The Water Table
The Water Table
#106 | Behind the Lawsuit Against the USDA Over Swampbuster Statute
An Iowa landowner is suing the U.S. Department of Agriculture claiming the federal government’s “swampbuster law,” which requires farmers to either leave wetlands untouched or forfeit certain federal benefits, is unconstitutional. Jamie sits down with James Conlan and his attorney, Loren Seehase, to hash it all out. Is it government overreach or not? And what would it mean for farmers if the statute was overturned?
The “swampbuster” statute was introduced in the 1985 Farm Bill as part of the Wetland Conservation Compliance Provisions. Learn more here.
Chapters & Episode Topics:
00:00
00:30 Welcome Loren Seehase and James Conlan
01:08 Swampbuster
01:30 The lawsuit explained
02:20 Where in Iowa?
03:00 The back story
05:00 The 5 claims
08:30 Woody vegetation
10:00 Just compensation
11:00 A really big stick
13:00 Sodbusters
14:40 Small farm support?
16:20 What if you’re successful?
17:30 Why Swampbusters in the first place?
18:30 New policy
19:30 The last word.
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Jamie Duininck (00:00):
In this episode of The Water Table, we'll be talking about a lawsuit that is challenging the Swamp Busters federal law. Enacted in 1985, Swamp Busters was there to prevent farmers and landowners from draining wetlands. However, this lawsuit isn't about draining wetlands. It's about the federal government not paying for land that they consider a wetland when some of it may or may not be. And according to the landowners, the real issue is are they going to pay for land that they are taking out a production because they're calling it a wetland? And if they're not willing to pay for that, but have farmers or landowners no longer use that land for farming purposes, they're violating the Fifth Amendment. Join us today as we explore and talk about this complicated issue.
(01:00):
Well, welcome back to The Water Table podcast. Today I have with me Loren Seehase. Loren is senior counsel for Liberty Justice Center and Jim Conlan. Jim is a managing partner in a farm in Iowa and they do some different things and Jim has some issues that he's been dealing with that he's working with the Liberty Justice Center on. And we want to expose that today and talk about where this is headed in regards to water management, water quality on farms in Iowa. And this is not a new issue that has been out there in our world since Swamp Busters of 1985. And I just want to bring this out into the forefront and talk about the issues that are there as these things. We just need to resolve these and we need to resolve them and the right way in which private property rights are protected. So Loren, would you like to explain the issue and we'll get into some discussion about it?
Loren Seehase (02:03):
Sure. So briefly, we are representing Mr. Conlan in a lawsuit challenging the Swamp Buster law, which as you mentioned has been a law since 1985. And the crux of our argument is essentially that the government cannot condition the receipt of federal benefits on the relinquishment of a constitutional right and they cannot force you to have a conservation easement of your private property without providing just compensation. And so that's what we are fighting in federal court.
Jamie Duininck (02:37):
All right. And the issue Mr. Conlan, you own over a thousand acres of farmland in eastern Iowa, and exactly what part of Iowa are you in?
Jim Conlan (02:54):
Northeastern and Eastern Central. Five different counties from Duke, Jackson, Lynn, Benton, and Johnson.
Jamie Duininck (03:03):
Sure. And what you're seeing is you purchased this property a few years back. If I remember right, it was around 70 acres of farmland, of which there was around 20 acres that was forested. And around nine acres of that 20 acres was deemed a wetland. And you want to just tell us about how you perceived that property when you purchased it and what you were thinking and how this has developed into where you file a lawsuit?
Jim Conlan (03:38):
Well, I knew about the designation. There were 20-21 acres of trees, nine acres of that 20 or 21 acres had been designated wetlands. It struck me as very odd since it wasn't wet. There was no part of it that was wet. There's actually a stream and another part of the property, but that's not wetland. The part that is dry, part of that is wetland. And so I applied to have it reconsidered. It just seemed like a mistake. And they looked at it and said, "No, we're not going to look at it anew. It's wetland." And they gave me a new set of maps. And then I began to explore, well, what can I do with this?
