Swampbuster Faces Legal Battle in Iowa

OMAHA (DTN) -- The Iowa Farmers Union and three environmental groups are asking a federal judge to allow them to intervene in a lawsuit in Iowa that seeks to overturn the 1985 farm bill's "swampbuster" provision, requiring farmers to protect wetlands on their property.

A private landowner, CTM LCC, which owns just over 1,075 acres in northeast Iowa, sued USDA officials last April. With the help of the Pacific Legal Foundation and the Liberty Justice Legal, CTM LLC's case in the U.S. District Court of Northern Iowa argues that a 9-acre USDA wetland determination on a 71.85-acre tract amounts to an unconstitutional taking of land.

The 1985 farm bill created the swampbuster and sodbuster provisions that combine to create "conservation compliance" for farm bill programs. The swampbuster provision requires farmers to not drain identified wetlands for agricultural production. The sodbuster requires farmers to agree not to farm highly-erodible land.

SWAMPBUSTER RULES

Under the swampbuster rules, if a farmer tills wetland acres into crop ground, then that farmer loses access to USDA programs, not just for the property in question, but all of the farmer's land. That includes commodity programs, USDA farm loans, disaster payments and crop-insurance premium subsidies.

Jim Conlan, a retired attorney and managing partner for CTM, said in a recent podcast that he tried to get the Natural Resources Conservation Service to change the wetlands classification on the 9 acres. "It struck me as very odd because none of it was wet." When NRCS would not consider the request, he sued, saying the NRCS decision makes the wetland ground "economically worthless," and essentially an easement granted to the federal government.

"It's absolutely 100% unconstitutional, and it's amazing to me it hasn't been challenged before, at least successfully," Conlan said on "The Water Table" podcast. He added, "The government knows how to pay. It knows that when it's going to take property rights, it needs to pay."

Conlan said if the federal government wants the ground idle, then it should pay for it similar to the Conservation Reserve Program (CRP).

MOTION FILED TO INTERVENE

The Iowa Farmers Union, Dakota Rural Action, Food & Water Watch and Iowa Environmental Council, collectively calling themselves "Sustainable Agriculture Groups," filed a motion Oct. 2 in court asking a judge to grant them status in the case to intervene.

The four groups argue if CTM's lawsuit is successful, it would effectively terminate both swampbuster and sodbuster provisions and cause a ripple effect of environmental problems as a result.

"The loss of these long-standing conservation programs would cause significant environmental damage including increased flooding, degraded water quality, and widespread habitat loss," the groups stated in their motion.

The groups also argue swampbuster isn't compulsory, but producers who want to participate in federal farm programs need to meet a minimum conservation standard.

Explaining why the four groups meet the requirements to intervene, they cited that eliminating or weakening swampbuster and sodbuster rules would directly threaten their members, families and communities by exposing them to increased risk of flooding, contaminated drinking water, reduced property values, loss of farm income, and reduced access to USDA benefits."

"Swampbuster is the last thumb in the dike preventing total destruction of our natural ecosystems," stated John Gilbert, a member of Iowa Farmers Union.

Without swampbuster and sodbuster, the groups project more floods would occur and those flooding impacts would become more severe. Wetlands absorb nutrients and the Sodbuster provision reduces nutrient runoff. Eliminating the two provisions would increase nitrate pollution and other nutrient runoff when rural Iowa already faces problems with contaminated drinking water. Rural communities also are already pressed over the costs of removing nitrates from drinking-water supplies.

"If swampbuster and sodbuster are invalidated, water quality will worsen and those costs are likely to go up," the groups stated.

SWAMPBUSTER PROVISION CALLED CRITICAL

Michael Schmidt, staff attorney for the Iowa Environmental Council, said Iowa lost most of its wetlands before the 1985 farm bill was passed. The swampbuster provision has been critical in helping protect remaining wetlands in the state, he said.

"So, the idea of losing the rest of the wetlands by losing the incentives to protect them would lead to some bad outcomes for Iowans so we thought it was good to have our voices represented," Schmidt said.

Iowa Farmers Union also is concerned the public's perception of farmers would drop if farmers were seen as "opponents of commonsense environmental protection" and viewed as "entitled to taxpayer money without having to do anything to fulfill their end of the social bargain," said Aaron Lehman, president of Iowa Farmers Union. That could lead to less public support for federal aid to farmers.

Loren Seehase, senior legal counsel for the Liberty Justice Center, had joined Conlan on The Water Table podcast. She said CTM is challenging the constitutionality of swampbuster under the Commerce clause as well as a Fifth Amendment "taking" issue. Also, requiring conservation compliance for USDA farm programs is a "relinquishment of a right," Seehase said.

"If the government takes that land and says you are going to conserve it for everyone else, then they have to pay just compensation."

Seehase said ideally the case and the 40-year-old swampbuster requirements would draw the attention of the U.S. Supreme Court.

"The Supreme Court has not had a chance to rule on the constitutionality of swampbuster, so we are hoping that at some point we can get that before the Court and decide for all farmers that this is unconstitutional," she said.

PLANS FOR THE PROPERTY

When asked what his plans are for the property, Conlan said, "I'm going to till up the 9 acres. And that's what ought to happen. Inflation is out of control. Food needs to be produced. This is not environmentally sensitive property, and if it is, the government can pay for it, just like it does for CRP or for national parks. So, I don't think it's fair to basically create a collective benefit, I guess, for all of us, at the expense of some of us."

The Iowa case is similar to another one sitting before the Eighth Circuit Court of Appeals involving South Dakota farmer Arlen Foster. The eventual decision in the Foster case could also impact how the CTM case is decided, Schmidt said.

"The outcome of the Foster case could affect what happens in this case, depending on exactly what that outcome is," Schmidt said. "Because it is also in the Eighth circuit, it could influence the outcome here."

See, "SCOTUS Sends South Dakota Wetland Case Sent Back to Eighth Circuit After Chevron Ruling," https://www.dtnpf.com/…

Chris Clayton can be reached at Chris.Clayton@dtn.com

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