The Problem With Public Mismanagement

The actions of MDARD on Right to Farm issues reveal how poor decisions in one agency ripple outward to create poor decisions in another.  Because it turns out that it isn't just small farmers in Michigan who have suffered because of mismanagement at MDARD; instead, each time a mistake at MDARD touches another governmental body, the reaction of that body is determined at least in part by the mistake at MDARD, causing them to make poor decisions in their own roles.  Bad government begets bad government, even when good people are doing their best to do their jobs well.

Consider:

1.  In 2006 the Michigan Department of Agriculture told Attorney General Mike Cox that in 2006 they had extended the language of the Site Selection GAAMPs to include any number of animals.  Small farmers know that this never actually happened, because the 2006 Site Selection GAAMPs still define a Livestock Production Facility as 50 animals or more on page 3, and because this change is currently on the table for the proposed 2014 Site Selection GAAMP.  So the mistake at MDARD in this case was in asserting to the Attorney General that a change had been made to the GAAMPs in 2006, when it in fact was never made.

The assertion made by MDARD was assumed to be true by the Attorney General in 2006 and was used to render a question about whether local governments can enforce zoning for operations with fewer than 50 animal units as "moot".   This 2006 argument was then used by a second Attorney General in 2011, resulting in another informal Attorney General opinion, on the same question, which was decided based on the same false information.   Thus the mistake that MDARD made inspired at least two mistakes in the Office of the Attorney General, in 2006 and in 2011.  

So the falsehood told by the MDA to the Attorney General in 2006 resulted in at least two factually flawed informal opinions by different Attorneys General.  According to the June 2013 minutes of the Commission of Agriculture, it is these Attorney General opinions that are now being used by MDARD to justify their position that small farmers in residential areas are not protected by Right to Farm, a position which has led to enormous frustration on the part of small farmers in Michigan.

2.  In 2011 John Hantz wanted to purchase 1500 vacant lots from the City of Detroit, and  to convert those lots into a 140-acre urban farm.  The only problem with this plan, from Detroit's perspective, was that once the land was sold and the farm established, the state-level  Right to Farm law would supercede all local regulations on that farm operation, even in the City of Detroit.  To retain local control over that operation, the city worked with Senators Virgil Smith and Joe Hune to craft an amendment to the Right to Farm law that would exempt Detroit from Right to Farm protection.  

MDARD, as we know, stepped in quickly to quash the proposed amendment to RTF, and came up instead with the solution known as the 2012 GAAMPs.  This is an 'administrative' solution that essentially uses the GAAMPs as the vehicle to deny Right to Farm protection not only to Detroit, but to all 1.5 million Michigan citizens who live in cities of over 100,000 residents.  I would argue that this is a case of gross mismanagement at MDARD, because Detroit has so much at stake in whether this administrative solution is valid, and because it seems so unlikely that our legal system would permit the 5-member Commission of Agriculture to override the RTF law, which does not exempt whole classes of people from Right to Farm protection based on where they live.  

Still, the City of Detroit accepted the administrative solution proposed by MDARD under Director Keith Creagh, but not without expressing serious reservations to the Commission of Agriculture at the December 2011 meeting in which it was approved, and afterwards during meetings with the Detroit City Council.  Once the changes to the 2012 GAAMPs were approved, two things happened.  First, Senators Virgil Smith and Joe Hune requested a formal Attorney General opinion from Bill Schuette on legal aspects of the 2012 GAAMPs that would have given Detroit greater security in its decision to agree with the administrative solution. That request was never fulfilled, however, and by the fall of 2012 the request for that opinion was apparently rescinded.  And second, in the fall of 2013 the City of Detroit sold 140 acres of land to John Hantz, who is currently establishing a tree farm on that property.    

If it should turn out that the 2012 GAAMPs cannot withstand a court challenge, then it is possible that those acres within the City of Detroit will eventually not be under local control after all, and instead will be protected by MIchigan's Right to Farm Act.  And if this should happen, then John Hantz's vision of creating a more conventional farming operation on that property in the middle of Detroit, could become a reality.

3.  The Commissioners of Agriculture and Rural Development have also been influenced by poor decision-making at MDARD, and have allowed themselves to be persuaded to engage in poor practices themselves.  In particular, under the advice given to them by the agency and by Attorney General Bill Schuette's office, the five Commissioners agreed to break with their established practice of ensuring public comments before approving changes to GAAMPS.  Regardless of the merits (or not) of the policy itself, most would agree that the process itself should be fair.  But because MDARD pushed and because the Attorney General agreed, in December 2011 the Agriculture Commission approved the very unusual changes to the 2012 GAAMPs in the very same meeting in which they were first proposed, providing no opportunity for public comment, because no one knew.  

4. And one last example, this time moving away from state government and into interactions between MDARD and local units of government.  According to the court ruling in Forsyth Township v Buchler, Forsyth Township was told by MDARD that Randy Buchler was not protected by Right to Farm.  

Another Planning Commission member raised the question of whether Buchlers would have the right to continue commercial farming under the state Right to Farm Act (RTFA). That question led to informal discussions among township officials, Buchlers, the Michigan Department of Agriculture and Rural Development (MDARD) staff responsible for administering the Michigan Right to Farm Act.  One commission member was told by an MDARD staff member in Lansing that the RTFA would not apply to the Buchler's farm because the zoning ordinance and LR District pre-dated the Buchler farm.

Forsyth Township evaluated their position, decided to sue Randy Buchler, and subsequently lost.  In addition to their own costs, the judge also required the Township to pay a portion of the Buchler court costs.  Thus the advice that MDARD provided to Forsyth Township about whether the Buchler farm was protected by Right to Farm was not found to be valid by the judge who heard the case, and again demonstrates how poor decisions in one government body (MDARD) adversely affect the decision-making of another (Forsyth Township).

The surprising thing to me is how clearly these events demonstrate that bad government decisions create a ripple of conflicts not only between government and constituents, but also between different governmental bodies.  Small farmers have had conflicts for years with MDARD over whether we are protected by Right to Farm; our reading of the law, the GAAMPs, court cases, and scholars from MSU convinced us that we were, but their secret, flawed informal attorney general opinions convinced them that we weren't.  A great deal of conflict could have been avoided if those attorney general opinions weren't secret, and if they weren't flawed.

Similarly, the Attorney General's Office could more easily conduct themselves respectably if the state agriculture agency did not assert things that were not true, such as that the 2006 Site Selection GAAMPs had been expanded to include any number of animal units.  Of course the Attorney General's Office does bear some responsibility, in both 2006 and 2011, for not reading the Site Selection GAAMPs for themselves before issuing those opinions.

The City of Detroit has my greatest sympathy.  Public documents show that the City was clear and articulate on the problem they faced, and just as clear that their best solution was to amend RTF before going forward with land sales to Hantz Farms.  The actions of MDARD, unfortunately, persuaded them to accept changes to the 2012 GAAMPs instead.  I personally harbor hopes that the people of Detroit and other cities of over 100,000 will eventually overturn the 2012 GAAMPs, and will demonstrate that everyone in Michigan is protected by RTF and can legally grow food in Michigan.  So I don't agree with Detroit's position that the citizens of Detroit should be denied Right to Farm protection. But I never would have wished for Detroit officials to be ambushed by the administrative solution proposed by MDARD, in the form of the 2012 GAAMPs.  

In the end I think this is a story about why good government matters.  After witnessing the actions of our state agricultural agency for the last several years, I am much less interested in the debate over the appropriate size of government, and much more interested in a discussion about how to get a state government that doesn't create conflicts because of its own errors.