Conservation Program Appeals United States Department of Agriculture Natural Resources Conservation Service Conservation Program Appeals Beth Schuler, National Appeals Specialist

Statutory Authorization for Appeals Public Law 103-354, the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994, Title II, Sections 226, 246, 271-280. Title 7, United States Code (U.S.C.) Sections 6932, 6962, 6991-7000.

Published Rules NRCS Appeals Rule – 7 CFR 614, Dec. 29, 1995 FSA Appeals Rule – 7 CFR 780, Dec. 29, 1995 NAD Appeals Rules of Procedure, 7 CFR 11, June 23, 1999

USDA Appeals Procedure (as of January 16, 1996) Replaced the previous Agency appeals procedures as of January 16, 1996 Appeal “levels” done away with Two paths for appeal based on program authority Appeals procedure for all NRCS programs, not just HELC/WC Formal appeals agency of USDA, the National Appeals Division (NAD)

NRCS Policy and Procedure Conservation Programs Manual Part 510 – Appeals & Mediation (440-V-CPM) This policy covers all types of conservation program appeals that are covered by the USDA administrative appeals policy. http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_440_510.htm Farm Service Agency Appeals Policy – Handbook 1-APP

Definitions Adverse Decision – Means any administrative decision made by an agency that is (or can be considered to be) adverse to the participant. Decision – means a conclusion reached by an NRCS official based on the applicable regulation and program policy relating to eligibility for program benefits.

Appellant – means a participant who appeals an adverse decision. Case Record – includes all materials used by the agency to arrive at the decision or determination. Also referred to as the Administrative Record. Preliminary Technical Determination – is the initial written determination provided to a participant that will become final after 30 days unless certain actions are taken that will “stay” finality for a designated time period.

Technical Determination – an NRCS technical determination or decision that affects the legal substantive status of the land but may not necessarily be adverse that is based on science and professional judgment concerning soils, water, plants, air, and animals.

Decision or Determination Definitions Include the following: Denial of Equitable Relief Failure to Issue a Decision or Act on a Request or Right of a Participant

Decision or Determination Definitions Do Not Include: Civil Rights Decisions Decisions for the Contract Board of Appeals Personnel Issues

Who Can Appeal? USDA program participants adversely affected by an NRCS technical determination or technical decision can request an appeal. A participant can request the following: A field visit and reconsideration of the preliminary technical determination or the technical decision. Mediation or other forms of alternative dispute resolution of technical determinations or technical decisions. Appeal of an agency technical determination or technical decision.

Administrative Record The administrative records shall contain all materials used to make the technical determination or technical decision, including all supporting materials. Assembly of the administrative record begins when the participant takes any of the following actions: Requests a field visit and/or reconsideration Requests mediation Requests other methods of alternative dispute resolution Files an appeal CPM Section 510.04

When the Appeals Process is Completed Appeal rights are exhausted and the appeal process is final when one of the following occurs: The client has not requested an appeal within 30 calendar days of the final technical determination or technical decision, unless a field visit or mediation has been requested. Within 30 calendar days of an FSA county/area committee final decision if no additional appeal is requested.

After a decision is rendered on a request for a NAD Director review. After a final technical determination or technical decision has been agreed upon through mediation. After NAD issues a final decision and neither the agency nor the appellant requests a Director review. After a decision is rendered on a request for a NAD Director review. After a decision is rendered by the NAD Director on reconsideration of a previous Director decision. CPM Section 510.05

Judicial Review An appellant may not seek judicial relief in any court until the issue on appeal has been through the entire USDA Administrative Appeals process and NAD has issued a final decision in the appeal.

