In order to assess land cover in agricultural areas across the United States, the U.S. Department of Agriculture (USDA) established the Common Land Unit (CLU) as a standardized GIS data layer (see also ArcUser Online, ESRI, April – June 2002).
Due to language in this year’s Farm Bill (Food, Conservation and Energy Act of 2008), however, CLU GIS data are no longer releasable to the general public or to most other government agencies (CLU Info Sheet, June 2008). See my prior blog posts for information on the court battle and subsequent language in the Farm Bill:
Section 1244 of the Farm Bill includes specific statutory language pertaining to the release of technical and financial assistance information. Technical and financial information includes all information given by cooperators to USDA for the purpose of providing technical or financial assistance to an owner, operator, or producer with respect to any natural resources conservation program administered by the NRCS or FSA. It also includes information that is proprietary to the agricultural operation or land that is part of an agricultural operation of the owner, operator, or producer. It does not include payment information, including payment amounts and the names of payment recipients. .. In general, NRCS technical and financial information is not releasable to the public, and It cannot be released to any person, Federal agency, local agency, or Indian tribe outside of USDA.
The CLU GIS data restirction is also a hot issue for the North Dakota Association of Counties’ GIS in Agland Valuation Forum. On October 2, 2008, someone on the forum posted a letter by the Tax Commissioner for the State of North Dakota addressed to county tax directors. The letter states:
“House Bill (HB) 1303, passed by the 2007 North Dakota Legislative Assembly, amended North Dakota Century Code § 57-02-27.2(8). This law now requires local assessors to consider soil type and soil classification data from detailed or general soil surveys, the schedule of modifiers to be used within the county, and actual use of the property for cropland or noncropland purposes, when forming the relative value of each assessment parcel under their responsibility.
In March of this year, to assist you and your local assessors in carrying out the duties specified in HB 1303, I asked our office to send a Freedom of Information Act (FOIA) Request to the United States Department of Agriculture – Farm Service Agency (USDA-FSA). The FOIA request sought releasable information County FSA offices may have in their possession pertaining to field delineations and use of agricultural lands in North Dakota.
Specifically, the request sought common land unit (CLU) data collected and maintained by USDA-FSA. The objective was to enable the CLU information, if made available, to be shared with your office for use by you and your assessors when making land valuation determinations required by HB 1303.
Our FOIA request was denied. The 2008 Farm Bill specifically barred new or updated CLU data from release to the public. Thus, any appeal of the denial would likely fail.”
Farm Bill Update
As reported by the Sustainable Agriculture Coalition in their weekly update, June 6, 2008:
On Thursday, the Senate by a vote of 77-15 approved the farm bill once again, enabling Congress to send it back to the White House for its re-veto, setting in motion the second veto override vote, likely next week, in the House and Senate. The bill is exactly the same but for the new bill number – H.R. 6124 replacing H.R. 2419. The Senate had expected to re-pass the bill earlier in the week, but Senators Tom Coburn (R-OK) and Jim DeMint (R-SC) put “holds” on the vote and threatened to bring up amendments. By week’s end they settled for 50 minutes of floor time, prior to the re-vote, to catalogue their views of the bill’s failings.
As we have previously reported, all of the farm bill except for the trade title is already the law of the land, but congressional leaders decided the best way to make sure the entire bill becomes law is to do the entire process over again.
Impact on Access to Common Land Unit GIS Data
As posted on this blog on May 17, the CLU (common land unit) farm field boundary GIS data were available for download from the NRCS Geospatial Gateway (http://datagateway.nrcs.usda.gov/). However, the CLU data has since been removed from the website to conform to the recently passed 2008 Farm Bill.
The 2008 Farm Bill Sec 1619 prohibits disclosure of farm-related geospatial information. But, this section also contains provisions about authorized disclosure of this information to USDA cooperators.
(B) geospatial information otherwise maintained by the Secretary about agricultural land or operations for which information described in subparagraph (A) is provided.
(3) AUTHORIZED DISCLOSURES.-
(A) LIMITED RELEASE OF INFORMATION.-If the Secretary determines that the information described in paragraph (2) will not be subsequently disclosed except in accordance with paragraph (4), the Secretary may release or disclose the information to a person or Federal, State, local, or tribal agency working in cooperation with the Secretary in any Department program-
(4) EXCEPTIONS.-Nothing in this subsection affects-
(A) the disclosure of payment information (including payment information and the names and addresses of recipients of payments) under any Department program that is otherwise authorized by law;
(B) the disclosure of information described in paragraph (2) if the information has been transformed into a statistical or aggregate form without naming any-
(i) individual owner, operator, or producer; or
(ii) specific data gathering site; or
(C) the disclosure of information described in paragraph (2) pursuant to the consent of the agricultural producer or owner of agricultural land.
