August 10, 2016

PLF appeals rigged wetland ruling to Supreme Court

By Anthony L. Francois Senior Attorney

I don’t know about you, but I hate it when the government is supposed to give me a hearing on how I can use my property, and I discover afterward that the government rigged the outcome. Some hearing.

That is what the federal government did to farming couple Arlen and Cindy Foster. Arlen’s family has been farming the same land for three generations, since his grandfather bought the property in 1900. He and his wife Cindy grow corn, soybeans, hay, and raise cattle, and hope that their grandchildren will have the opportunity to follow in their footsteps.

Because a federal law makes it a violation to convert wetlands by farming, the National Resource Conservation Service investigated whether a 0.8 acre depression in one of the Fosters’ fields is a wetland. It is not a simple question, since not just any wet spot on the ground is a federally protected wetland.

But in this case, the Service made it a lot easier on themselves.

They could have looked at whether the farm itself would support wetland plants, or a comparison site adjacent to the farm or in the local area, but instead they looked at a different place entirely, a “comparison site” 33 miles away. The Service preselected the comparison site 16 years ago, knowing that it supports wetland plants, and now they use it any time they are investigating a possible wetland with similar soils and disturbed vegetation, anywhere in the surrounding 10,835 square miles.

So instead of figuring out if your wet spot on the ground actually supports wetland plants, they point to the fact that their wet spot on the ground does, and conclude from this that yours must as well.

Rigged.

The government says there is a wetland hidden in this cornfield. Can you find it?
The government says there is a wetland hidden in this cornfield. Can you find it?

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