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Cucumber growers protest, appeal FSA's demand for '02 refunds

After 18 years and more than 200 appeal cases on behalf of agricultural producers challenging government payment decisions, Bill Arens says he's never seen anything like the current situation with cucumber growers in Texas' Terry and Hockley counties.

“The Farm Service Agency is demanding the refund of already-paid 2002 Crop Disaster Assistance Program [CDP] and Noninsured Crop Disaster Assistance Program [NAP] payments,” he said. “An FSA letter to growers dated September 28, 2006, states that their total amount owed as of that date will be ‘offset from any FSA or CCC payment due you.’”

Arens, who owns Farm Planning Service in Morton, Texas, is representing 14 farmers and 28 landlords in the two counties in appeals to the National Appeals Division (NAD) at the United States Department of Agriculture. The NAD office reports directly to the Secretary of Agriculture and is independent of other parts of USDA. According to its Web site, NAD employs a two-stage appeal process.

A participant has a right to a hearing in his state of residence before a NAD hearing officer. Thereafter, either the appellant or the agency may ask the NAD director to reverse the hearing officer's determination.

“We filed 42 appeals on the 29th of September regarding CDP and NAP payments,” Arens said. “Most of the appeals have been scheduled with a National Appeals Division hearing officer. One officer is in Belton, Texas, and one is in Lawrence, Kansas.”

NAD guidelines state that hearings are to be held within 45 days of NAD's receipt of a request for review, so all the appeals should be herd by about the middle of November, Arens adds.

Complicating the situation is the fact that Texas cucumber growers in Uvalde, Medina and Frio counties recently won their fight to receive payment from FSA on failed acreage in 2003-2004.

“The initial situation (with Uvalde, Medina and Frio county growers) was a result of a contract determination that they lost title to the crop. They had not been paid yet when that determination was made,” says Juan Garcia, agriculture program manager at the Texas Farm Service Agency. “The growers in Uvalde, Medina and Frio counties did go through an appeal process and the determination was made in their favor at the national level. They have been issued their payments.”

Garcia adds that FSA made the same type of determination with the Terry and Hockley county growers — they don't have title to the crop and aren't entitled to the payment.

Arens and his clients contend that the decision in Uvalde, Medina and Frio counties sets the precedent in favor of growers being entitled to the payments. George Caldwell, who handles commodity and regulatory activities for Texas Farm Bureau and has assisted some growers with their appeal of the determination, agrees.

“It's a double issue — proving something that happened so far in the past, and the pretty good financial hit these growers stand to take. I don't know about you, but I wouldn't still have any money somebody gave me that many years ago,” Caldwell says. “The government is saying each case has to stand on its own merit, while the Terry and Hockley growers are saying the previous case sets a precedent.

Arens says this case should remind all agricultural producers to be very careful when dealing with FSA, and he cautions them to read carefully the documents governing assistance programs. If they don't, he says, “it's like agreeing to play poker and laying your money out on the table without knowing the rules.”

Of further concern to Arens are the implications of the Terry and Hockley county appellants losing their cases.

“They are huge, because if we lose this, they are likely to go back and look at other crops,” he says. “But, I don't intend to lose.”

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