NRCS issues a preliminary determination Preliminary Process Program Participant requests field review or mediation? NRCS issues a preliminary determination Letter transmitting the determination offers the following: Field Review Mediation No Yes Field review and/or mediation conducted. Final NRCS determination issued. Determination becomes a final NRCS determination 30 days from the date of the notification

Appealability The NAD Director is the final authority on issues of when a decision and what type of decision is or is not appealable. Generally, if the decision applies to all persons equally, and it meets the criteria set forth in 7 CFR 614.5, then the issue is not appealable. A participant may request that the NAD Director review the NRCS decision that an issue is not appealable. A request must be filed not later than 30 calendar days after notification that an issue is not appealable. CPM, Paragraph 510.02(c)

Appealable Issues Program participants may request a field visit and reconsideration or appeal of technical determinations or technical decisions concerning any of the following issues: Denial of participation in a program. Compliance with program requirements. The payment or amount of payments or other program benefits to a program participant. Technical determinations or technical decisions that affect the status of land even though eligibility for USDA benefits may not be affected. CPM Paragraph 510.02(a)

Non-Appealable Issues The following issues are not appealable: General program requirements applicable to all participants Science-based formulas and criteria The fairness or constitutionality of Federal laws Technical standards or criteria that apply to all persons State Technical Committee membership decisions made by the State Conservationist Procedural technical decisions relating to program administration Denials of assistance due to the lack of funds or authority CPM Paragraph 510.02(b)

How the Appeals Process Works NRCS issues a final determination or decision Is this determination or decision appealable? No Yes Offer right to request an appealability review from NAD. Offer appeal rights to the appropriate authority

What can make something that is generally applicable appealable? Incorrect application; Inconsistent application; Incorrect factor values are used or the factor values are used incorrectly Then the decision rendered when using the scientific formula for program eligibility can be determined to be appealable by NAD.

Title XII Program Appeals Conservation Reserve Program Conservation Security Program Environmental Quality Incentives Program Farm and Ranchland Protection Program Grassland Reserve Program Highly Erodible Land Conservation Wetland Conservation Wetlands Reserve Program Wildlife Habitat Incentives Program

Title XII Program Flowchart NRCS issues a final determination that is appealable. Has there been Input from FSA/COC employee, officer, member? No Yes NOTE: Mediation is only offered at this stage if it has not been utilized previously Offer the following rights: Appeal to the FSA COC (optional); Mediation; or Appeal to NAD Offer the following rights: Appeal to the FSA COC (mandatory); or Mediation NOTE: Further Appeal rights, including rights to appeal to NAD will be provided by FSA.

Non-Title XII Program Appeals Agriculture Management Assistance Program Colorado River Basin Salinity Control Program Emergency Watershed Projects (including Floodplain Easements) Forestry Incentive Program Great Plains Conservation Program

Flood Prevention and Watershed Protection Programs (PL-566 and PL-534 Land Treatment Contracts) Rural Abandoned Mine Program Rural Clean Water Program Soil and Water Conservation Program Water Bank Program

Non-Title XII Program Flowchart NRCS issues a final determination or decision that is appealable. Is this a non-title XII program? No Yes Go back to the Title XII Process Slide Offer the following rights: Appeal to the STC; Mediation; or Appeal to NAD NOTE: Mediation is only offered at this stage if it has not been utilized previously

Recap of the Appeals Process 4. Title XII Program? a. No 1. NRCS issues a final determination or decision 6. Offer the following rights: Appeal to the STC; Mediation; or Appeal to NAD a. Yes 2. Appeal- able? b. Yes a. No 7. Offer the following rights: Appeal to the FSA COC optional); Mediation; or Appeal to NAD 5. Input from FSA/COC employee, officer, member? b. No 8. Offer the following rights: Appeal to the FSA COC mandatory); or Mediation 3. Offer right to request an appealability review from NAD. b. Yes NOTE: Appeal rights to NAD will be provided by FSA.

Conservation District Participation Conservation District representatives should be encouraged to participate in field visits. District officials may be able to provide additional information and evidence that could lead to resolution of the issue prior to appeal.

