As the administrator of hundreds of different farm programs, the US Department of Agriculture is everyone’s partner, client, business associate, boss, and a myriad of other relationships that might come to mind. As everyone knows who has stepped foot into a Farm Service Agency office, or ASCS offices before that, there are strict rules that need to be followed to participate in those farm programs. And if you don’t follow the rules, you can no longer play the game. And you may even get to sit in the penalty box for those woeful infractions. But what if USDA doesn’t follow its own rules?

USDA is not going to be in a position to penalize itself, but the court certainly can, and that is exactly what happened in an eight year long case that involved wetlands. And any farm operator or land owner with a wetland, and who also participates in farm programs, knows that wetlands and sacred cows both have unprecedented protection. But should that protection extend to something that is not a wetland?

When the 1985 Farm Bill implemented the Conservation Reserve Program, it also prohibited the conversion of wetland into cropland, under terms of the Swampbuster provision of the legislation. And anyone who does, loses farm program benefits, but also can be penalized in several other areas, says Iowa State University ag law specialist Roger McEowen in a review of a case that was a nightmare for a land owner for many years. Swampbuster could not penalize anyone for something done prior to enactment of the law in December 1985, and penalties could only be levied after that date if the property met the definition of a wetland, which required hydric soils, hydrophytic plants, and periodic inundation.

USDA said those requirements were met on land owned by the B & D Land and Livestock Co., and an administrative law judge held in favor of USDA when it claimed B & D removed some woody vegetation that was protected in a wetland. B & D claimed the land had been farmed as early as 1972 and was being farmed when it bought the land in 1999. But the administrative law judge determined that as long as hydrophytic plants were present, it must be a wetland, and the owner should be heavily fined.

The B & D Land and Livestock Co. sought help from the federal court in the Northern District of Iowa in 2008 when the administrative case had finally concluded. The federal judge told USDA that its own Swampbuster rules required the presence of three elements of a wetland, not just one, and its administrative law judge disregarded expert testimony about the issues involved. The USDA decision was reversed and the court found in favor of B & D Land and Livestock Company. Instead of the USDA’s financial penalty against B & D, the federal court began to calculate what financial penalties USDA should have to pay to B & D.

B & D asked for reimbursement of about $75,000 for its attorney fees, and hiring expert witnesses over the eight years the USDA was processing the alleged violation. The federal court agreed with most of that because, the judge said, “At each stage of the proceedings, the government sought to uphold its prior “wetlands” determination, without regard to any evidence or law to the contrary, suggesting an entrenched bureaucracy’s refusal to admit error, not an interest in proper application of the law.”

In his summary of the case, Iowa State’s McEowen says, “So, in essence, USDA harassed the plaintiff with bogus wetland violation claims for many years which placed the plaintiff within the potential peril of bankruptcy and continued to maintain its bogus claims in an attempt to avoid paying the plaintiff’s attorney fees.” He says that is not new, and quotes another case, in which the court said, “…there is no worse statute than one misunderstood by those who interpret it.”

McEowen suggests that USDA should send its staff and attorneys to some wetland education classes, and if courts keep making USDA reimburse land owners for their attorney fees, then USDA may learn what the law is.

Summary:
While farm programs require land owners and operators to meet certain standards, USDA sometimes may not observe its own requirements and definitions, putting farm program participants at financial risk and in jeopardy of court proceedings. Such instances can end in favor of farmland owners and operators, but after expensive costs of litigation, which may or may not be reimbursed, depending upon a judicial decision.