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Swampbuster rules set off 18-year court battle

Part 1: Attorney Micheal Cooley discusses the Boucher v. USDA lawsuit.

When the late David Boucher removed five trees from a small tract of land on his farm in Indiana in 1994, he couldn’t have imagined it would set off an 18-year legal battle with the USDA Natural Resources Conservation Service.

Boucher’s actions — he removed four more trees from another spot of land in 1998 — were subsequently deemed a violation of the Swampbuster provisions of the Food Security Act of 1985, which made the farm no longer eligible for farm program benefits.

How the removal of nine trees resulted in a lawsuit — Boucher v. USDA — which was only settled in the Seventh Circuit Court of Appeals last year, is a complex story, according to Michael Cooley, the attorney representing Boucher’s widow. He was a speaker at the Mid-South Agricultural and Environmental Law Conference, which was held online earlier this summer.

“The purpose of the Food Security Act of 1985 and the Swampbuster provisions is essentially to preserve wetlands as they existed on Dec. 31, 1985,” said Cooley, a partner in the law firm of Allen Wellman & McNew Harvey LLP in Greenfield, Ind.

To be a wetland, a property must have three characteristics, according to the 1985 farm bill. It must have hydric soils, hydrology and hydrophitic vegetation, according to the Swampbuster provisions of the 1985 law, which marked the first time Congress included environmental provisions in a farm bill.

“This case was primarily about hydrology,” he said. “The statutory definition of hydrology is land that is inundated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophitic vegetation, typically adapted for life in saturated soil conditions.

“What the Seventh Circuit ended up saying, which is what I said to the court on appeal, is that this is intended to be a common-sense definition — it means it’s a lot of water. The amount of water has to be enough to support a particular kind of vegetation. Otherwise, it’s not a wetland.”

While that may seem obvious, the Natural Resources Conservation Service, which has helped thousands of farmers navigate complicated federal regulations and improve the environmental footprint of their farms, took the opposite position in this case.

The legal battle might never have occurred if Boucher had not sought NRCS approval to install a conservation filter strip on the farm in 2002. An NRCS representative found no significant disturbance and no surface water. However, she also determined the hydrology had been drained through the installment of field tile, a Swampbuster violation.

Boucher hired an attorney and asked for a review of the ruling. The case was referred to the NRCS state conservationist, who made a site visit in September 2003. The NRCS retained no record of the inspection. Boucher believed he had proven his position in the visit. He died in early 2004.

No further communication was received from USDA for 10 years, according to Kristine Tidgren, who wrote about the case in the Iowa State University Center for Agricultural Law and Taxation’s Ag Docket blog.For more information, visit the National Agricultural Law Center at https://www.bing.com/search?q=national+agricultural+law+center&cvid=e80f40416b0943b0bd7cf5616e6c3d0c&FORM=ANAB01&PC=U531 or the Center for Agricultural Law and Taxation at https://www.calt.iastate.edu/blogpost/seventh-circuit-sides-landowner-wetlands-determination-case.

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