(04:23):
By the way, I have a law degree that I practiced law for a lot of years. I don't anymore. And I read the statute, and the more I read the statute, the more outrageous it struck me, particularly as applied to unfarmed wetland, meaning land that was not farmed in 1985 when the statute was passed, that the government could essentially render it economically worthless. Say, "You cannot remove the trees, you cannot do anything with it. You can't farm it, nothing. You can pay taxes on it, but you can't earn anything on it." That just struck me as impossible.
(05:02):
And the further I went into it, the clearer it became that that is in fact the government, that is what the statute says, and it is absolutely 100% unconstitutional. And it's amazing to me that it hasn't been challenged before, at least successfully.
Jamie Duininck (05:20):
So when you are challenging this, you have five claims in there, Loren, do you want to talk about those claims and then I'll probably ask a few questions?
Loren Seehase (05:31):
Sure. So we do have five claims. So we're first challenging the authority of Congress to bring the Swamp Buster Act under the Commerce Clause. So wetlands on private property are not the typical instrumentalities or part of commerce. So Congress has very specific delineated powers. They have the power to regulate commerce among the states, but a private property wetland is not amongst those commerce among the states. So we're challenging that. That would be the foundational premise of the law itself and the authority to actually enact Swamp Buster.
(06:10):
We're also challenging it on an unconditional, or excuse me, unconstitutional condition, both under the Commerce Clause and a Fifth Amendment Taking Clause. And so that essentially is, there's two parts and one is on the Commerce Clause, the government cannot condition the receipt of federal benefits on the relinquishment of a right. And so as you know, when you have a farm and you're applying for USDA federal benefits, agricultural benefits, crop insurance, agricultural payments, all of that, you fill out a form this AD-1026. And the form specifically says, "I will adhere to Swamp Buster." Basically, "I promise I will adhere to it." And in doing so, you're not sure if you're going to have a wetlands designation or not. So once they decide that you do have a wetland, then they say, "Well, it's now basically an easement, a conservation easement, and you must keep it that way. You cannot do anything with it. You cannot build on it. You can definitely not farm it," which seems a little ironic to the entire purpose of the agricultural benefits. You need every acre possible to farm.
(07:21):
So you have those two unconstitutional conditions. And so that's the biggest part of arguments. We're also challenging two administrative rules. And so one is on the final determination. So the statute says that the final determination for the wetland stays in place so long as it's used for agriculture or if the affected party requests a redetermination, which sounds easy enough, but the administrative agency created a rule that says, "Well, no, you can only ask for a redetermination if basically an act of God changes the topography of your land or the hydrology of the water that's on your land or we decide as NCRS that a mistake was made in our prior determination," which the agencies rarely decide that they previously made a mistake. So that administrative rule seems to be completely opposite and vary greatly from the statute itself, the authorizing statute. So we're challenging the agency's authority to issue that rule. It seems in excess of their authority.
(08:34):
The other agency rule that we're challenging is the definition of converted wetland. And this is the big one that affects a lot of farmers. And it's the whole purpose of Swamp Buster is that you cannot convert wetland. And they define that as you cannot drain, dredge, fill or otherwise affect the hydrology of the water. Now, that's the statute but the administrative rule went ahead and added some language that was not in the statute that specifically says you cannot remove woody vegetation. And so that seems to again be an excess of the agency's authority. And so we're challenging that role as well.
Jamie Duininck (09:15):
Yeah, and I did read that and I was curious about that. I was not aware that that was just added in without congressional approval. As I have a little bit of experience with this, but of your five claims, what do you most passionate about? What do you think is where you have the best chance of winning or just most passionate about because it just feel it wrong?
Loren Seehase (09:41):
Well, I think the crux of it that affects most farmers is going to be our unconstitutional condition. If this was a situation like let's say for example, social security. If the federal government said Social security recipients cannot get benefits unless they promise to not own or bear any firearms, that would be an obvious constitutional infringement. And the same thing is going here. The government is saying, "Well, we'll give you these federal benefits if you promise to not use your private property in any way, shape or form, thereby relinquishing your right to just compensation."
