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Obstructionists Stand in the Way of Justice

Tuesday, November 30, 2010

by Heather White, Environmental Working Group General Counsel

**Update** The House of Representatives just cleared the Pigford settlement for black farmers in a 256-152 vote.

--Don Carr

DTN Progressive Farmer political correspondent Jerry Hagstrom is reporting that black farmers' claims against the US Department of Agriculture  "could be settled today if the House, as expected, takes up a $4.5 billion bill the Senate passed just before Thanksgiving to settle the Pigford II black farmers’ discrimination case against USDA."

Unfortunately for those black farmers still suffering from decades of discrimination, some members of the House of Representatives have tried to gum up the works by claiming that the settlements will be riddled with fraud. Earlier this fall, Reps. Michele Bachmann (R-Minn.) and Steve King (R-Iowa) and former House Agriculture Committee Chairman Bob Goodlatte (R-Va.) called for an investigation of the Pigford claims.

Their statements, however, amount to little more than shrill hyperbole, a cynical ploy aimed at delaying justice for thousands who deserved better from USDA.

On Sept. 29, 2010, these three members held a press conference calling for an investigation into the Obama Administration’s $1.25 billion settlement of the discrimination claims, known as "Pigford II." Bachmann claimed that Pigford II is rife with potential “fraud and abuse” because more people filed claims than were anticipated based on the number of black farmers recorded by USDA. She noted that USDA statistics record only about 33,000 black farmers in the United States, but more than 90,000 claims had been filed. She also cast the settlement as a vote-buying effort by Democrats ahead of the November election.

The Pigford litigation began in 1997 when black farmers sued USDA claiming discriminating on the basis of race in its handling of grant and loan programs in the 1980s and 1990s.  The plaintiffs eventually negotiated a settlement agreement with USDA (known as Pigford I), but many criticized it for failing to provide adequate notice to other possible claimants.

The court went so far as to admonish the plaintiffs’ attorneys for failing to keep their clients informed about filing deadlines, saying that their actions “border[ed] on legal malpractice.”  Pigford II represents an attempt by the Obama Administration to extend relief to farmers eligible for payments under Pigford I who were left out by the way it was implemented.  Several months ago, the President proposed $1.15 billion in the FY 2010 supplemental budget to fund Pigford II, and that proposal – combined with the current political climate – gave the GOP representatives a window to stage this latest sideshow.

The Environmental Working Group collaborated with the National Black Farmers Association on a series of landmark reports, 2007?s Short Crop and 2004?s Obstruction of Justice, that showed a widening subsidy gap between black farmers and other farmers due to USDA’s history of discriminatory practices.

In response to these members' tall talk and wild propaganda, EWG believes it is vital to put in context the gap between the number of Pigford II claims and the number of black farmers recorded at USDA. That disparity seems problematic at first glance, but the USDA figure does not mean that much unless you understand how USDA compiles its statistics.

USDA only collects demographic information for a “maximum of three operators” per farm, according to the 2007 Census for Agriculture. That means the total number of black farmers is probably much higher if you factor in all family members who work on any one farm.  And as DTN Ag Policy Editor Chris Clayton points out, Pigford II not only compensates those who should be counted by USDA, but also anyone who was prevented from farming in the first place because of discrimination. Those facts help to explain why the number of Pigford II claims exceeds the number of recorded black farmers.

Secondly – and more importantly – EWG notes that the Pigford II settlement sets up many safeguards that will weed out anyone attempting to game the system. For starters, claimants have to show that they are African Americans who farmed or attempted to farm between 1981 and 1996 – a window that closed years ago, before President Obama was even an Illinois state senator.  Claimants also have to show that they applied for and were denied USDA benefits during that period. Finally, they have to show that they suffered economic harm because of USDA's policies and followed up by making a discrimination complaint before 1997.  Taken together, those elements will go a long way toward shrinking the pool of those who will actually receive a payment.

Pigford II demands that claimants prove each element by submitting “substantial evidence” or a “preponderance of evidence,” depending on which settlement track they opt for. At a minimum, claimants have to submit enough evidence to show that it is more likely than not that they belong in the settlement class. By imposing those standards – ones used everyday in courtrooms across America – Pigford II prevents the claims process from devolving into a rubber-stamp formality. That is reinforced by the fact that a neutral third party will process all claims to determine who receives a payment.

As one more dose of reality, EWG notes that Pigford II requires additional evidence from claimants who assert that they “constructively applied” for USDA loans during the specified time frame.  For example, claimants have to show that they made a “bona fide” effort to apply for loans, which they can show by submitting evidence that they were met with “discouraging” statements by USDA officials – assuming they have held onto their paperwork for all these years. It really doesn't matter how many claims are filed at the outset because each one will be subjected to the same rigorous review process.

At the representatives' Sept. 29 press conference, King said that Democrats have “turned a blind eye to . . . corruption” by moving ahead with Pigford II. It's EWG's view that these charges lack substance and gloss over the scrupulous process that will determine who gets paid. The House members are also ignoring the systematic corruption at USDA that generated this controversy in the first place.

EWG long ago documented the “indifference and blatant discrimination experienced by minority farmers in their interaction with USDA programs and staff” during the 1980s and 1990s. For example, one black farmer reported that USDA refused even to give him a loan application, “telling him that no funds were available” despite the fact that white farmers in the area were getting funding.  Another recounted how USDA officials “would withhold payments until it was too late to harvest the crops” and then penalized him in “future years saying [his] yields were low.” All the while the USDA Office of Civil Rights Enforcement and Adjudication would in many cases toss “discrimination complaints in the trash without ever responding to or investigating them.”

But the fact remains that black farmers have waited for justice to be served in the Pigford litigation – and that is the real travesty that cannot be ignored.

Hopefully, today will be the day that justice is served, despite the best efforts of obstructionists with solely political agendas.

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