Letters may be emailed to email@example.com or mailed to Greg Horstmeier, 9110 West Dodge Road, Omaha, NE 68114.
The Soil Conservation Service was established under the United States Department of Agriculture in 1935 during the Dust Bowl with an objective to conserve soil and water. While those were laudable goals, over the years its programs and purposes expanded to cover a number of other objectives. In 1994 the agency was reorganized and renamed the Natural Resources Conservation Service "to better reflect the broadened scope of the agency's concerns." Early programs designed to help farmers included cost sharing for the drainage of shallow depressions in farmland.
With the advent of the celebration of "Earth Day" and a growing environmental movement, Congress passed the Swampbuster provision of the Food Security Act in 1985 along with other programs that required compliance with certain provisions in order to be eligible for various farm programs payments. Under Swampbuster this meant no more draining of "wetlands." This then brings up the question of what is a wetland. In the beginning, NRCS made "non-certified wetland determinations" from aerial photos in their offices. While the program was not strictly enforced at first, eventually green groups sued the South Dakota NRCS to more strictly enforce compliance. As a part of the settlement of that lawsuit, green groups and farm organizations held several meetings to hammer out "mapping conventions," that is, the criteria for determining a wetland.
My wife sat through most of those meetings that took nearly a year to complete, so was familiar with what was supposed to be the final product. With the criteria supposedly clarified we requested official wetland determinations on four quarters of family ground. Our county director at the time was new and young, and said she didn't have the time to do it. We let the request set for a while until we got a new county director. On his first field visit to our farm, it was obvious that he was looking for wetlands like a man looking for gold. He said that he would be back the next day with his laser survey equipment to survey established drainage ditches. Since this was not in compliance with the Eighth Circuit Court decision in the Barthel v. USDA case (the focus is to be on the wetland, not the ditch) we withdrew our request for determinations.
When regional NRCS personnel became available later on, we again began the process with a field visit. They did their procedures and later on issued their determinations with appeal options that included an appeal to the county Farm Service Agency, or the National Appeals Division. However, they also mistakenly included the option of another field visit, so another determination was done in which more "wetlands" were eliminated. This haphazard process went on a few more times until we were down to a reasonably accurate assessment of wetlands except for one site, an area .8 acre, surveyed to be .7 foot deep, adjacent to an established tree belt. I argued that the tree belt caught snow drifts up to 6 feet deep at times and when they melted and ran into the depression, they added to the hydrology of the site. The NRCS definition of an artificial wetland is a wetland caused by a human activity, such as a stock watering pond, irrigation runoff, etc. My argument was that the planting of the tree belt in about 1936 was a man-made alteration to the hydrology of the site, and as such it should be classified as an artificial wetland. Allowed uses of an artificial wetland are the same as a non-wetland. However NRCS refused this argument and left the classification as a wetland. This meant that I could not pull a shallow ditch for approximately 300 feet and drain off the excess water that would drown out the crop in about 50% of the years.
That part of this saga ended in 2004, but in 2008, after a late winter blizzard, we were able to document with pictures, the snow drifts between the trees and "Site 1." In July of 2008 we signed the 1026 form in the FSA office requesting a reconsideration of the wetland determination for that site. In the fall of 2008, after harvest, NRCS sent out their state biologist and their state hydrologist for the field visit. Months later we received their determination- still a wetland.
Three criteria must be present for an area to be a wetland- hydric soil, hydrology and hydric vegetation. To determine if these criteria are present, NRCS must find one primary indicator or two secondary indicators for each one. In this determination, NRCS used hydric soil as an indicator for hydrology in conflict with the B&D Livestock case, which basically said that you can't use one indicator to prove another one. NRCS also said that since the area was "disturbed" (farmed) the vegetation was destroyed, so they would use the vegetation data from the determination done four years earlier. OK, so the site wasn't farmed four years earlier? To the best of my knowledge, it has been farmed for over 100 years. NRCS included another incorrect statement, saying that the site had not been planted that spring. It actually had been planted, but drowned out later, but they didn't bother to ask me- the guy who lives on and operates the land.
With the determination comes the option to appeal to the National Appeals Division within 30 days. At this point we hired a lawyer who specializes in wetland cases, and filed the NAD appeal. The NAD officer assigned to the case, scheduled and held the pre-hearing telephone conference. But before the hearing could take place, we received a letter from NRCS rescinding their determination. This means that the process must start all over again- another field visit and another determination. All of this scheduling takes months, but another field visit yielded the same result- Site 1 was still a wetland.
This time, for the hydric vegetation indicator NRCS used a "reference site," a similar area that is supposed to be "nearby" and of the same soil type. We offered them a couple of sites on our farm within a mile of Site 1, that were native grass, never had been farmed. However, when looking at the sites, the NRCS employee did not even get out of his pickup, saying that he couldn't identify the vegetation because "it wasn't headed out yet." This took place in May. However, when we got the determination it said that NRCS couldn't use our native grass sites for reference sites because they had been "cropped, hayed, grazed sprayed, or otherwise disturbed." The reference site they chose to use was 43 miles away by road, 33 miles by air, and had already previously been determined to be a wetland. It was on land privately owned by the regional FSA director, who was unaware that NRCS was using his land as a reference site. The wetland there was 2 feet deep rather than .7 foot and was also being "disturbed" (grazed).
For a hydrology indicator, NRCS used a CT abbreviation for color tones on aerial slides. At the time of our determination, the manual in use listed about 12 indicators that could be used for hydrology. Color tones was NOT one of them. In fact, when NRCS later asked for public comment for changes to the criteria, color tones was one indicator that they asked to be included. One would have to conclude that if they asked for it, they didn't have it before.
