Garvey v. Freeman

• Decision Date: 01 February 1967
• Docket Number: Civ. A. No. 9392.
• Parties: James S. GARVEY, Plaintiff, v. Orville L. FREEMAN, the Secretary of Agriculture of the United States of America, W. Harold Tuttle, F. H. Hallock and Raymond M. Frazee in their capacities as members of the Kiowa County, Colorado Agricultural Stabilization and Conservation Committee, Arthur Isgar, Charles Hanavan, Jr., and Dewey Carnahan, in their capacities as members of the Agricultural Stabilization and Conservation Committee of the State of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

263 F. Supp. 573

James S. GARVEY, Plaintiff, v. Orville L. FREEMAN, the Secretary of Agriculture of the United States of America, W. Harold Tuttle, F. H. Hallock and Raymond M. Frazee in their capacities as members of the Kiowa County, Colorado Agricultural Stabilization and Conservation Committee, Arthur Isgar, Charles Hanavan, Jr., and Dewey Carnahan, in their capacities as members of the Agricultural Stabilization and Conservation Committee of the State of Colorado, Defendants.

Civ. A. No. 9392.

United States District Court D. Colorado.

February 1, 1967.

Holland & Hart, J. G. Holland, Frank H. Morison, Dwight K. Shellman, Jr., and William J. Carney, Jr., Denver, Colo., for plaintiff.

Lawrence M. Henry, U. S. Atty., and William E. Gandy, Asst. U. S. Atty., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

CHILSON, District Judge.

The plaintiff seeks judicial review of the normal wheat yields per acre established by the Department of Agriculture for five of plaintiff's farms in Kiowa County, Colorado, which yields determine the amount of plaintiff's benefits under the Federal Wheat Program of 1965.

The history of the wheat program insofar as it pertains to this case reveals that after the farmers, in 1963, rejected at a referendum a proposed mandatory wheat program, Congress, in April 1964, provided a voluntary wheat program (7 U.S.C. § 1334 et seq.). Under this program, producers who comply with certain requirements are eligible to receive wheat marketing certificates which enables producers to receive, in addition to the sale price of their wheat, an amount equal to the value of such certificates. Producers who do not want to participate in this program are free to produce wheat without being subject to any marketing quota or land use penalties.

The statute provides that the wheat marketing certificates to which a producer is entitled is based in part on the normal per acre yield for the farm. Congress authorized the Secretary of Agriculture to promulgate such regulations as may be necessary to provide for the issuance of the wheat certificates. Pursuant to this authority, the Secretary issued regulations establishing normal yields for the years 1964-65 for the wheat producing counties of the country, including Kiowa County, Colorado. On August 15, 1965, the normal yield for Kiowa County was established at 19.5 bushels, which was one bushel less than the 1964 normal yield for that county.

The Congressional Act (7 U.S.C. § 1301 (b) (13) (E)) provided that the normal yield of wheat for any farm shall be the average yield per acre for the farm:

"during the five years immediately preceding the year in which such normal yield is determined in the case of wheat, adjusted for abnormal weather conditions and for trends in yields. If for any such year the data are not available or there is no actual yield, then the normal yield for the form shall be appraised in accordance with regulations issued by the Secretary, taking into consideration abnormal weather conditions, trends in yields, the normal yield for the county, the yields obtained on adjacent farms during such year and the yield in years for which data are available."

Pursuant to statutory authority, the Secretary of Agriculture established regulations whereby a County Committee shall determine normal yields per acre for wheat farms in its county (7 C.F.R. 728.21) with a right of appeal from the County Committee to a State Committee (A.S.C. State Committee) and from the State Committee to the Deputy Administrator (7 C.F.R. § 780.4 and 780.5).

The County Committee is directed to determine the normal yield for any farm on the basis of its actual production records, if they are available and reliable. Otherwise, the County Committee is directed to appraise the normal per acre yield of the farm, taking into consideration the factors set forth in 7 U.S.C. § 1301(b) (13) (E), supra.

