The American Farm Bureau Federation is calling on USDA to reform its appeals process for wetland determinations, using a recent federal appeals court decision to show farmers are being treated unfairly.

Last month's “scathing ruling,” as AFBF put it, from the 7th Circuit Court of Appeals in Chicago illuminates how “farmers and ranchers are being denied due process as part of an abuse of discretion by the Natural Resources Conservation Service,” AFBF President Zippy Duvall said in a letter addressed Wednesday to Agriculture Secretary Sonny Perdue.

USDA did not immediately respond to questions about the letter. 

In his letter, Duvall includes excerpts from the opinion, which found that NRCS “repeatedly failed to follow applicable law and agency standards [and] disregarded compelling evidence showing that the acreage in question never qualified as wetlands that could have been converted illegally into croplands.”

The case involves the removal of nine trees from part of an Indiana farm that NRCS characterized in a preliminary determination in 2003 as a converted wetland. But during a site visit from NRCS that same year, farmer David Boucher thought he had “proved his position” that the land did not qualify as a wetland, according to the court.

Ten years later, NRCS came back for another site visit, which the agency said supported its preliminary determination. But the court found NRCS incorrectly concluded that drainage tile had been added to the site and that the site itself was in a depression.

“Both assumptions are, on this record, demonstrably wrong,” the court said.

A company hired by Rita Boucher, whose husband died in 2004, “confirmed that there was no drainage tile and that the site did not meet the criteria for wetland hydrology under normal circumstances,” the court said.

The unanimous opinion also found fault with the NRCS appeals process. “The NRCS experts did not attribute the alteration of hydrology to the removal of the nine trees, and the agency presented no evidence that the tree removal altered the wetland hydrology,” the court said. “The USDA hearing officer and appellate officer failed to engage meaningfully with this point, thereby ignoring a crucial factor under the agency’s interpretation of this regulation, rendering the decision arbitrary and capricious.”

The court noted that NRCS’s wetlands determination was finalized after one site visit in 2013. In his letter, Duvall said, “such one-time visits create a high risk of generating false positives, as was the case with the Boucher farm.”

He said an interim rule published by NRCS in December “codifies NRCS’s ability to make wetland determinations based on one-time site evaluations. USDA must amend NRCS’s regulations, guidance, and manuals to prohibit one-time observations to alone satisfy the hydrologic criteria.”

The appeals court said NRCS repeatedly changed its rationale for its determination, something Duvall said the agency should not be allowed to do.

USDA needs to amend its regulations “to prevent such unfair gamesmanship,” Duvall said. “Once a farmer refutes the basis for the agency’s determination, that should end the matter.”

“We ask that USDA listen to the Seventh Circuit and end this decades-long harassment of Mrs. Boucher, compensate Mrs. Boucher for her legal costs in defending herself against NRCS’s actions, and drop any contemplated appeal,” Duvall said.

Duvall said “at a minimum,” USDA should:

  • “Retrain [National Appeals Division] judges and agency directors in how to provide a fair and balanced hearing;
  • “Require USDA to provide the entire record or decisional documentation to the farmers at the time of alleged compliance violation;
  • “Allow the farmer and his counsel to call NRCS technical staff as witnesses in the appeal;
  • “Accept evidence provided by the farmer as true absent substantial evidence to the contrary; and
  • "Compensate the farmer for legal fees when the farmer wins an appeal — i.e., when the farmer is forced to incur costs as a result of an incorrect decision from NRCS.”

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