We filed another appeal to NAD, but this time NRCS rescinded the determination even before the pre-hearing telephone conference. More jockeying around took place in which NRCS tried to say that we had agreed to all aspects of the determination except the hydrology when we had made no such agreement. Finally the third field visit was scheduled, with the same result. NRCS still refusing to consider the effect of the snowdrifts by the tree belt, saying there was no effect (water doesn't run downhill). Eventually we did have the NAD hearing with our lawyer, three people from the NRCS office, and a fresh new hearing officer for whom this was his first hearing. Again months and an extension in the decision deadline later, the hearing officer ruled in favor of the NRCS while not addressing all of the issues raised. One last step in the administrative appeal process is to request a director review. The director, again not addressing all issues, affirmed the hearing officer's decision. At this point it has been four years since we signed the 1026 request for reconsideration.
The next step is the judicial process in federal district court, so our lawyer filed all the necessary briefs and responses to the government briefs and extensions. The federal district judge also ruled in favor of the NRCS, allowing them wide latitude by "deferring to the expertise of the agency." She said in part that the reference site was allowable because it was still in the "major land resource area" even though it was very close to the line on the NRCS map that defines MLRA's. Our MLRA in this case encompasses about 10,835 square miles, and the reference site is in an area with significantly higher average annual rainfall.
Onto the Eighth Circuit Court of Appeals with briefs, replies and counter replies. Again months later in a terrible decision that read like it was written by a freshman law clerk, the court affirmed the district court opinion. They actually even repeated NRCS talking points saying that the reference sites we offered to the NRCS could not be used because I didn't tell NRCS what soil type they were. Now let's be clear here- there is no rule or regulation that says I am obligated to even offer a reference site, let alone tell them what the soil type is. This again should be in the purview of the "expertise of the agency."
I had previously dug two holes to monitor the subsurface water levels, one in Site 1, and one about 75 feet away immediately next to the trees. The water level in the hole closest to the trees was always relatively higher, reflecting the saturated soil conditions from melting snow. Yet NRCS gave no credibility to my data, saying that I wasn't qualified to interpret it.
Now there is just one stop left in the judicial process, the United States Supreme Court. Our lawyer was not licensed to practice before the Supreme Court, so the search began for a firm that would take the case. Our first contact was a prestigious Western law firm that thought we had an arguable case, but wanted upwards of $500,000 to take the case. Obviously that wasn't an option. Contacts with two other Western firms were not returned, and a legal foundation declined our case without comment. In one last attempt with our 90-day deadline approaching, we contacted Pacific Legal Foundation and presented the general overview of our case. Their board would have to approve and would not meet until after our deadline expired, so PLF asked for and was granted an extension by Supreme Court Judge Samuel Alito. The board approved our case and the petition for certiorari was written and filed with the court. It was a beautifully written argument, persuasively arguing against Auer deference, or specifically second level Auer deference. Second level is basically when an agency makes an interpretation of an interpretation of a law. There is a split in the circuit courts on this issue, the Eighth and Sixth Circuit courts allowing second-level Auer, the Fifth Circuit Court not allowing it. This is one criteria that the Supreme Court looks at if there is a need to resolve a difference in the circuit courts.
PLF also argued that NRCS violated the due process clause by using a reference site that was predetermined to be a wetland some 10 years earlier when we had no knowledge or opportunity to have input into the process. Unfortunately the Supreme Court only hears about 45 cases a year, and as of this writing, has declined to hear our case. In the past, Justices the late Antonin Scalia, Clarence Thomas, John Roberts and Alito have all expressed a concern about the Auer doctrine, and the court will likely be addressing it at some point. Currently we are aware of at least three pending cases that raise this issue.
Now before anybody thinks this is just one isolated case, let's go into a little more history. Because of higher grain prices, and some above average precipitation years, there has been a surge in interest of installing field tile. But before the tile can be installed, wetland determinations must be done so that the farmers can stay in compliance with Swampbuster. This has put a workload on NRCS that they were not prepared to handle, resulting in a backlog in South Dakota alone of about 3,500 requests at one point in time. Eventually NRCS agreed to let farmers pay private consultants (many of them former NRCS employees) to do the work, but it still must be reviewed by NRCS employees. So while the private sector can hammer out these determinations multiple times faster than NRCS, there is still a backlog in reviewing them.
Adding to the backlog problem is the tendency of NRCS to rescind their decisions, which just clogs up the system further, and takes more time. My attorney said he knows of one case where NRCS rescinded 10 times. So theoretically NRCS could keep a farmer in an endless loop and never issue a certified determination if they chose not to do so. Additionally, the criteria and regulations seem to be constantly changing like a shape-shifting monster, many times without public comment. And when public comment is solicited it seems that NRCS adopts the changes they wanted regardless of what the comments say.
Congressional delegations have in the past scheduled regional meetings with high ranking officials from Washington, D.C., in attendance, along with as many as 400 local attendees, but no real change ever seems to come from these meetings. Some changes may be passed into law in the next farm bill, but we are looking at years before they would take effect rather than changes that could take place in weeks if the will were there to do so. Further complications arise from the influence of other government agencies- U.S. Fish and Wildlife Service, U.S. Environmental Protection Agency, and the U.S. Army Corps of Engineers in the form of memorandums of agreement or memorandums of understanding. But hope springs eternal that with a new administration, we will be able to drain the bureaucratic swamp.
The petition to the Supreme Court, amicus briefs, response and reply are available at www.pacificlegal.org, under press releases, Aug. 10, 2016
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-Arlen Foster, Miner County, South Dakota
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