Michigan farmer Brad Smith spent 10 years, untold hours and thousands of dollars fighting USDA’s Natural Resources Conservation Service in both the agency’s administrative system and the federal courts over a relatively tiny patch of land the federal government designated as a wetland. By designating the tract as a wetland, Smith was unable to farm the land without losing access to USDA programs.
A practicing attorney before he took over the farm, Smith said without his legal expertise, he and his father would probably have been forced to give up the fight, and perhaps even the farm, which has been in the family since 1837.
Smith primarily grows corn and soybeans, along with specialty crops like teff, barley and buckwheat, in Addison, Michigan, in the southern part of the state.
In 2008, NRCS sent Smith’s father a preliminary technical determination identifying a very small parcel of farmland as a wetland. Smith’s father quickly pointed out to NRCS that the agency had partnered with him in 1964 to tile that land as part of a soil conservation plan, which would make the tract ineligible for a wetland determination. But NRCS would not be deterred.
When NRCS moved from a preliminary technical determination to a final technical determination, Smith’s father appealed. After the appeal was denied, Smith’s father went to mediation with NRCS twice. Smith said the second hearing made him realize how nearly impossible it is for anyone without a solid legal background to succeed in such an endeavor.
“The rules are mind-numbingly complex. I’m a trained attorney and I spent many, many hours figuring out the rules. I don’t see how a farmer without a trained lawyer can do this effectively,” said Smith, who took the farm over from his parents in 2012, largely because of the trouble with NRCS.
After the two unsuccessful mediations, in 2011 the Smiths took the issue to federal district court, which ruled against them. They then appealed to the Sixth Circuit Court of Appeals in 2014. While waiting on that ruling, NRCS claimed to have found other “wet spots” on the farm that were suspected converted wetlands.
“We thought we were making progress and then it ends up going backward,” Smith said of the mediation.
The family finally got some good news when the Sixth Circuit ruled in their favor in 2015 and found that the agency failed to consider Smith's minimal effect evidence.
“The opinion that came out was very favorable. They really chastised the agency and said it had acted arbitrarily and capriciously,” Smith explained.
However, NRCS did not back down. “We thought we had won, but NRCS said, ‘Well, we get a do-over,’” putting the Smiths back at square one in front of a federal administrative law judge for another round of hearings.
This time, the Smiths hired a wetlands expert whose two reports made it clear the very small site in question – less than an acre – was not a wetland, although it was a wet spot because the tile had failed. And because of NRCS’ preliminary technical determination, the Smiths couldn’t fix the damaged tile.
After two years back at the administrative level for a second round, which Smith described as “clearly flawed,” the family settled with NRCS in the summer of 2018. Though the Smiths may have won in terms of the positive Sixth Circuit Court ruling, they still lost in a major way: neither they nor anyone else on the farm is allowed to enroll in USDA farm programs.
“By putting the technical determination on us, anyone affiliated with this farm, not just that field, is forever prohibited from participating in farm programs,” Smith explained, emphasizing that because of this, had he not had income from his law practice, he may not have been able to continue farming, especially when corn and soybean prices collapsed in 2013.
“The whole reason for these farm programs is to provide a buffer when the farm economy hits a really rough patch. With absolutely no farm program payments coming in, the farm was operating at a loss – and not just a tax loss, we were losing money,” he said.
Smith sees a lot of similarities in his family’s struggle with NRCS and what other farmers have gone through. His father ultimately gave up farming because he couldn’t cope with the sleepless nights and worry that came with the case. Smith is concerned that other farmers in Michigan and across the country could be pushed to a breaking point.
“It’s our livelihood. This is what we do to earn a living and to feed our families. The results for family farmers can be devastating when the federal government throws hundreds of thousands of dollars in the form of experts, attorneys and rules against us. And they can make us go through this broken process as many times as they want,” Smith said.