McAfee & Taft continues the fight for American farmers’ right to the 2014 Farm Bill’s APH Adjustment Option

published in McAfee & Taft AgLINC | Spring 2015

By Jeremiah Buettner

Most farmers, especially in the High Plains and Southern Plains regions of the United States, are aware of a key new provision of the 2014 Farm Bill known as the “APH Adjustment Option.” This gives farmers the right to elect to exclude certain years from their Actual Production History (APH), when the historical yields for their county (or a contiguous county) suffered catastrophic conditions leading to a substantial decrease in the county yield (50% or greater). By excluding these years, a farmer could increase his guarantee and potential indemnity payments.

While available for 2015 spring crops, the Risk Management Agency (RMA) refused to provide this statutory benefit to farmers for 2015 fall crops. Although numerous farmers requested the election from their Approved Insurance Providers (AIPs), RMA issued a bulletin on October 31, 2014, directing AIPs to deny this statutory right to farmers insuring their fall 2015 fall crops.

The legal team at McAfee & Taft, including judicially recognized crop insurance experts Jeff Todd and Jeremiah Buettner, immediately sprung into action and challenged the October 31 directive before the National Appeals Division, an administrative tribunal within the U.S. Department of Agriculture charged with adjudicating challenges to adverse actions by USDA agencies such as the RMA. Representing over 40 farmers from Colorado, Texas, Kansas and Oklahoma, we conducted a hearing before a hearing officer in January 2015 and introduced evidence that the authors of the Farm Bill indisputably intended the APH Adjustment Option to be self-executing and immediately available for farmers that needed it, and that RMA’s refusal to provide the benefit was contrary to law and its own regulations. RMA, in turn, asserted various technical arguments in an attempt to avoid the NAD’s jurisdiction altogether.

The hearing officer should render her opinion soon, but we anticipate a series of administrative appeals and possibly a judicial review in federal court before the matter is finally decided. Stay tuned for updates on this important matter.