Impact of COVID-19 on Agriculture

Attorney Shares How Due Process Helps Fight Government Red Tape

Newsroom / January 8, 2018

To combat the ever-increasing number of burdensome government relations impacting American farmers and ranchers, public interest law firms are working with the courts to reverse the trend of ignoring due process related to administrative rules.

“The courts often defer to agencies’ views of the facts, so [farmers and ranchers] lose their ability to challenge the facts,” said Tony Francois, senior attorney for the Pacific Legal Foundation, a public interest law firm based in Sacramento, California. Francois addressed farmers and ranchers at a workshop at the American Farm Bureau Federation’s 2018 Annual Convention & IDEAg Trade Show in Nashville.

Francois’ focus has been the defense of property rights threatened by federal environmental statutes, namely the Endangered Species Act and Clean Water Act. Francois said his firm was working to rebuild protections through recent and upcoming judicial decisions that would help those in agriculture going forward regain protections of due process.

The attorney reminded attendees that the intended purpose of America’s legal process was to ensure that no one branch or agency held all the power or made decisions in secret. The protections of due process are also designed to protect the accused against government power being used for improper motives.

Francois said that while the powers of enforcing the law and interpreting the law were separated intentionally; they often get put back together in the administrative agencies.

“This was not what was originally intended,” Francois said.

Francois explained that administrative agencies have historically skirted this separation through delegation and deference. He elaborated that Congress often delegates to agencies the writing of their own rules, including deciding whether or not to hold hearings.

The judiciary will give deference to agencies as experts in their field, especially in terms of environmental laws. This becomes a problem when the agency presents the facts of their enforcement without a neutral decision-maker to ensure fairness for the other party.

“While the USDA has hearing officers outside of normal program staff, the EPA and Fish & Wildlife do not. They have decision makers who are on the staff. This is a problem,” Francois said. “Decision makers need to explain the decision process [of an enforcement action] and explain whose evidence was more persuasive.”

Despite the challenges of recent decades, Francois said there is evidence to suggest the courts are becoming more balanced.

“It could be an easy fix, just inserting text that requires a hearing instead of whenever a decision-maker receives evidence of a violation,” Francois said.

While other countries may have judicial systems that may be more efficient, Francois added, without the protections of due process, those systems are susceptible to abuse and corruption.

Farmers and ranchers looking for answers to specific questions related to their farm should contact a local legal representative.

Will Rodger
Director, Policy Communications
Office (202) 406-3642
Terri Moore
Vice President, Communications
(202) 406-3641

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