Bishop v. Review Committee, Venue V, Com. Stab. Serv.

• Decision Date: 24 January 1962
• Docket Number: 16813.,No. 16812,16812
• Citation: 298 F.2d 386
• Parties: Delbert BISHOP et al., Appellants, v. REVIEW COMMITTEE, VENUE V, COMMODITY STABILIZATION SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, SITTING IN THE CITY OF GRANT, NEBRASKA, IN AND FOR PERKINS COUNTY, Appellee. Floyd O. ALLEN et al., Appellants, v. REVIEW COMMITTEE, VENUE V, COMMODITY STABILIZATION SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, SITTING IN THE CITY OF OGALLALA, NEBRASKA, IN AND FOR KEITH COUNTY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

298 F.2d 386 (1962)

Delbert BISHOP et al., Appellants, v. REVIEW COMMITTEE, VENUE V, COMMODITY STABILIZATION SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, SITTING IN THE CITY OF GRANT, NEBRASKA, IN AND FOR PERKINS COUNTY, Appellee.

Floyd O. ALLEN et al., Appellants, v. REVIEW COMMITTEE, VENUE V, COMMODITY STABILIZATION SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, SITTING IN THE CITY OF OGALLALA, NEBRASKA, IN AND FOR KEITH COUNTY, Appellee.

Nos. 16812, 16813.

United States Court of Appeals Eighth Circuit.

January 24, 1962.

Lyle B. Gill, Fremont, Neb., made argument for the appellant and was on the brief.

David L. Rose, Atty., Dept. of Justice, Washington, D. C., made argument for the appellee and William H. Orrick, Jr., Asst. Atty. Gen., Theodore L. Richling, U. S. Atty., Omaha, Neb., and John G. Laughlin, Atty., Dept. of Justice, Washington, D. C., were with him on the brief.

Before SANBORN and VAN OOSTERHOUT, Circuit Judges, and GRAVEN, Senior District Judge.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by plaintiffs, wheat farmers operating in Perkins and Keith Counties, Nebraska, from final judgment of the district court affirming the action of appellee County Review Boards in upholding wheat allotments for the year 1960 made to plaintiffs pursuant to the Agricultural Adjustment Act of 1938 as amended, 7 U.S.C.A. § 1281 et seq., hereinafter called the Act, and regulations promulgated thereunder.

This complex Act and the regulations implementing it are very well explained by Judge Blackmun in Review Committee VII, etc., v. Willey, 8 Cir., 275 F.2d 264, cert. denied, 363 U.S. 827, 80 S.Ct. 1597, 4 L.Ed.2d 1522. That case involved 1959 Nebraska wheat allotments. The pertinent provisions of the Act are set out, the purpose of the Act is discussed, and the constitutionality of the Act and the validity of the regulations are upheld with citation of supporting authority. No purpose would be served in going over this extensive field again. We start here, with our holding in Willey, that the Act and the regulations through 1959 are valid. For other recent cases upholding the validity of the Act and regulations, see Rigby v. Rasmussen, 10 Cir., 275 F.2d 861; Geib v. Joens, 9 Cir., 282 F.2d 554; Moe v. Wesen, D.C.Mont., 172 F.Supp. 259; Hollstein v. Nebraska State Marketing Quota Rev. Com., D.C.Neb., 179 F.Supp. 657; Dighton v. Coffman, D.C.Ill., 178 F.Supp. 114, approved, 7 Cir., 279 F.2d 497.

Jurisdiction to entertain this appeal is established.

It is conceded that under the Act the scope of judicial review by the district court of the action of the appellee Boards is limited to questions of law. The Act so provides. 7 U.S.C.A. § 1366. These cases, presenting common questions, were consolidated both in the trial court and here.

The 31 plaintiffs are wheat farmers residing within the jurisdiction of the appellee Boards. Wheat is the principal crop produced in their area. Because of dry weather, summer fallowing is a general practice, most farmers leaving about half of their land fallow each year.

Plaintiffs each knowingly overplanted their allotments in one or more of the crop years, 1955-1957. Some of the plaintiffs upon inquiry were advised by the County Committees that overplanting could affect their allotments in future years. The Committees issued no specific warning as to the possible effect of overplanting, but on the other hand, gave no assurance to any of the plaintiffs that overplanting would not affect future allotments. Under 7 U.S.C.A. § 1334(a), (b), farmers who knowingly overplanted their allotments but planted less than their base acreage lost allotment acres for their state and county, and under the historical acreage allotment method lost acreage for themselves. For an explanation of this situation, including citations to statutes and regulations, see Hollstein, supra, and Moe, supra.

