When the Seventh Circuit Court of Appeals reversed a lower court decision that said the late David Boucher had converted a wetland on his farm Indiana, it was a bittersweet moment for his widow, Rita Boucher.
Until he died in 2004, Boucher and then his widow steadfastly maintained they had not violated the Swampbuster provisions of the Food Security Act of 1985 by draining a wetland. But the USDA Natural Resources Conservation Service steadfastly maintained they had.
“The Seventh Circuit’s opinion is 47 pages long, and it’s a great opinion for these cases,” said attorney Michael Cooley, who represented Mrs. Boucher. “It shows the probing nature of their review. They went through the entire record; all of the information we cited; and all of the scientific manuals to determine if the experts did what they said they did.
“They did that for two reasons — they noted the logical inconsistency of the NRCS agency’s position, and the fact that the agency shifted its position,” he said. “But because the standard of the review was so deferential they went through the manuals to determine if the agency had followed the manuals.”
Cooley said much of Mrs. Boucher’s argument involved the technical requirements in the manuals “and what the agency said it did vs. what it said it did.”
In its response brief, for example, the NRCS said the agency observed on the fields that were allegedly converted two indicators of wetland hydrology. Those were geomorphic position and the FAC Neutral test, which evaluates whether there is a predominance of hydrophitic vegetation on a site.
“They do that by observing all of the tree and vegetation species,” said Cooley, who spoke at the Mid-South Agricultural and Environmental Law Conference. “Essentially, it’s kind of a total up the columns and see which columns there’s more of. If there are more wetland plants then you probably have wetland hydrology; fewer plants and there is no hydrology.
“The key here is USDA took the position the NRCS had observed the FAC Neutral test on Fields UN 1 and UN 2. But as we have already seen, Fields UN 1 and UN 2 had been cleared in 1994 and 1998. Therefore, there were no trees to observe the FAC Neutral test within 2013 or 2003. It was simply a false statement.”
The geomorphic position test is just a test with respect to the topography. “The question is, is the site depressional, and the NRCS provided no evidence that it was,” he said. “The only objective evidence in the record with respect to the topography was the laser survey Mrs. Boucher obtained.”
In its opinion, the Seventh Circuit reversed the district court’s order and remanded the case, directing the district court to enter judgment for Mrs. Boucher — in 2019, 17 years after the NRCS made its first visit to the Boucher Farm in 2002.