(10:18):
Because the government has the authority or the power of eminent domain to take private property when it's for a public use, but when they do it, they must pay just compensation. And so that's the other part of this issue is that if the government decides, "Well, yes, your part of your property is wetland," but they're making you hold it in essentially a conservation easement in perpetuity because as long as you use it for agricultural purposes, it has to be in conservation, it has to be in preservation. You can't have an ag building on there. You can't farm it, you can't build a home on it, you can't do anything with it. And so not using your property, and it's for a public purpose. The government has stated repeatedly that the whole point of Swamp Buster was to protect wetlands for basically the ecology of the nation, that wetlands preserve ecosystems and different plants and wildlife, and they're important.
(11:18):
And those may be very important and noble things to conserve. But if the government takes that land and says, "Well, you're going to conserve it for everyone else," then they have to pay just compensation. So that's the big issue with it.
Jamie Duininck (11:32):
And I like your example when you're using social security. And one thing that struck me, which is interesting that it struck me because I've known this forever, but just in how the article was written, Mr. Conlan, just that if you do not comply, all of your renters and anybody associated with this is at risk of losing their benefits. And really where I'm going with this is NRCS has a big stick in their ability to take away the benefits of the producer. And that's really the only stick they have. And somewhere along the line that feels wrong to me too. And when you use the social security example, that's a really good one because that kind of affects everyone of a certain age group. And if you don't do this, you could, as your example, you could lose that.
(12:28):
And so I just wonder if there's a comment or any dialogue around that just with where NRCS is at with their ability to withhold payments. It really seems like the reason why this hasn't been brought forth in another lawsuit or in another way before because for a lot of people, they just can't risk that or aren't willing to risk that.
Loren Seehase (12:53):
I think that's precisely right. A lot of the farmers don't want to challenge Swamp Busters, and a lot of the cases that have been brought in the past were focused on a specific farm determination or a specific wetland determination, not the constitutionality of the statute itself. And the Supreme Court has not had a chance to rule on the constitutionality of Swamp Buster. So we are hoping that at some point we can get that before the court and decide for all farmers that this is unconstitutional.
Jim Conlan (13:23):
I say the analogy I would draw that I think would resonate with a lot of farmers is everybody knows about the Conservation Reserve Program, which is often referred to as part of Sod Buster, part of the same statute. The government says, "This is highly erodible land." HEL is the abbreviation, "And you can bid it in, we'd like you to, and if we accept your bid, we will pay you so much an acre for 10 years to take it out of production." For many of the same reasons, because you don't want erosion. You want places for birds to be, etc.
(13:58):
So the government knows how to pay. It knows that when it's going to take property rights, it needs to pay, but somehow in the same statute, they forgot about it when it got to the Swamp Buster part. They're the same ecological and environmental objectives. And quite frankly, I think it's probably as simple as the environmental movement and the federal government simply doesn't want to have to pay what would be a fairly big bill if they had to treat Swamp Buster like they treat Sod Buster, which is pay the reasonable value of the property annually in rent.
Jamie Duininck (14:37):
Well, not only that, but I have a little experience with the Conservation Reserve Program and the fact of the matter is, you're exactly right that it's supposed to be highly erodible lands, but that has been abused to a point where whatever you want to put in there, you can put in there. And I think that's also dictated by the environmental group.
Jim Conlan (14:57):
Right. They put in grass waterways that they would've grassed anyway.
Jamie Duininck (15:03):
Right. And the other thing that, this is a little bit away from what we're talking about, but that struck me when reading this, is that so often you hear that our government really is trying to support the small farmers and the small family farm when in the truth it feels like policies like this and is that they're really supporting less and less farmers and the bigger the better. And if that's the case, why is that? And to me, when you are controlling people by their payments and you have that stick, it's a lot easier to control a 5,000 farmers than it is 10 million.
(15:50):
And so that does feel a little bit like how this has gotten to where it is at is there are so many stories, and yours is a very common one. There's some that are a lot more outrageous out there of where I had a customer that had a telephone pole that there was a storm that went through, blew over the telephone pole there, put new ones in, and they went right through the main that had been in place for 50 years, blocked about 10 acres of farmland. And that was wet for about 10 years before they got approval to read because they said, "No, that's a wetland," even though that had had over 50 years of cropping history.