Correcting a Determination If, on the evidence obtained during the field visit, it is found that the preliminary technical determination was incorrect, it is appropriate to provide a corrected technical determination. Any corrected technical determinations resulting from a field review must be issued within 30 calendar days of the visit. The corrected determination will be a Final Determination.

NAD Hearings NAD is an organization within the USDA, independent from all other agencies and offices of the Department. The NAD Director's office is located in Alexandria, Virginia, but NAD also has regional offices (see Subpart G, Section 510.76, Exhibit 16 for the NAD regional office addresses and the States served by the specific regional office.) Eastern Regional Office - Indianapolis, Indiana. Southern Regional Office - Cordova, Tennessee. Western Regional Office - Lakewood, Colorado.

NAD Functions Participants in USDA programs are afforded an opportunity for a hearing before a neutral hearing officer who is not bound by any prior agency findings of fact. The hearing officer may make independent findings of fact but must apply the law and regulations of the agency to the facts as found.

Burden of Proof The appellant has the burden of proving that the NRCS technical determination or technical decision was erroneous by a preponderance of the evidence. This means that the appellant must show that it is more likely than not that the agency's technical determination or technical decision is wrong. CPM 510.51

Types of Hearings Telephone hearings held by teleconference if the appellant agrees. In this type of hearing, the process is essentially the same as if it were in person. A Record Review based on the agency record and other information submitted by the appellant and the agency. If the appellant requests a record review: Both parties have the opportunity to submit information in documentary form to the hearing officer. The hearing officer will notify the agency and the appellant of the right to submit additional evidence, the established deadlines, and other requirements as applicable. A Hearing in Person.

NRCS Actions Prior to NAD Hearing A copy of the technical determination or decision the appellant is challenging. A written explanation of the agency's position, including the regulatory or statutory basis, detailing the anticipate Exhibits to be submitted to the hearing officer and their significance in support of the technical determination or decision under review. A copy of any document not in the agency record that the agency plans to introduce at the hearing. A list of anticipated witnesses. A brief description of the evidence each witness will offer.

Normal Order of the Hearing Hearing Officer's opening statement. Appellant's opening statement. Agency's opening statement.

Normal Order of the Hearing Appellant case presentation including: Evidence presentation. Witness testimony. The agency may cross-examine witnesses. Objections may be noted and ruled on.

Normal Order of the Hearing Agency case presentation including: Evidence presentation (see Subpart G, Section 510.75, Exhibit 15.) Witness testimony. The appellant may cross-examine witnesses. Objections may be noted and ruled on.

Normal Order of the Hearing Appellant's rebuttal period. Agency's rebuttal period. Appellant's closing argument.

Normal Order of the Hearing Agency's closing argument. Hearing officer's instructions regarding post-hearing proceedings, submission of documents, etc. CPM Section 510.53

Witness Testimony Testimony is evidence given verbally under oath by the parties or by witnesses. Witnesses should limit testimony to factual information within the scope of their experience and should focus on the factual evidence. Testimony should not include arguments.

Closing Statement The NRCS representative should ensure that the agency's closing statement sufficiently summarizes the evidence in the hearing record that supports the agency's technical determination or decision and refutes the appellant's position.

NAD Director Reviews Both parties to the appeal may request a NAD Director review of a hearing officer determination. The timeframes are as follows: NRCS Chief - Not later than 15 business days after the date on which the agency receives the NAD hearing officer's decision. Appellant - Not later than 30 calendar days after the date the appellant receives the hearing officer's decision.

Implementing NAD Decisions The agency is required to implement all final NAD decisions not later than 30 calendar days after the notice of the final determination. Timely implementation occurs when the first of the steps required to implement a final decision is initiated.

Conclusion For questions, assistance, training, etc. regarding Appeals, Appealability Reviews, or other matters, please call: Beth Schuler (615) 646-9741; FAX: (615) 673-6705 Email: beth.schuler@usda.gov