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Originally published Saturday, July 13, 2013 at 6:12 AM

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Raisin hell and suing the government

Marvin Horne, a raisin farmer, has fought all the way to the U.S. Supreme Court in defying one of the strangest arms of the federal bureaucracy: a farm program created to solve a problem during the Truman administration, and never turned off. He said no to the national raisin reserve.

The Washington Post

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KERMAN, Calif. — In the world of dried fruit, America has no greater outlaw than Marvin Horne, 68.

Horne, a raisin farmer, has been breaking the law for 11 solid years. He now owes the U.S. government at least $650,000 in unpaid fines. And 1.2 million pounds of unpaid raisins, roughly equal to his entire harvest for four years.

His crime? Horne defied one of the strangest arms of the federal bureaucracy: a farm program created to solve a problem during the Truman administration, and never turned off.

He said no to the national raisin reserve.

“I believe in America. And I believe in our Constitution. And I believe that eventually we will be proved right,” Horne said recently, sitting in an office next to 20 acres of ripening Thompson grapes. “They took our raisins and didn’t pay us for them.”

The national raisin reserve is real. It’s a 64-year-old program, approved by a vote of growers, that gives the U.S. government heavy-handed power to interfere with the supply and demand for dried grapes.

In a given year, the government may decide that farmers are growing more raisins than Americans will want to eat. That would cause supply to outstrip demand. Raisin prices would drop. And raisin farmers might go out of business.

To prevent that, the government does something drastic. It takes away a percentage of every farmer’s raisins. Often, without paying for them.

These seized raisins are put into a government-controlled “reserve” and kept off U.S. markets. In theory, that lowers the available supply of raisins and thereby increases the price for farmers’ raisin crops. Or, at least, the part of their crops that the government didn’t just take.

For years, Horne handed over his raisins to the reserve. Then, in 2002, he refused.

Since then, his life has now become a case study in one of Washington’s bad habits — a tendency never to reexamine old laws once they’re on the books. Even ones like this.

When Horne’s case reached the Supreme Court this spring, Justice Elena Kagan wondered whether it might be “just the world’s most outdated law.”

“Your raisins or your life, right?” joked Justice Antonin Scalia.

Last month, the high court issued its ruling and gave Horne a partial victory. A lower court, the 9th U.S. District Court of Appeals, had rejected Horne’s challenge of the law. Now, the justices told that court to reconsider it.

Horne does not have the persona of a live-wire revolutionary. He used to be a tax auditor for the state. Now, in his second career, he watches fruit dry.

“If I knew we were going to go through all this, I would have just pulled the grapes out and put in almond” trees, he said.

But get Horne talking about the national raisin reserve, and the spirit stirs. Suddenly he can’t find a metaphor hairy enough to express his contempt. It’s robbery. It’s socialism. It’s communism. It’s feudalism. It’s ...

“You have heard of the rape of the Sabine women? This is even worse,” Horne said, referencing a legendary mass abduction from Roman mythology. “The rape of the raisin growers.”

Horne has now spent a decade trying to kill Marketing Order 989 — a federal regulation meant to solve an oversupply problem from the era after World War II.

The government had stopped buying huge amounts of raisins to send overseas with GIs. So supply outstripped demand. Prices fell. The industry’s answer was to start a raisin reserve.

The government simply waits for farmers to grow their crops — nine months of growing grapes, then two to three weeks of drying them in the sun. Then it takes away a part of that crop and stores it in warehouses around California. The government might save some of these “reserve” raisins for later years. It might sell them to foreigners. It might feed them to schoolchildren. Or cows. The point is to get them off the open market in the United States and lower the supply available to commercial buyers.

That, in theory, means greater scarcity and higher prices. The same approach works for oil and diamonds.

“It’s a cartel. Let’s use the power of the government to operate a cartel,” said Daniel Sumner, director of the University of California’s Agricultural Issues Center. Congress had given the USDA the authority to operate reserves during the New Deal: Other reserves existed for almonds, walnuts, tart cherries and other products.

Then, time passed. Wars came and went. The New Deal faded from memory.

The raisin reserve survived.

In 2002, Horne decided he wouldn’t give those people his raisins anymore.

“The hell with the whole mess,” he says now. “It’s like being a serf.”

That year, Horne refused to save any raisins for the reserve. And, pretty soon, he had trouble.

“The respondents violated section 989.66 of the Order,” the charges said, in part. “By failing to hold in reserve ... approximately 24.7 tons of Natural Sun-dried Seedless raisins.” There were 12 charges in all.

Horne’s lawyer, Brian Leighton, argued that the raisin reserve was flatly unconstitutional. The Fifth Amendment says that private property may not be taken without just compensation.

Horne tried that argument on an Agriculture Department hearing officer. He lost.

He appealed that decision. He lost. He appealed to a U.S. District Court judge. And lost.

Then he appealed to the U.S. Court of Appeals for the 9th Circuit. And lost.

Finally, the case reached the U.S. Supreme Court. The justices seemed sympathetic to Horne.

The court’s ruling, however, didn’t settle the question of whether Horne is right about the law being unconstitutional. Instead, it told the 9th Circuit to settle that question now (the lower court had rejected Horne’s case, saying that a quirk of the raisin law meant it did not have jurisdiction).

So now Horne will have to wait to find out whether the courts see him as a conscientious objector to a bad law. Or as a guy who owes the government enough raisins to fill 3.8 million boxes of Raisin Bran.

“If we lose, we’re bankrupt,” Horne said. He thinks he would be liable for about $3 million, including fines and the cash value of those raisins. “No. I don’t want to even think about it. Would you?”

In the meantime, his case has divided the world of raisin growers. At least a few dozen are hard-core supporters, contributing 2 cents per pound of raisins to Horne’s legal defense fund.

But he is also hated, by the people who handed over their raisins when the government asked.

Through it all, the raisin reserve lives.

The Agriculture Department has the power to abolish it. But it hasn’t.

But Horne has still won a kind of victory. For the past three years, the Agriculture Department and the Raisin Administrative Committee have agreed that no new raisins should be put into the reserve.

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