In this case, the County Committee, in the absence of production by plaintiff of records of actual production, used the appraisal method to establish the normal per acre yield for plaintiff's farms. The normal per acre yield for four of the farms was set at 18 bushels and for the fifth farm at 17 bushels (Exhibit B). The plaintiff requested reconsideration of these determinations by the County Committee and requested that the normal yield for all of the farms be increased to 20 bushels per acre (Exhibit C). The County Committee considered the request for an increase, denied it and advised the plaintiff of his right to appeal to the Colorado A.S.C. State Committee. The plaintiff took an appeal to the State Committee (Exhibit E) on the grounds:

1. Determination was not made in accordance with the Rules and Regulations of the Department of Agriculture.

2. Similar farms in Kiowa County, Colorado have normal yields of 20 bushels and more while the normal yield for plaintiff's farm is determined to be 18 bushels as to four farms and 17 bushels as to the other.

A hearing was held by the Colorado State Committee on December 16, 1964 (Exhibit G) at which plaintiff presented documentary and oral evidence in support of his contentions that the normal yields as established were too low in comparison with adjacent farms. In addition to the hearing, the State Committee, at the request of plaintiff, made two inspection trips to the plaintiff's farms and thereafter affirmed the County Committee's determination in the following words:

"The Colorado State ASC Committee have determined that the 1965 Wheat Program normal yields as established by the Kiowa County ASC Committee are equitably established. Therefore, your request for an increased normal yield is denied.

"This determination is based upon the fact that after the State Committee made extensive tours and observed the Garvey farms in relation to other farms in Kiowa County it was their determination that the appraised established yields reflect the Garvey farms' correct productivity in relation to yields established for other similar farms." (Exhibit H.)

The plaintiff then appealed to the Deputy Administrator, who after a hearing (Exhibit N) affirmed the normal yield determination in the following terms:

"Following the hearing for these appeals on April 27, 1965, we made a further examination of the comparisons used by the local county committee in establishing judgment yields for the 12 farms. Particular emphasis was given to any indication that the owners of the 12 farms had been discriminated against in the matter of establishing yields.

"Based on a current tabulation, 267 wheat allotment farms in Kiowa County have 1965 established yields of less than 17 bushels. The tabulation also shows that 55 or more farms which are participating under the conservation reserve program have established wheat yields above 18 bushels for 1965. Thus, there is a reasonable spread of yields above and below those determined for Garvey Farms. Those and other factors indicate that the Kiowa ASC County Committee applied reasonable judgment in determining yields reflecting comparative productivity between farms in the county.

"As you know, any producer had the opportunity to prove a 1965 wheat yield by presenting valid evidence of actual production in the years 1959 through 1963, inclusive. By choice, your appeals at the county, State and national level, were based on a comparison with yields established for similar farms by your county committee.

"We have taken into account the data you submitted and we have questioned closely the basis for decision at the county and State levels. Our analysis, since you did not offer records showing the amount of wheat produced in each of the base years, had to be responsive to the contention that local committees discriminated against you. Since there appears to be sincere but conflicting opinions about farming methods, availability of equipment, and the effect of wind erosion on yields on all Kiowa County farms, we have undertaken to ascertain actual facts demonstrating discrimination or absence thereof in your case.

"Our extensive review indicates opportunity for reasonable differences in opinion on the factors to be considered by the local committees under the regulations but such review does not reveal any evidence that the owners you represent were subjected to bias or discrimination at either the State or county level. Therefore, we must affirm the determination you have received since it represents judgments based on local knowledge of production and farming practices and has resulted in yields established in accordance with regulations governing the program." (Exhibit O.)

Thereafter, the plaintiff requested the Deputy Administrator to reopen the hearing and reconsider the matter (Exhibit P). This request was denied in the following words:

"We understand and appreciate your dissatisfaction with our determination of your appeal. However, the evidence and testimony you submitted for our consideration failed to show that the wheat yields currently established for the plaintiffs' farms were less than the normal wheat production per acre from these farms.

"We will be glad to reopen your appeal at any time you submit documentary proof that the actual average wheat yield for one or more of these farms exceeds the yield established for the farm. Otherwise, we have no basis for revising the determination of which you were notified by our letter dated June 25, 1965." (Exhibit Q).

Plaintiff thereafter instituted this action seeking judicial review of the determinations made by the administrative...