REVIEW COMMITTEE, VENUE VII, ETC. v. Willey

Decision Date18 February 1960
Docket NumberNo. 16285.,16285.
Citation275 F.2d 264
PartiesREVIEW COMMITTEE, VENUE VII, COMMODITY STABILIZATION SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, Sitting in the City of Wahoo, Nebraska, in and for Saunders County, Appellant, v. Harold WILLEY, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

William Montgomery, Atty., Civil Division, Dept. of Justice, Washington, D. C., for appellant.

Lyle B. Gill, Fremont, Neb., for appellee.

Before GARDNER, WOODROUGH and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

This case arises under the Agricultural Adjustment Act of 1938, 52 Stat. 31, as amended, 7 U.S.C. § 1281 et seq., hereinafter called "the Act." It comes to us by way of an appeal by the Review Committee of Saunders County, Nebraska, from a final decision of the District Court setting aside that committee's refusal to disturb the County Committee's 1959 wheat acreage allotment for the farm of Harold Willey, a Saunders County farmer, and remanding the case to the Review Committee "with directions to make a determination of the plaintiff's base wheat acreage for his 1959 crop on the basis, not of his crop history as was done, but of his long range crop rotation system as instituted and now established on his farm." The District Court has jurisdiction under § 1365 of the Act.1 The court did not stay the Review Committee's determination although it had power to do so under § 1367.

The appellee, whom we shall call the plaintiff, is the owner and operator of a 320 acre farm in Saunders County in eastern Nebraska. 285 of the acres in this half section are tillable or "crop acres."

There is little dispute about the basic facts and most of them are admitted in the pleadings. The farm in question is a family farm and had belonged to the plaintiff's father. It is hilly and susceptible to erosion. The plaintiff began to operate the farm himself in 1950. For about 20 years prior to that time it had been rented to tenant operators. During that 20 year period the farm, through unsuitable soil conservation practices and excessive planting of row crops, had become eroded and severely cut up with ditches and gullies. Since 1950 the plaintiff has endeavored to revive and improve the farm. He has filled in washed areas, sown grasses, planted red clover and alfalfa as soil builders, eliminated row crops, and fixed up the ditches. There is now only one ditch which is troublesome for farm operations.

The plaintiff is principally an alfalfa farmer and so describes himself. He has been the largest supplier for the alfalfa dehydrating plant at Leshara, Nebraska, 5 miles from his farm. In 1958 the plaintiff planted 248.8 acres of his farm to alfalfa and that entire crop went to this plant. Its next largest farmer-supplier in 1958 had only 70 acres in alfalfa. The plaintiff normally obtains 4 cuttings of alfalfa a summer, as compared with 3 for some producers in the area. His product is clean because he has planted his alfalfa in wheat stubble in the fall and this prevents weeds from getting a foothold. If alfalfa is planted in the spring on corn or with a nurse crop of oats, an alfalfa crop the first year is not customarily realized. The plaintiff's farm although hilly is not rough. This has enabled the heavy equipment required for cutting the crop and supplied by the dehydrating plant to get around the farm without difficulty.

Alfalfa will dehydrate the soil. The roots go down 20 to 25 feet and after a few years the soil becomes root locked. As a consequence, after about the fourth or fifth season, alfalfa should be plowed up and the crop rotated. In due time the roots then rot out. Wheat is a satisfactory rotation crop because it takes a small amount of moisture. An ideal arrangement for crop rotation on the plaintiff's farm would be to have it one-third in wheat and two-thirds in alfalfa at all times. Alfalfa dries the soil to a much greater depth than any other crop commonly grown in eastern Nebraska. Conservation of water is a matter of serious consideration there.

Plaintiff's crop history shows the following:

                                                                   Other
                                    Wheat        Wheat   Alfalfa   Crop
                  Year            Allotment      Acres   Acres     Acres
                  1951 ........  Not in effect    35       65      185
                  1952 ........  Not in effect    35       90      160
                  1953 ........  Not in effect    35      159       91
                  1954 ........      29           35      210       40
                  1955 ........      24           45      228       12
                  1956 ........      23           65      220        0
                  1957 ........      23           33      252        0
                  1958 ........      44.2         36.2    248.8      0
                

The plaintiff probably would have planted more wheat acres during the wheat allotment years if it had not been for the allotment system. He filed a protest in 1953, the first year allotments were being made, against his acreage allocation. The plaintiff's plan of crop-rotation is to alternate his alfalfa with wheat, plowing up the alfalfa every 4 to 6 years and leaving wheat in for 3 years. This plan conforms to the best practices of soil conservation and steady income.

