Reversal: USDA farm wetlands ruling arbitrary and capricious

A Hancock County farm family denied U.S. Department of Agriculture benefits since the removal of nine trees from their farm in the 1990s prevailed in litigation against the agency. The 7th Circuit Court of Appeals entered judgment for the family, finding USDA rulings in the case arbitrary and capricious.

The 7th Circuit in a 47-page opinion laid out wetland conservation statutes and rules, the USDA’s enforcement, and where Circuit Judge David Hamilton wrote that the agency abused its discretion. The USDA wrongly determined that an Indiana farmer had converted wetlands to agricultural use, thereby disqualifying his farm from certain subsidies, Hamilton wrote.

The case concerns land that has been a farm for more than 150 years and was purchased in the late 1980s by David and Rita Boucher. In the 1990s, David, who has since passed away, cleared a few trees from areas where illegal dumping had taken place. “As described in the later agency hearing, one could fill an area the size of a pick-up truck bed by laying flat a slice from each of the nine trees’ trunks.”

Nevertheless, USDA inspectors concluded this action converted 2.8 acres from wetlands to agricultural use. “The agency was under the impression that Mr. Boucher planned to accept a remediation plan, and on February 27, 2003 mailed him a plan that would have required Mr. Boucher to plant 300 trees per acre to compensate for the removal of the nine trees. Mr. Boucher, however, decided to challenge the decision. He hired an attorney and requested reconsideration and a site visit.”

A conservationist visited the site in September 2003, where David Boucher explained only trees unlikely to grow in wetlands were removed and that no leveling or drainage work had taken place. “Mr. Boucher left his meeting with the State Conservationist ‘feeling that he had proved his position,’” Hamilton wrote. “No further communication was received from the USDA for nearly ten years, until late 2012. In February 2004, Mr. Boucher passed away.

Rita Boucher took over the farm, and a tenant in 2012 asked if he could remove an old house and barn. She agreed and sought USDA approval. “Unfortunately, as we will see, this request prompted the USDA to discover in November 2012 that it had never completed a Final Technical Determination … after Mr. Boucher’s 2003 FSA appeal for a State Conservationist’s visit.”

USDA then arranged a site visit in early 2013, but Hamilton notes, “Conditions for the site visit were unusual. Over three inches of rain fell on January 13 and January 14, the day of the visit. That rain melted eleven inches of snow on the ground.” He notes the experts on the site visit did not include a hydrologist. “…The agency experts did not schedule a follow-up visit but did snap some pictures of puddled fields … and noted in their assessment form the (unsurprising) evidence that water collected at the surface after heavy rains.’”

The agency again made a preliminary technical determination that 2.6 acres of wetlands had been converted, and the agency’s rulings were upheld on administrative and judicial review until the 7th Circuit’s ruling in Rita Boucher v. United States Department of Agriculture, et al., 16-1654.

“As Mrs. Boucher correctly pointed out during the agency appeal process, the (Natural Resources Conservation Service) experts did not attribute the alteration of hydrology to the removal of the nine trees, and the agency presented no evidence that the tree removal altered the wetland hydrology,” Hamilton wrote. “The USDA hearing officer and appellate officer failed to engage meaningfully with this point, thereby ignoring a crucial factor under the agency’s interpretation of this regulation, rendering the decision arbitrary and capricious.”

The panel reversed and remanded to the Southern District with instructions to enter judgment for Boucher and award all appropriate relief.

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