Farmers are being denied due process as part of an abuse of discretion by the Natural Resources Conservation Service, according to a scathing ruling by the Court of Appeals for the Seventh Circuit. The ruling is highlighted in a letter from the American Farm Bureau Federation calling on Agriculture Secretary Sonny Perdue to enact much-needed reforms in the agency.
The letter focuses on the case of an Indiana farm owned by David and Rita Boucher, and Mrs. Boucher’s 17-year saga of unfair treatment at the hands of the NRCS staff. The Bouchers removed nine trees on 2.8 acres and NRCS, in turn, demanded they plant 300 trees per acre as compensation.
The court found that NRCS wrongly accused the Bouchers of harming a non-existent wetland on their property but made no effort to correct the record even after the accusations were shown to be groundless. The NRCS judgment made the farm ineligible for a wide variety of government programs, creating a roadblock for the Bouchers to obtain the loans and crop insurance necessary to stay in operation.
“The USDA repeatedly failed to follow applicable law and agency standards,” the court wrote. “It disregarded compelling evidence showing that the acreage in question never qualified as wetlands that could have been converted illegally into croplands. And the agency has kept shifting its explanations for treating the acreage as converted wetlands. The USDA’s treatment of the Bouchers’ acreage as converted wetlands easily qualifies as arbitrary, capricious, and an abuse of discretion.”
The Bouchers are not the only victims of NRCS regulatory abuse, as noted in the letter and as previously conveyed to USDA by AFBF.
“The wrongs identified by the Seventh Circuit are systemic throughout NRCS and representative of the experience of countless farmers,” AFBF wrote. “We hope that you find this case as shocking and troubling as does the Seventh Circuit.
“USDA’s implementation of its conservation compliance programs transcends politics: the Bouchers’ battle began in the beginning of the Bush presidency and continued through the Obama and Trump administrations. The unanimous judges on the Seventh Circuit were appointed by Presidents Reagan, Clinton, and Obama. And the actions by USDA were not limited to a few individuals, but were endemic through all levels of review and appeal.”
AFBF is calling on Secretary Perdue to accept the Seventh Circuit decision and compensate Mrs. Boucher for costs incurred in her fight against the federal government. More broadly, the letter urges USDA to view its finalization of the Interim Final Rule as an opportunity to correct the problems identified in the ruling.
The letter explains, “In reality, affected farmers typically have been unable to challenge the agency’s decisions because they simply cannot afford to lose eligibility or the costs of a fruitless appeal. Generally, farmers follow the direction of the agency to avoid ineligibility instead of appealing.”
Additionally, AFBF is asking USDA to:
- 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 or her 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.
In response to a similar situation in Virginia, last year Virginia Farm Bureau established policy related to the USDA National Appeals Division (NAD). NAD is responsible for conducting administrative appeals hearings and reviews of adverse program decisions made by officers, employees, or committees of USDA agencies.
We believe NAD should have the authority to enforce agency implementation of NAD decisions; streamline or shorten the length of time of the appeals process to allow for a quicker resolution of disputes between producers and agencies; and provide clear instructions for implementation of a final determination. NAD should not allow agencies to reissue a technical determination after the original determination was found erroneous. We believe damages should be awarded to producers who prevail in a NAD decision.
We also believe there should better communication and record-sharing between FSA and NRCS, and any record-keeping mistakes on the part of the agency should not penalize the affected producer. We support greater efforts by USDA agencies at the local level to educate producers and landowners on program and paperwork requirements.