(16:32):
So that's outrageous. And these things happen. Yours is very common. But the question really becomes is ... I really applaud you for standing up for what's right and what you're going to do, but if you're successful, where do you see this going? What are your thoughts on that?
Jim Conlan (16:52):
I'm going to till up the nine acres. And that's what ought to happen. Inflation is out of control. Food needs to be produced. This is not environmentally sensitive property. And if it is, the government can pay for it just like it does for CRP or national parks. So I don't think it's fair to basically create a collective benefit for all of us at the expense of some of us.
Jamie Duininck (17:18):
Yep. Yep. And what do you think changes if you can be successful? Because like you mentioned Loren, this or something else would be great to get in front of the Supreme Court at some point. If that were to happen and that's successful, how do you see federal policies changing that in a good way? Because we do need wetlands, right? The wetlands that are out there, the ones that are actually wetlands, do a lot of benefit for water quality. And I think Swamp Busters in 1985 was overreach, but it was overreach because we did things we shouldn't have done in the forties, fifties and sixties from tapping white cap sloughs and draining them down and growing corn on because those had a real benefit to society and a benefit to water quality and things.
(18:12):
But we did that and we were actually, the government promoted us to do that, to feed the world back then at those times. So that wasn't something done illegally. That was done very legally and promoted to do that. But when they saw that it was affecting the environment they're on, then they went too far with Swamp Busters. And so now we are a long ways past 1985. I mean a long ways. It's frustrating it's taken this long, but now that we are, how do you see ... Do you have any thoughts on how you'd like to see policy created to handle this?
Loren Seehase (18:49):
Well, I don't necessarily have thoughts on how I think policy should be created, but it's perhaps one avenue is that if the Supreme Court rules that it's unconstitutional, I think it's likely that Congress will respond and perhaps create a program that provides compensation for those that have wetlands. Otherwise, if the Supreme Court rules that it's unconstitutional, you're going to have thousands of farmers calling up their local NCRS saying, "Hey, my farm's not wetland anymore. I'm going to till it, but you can't take away my benefits now." Congress, if that is the policy that they want to keep in place, that they'd like to protect wetlands, they can do that so long as they provide compensation.
Jim Conlan (19:37):
Totally agree with that. That is the just result is make the same payments as you make under CRP if you take the property.
Jamie Duininck (19:45):
Yep. Yep. Good. Well, again, it's America and in our society has changed where a lot of people just aren't willing to stand up for what's right and do the hard work. And so I applaud you both for being willing to do that on behalf of agriculture and farmers and really of just public rights and people's rights. So thank you for that. Would like to give you the last word here on The Water Table if there's anything that you'd like to share or let our listeners know.
Loren Seehase (20:20):
Thank you for having us on the show, first of all. I think this is a great forum to reach other farmers. One case getting to the Supreme Court is a one in a million shot. I hope that it's with Jim, but you never know. And bringing other cases with other farmers may create the kind of case law that we need in order to get to the Supreme Court to help rule that it's unconstitutional. So if there are other farmers out there struggling with a wetlands determination, feel free to reach out to Liberty Justice Center.
Jim Conlan (20:50):
I echo that and I hope that the Northern District of Iowa Federal District Court where this is brought actually rules broadly and that it applies to all farmers who've had their property wrongfully taken.
Jamie Duininck (21:03):
Yeah, and I am glad that I asked that question because it brought up another thought, and that is that I think what really made me read the article when I saw it is when I saw the word Iowa because of the fact that most of these wetland issues don't originate in Iowa. They originate in the prairie pothole regions. And to be very honest with you, there is different ... The same policy, obviously it's a federal policy, but how that's implemented is a little different and it's much more rigid, typically in the prairie pothole region than it has been in places like Iowa and Illinois. So to have the word Iowa and the legacy of Iowa agriculture behind you, I think is really important to the rest of the United States agricultural region in the Midwest in how this develops. So I'm excited to watch this and see where it goes.
Jim Conlan (22:05):
We are too. Thank you.
Jamie Duininck (22:08):
Thanks for joining me today on The Water Table and best of luck. We'll keep our eyes out and watching how this proceeds. Thank you.
Jim Conlan (22:16):
Very good. Thank you.
Loren Seehase (22:17):
Thank you.
