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secure performance and is not for payment of sum in lieu of performance); Unified School Dist. No. 315, Thomas County v. DeWerff, 6 Kan.App.2d 77, 78, 626 P.2d 1206, (1981) (It is well settled that parties to a contract may stipulate to the amount of damages for breach of the contract). The agreement plaintiff signed made clear that if plaintiff did not comply with its terms, her payments would accordingly be reduced.

Plaintiff argues that the amount of payment reduction established in the contract is intended to reflect the cost to the county of controlling weeds, and since the county had no cost, no payment reduction is warranted. Although the cost in the county of controlling weeds is a factor in determining the amount of payment reduction, the intent of the contract is broader--to ensure continued compliance with farm conservation and wetland protection requirements by monetarily rewarding those who comply with the contract's terms and by withholding that payment in proportion to the producer's non-compliance with the contract. See 7 U.S.C.A. § 7201(b)(1). Because plaintiff failed to abide by her agreement to control weeds on contract acreage, the payments she otherwise would have received were properly reduced, in accordance with the terms of the contract and the law.

Notice

Plaintiff next contends that the 2001 violation was her first violation and that therefore she was entitled to a warning, rather than a payment reduction. The regulations do not require a warning letter. The PFC contract, however, provides for a warning of default, in stating:

All producers sharing in PFC payments are entitled to 1 warning letter for the first default on each farm during the term of the contract.

®. at 564).

Plaintiff asserts that a different farm or contract was involved in 1997 than in 2001, but that even if the same farms and contracts were involved in both those years, her first default was in 2001 since no violation was found in 1997. Thus she claims entitlement to a warning letter in accordance with the PFC

contract.

Different farms/contracts

The 1997 letter related to farm serial number ("FSN") 2129, while the 2001

62 Agric. Dec. 440

letter related to FSN 2557. The agency found that "appellant enrolled FSN 1777 into the AMTA program in 1996. FSN 1777, the parent farm, was reconstituted into FSN 2129, and subsequently into FSN 2557." ®. at 841; 16.) Plaintiff provides no record evidence from which the court could conclude that this analysis is erroneous.

The record shows that plaintiff signed separate papers in 1997 and 2001 when her land was reconstituted and her farm was given new serial numbers. Plaintiff does not dispute that substantially the same land was included in both agreements. See 7 CFR § 718.201 et seq. ("The constitution and identification of land as a farm for the first time and the subsequent reconstitution of a farm made hereafter, shall include all land operated by an individual entity or joint operation as a single farming unit ...") Instead, she contends that the contract she signed in 1996 is separate and distinct from the one she signed in 1999.

The court finds substantial evidence supporting the agency's finding that both the 1997 and the 2001 violations related to only one contract. See R. at 842. The fact that a farm is reconstituted, or certain land is sold, does not change the nature of the agreement under the PFC contract. Although plaintiff signed PFC agreements after 1996 when she first enrolled her land in the program, those are merely amendments to the original agreement, as they evidence only minor variations in the number of acres subject to the contract or the addition of a number of acres in the sorghum program, and reflect the reduced number of years remaining on the contract. See R. at 750, 751.

First violation

Plaintiff additionally contends that the 2001 violation was her first, because: 1) no payment reduction was made pursuant to the 1997 letter; 2) the report dated July 7, 1997, by the farm service agent who conducted the drive-by inspection concluded, "this farm is not in violation;" R. at 301); and 3) she had already controlled the weeds by the time she received the 1997 letter.

The state committee rejected this argument, stating:

The June 20, 1997 letter did constitute a valid first warning letter as the violation occurred upon the time the inspection was made and found uncontrolled weeds. The fact that Ms. Bishop had controlled the weeds

when the letter was received is not material to the case. The violation had occurred at the time of inspection and the first warning was valid. Ms. Bishop did not dispute the warning at the time of issuance of the June 20, 1997, letter.

R. at 17.

Similarly, the NAD hearing officer rejected this argument in these words: Agency Handbook procedures do not circumvent federal regulations. The governing regulations in this matter do not provide for a warning letter to be issued. The regulations clearly set forth that the first violation by a producer will result in a reduction in the producer's payment for the farm by an amount equal to 3 times the cost of maintenance of the acreage. Consequently, the Agency's decision is in compliance with the regulations.

R. at 847.

The record provides ample support for the factual finding that weeds were uncontrolled on the stated number of contract acres farmed by plaintiff in 1997. This alone is sufficient to constitute a violation. The fact that plaintiff had already controlled the weeds by the date she received the warning letter in 1997 is immaterial to the finding of a violation. Although the 1997 report of the farm service agent who concluded that plaintiff was not in violation adds confusion to the issue, the record does not reflect that plaintiff saw that report at any time prior to her administrative appeals of this matter, or that it is controlling on this issue.

Lastly, the fact that no payment reduction was made in 1997 does not compel the conclusion that no violation occurred, as warnings of violations routinely gave producers 15 days (or more if requested) to control the weeds in a manner that would ensure that the seed would not spread to other acreage before PFC payments for the farm would be reduced. See R. 17-184 (providing sample letter for the first weed control default).

In conclusion, the court has carefully examined each claim of error raised by the plaintiff, and finds no basis for reversal.

IT IS THEREFORE ORDERED that the final decision of the USDA is affirmed.

62 Agric. Dec. 451

ANIMAL WELFARE ACT

COURT DECISION

DORIS DAY ANIMAL LEAGUE, ET AL. v. USDA.

No. 02-1807.

Filed October 6, 2003.

(Cite as: 124 S.Ct. 151).

AWA.

Supreme Court of the United States

Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit denied.

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Decision and Order as to Wanda McQuary and Randall Jones.
Filed October 1, 2003.

AWA - Failure to file answer - Waiver of right to hearing - Default - Animal welfare - Dealer - Civil penalty - License revocation - Cease and desist order - Disqualification from obtaining license.

The Judicial Officer affirmed the Default Decision issued by Administrative Law Judge Marc R. Hillson (ALJ) finding that Respondents McQuary and Jones violated the Animal Welfare Act and the Regulations and Standards issued under the Animal Welfare Act as alleged in the Complaint, ordering Respondents McQuary and Jones to cease and desist from violating the Animal Welfare Act and the Regulations and Standards, assessing Respondents McQuary and Jones an $8,800 civil penalty, revoking Respondents McQuary's and Jones' Animal Welfare Act license, and disqualifying Respondent McQuary and Jones from obtaining Animal Welfare Act licenses. The Judicial Officer deemed Respondent McQuary's and Respondent Jones' failures to file timely answers admissions of the allegations in the Complaint and waivers of hearing (7 C.F.R. §§ 1.136(c), .139).

Frank Martin, Jr., for Complainant.

Respondent Wanda McQuary and Respondent Randall Jones, Pro se.

Initial decision issued by Marc R. Hillson, Administrative Law Judge.

Decision and Order as to Wanda McQuary and Randall Jones issued by William G. Jenson, Judicial Officer.

PROCEDURAL HISTORY

The Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding by filing a "Complaint" on February 13, 2003. Complainant instituted the proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2159) [hereinafter the Animal Welfare Act]; the regulations and standards issued under the Animal Welfare Act (9 C.F.R. §§ 1.1-3.142) [hereinafter the Regulations and Standards]; and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice].

Complainant alleges Wanda McQuary, Randall Jones, and Gary Jackson

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