This Illinois farmer took a stand against a wrongful NRCS wetlands determination. He won four hearings, went through five years of litigation and spent hundreds of thousands of dollars — all to get the result that there were indeed no wetlands on his farm.
Fair and honest treatment by our government agencies is a basic, reasonable expectation, but farmers are being denied due process. It’s time to restore fair government.
We asked the government, "Why can you do this over and over and over again? How is that fair?"
I'm Kurt Wilke. This is a family farm here that we've owned for a number of years. And we've been in a wetlands case now ever since the farm was purchased in 2010, and all the way up until now, 2019.
Back in 2010 my father-in-law, whose family's been in farming for generations, was looking to buy an 80 acre farm. Saw this one, investigated the facts and details about the farm and including looking at the FSA form 156. On that form it said, "Tract does not contain a wetland." And with that information in hand, he went ahead and purchased this farm. And shortly thereafter, early 2011, started doing some drain tile improvements.
That's when NRCS got involved, told him to stop the work that he was putting farm program payments at risk, and that their contention was that there was 22 of the 80 acres was a wetlands. So stopped all the drain tile work, plugged what had been put in new and then waited for the NRCS to issue a determination, which they did in 2012, and then we appealed that to the National Appeals Division of the USDA. Did that in 2013, and the result was that the ruling was in our favor.
But the NRCS didn't appeal that order. Instead, they just went back, re-issued the exact same determination on the farm of 22 acres of wetlands. And that forced us to have to go through the entire process all over again.
So, in 2014 we went through the whole thing, trial in front of the judge, and the judge again ruled in our favor and said the NRCS was wrong. And once again, they did not appeal. They just simply re-issued the exact same ruling, and we had to go through it a third time.
NRCS dropped the case, re-issued a ruling for the fourth time, again, contending there's wetlands on the farm. And once again, the National Appeals Division ruled in favor of us against the NRCS and the NRCS then appealed that ruling and lost. And so that finally concluded the case in 2017, after five years of litigation and, basically, four times through the entire process for us.
We asked the government, "Why can you do this over and over and over again? How is that fair?" Because if we had lost any of those, we would not have had any opportunity to redo it. And their testimony was, "Well, if you would just accept our decision, you wouldn't have to go through this."
How is it fair that the government can come back and say, "Well just forget that. We're going to do it all over again, and we're going to keep doing it over and over and over until you lose"? For the government to be able to do that when the landowner can't is just totally unconscionable.
We had a drainage district map from 1907, which showed this farm had drain tile on it even back then, more than 100 years ago.
This is not a wetland. You can look at it. It's flat farm ground, and it is 100% in crops.
We've been nine years involved in this long process. We've spent hundreds of thousands of dollars fighting the government, all to get a result, finally, that there are no wetlands on this farm, which is what the government's own forms said when we bought the farm.
Kurt Wilke describes a drain tile system, like the one on the acreage NRCS designated as wetlands, as a system that moves excess moisture from the soil several feet underground. When a heavy rain occurs, for example, the water seeps down through the soil, to the tile system. Open ditches carry water from the tile to streams and rivers. In contrast to this, on wetlands the soil is completely waterlogged, with water ponding on the surface.
The drain tile system on Carl Hoffee’s farm has been in place since at least 1907, and in the hundred-plus years since then, crops had been grown continuously on the land.