January 6, 2019— The U.S. Court of Appeals for the Ninth Circuit ruled that a farmer can pursue his lawsuit challenging the U.S. Fish and Wildlife Service’s practice of favoring incumbent farmers in its cooperative farming program.  The district court had dismissed the case, holding that the federal government’s adoption of a policy promising a competitive process rendered the plaintiff’s claims moot.  In Hymas v. U.S. Dep’t of Interior, the Ninth Circuit reversed the district court’s dismissal and sent the case back for consideration of the merits.  The Ninth Circuit concluded that “the new policy has not resulted in a substantially different controversy,” which remains “whether or not it is permissible to favor incumbent farmers when awarding cooperative farming agreements.”

On appeal, Jay Hymas was represented by Kellogg Hansen Associates Minsuk Han and Bethan R. Jones.  Appointed as pro bono counsel by the Ninth Circuit, Mr. Han presented oral argument in Seattle, Washington, on December 9, 2019. 

After the decision, Mr. Han said, “The Ninth Circuit’s decision gives Mr. Hymas, who has been litigating this case for over six years, an opportunity to pursue his claims and be heard on the merits.  The district court’s dismissal was against the well-established principle that an agency’s post-litigation adoption of a new policy alone does not automatically deprive a plaintiff of his right to pursue his claims in court.”

The case concerns the U.S. Fish and Wildlife Service’s award of cooperative agreements in the Mid-Columbia River region, which allow commercial farmers to grow crops on refuge lands as long as the farmers agree to leave a portion of the crops for the wildlife.  After unsuccessful attempts to obtain a cooperative agreement, Mr. Hymas brought a lawsuit challenging the Service’s selection practice under the Administrative Procedure Act and seeking bid preparation costs, among other claims.