Act of God or man?

While researching our history we stumbled across the present: On March 11, 2006, Sen. Tom Harkin in an interview with The Storm Lake Times had this to say about the potential for a devastating avian flu outbreak: “We’re vulnerable. … A number of steps need to be taken to put up as many barriers as possible. But it’s sorta like Hurricane Katrina: ‘It ain’t gonna happen here.’ Well, I’m sorry. It could happen here. We’re in the flyway. And what’s coming could be devastating.”

The Iowa Democrat, then chairman of the Senate Agriculture Committee and now retired, went on to say that a biosecurity protocol, vaccination for flocks, a domestic vaccine source and better surveillance all were needed. The story went on to quote industry folks as saying that everything was fine. No regulation was needed.

And there it rested.

Today there remains no federal biosecurity protocol. Industrial interests made certain of it. That was just that left-winger from Iowa spouting off. Too bad he was right.

There are no vaccines for birds. There is no company working on it using federal funds. There obviously was not better surveillance as the disease spread, apparently from the Northwest to the Midwest. Nobody is certain, because since Harkin spoke federal agricultural research funding has declined by 15%, thanks to Congress and its idiotic automatic spending cuts known as “sequestration.”

Yet we were warned.

We chose to do nothing.

Today, we hear no one talking about the imposition of any biosecurity protocols except during the existing emergency. Federal officials are urging producers to implement them. That’s it.

We remain vulnerable. We could ramp up production, get hit by the same epidemic in a matter of months, and be as ill-prepared then as we were this spring. That’s because science has not caught up with concentrated, integrated livestock production despite reasonable warning. And it won’t so long as we strangle the country with reduced spending in key areas like food security and agriculture. It doesn’t get more basic than that.


Gov. Terry Branstad made a key distinction in his appeal to President Obama for a federal disaster designation for Buena Vista and three other counties stricken by avian flu: Branstad said this was a natural disaster, not made by man. For purposes of federal help the point may be politically academic — we need all the help we can get, especially expanded unemployment benefits for working families.

If this were purely a case of bad management, then federal taxpayers should not be expected to pay for it, we suppose. The idea may be explored at a deeper level through a federal lawsuit filed this week by Michael Foods of Minnesota against Hawkeye Pride, an egg laying company in Sioux County. Hawkeye pledged in a contract to deliver eggs to Michael for further processing. Because the laying operation was wiped out by flu, Hawkeye could not meet the contract. Michael sued. (Sidenote: Storm Lake native Carolyn Veehoff Wolski is corporate counsel to Michael. The Nyemaster law firm of Des Moines filed the two-page petition.) It would seem that other lawsuits will emerge as major food companies come up short or have to pay higher prices on a key ingredient in so many products: eggs.

Details of the contract were unavailable to us. We spoke with an experienced attorney who thought that if he were working on the defense he might argue that the flu was an unforeseeable act of God. In a sense, it was. That’s what Branstad is suggesting based on advice from his own lawyers.

If you take a contract on the Chicago Board of Trade to deliver corn on a certain date — even though you are trading paper in the pits — you must deliver the corn to the person who bought that contract if that date arrives. That’s why farmers long have been skeptical of exposing themselves to priced contracts — they assume the risk of performance even if drought wipes out their corn crop.

But there is a legal theory called “the impossibility of performance” that says that unforeseen events may relieve a contractual duty.

Tom Harkin, for one, saw nine years ago that bird flu endangered a huge infrastructure in his home state.


So was this man-made or a natural disaster? Was Hawkeye, or any of the other poultry producers, negligent in the absence of any federal biosecurity protocol or basic research into avian flu? Is it the system of enclosed confinement itself that gives rise to the epidemic, and future ones? Is not the spread of disease among 14,000 turkeys or five million chickens in one place foreseeable? Could we have anticipated this catastrophe? Again, the courts may be the only government institution available to answer the question since Congress has checked out of the most important issues of the day. We are more worried about a band of terrorists in the desert of Syria, or our government debt rating by Moody’s, than we are of an existential threat to the US poultry industry.