There is nothing in the record to suggest that the plaintiff is anything but an industrious and effective farm operator. His plea for more wheat acreage is evidently based upon a conviction that, so far as his particular farm is concerned, wheat-alfalfa rotation is the best and, for him, the most productive system. There is an intelligent and practical basis for his crop-rotation plan.

Because this is the first case under § 1365 to reach this court, it seems worthwhile, at the risk of lengthening this opinion, initially to review the pertinent and complex provisions of the Act and their administrative interpretation and application for the year 1959, and thus better to grasp the positions of the respective parties here.

Section 1282 is the declaration of Congressional policy. It remains in its original 1938 form and reads in its entirety:

"It is declared to be the policy of Congress to continue the Soil Conservation and Domestic Allotment Act, as amended, for the purpose of conserving national resources, preventing the wasteful use of soil fertility, and of preserving, maintaining, and rebuilding the farm and ranch land resources in the national public interest; to accomplish these purposes through the encouragement of soil-building and soil-conserving crops and practices; to assist in the marketing of agricultural commodities for domestic consumption and for export; and to regulate interstate and foreign commerce in cotton, wheat, corn, tobacco, and rice to the extent necessary to provide an orderly, adequate, and balanced flow of such commodities in interstate and foreign commerce through storage of reserve supplies, loans, marketing quotas, assisting farmers to obtain, insofar as practicable, parity prices for such commodities and parity of income, and assisting consumers to obtain an adequate and steady supply of such commodities at fair prices."

Further policy references directed specifically to wheat are in the legislative findings of § 1331.2 § 1332 directs the Secretary of Agriculture by May 15 of each calendar year to ascertain and proclaim the national acreage allotment for the crop of wheat produced in the next succeeding calendar year. This allotment is defined as that acreage which, on the basis of the national average yield for wheat, will produce an amount adequate, together with estimated carryover at the beginning of the year and imports, to make available a supply equal to a normal year's domestic consumption and exports plus 30 percent. The national acreage allotment for wheat for any year shall not be less than 55 million acres. § 1333.

The national wheat acreage is then, under § 1334, apportioned by the Secretary among the states, the allotment to each state is apportioned among its counties, and the allotment to each county is apportioned by local farmer committees3 among the farms in the county. Different criteria govern the apportionment of the respective wheat allotments among the states, the counties and the farms. In making the state allotments, the Secretary, after a 1 percent reserve, is required to allocate "on the basis of the acreage seeded for the production of wheat" during the immediately preceding 10 years "with adjustments for abnormal weather conditions and trends in acreage during such period." In distributing the state allotment among the counties, the Secretary's apportionment, after a reserve of up to 3 percent, is again "on the basis of the acreage seeded for the production of wheat" during the prior 10 years but "with adjustments for abnormal weather conditions and trends in acreage during such period and for the promotion of soil-conservation practices." The allotment among the individual farms, made through the local committees, is then on "base acreage" which depends upon "past acreage of wheat, tillable acres, crop-rotation practices, type of soil, and topography." § 1334(a) (b) and (c).

When the Secretary determines that the total supply for the coming wheat marketing year (July 1-June 30, § 1301 (b) (7)) will exceed "the normal supply for such marketing year by more than 20 per centum" he is required to "proclaim such fact" and then a "national marketing quota shall be in effect with respect to the marketing of wheat." § 1335(a). That quota will be suspended, however, if more than one-third of the farmers voting in a referendum, which the Secretary must conduct by July 25, oppose the quota. § 1336. A penalty is imposed on any "farm marketing excess of * * * wheat." § 1340.

All acreage allotments and the farm marketing quotas established for farms in the county are available for public inspection and notices of the farm marketing quota and of the farm acreage allotment are mailed to the farmer. § 1362. Any farmer who is dissatisfied with his quota may, within 15 days...

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