FSA and USDA Sued Over Denied Wildfire and Hurricane Indemnity Program Claim

As a result of ongoing action, Clamtastic Seafood, Inc. and its owner, Diana Topping, have filed a complaint against the Farm Service Agency (FSA) and the United States Department of Agriculture. The complaint, filed Thursday in the Northern District of Florida, seeks to recover the profit lost by the plaintiffs when their clam crop yield was severely injured by Hurricane Irma in the fall of 2017.

According to the complaint, in the summer of 2017, the plaintiffs planted “nursery size and grow-out size clam bags on their lease sites in the claim area.” Allegedly, after Hurricane Irma made landfall in Florida in September of 2017, they discovered that many of the previously planted clam bags were missing. They described the hurricane as “one of the most damaging events to strike Florida in recent years.”

There were wind gusts recorded in the area where the clam bags were during the hurricane of up to 50 miles per hour, which the plaintiffs assert strongly impacted their clam sites. The complaint notes that some of the lowest tides recorded in the last 100 years in Florida also had a significant impact. Between the hurricane, low tides, and young age of the clams, the plaintiffs claimed they could only locate 39 out of 600 previously planted clam bags on one site. In another site, they could only locate 25 bags out of the previous 2,748 bags.

An employee from the farm service agency came to inspect the farm and concluded that Clamtastic had lost 95% of its nursery clams and 99% of its grow-out clams. Following the severe weather, they filed a claim with the Wildfire and Hurricane Indemnity Program (WHIP) asking for reimbursement of the losses. Reportedly, they were initially denied reimbursement by county and state committees, but were eventually awarded reimbursement after an administrative judge was presented with “formidable evidence on the issue of weather causation regarding the losses.” On May 28, 2021, the director of the USDA National Appeals Division, Secretary of Agriculture, reversed the ruling by the administrative judge.

The plaintiffs maintained throughout litigation that “they suffered losses deriving from an eligible cause of loss as a result of the reported disaster event.” The petitioners are seeking a declaration that the agency decision was unsupported by evidence, arbitrary, and capricious, and mandate that the agency set aside their action, findings, and conclusions since they are unlawful. They are further requesting that the administrative law judge’s ruling be declared correct and that they be awarded equitable relief for the crop year 2017.

The plaintiffs are represented by Woodhouse Shanahan PA.