It is sufficient for our purposes to state that it was to plaintiffs' advantage to have their allotments for the year 1960 determined by the carry-over method employed in the counties here involved from the years 1954 to 1958. Under such method, the base established for the previous year would be used as the base for the current allotment and hence no loss of base-wheat acreage would result from non-compliance with the program in prior years.

The Act contemplates that the Secretary of Agriculture annually fix national acreage allotments for wheat, in accordance with certain standards prescribed by the Act. The national wheat acreage is then apportioned by the Secretary to the states, and the state allotment is apportioned to the counties within the state, and the county allotment is apportioned by local farm committees acting on behalf of the Secretary, to the wheat farmers operating in the county. All of this procedure was followed for the crop year 1960. The constitutionality of the Act is not challenged nor is the allotment technique above the county level.

Apportionment of the county wheat allotment to the individual farmers within the county is made by committees of local farmers on the basis of past acreage of wheat, tillable acres, crop-rotation practices, type of soil and topography. 7 U.S.C.A. § 1334(c).

The wheat allotment bases which plaintiffs seek to preserve were originally established in 1954. They were based upon 1952 and 1953 wheat production. Under successive regulations prior to the 1960 regulation, the wheat base for the prior year was adopted as the base for the current year. This resulted in the base established in 1954 being carried forward as the base for each succeeding year up to and including 1958. The pre-1960 regulations under which the County Committees acted provided for the allotments to be apportioned to the individual farmers upon a historical acreage basis, specifying the years to be considered in determining the history. As an alternate plan, the county committee with the approval of the state committee could carry forward the wheat base of the prior year if the county committee determines that such use will result in substantially the same base as would result from the use of the historical acreage method.

The regulations for 1960, 7 C.F.R. 728.1017, required the 1960 allotment to be determined on the basis of historical acreage for the years 1955 through 1958. The provisions of the prior regulations for the use of the alternate carry-over method under appropriate conditions was not included in the 1960 regulations. Plaintiffs, in their brief, challenge the validity of the elimination from the regulations of authorization to use the carry-over method on the following grounds:

"I. The standard of conduct the Department of Agriculture will be held to in dealing with farmers will be that policy changes must operate prospectively.

"II. The Department of Agriculture had a definite policy for establishing wheat bases during the 1954-1958 period and it promulgated regulations with a dual aspect.

"III. Congressional intent with respect to the establishment of base wheat acreage is to be found by comparing Public Law 85-203 with Public Law 85-366. Since Congress reenacted the provisions of 7 U.S.C. 1334(c), can the Secretary of Agriculture repeal the balance he struck in determining base wheat acreage and substitute a new balance?"

Plaintiffs more specifically in the course of their brief state:

"Our position is that the Secretary simply changed his policy and made it retroactive, and that is the nub of our complaint."

* * * * * *

"We are not urging the court by the use of labels that there is involved here res judicata, equitable estoppel or a vested right in a base. We are arguing that the Secretary has exceeded his authority by destroying adjudicated bases in areas as large as parts of states, where there is no showing of fraud, or mistake of law or fact."

It is plaintiffs' theory that the county committee, by readopting the 1954 base in the succeeding years of 1955, 1956 and 1957, pursuant to the authorization of the use of the carry-over method by the then existing regulations, where the result would be substantially the same as under the historical acreage method, adjudicated that the base so established met the requirments of the Act and this in effect amounted to an adjudication that the overplanting during such period was immaterial.

The 1960 regulations requiring wheat allotments to be made upon the basis of historical acreage are not vulnerable to the attack the plaintiffs make upon them. The historical acreage method of determining allotments has in all the regulations been the primary basis for determining wheat allotments. As pointed out in Willey, supra, the five factors specified in § 1334(c) must all be considered by the committee in determining allotments. In the Willey case, we specifically upheld the 1959 regulations which contained substantially the same provisions as the 1960 regulations for the determination of base acreage by the historical acreage method, stating:

"After a careful review of the Secretary\'s regulations directed to the 1959 wheat crop we can conclude only that they embody a reasonable administrative interpretation of the statute, that they are not arbitrary or unreasonable, and that they are valid." 275 F.2d 272.

With reference to the use of past...