Farmers Can Sue Over Toxic Plant Mixture

(CN) - The 8th Circuit revived a lawsuit filed by Minnesota farmers who say a state employee mandated a toxic seed mixture on pasture land that caused their cattle to get sick and die.

Three generations of cattle farmers -- Greg Herden, his son Garrett Herden and his father Roger Herden -- enrolled their three grazing pastures in a conservation program through the Department of Agriculture's Natural Resource Conservation Service.

As part of the program, they agreed to accept a pasture-planting plan designed by a technical specialist, for which they would be reimbursed 90 percent of their costs.

State grazing specialist Howard Moechnig allegedly told them to plant a seed mixture containing six pounds per acre of alsike clover in one of their pastures - more than triple the recommended amount.

Greg Herden said he complained that the seeding mixture called for too much alsike clover, which can be toxic to cattle, and asked to plant alfalfa instead.

But Moechnig denied Herden's request, and the field was planted with the recommended seed mixture.

The Herdens claimed the toxic mixture caused illnesses, birth defects and death among their cattle and led to the loss of a multi-generational farming business.

The conservation service blamed the cattle deaths on moldy hay, but the Herdens were convinced it was the seed mixture and filed a federal lawsuit.

A federal judge dismissed their negligence claims, finding that Moechnig had merely exercised his protected discretion under the Federal Tort Claims Act (FTCA).

The FTCA waives sovereign immunity for damage claims against the United States based on state-law tort actions. The exemption cited by the federal judge - the so-called "discretionary-function" exception - protects government employees from being sued for making judgment calls in the course of their work.

The divided appeals panel in St. Louis reversed, saying "the discretion exercised in this case was not the type of discretion Congress intended to shield from suit." Moechnig's decision to recommend a specific seeding plan was based on his scientific knowledge, not on policy concerns, Judge Michael Melloy explained for the 2-1 majority.

In dissent, Judge Kermit Bye disagreed "with the majority's characterization of Moechnig's decision-making process as a simple application of his scientific knowledge."

"Moechnig was attempting to balance pre-defined interests - cattle pasture production, with environmental concerns, with a return on taxpayers' investment," Bye wrote.

He pointed out that the designers of the conservation program considered these same "policy and societal issues," as the majority conceded.

"I fail to see how Moechnig's decision in weighing those predetermined considerations is any less a policy-based choice," he wrote.

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