Who is Greg Herden and Why Does He Matter?


Earlier this month, one Minnesotan lost his chance to be heard by the Supreme court. In fact, his story failed to get much attention at all; dead cows aren't the most catchy subject. Greg Herden represents the latest test against the unassailable force we know as the Federal Government. The story starts out with a federal project called the "Environmental Quality Incentives Program." As its name suggests, the goal behind the program was to get farmers to plant more environmentally friendly crops. Herden got involved with it in 2004. The aim for his case was to have him plant a particular mixture of grasses and legumes in his pastures (for the cows of course), with 90% of the cost paid by government entities. The mixture was picked out by State Grazing Specialist Howard Moechnig, who came to Herden's ranch and, after researching the conditions, issued the use of the mixture. After these initial details the story gets murky. Herden claims he was concerned about the amount of Alsike Clover (which can make hay poisonous under certain conditions) and wanted alphalpha. Moechnig only recalls that Herden wanted alphalpha, which was denied due to the moisture of the soil. Mochnig also claimed that the poor conditions of Herden's soil forced him to put in three times the normally (federal) accepted percentage of Alsike Clover. Later, starting with stillborn calves, Herdens cows began to die. Over the course of one year (and especially in winter when he fed them the hay which had become poisonous after storage) all 212 of them were dead. His entire herd destroyed, Greg Herden found himself forced to take the matter went to court: Herden vs. United States. A district court dismissed his case, but an appeals court overturned that decision. The next step was the Supreme Court. The government, in the various arenas waged a two-prong attack: to both claim innocence and contest Herden's very right to sue for damages. Jeff Eckland, a Minneapolis-based attorney representing Herden, explained why he feels the trial is justified and necessary (in terms of the Federal Tort Claims Act "FTCA") to Minnesota Connected:
"Congress intended for plaintiffs to be able to recover damages against the United States under ordinary principles of negligence, as long as such recovery doesn’t interfere with the type of discretionary decision-making typical of that engaged in by legislative bodies." "The conduct at issue here – requirements dictated by a state grazing plan – is not the kind of decision-making that Congress intended to immunize in the FTCA."
But the Supreme Court (earlier this month) denied hearing the case or those arguments. It set a wider precedent of protection for the Federal Government. No longer, it seems, can citizens sue for losses on the grounds of negligence. Negligence is somehow (this point remains rather unexplained) being blanketed under policy protection (made to prevent lawsuits against "bad laws") for legislators from the point of view of SCOTUS. Eckland explained further:
"The wider implications of the Court’s denial of the Herdens’ Petition for Certiorari are that federal courts will continue to dismiss, on average, over 70% of all civil actions commenced against the Federal Government sounding in negligence before the plaintiff will ever have its day in court."


The deeper argument (in terms of innocence and guilt), the argument of the government if the case ever got into the Supreme Court, goes to how Herden managed the hay that he cut (the Alsike Clover can be made toxic if stored improperly). But because of its dismissal, it's beside the point, as Eckland adamantly pointed out:
 "I’m afraid that the High Court missed a golden opportunity to correctly interpret Congressional intent underlying the enactment of the Federal Tort Claims Act."
With what seems like endless expansion of funding and programs it's not hard to imagine a plethora of ways that government negligence and bad advice could go terribly wrong (especially in the field of technology). The Supreme Court has likely not heard the last of metaphorical Greg Herdens.


At it's core, apart from all lofty legalisms, this story is about Greg Herden. His farm in Gully, MN (about halfway between Bemidji and Thief River Falls) goes back three generations; with so many dead cows, his identity and livelihood have been jeopardized. At present, he will not get his day in court -- I, for one, feel distinctly sorry for the man.   Photos via: Flickr  

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