The late David Boucher removed five trees on his Indiana farm in 1994 because of illegal dumping, according to attorney Michael Cooley, who represented Boucher’s widow in a lawsuit that grew out of the tree cutting.
Years later, USDA’s Natural Resources Conservation Service found Boucher had converted a wetland, a violation of the Swampbuster regulations in the Food Security Act of 1985, which meant the farm was no longer eligible for farm program benefits.
“Mr. Boucher removed the trees from UN 2 because there’s a roadway right here,” said Cooley, referring to one of the field designations on a map of the property. “He noticed some passersby had dumped refuse on UN 2. He removed the trees to prevent the dumping, not to make the property more farmable.”
The farm owner removed four more trees from another tract, UN 1, in 1998, again with no intent to improve the agricultural potential, said Cooley, who discussed the lawsuit, Boucher v. USDA, during the Mid-South Agricultural and Environmental Law Conference.
No actions were taken by the NRCS until a NRCS technician made a site visit in 2002. During the inspection, which resulted from Boucher requesting approval to install a conservation filter on the farm, the technician determined Boucher had drained a wetland.
“Once they found the land had been drained, they looked for a reference site to determine what the natural characteristics of UN 1 and UN 2 would have been,” he said. “So they looked around and saw this depressional woodland (Field 7) over here, and this is where they drew all their information about what UN 1 and UN 2 would have looked like had they not been altered.”
“As you’ll see on the map, we had 1.9 acres in UN 2 and .7 acre in UN 1,” he said. “It was a total of nine trees in 2.6 acres. The estimate in the record was about 12/10,000 of an acre for what those trees would have covered.”
Cooley displayed an aerial photo of the property. “This is the clearest aerial slide that exists in the administrative record,” he said. “I included in the materials about 85 percent of the other slides the agency reviewed, all of which are far more fuzzy than this aerial photo.
“This 1985 slide is important because it is from this slide and others like it that NRCS found that these trees here and here were wetland species. So from this overview, allegedly, the agency was able to determine those are wetland trees, something the Seventh Circuit Court of Appeals found very implausible when we pointed them out in the record.
Next: A bittersweet victory in the Seventh Circuit Court of Appeals.