Supreme Court weighs if MN farmer can sue feds over 212 dead cows
Greg Herden watched helplessly as the cows on his family farm in Gully, about an hour west of Bemidji, began spontaneously aborting their calves. The young were coming out still-born or near death.
A veterinarian investigated and found that the calves' blood was not coagulating. There was mold in the stomach. And to make matters worse, the adult cows were now sick.
The next year, Herden buried the last of his bovine -- number 212.
"It was a hard time," he says. "How would you like to bury a dead pet every few days?"
His family is suing the U.S. Department Agriculture for negligence, claiming that a grazing specialist inadvertently poisoned some of the fields. The case is up for consideration by the United States Supreme Court.
If the court decides to take it and rules in the Herdens' favor, all those dead cows could change the way the rest of us interact with government employees.
At issue is the Federal Tort Claims Act, which Congress approved in 1948 as a way for private citizens to sue employees of the United States. Since then, however, the courts have established one exemption after another, giving government workers a great deal of immunity whenever their reasoning is grounded in social, economic, and political policy.
"It's essentially made suing the federal government meaningless," says Jeff Eckland, a Minneapolis-based attorney representing the Herdens.
The majority of these cases are shot down before they begin. But what makes this one different is that it relies on the technical judgment of an employee who may have gone beyond his own regulations.
"It involved a scientific analysis," Eckland says. "It's the kind of case that should be allowed to progress through the courts."
A district court dismissed the complaint, but an appeals court overturned that decision. The Department of Agriculture has petitioned the Supreme Court to consider it.
The government plans to argue that the hay Herden fed his animals was improperly stored and growing mold. Herden denies it, and his attorneys point out that the government is trying to have it both ways by claiming innocence and thwarting Herden's right to sue.
"We need the government to make their employees follow the rules just like citizens," Herden says. "It's not a free-for-all. Otherwise, my god, we're all in trouble."
In 2004, Herden enrolled in a federally financed conservation program. In exchange for the money, he agreed to let one of its specialists come in and design a planting pattern to maximize yield.
That task fell to Howard Moechnig, who concocted a seed mixture containing Alsike Clover. Herden had strong reservations about putting the stuff on his field -- and claims he made those reservations known -- but the Ag man planted it anyhow.
Moechnig declined to talk about it but pointed to statements he'd already made to attorneys in which he argues that the poor condition of the soil required him to use a higher dose of seeds.
That mixture turned out to be three times the normal percentage recommended by federal regulations, the plaintiffs argue. After being fed the poisoned hay all winter, the cows died one by one.
"I guess some people can take it, but I'm not very good with death," Herden says. "The stress, I never realized it, but it does take a toll on a person. It works on ya."
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