(5) CONDITION OF OTHER PROGRAMS.-The participation of the agricultural producer or owner of agricultural land in, or receipt of any benefit under, any program administered by the Secretary may not be conditioned on the consent of the agricultural producer or owner of agricultural land under paragraph (4)(C).
(6) WAIVER OF PRIVILEGE OR PROTECTION.-The disclosure of information under paragraph (2) shall not constitute a waiver of any applicable privilege or protection under Federal law, including trade secret protection.
In a recent posting on Mulch (Farm Bill Blocks Court-Ordered Release Of Subsidy Program Data Under FOIA, May 13, 2008), a blog that focuses on agriculture, farm policy, and food safety, Ken Cook warns that a provision in the Farm Bill Conference Report (Sec. 1619, “Information Gathering” and (a) Geospatial Systems) will reverse a recent U.S. Court of Appeals (DC Circuit) decision ordering the release of USDA subsidy and compliance data under FOIA, including the Farm Service Agency’s (FSA) GIS data used to monitor compliance with regulations governing farm benefits. Notably, Ken Cook reports that the “[l]anguage to undo the effects of the FOIA decision was not part of the bills passed by either the House or the Senate. It was inserted without public hearings or debate during the Conference Committee process.”
FSA Common Land Unit (CLU) Farm Field Boundary Data
As of this posting, FSA Common Land Unit (CLU) farm field boundary data with complete attributes is available for download from the NRCS Geospatial Gateway. Previously, CLU data was available only with acreage attributes. As noted above, however, the Farm Bill currently contains language to restrict the release of the CLU and other farm-related data, so this data may be pulled from the Gateway in the near future. CLU data is useful to land conservation departments for conservation and farmland preservation planning.
For more information about CLUs, their definition and use, see FSA Common Land Unit Abstract.
Multi Ag Media, LLC v. Department of Agriculture
The USDA withheld crop data provided by agricultural producers to qualify for government subsidies, as well as FSA GIS data that included “information on farm, tract and boundary identification, calculated acreage, and characteristics of the land such as whether it is erodible, barren, or has water or perennial snow cover.” Ken Cook highlights the Court’s assertion that “the public has a particular and significant interest” in this information because the “USDA uses this information in the administration of its subsidy and benefit programs and there is a special need for public scrutiny of agency action that distributes extensive amounts of public funds in the form of subsidies and other financial benefits (Multi Ag Media, LLC v. Department of Agriculture, No. 06-5231, D.C. Dist. Feb 15, 2008).” The court concluded:
In sum, given USDA’s rather tepid showing that release of the files would allow the public to draw inferences about some farmers’ financial circumstances, the interest in data that would allow the public to more easily monitor USDA’s administration of its subsidy and benefit programs, and FOIA’s presumption in favor of disclosure, we conclude that the public interest in disclosure of the Compliance File and GIS database outweighs the personal privacy interest. Accordingly, release of these files would not ‘constitute a clearly unwarranted invasion of personal privacy’. . .
. . .We reverse the district court’s grant of summary judgment with respect to the Compliance File and the GIS database and remand the case to the district court for further proceedings consistent with this opinion.
Kevin Pomfret, on the other hand, commenting on this court case in his blog Spatial Law (US Court Finds A “Substantial Privacy Interest” In Spatial Data, February 21, 2008), forecasts:
…Although after much deliberation the court ultimately decided to release the information I was surprised to see how far the court was willing to go to find a “substantial privacy interest” in this case. The court apparently agreed with USDA that even the potential that data could be aggregated in such a way that someone could then do crop analysis that then might be used to determine a farm’s worth that may or not be owned by an individual is a privacy risk. That seems to create a high hurdle to overcome in future cases, at least in this circuit. (It is noteworthy for those in the industry that the court adds, almost as an aside, that it believes that the disclosure of GIS databases “only heightens these privacy concerns” because the information is set forth in photographs and maps)
I find it a significant leap forward from Forest Guardians v. FEMA, which was decided in the 10th Cir. in 2005. In that case, Forest Guardians was looking for electronic copies of GIS maps with all forms of data, but excluding names and addresses. However, it was clear to the court that the names and addresses could easily be obtained from the data that would be provided, in which case each such individual would be subject to variety of potential invasions of privacy regarding their finances.