Berends v. Butz, 4-73 Civ. 41.

• Decision Date: 20 March 1973
• Docket Number: No. 4-73 Civ. 41.,4-73 Civ. 41.
• Citation: 357 F. Supp. 143
• Parties: Martin BERENDS et al., Plaintiffs, v. Earl L. BUTZ, Secretary of Agriculture of the United States, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

357 F. Supp. 143

Martin BERENDS et al., Plaintiffs, v. Earl L. BUTZ, Secretary of Agriculture of the United States, et al., Defendants.

No. 4-73 Civ. 41.

United States District Court, D. Minnesota, Fourth Division.

March 20, 1973.

COPYRIGHT MATERIAL OMITTED

Frank Claybourne, Vance K. Opperman, Joseph R. Kernan, Jr., St. Paul, Minn., for plaintiffs.

Robert G. Renner, U. S. Atty., by Thorwald Anderson, Asst. U. S. Atty., Minneapolis, Minn., for defendants.

MEMORANDUM AND ORDER

MILES W. LORD, District Judge.

On January 19, 1973, plaintiffs commenced this action against the Secretary of Agriculture of the United States and certain subordinate officials of the United States Department of Agriculture, Farmers Home Administration (FHA), seeking temporary and permanent injunctive relief, declaratory relief and further relief in the nature of mandamus. The thrust of plaintiffs' action is that the Secretary of Agriculture acted unlawfully and beyond the scope of his authority in terminating the FHA emergency loan program on December 27, 1972. Plaintiffs seek reinstatement of that program.

On February 15, 1973, pursuant to Plaintiffs' Motion for a Preliminary Injunction, a hearing was held before this Court in Duluth, Minnesota. At that time, oral argument was heard and briefs and affidavits were submitted by plaintiffs and defendants in support of their respective positions. At the conclusion of plaintiffs' argument, plaintiffs moved that the Court order the advancement of the trial on the merits and its consolidation with the application for the preliminary injunction, pursuant to Rule 65(a)(2), Federal Rules of Civil Procedure. Because the relief prayed for by plaintiffs and others similarly situated, if granted, will be fully meaningful only if granted prior to the 1973 planting season and in no event later than June 30, 1973, the Court granted the motion, ordered the consolidation, and advanced the trial on the merits to March 5, 1973. At that time, defendants moved to dismiss the amended complaint on the ground that the actions complained of were totally within defendants' discretion. Alternatively, defendants moved for summary judgment. Both motions were denied and full trial on the merits was held.

Parties

Plaintiffs are four farmers residing in the 15 county area designated as an "emergency loan" area, who were precluded from applying for emergency loans because of the directive of the Secretary of Agriculture halting the program in Minnesota. The action is brought as a class action. The Court finds that the class is so numerous that joinder of all members is impracticable; that there are common questions of law and fact common to the class; that the claims or defenses of the representative parties are typical of the claims or defenses of the class; and that the representative parties will fairly and adequately protect the interests of the class. Furthermore, the defendants have acted and refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. The action is maintainable as a class action with the class being defined as those farmers in need of agricultural credit as the result of "natural disasters" who operate farms in one or more of the fifteen Minnesota counties involved herein, and were precluded from applying for emergency loans by the directive of the Secretary of Agriculture and the actions taken thereunder terminating the emergency loan program in Minnesota.

Defendants include the Secretary of Agriculture, the National Administrator and Assistant Administrator of the Farmers Home Administration, the Chief of the Emergency Loan Division of the Farmers Home Administration; and the State Administrator of the Farmers Home Administration for the State of Minnesota.

Factual Background

In the fall of 1971 and spring of 1972, a large part of western and central Minnesota suffered excessive and prolonged rainfall to such extent as to seriously and injuriously interfere with and delay the planting of crops in the spring of 1972. With many years of experience, area farmers were unable to recall such extreme and prolonged conditions of rain and wetness. Because of these conditions, many farmers in the affected areas were unable to get into their fields to plant some of their 1972 crops at all. To the extent planting was possible, in many cases it was only possible critically late in the season—for example, late June or July, 1972. Even after planting, replanting was often required because the seed would rot in the wet soil. Because of the weather, harvests of many farmers were very small; many of the crops were almost totally destroyed.

