A divided Eighth Circuit Court of Appeals panel has reversed the dismissal of claims filed under the Federal Tort Claims Act (FTCA) by cattle producers alleging that a government employee negligently decimated their cattle herd by requiring that they plant a toxic seed mixture on pasture land enrolled in a conservation program; the court found that the negligence allegations were not barred by the discretionary-function exception to the FTCA’s waiver of sovereign immunity. Herden v. United States, No. 11-3530 (8th Cir., decided August 20, 2012). That exception bars liability for any claim based on the “exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” It applies where the action “involves an element of judgment or choice” and “the requisite judgment or choice is the type of government action Congress intended to protect from the ‘second-guessing’ attendant to tort suits,” in other words, the action was “susceptible to policy analysis.”  

By participating in the Environmental Quality Incentives Program, farmers agree to accept a pasture-planting plan designed by technical specialists in exchange for the reimbursement of 90 percent of their costs. A grazing specialist assigned under the program to work with the plaintiffs, a multigeneration family of Minnesota cattle farmers, selected a seed mixture that included two types of grasses and a legume, Alsike Clover. The count of seeds per square foot was far in excess of an applicable field guide that contains planting mixture recommendations, and the plaintiffs allege that they complained about the prescribed amount of clover, which can be toxic to cattle. The specialist stated in his declaration that he did not recall the farmer discussing the clover’s toxicity, but rejected the request to substitute alfalfa due to concerns about difficult growing conditions and that a failed planting would waste program funds.  

Cattle grazing the pasture and fed hay harvested from it subsequently experienced illnesses, birth defects and deaths. The complaint alleges that the high concentration of clover in the planting mixture caused the harm and “led to the loss of a multi-generational farming business.” Claiming that the farmers’ suit was barred by the FTCA’s discretionary-function exception, the government moved to dismiss for lack of subject-matter jurisdiction. The district court dismissed the suit, finding that the specialist exercised properly delegated discretion and that the policy goals and considerations he balanced constituted the type of discretion Congress intended to exempt from suit.  

The Eighth Circuit disagreed, characterizing the specialist’s action as “the final technical step in a process that has already hammered out the policy and societal issues embedded in the Program.” That the specialist considered costs in deciding the appropriate seed mixture was not, according to the court, “a sufficiently important aspect of seed plant selection to permit characterization of the decision as a protected economic analysis.” The court remanded the case for further proceedings. The dissenting judge would have shielded the government from suit finding that the specialist was called on to weigh broad environmental as well as cost issues in making his seed selection, decisions that this judge believed were intended by Congress to be insulated from suit.