there is. We'll see."
Chris Clayton can be reached at Chris.Clayton@dtn.com
Follow him on Twitter @ChrisClaytonDTN
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