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September 14, 2018

Litigation as Strategy

When the lawyer awoke from surgery, he asked, “Why are all the blinds drawn?” The nurse answered, “There’s a fire across the street, and we didn’t want you to think you had died.”

As a recovering attorney myself, I can appreciate a good joke at the expense of my barrister kind. Quite frankly, the reputation lawyers have developed over the years is [in many, not all, cases] valid, especially in a state like California, which consistently ranks among the worst litigation climates in the United States.

Indeed, the state and federal court systems have been expertly employed by many opponents of agriculture—in particular, in the labor and environmental arenas—to advance their ideology and gradually restrict the freedom of farmers to operate in California and many other places across the country. The Imperial Chinese called this process “lingchi,” or “death by a thousand cuts.”

For years, the Environmental Protection Agency (EPA) and other federal agencies have engaged in “litigation lingchi” by cooperating with environmental groups as part of a “sue and settle” strategy to develop regulations. I called out this de facto rulemaking process in my 2011 testimony before the U.S. House Oversight and Government Reform Committee:

“To comply with the settlement agreements or injunctive orders from the court, the EPA and other agencies impose regulations without meaningful input from stakeholders, without considering the economic impact on the nation’s farmers or workers, and with little regard to the intent of Congress when the law was passed.”

In our own backyard, California Rural Legal Assistance (CRLA) has routinely leveraged the court system to attack agricultural employers, most recently targeting the H-2A program with the goal of reducing the use of foreign guest workers by California farming companies. Why? Because it is impractical to unionize H-2A workers, which is bad news for CRLA’s bedfellows, the United Farm Workers.

In its various lawsuits, CRLA has argued that H-2A employers use the visa program as a means to keep wages low—giving them an alternative to raising pay to attract domestic workers—and working conditions unsafe. Despite the factual vacuity of these arguments, the CRLA has won several recent judgments against California agricultural employers.

This strategy, using the legal system to promote a public policy agenda, has been nearly perfected by the labor and environmental movements. The agricultural industry must become similarly adept at advancing its interests in the courts.

We instinctively understand that the California Legislature has become overtly hostile to many private industry sectors, ours included. In the most recent primary elections in June, the number of “No Party Preference” voter registrations officially surpassed Republican voter registrations, and given California’s evolving demographics, it is difficult to imagine when, if ever, the pendulum might stop moving away from moderation.

Likewise, the regulatory mandates dictated by many of our state and federal agencies continue to place expensive and unnecessary burdens on our businesses. Even in the Trump era, with the administration attempting to roll back job-killing regulations and excessive red tape, we are seeing that institutional bureaucracy is often too entrenched for any one administration to dislodge.

In the face of all this, the agriculture industry must take to the courts.

This path has been paved by several brave trailblazers. The Pacific Legal Foundation, for example, has boldly and tactically used the courts to defend the property rights of landowners against the overreaches of government, as they did in the case of Duarte Nursery v. U.S. Army Corps of Engineers. Because the Corps of Engineers considers “vernal pools” [which you and I call “rain puddles”] to be wetlands, pursuant to the Clean Water Act they ordered Duarte Nursery to stop farming its land without giving the company a hearing. Ultimately, rather than face the risk of penalties of up to $45 million, Duarte Nursery agreed to a settlement for a far lesser sum.

Elsewhere, Western Growers filed an amicus curiae (“friend of the court”) brief in an Endangered Species Act case pending in the U.S. Supreme Court. At issue in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service is whether the government can designate private land as unoccupied critical habitat that is neither habitat nor essential to species conservation. To quote my good friend Linda Richman from Saturday Night Live: “I’m getting verklempt! Talk amongst yourselves.”

Furthermore, the Fish and Wildlife Service concluded that the $34 million in lost development value—which would result from this designation of 1,500 acres of private land in Louisiana as critical habitat for the endangered dusky gopher frog… land that cannot provide habitat for them because it lacks features necessary for their survival—was not disproportionate to the biological benefits of designation!

While this case does not involve farmland or property in Western Growers member states, it is not difficult to extrapolate the massive government encroachment on private property rights that could result from an unfavorable decision. (The Supreme Court will have an opportunity to examine the long-standing principle of judicial deference to federal agencies when it hears oral arguments in the Weyerhaeuser case when the Court convenes its upcoming term on October 1st.) This case underscores the significance of the courts to our future as farmers and business owners, as the decisions rendered in other states and districts set precedents that impact all of agriculture.

Given the ingrained hostility of the California Legislature and many state and federal regulatory agencies, we will need to take to the courts even more aggressively, confident that we have the U.S. Constitution on our side, and that the founding principles of private property rights and free enterprise will carry the day. This requires an immense commitment. Lawsuits take time and a lot of money. Engaging in even greater litigation to address broad industry concerns requires strong financial support from every industry association as well as individual farming companies. But rest assured, as agriculture becomes more sophisticated and deliberate in using litigation as a strategy, we can begin to reverse years of bad policy and preserve our industry for generations to come.