Federal appeals judge allows Black farm group to join defense in debt cancellation case

Glenn Morris, 83, harvests corn on October 11, 2021 in Princeton, Indiana. Morris is one of two full-time black farmers who still farm in Lyles Station, a region of Indiana once dominated by black farmers. March 2022

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Billions in debt relief, promised from the federal government to aid Black farmers, has been tied up in lawsuits for months. Now, the powerful Federation of Southern Cooperatives will be allowed to join the defense.

In October, the nonprofit advocacy group Federation of Southern Cooperatives filed a motion to intervene on behalf of Black farmers, in a Texas lawsuit challenging the constitutionality of Congress’s $5 billion debt cancellation program for farmers of color. Now, after a lower court previously ruled against the Federation, an appeals judge has granted them approval to join the case

The litigation currently blocking debt relief is one of 13 suits filed against the Emergency Relief for Farmers of Color Act (ERFCA), also known as Sections 1005 and 1006 of the American Rescue Plan Act—a trillion-dollar Covid-19 spending package authorized last March. The initial measure sought to address pandemic-related hardships as well as systemic discrimination within the Department of Agriculture (USDA) that left nonwhite producers struggling to achieve parity with their white counterparts. 

Last fall, the Federation, an organization made up of about 20,000 mostly Black farmers, filed a motion to intervene in defense of these farmers. They argued that its membership gave the organization access to reams of evidence and testimony that USDA was not privy to. Further, the Federation claimed that the federal agency’s own involvement in the case made it unlikely to seek or present evidence that could demonstrate ongoing discrimination by USDA. This consideration was affirmed by the appellate court, which wrote in its decision that “it is highly unlikely the (Agriculture) Secretary would put forth such evidence in the absence of the Federation’s intervention.”

“This case is about the future of Black farming in America. Black farmers once owned 14 percent of all farms in the country—today they own just over one percent, in part due to governmental discrimination that they continue to endure.”

Although the group’s motion was denied by a lower Court in December, the U.S. Court of Appeals for the Fifth Circuit unanimously ruled to allow the Federation to intervene on March 22, concluding that the Court had “erred in denying intervention as a matter of right.”

“This Appellate Court was the first to seriously consider the devastating impact of the delayed implementation of the debt relief program on our member-farmers. By guaranteeing the Federation’s right to intervene, the Court ensured that the ongoing, race-based discrimination our member-farmers continue to face can be entered as evidence in the litigation which will significantly strengthen the defense of this program’s constitutionality,” Dañia Davy, director of land retention and advocacy wrote in a statement.

With this approval, the Federation becomes a codefendant in the suit, allowing the organization to participate in discovery, introduce evidence, and seek verbal or written statements from witnesses to present in court. The group argues that many of its farmers, some who hold substantial debt, urgently need this measure—ERFCA would pay off these farmers’ direct and guaranteed loans, also covering 20 percent of related taxes. Many Federation members had begun making arrangements to purchase equipment, seeds, and fertilizer, among other inputs, after receiving notices of relief eligibility from USDA. 

“This case is about the future of Black farming in America. Black farmers once owned 14 percent of all farms in the country—today they own just over one percent, in part due to governmental discrimination that they continue to endure. The experiences of Black farmers are integral to the defense of this vital debt relief program,” said Public Counsel Attorney Nisha Kashyap, a member of one of three firms representing the Federation.

Legal experts still say an uphill battle lies ahead. Republican Texas Agriculture Commissioner Sid Miller filed the initial suit alleging reverse discrimination against white farmers one month after Congress passed ERFCA, with the help of former Trump aides Stephen Miller and Mark Meadows. Since the end of the former president’s administration, Miller and Meadows have focused their efforts on America First Legal, a firm that’s embraced conservative and increasingly white nationalist causes. Some experts say that the race-based language and mechanisms tied to the current debt relief program would be difficult to defend without jeopardizing other government programs such as affirmative action that seek to remedy past discrimination.

Agriculture Secretary Tom Vilsack has publicly stated USDA’s intent to defend the program and the Department of Justice, representing the agency, has filed a motion for summary judgment requesting that U.S. District Judge Reed O’Connor, who presides over the case, reimplement the program without a lengthy trial.

Safiya Charles is The Counter's future of farming fellow, covering the movement around justice for Black farmers and the pioneering agriculture work being done in communities of color nationwide. She previously worked at the Montgomery Advertiser, the Alabama capital's daily newspaper. Her work has appeared in The Nation and The New Republic.