As a result of these weather conditions, on June 26, 1972, defendant Earl Butz, United States Secretary of Agriculture, declared that fourteen counties in western and central Minnesota had experienced "natural disasters" and designated those fourteen counties "emergency loan areas." This designation was published in the Federal Register, Volume 37, No. 126, page 12854, and provides as follows:¹

DESIGNATIONS OF AREAS FOR EMERGENCY LOANS

For the purpose of making emergency loans pursuant to section 321 of the Consolidated Farmers Home Administration Act of 1961 (7 U.S.C. 1961) and section 232 of the Disaster Relief Act of 1970 (Public Law 91-606), it has been determined that in the following counties in the State of Minnesota natural disasters have caused a general need for agricultural credit:

                            COUNTIES
                Big Stone         Pope
                Chippewa          Renville
                Douglas           Stevens
                Grant             Swift
                Kandiyohi         Traverse
                Lac qui Parle     Wilkin
                Meeker            Yellow Medicine
                

Emergency loans will not be made in the above-named counties under this designation pursuant to application received after June 30, 1973, except subsequent loans to qualified borrowers who received initial loans under this designation. The urgency of the need for emergency loans in the designated areas makes it impracticable and contrary to the public interest to give advance notice of proposed rule making and invite public participation.

Done at Washington, D. C., this 26th day of June, 1972.

Earl L. Butz Secretary.

On June 26, 1972, pursuant to this designation of "emergency loan areas", the National Office of the FHA, by defendant Willard H. Ballard, Director of the Emergency Loan Division of the FHA, sent the following "notification" telegram to the Minnesota State Director of the FHA indicating that these fourteen Minnesota counties had been designated "emergency loan areas." This notification provides as follows:

Effective immediately Big Stone, Chippewa, Douglas, Grant, Kandiyohi, Lac qui Parle, Meeker, Pope, Renville, Stevens, Swift, Traverse, Wilkin and Yellow Medicine Counties are designated for emergency loans. Initial emergency loan applications will not be received or approved after June 30, 1973, except applications pending on that date will be completed. (Emphasis added)

On June 28, 1972, defendant Gordon F. Klenk, State Director of the FHA for the State of Minnesota, sent a bulletin to County FHA offices in each of the fourteen designated Minnesota counties. This bulletin provides in pertinent part as follows:

Effective immediately the following counties have been designated eligible for Emergency loans by the Secretary of Agriculture:

Enumeration of the fourteen Minnesota counties omitted.

Initial Emergency loans may be approved in these counties as authorized in FHA Instruction 441.2 to eligible applicants who have suffered production losses caused by excessive moisture conditions and not compensated for by insurance or otherwise. Initial loans for Emergency applicants will not be received or approved after June 30, 1973, except applications pending on that date will be completed.

It is not anticipated that a large volume of applications will be received until after the harvest season; however, where an immediate need for credit exists, the loan should be processed, approved and routed to the State Office for review. We plan to hold an Emergency program meeting with county office personnel in the near future.

County Supervisors in the affected counties should notify the County U. S.D.A. Defense Chairman and see that the public is adequately informed of the emergency designation. The attached news release may be used in the affected counties. (Emphasis added)

This bulletin (as well as the attached "News Release") indicates that emergency loan applications would be accepted and processed through June 30, 1973. It is clear, from the language of this bulletin, that the State Director anticipated that most applications would not be submitted until after the harvest season which was late November or early December, 1972.

Subsequent to the fourteen-county emergency loan designations of June 26, 1972, and the Stearns County designation of September 20, 1972, informational meetings were held throughout the designated areas by State, District and County FHA, officials. Relying upon the designations of the National Office of the FHA, these FHA officials informed interested farmers that: (1) applications would be accepted and processed through June 30, 1973; (2) that farmers should not file until after their harvest to make sure that all eligible losses were included in their applications; and (3) that plenty of money was available in the program. Relying upon these representations, many farmers, including plaintiffs and others similarly situated, waited until after the 1972 harvest to file emergency loan applications.

As anticipated by State FHA officials, a substantial portion of emergency loan applications were not submitted until after the harvest season—late November and December, 1972. Between that time and December 27, 1972, many farmers in the fifteen-county emergency loan area contacted local FHA officials for...