For years, USDA’s Natural Resources Conservation Service has been denying farmers and ranchers due process in its enforcement of conservation compliance, threatening their eligibility for government programs and creating roadblocks to obtaining loans and crop insurance vital to their operations.
Farmers have raised concerns about the NRCS’ implementation of conservation compliance since its enactment in the 1985 farm bill, but the nature and intensity of the problems have escalated drastically in recent years.
AFBF is calling on USDA to implement a fair and transparent decision-making and appeals process, restoring congressional intent to conservation compliance programs, improving compliance, and creating an environment in which farmers are once again excited about taking additional actions to protect our precious land and water resources.
Recent court cases clearly illustrate how USDA’s broken appeals process is stacking the deck against farmers when NRCS agents:
• Pick and choose how to apply their own statutes;
• Place the burden of proof entirely on farmers;
• Disregard clear evidence that proves farmers are following conservation guidelines;
• Fail to adhere to the statute;
• Fail to follow agency regulations and guidance;
• Offer shifting explanations as the appeal progresses;
A unanimous ruling by the Court of Appeals for the Seventh Circuit, USDA v. Boucher, constitutes a stern rebuke of NRCS “Swampbuster” program enforcement. The case concerned an Indiana farm owned by David and Rita Boucher, and Mrs. Boucher’s 17-year saga of unfair treatment at the hands of NRCS staff. The Bouchers removed nine trees on 2.8 acres, and NRCS demanded they plant approximately 900 trees on the 2.8 acres as compensation for the “wetland conversion.”
In the court’s words, “USDA repeatedly failed to follow applicable law and agency standards. 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.”
In September 2019, the American Farm Bureau sent a letter to Agriculture Secretary Sonny Perdue urging him to enact much-needed reforms in the agency, 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 published in December 2018 as an opportunity to correct the problems identified in the ruling.
Additionally, AFBF is asking USDA to:
• Respect the congressional directive of once converted, always converted for Prior Converted Cropland;
• Retrain National Appeals Division judges and agency directors in how to provide a fair and balanced hearing;
• 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.