Truth, lies and power: A farmer fights the feds
Published 11:56 am Saturday, September 1, 2018
by Chris Bennett
[Editor’s note: This story and photos are reprinted with permission by Chris Bennett and Farm Journal.]
“If I heard this story about someone else’s farm I wouldn’t believe it, but I have to because it’s happening to me. I never hid a thing, always got permission beforehand, and did things the right way,” says Charles Hood. “None of that mattered to the government.”
In the slippery realm of wetlands and NRCS [Natural Resources Conservation Service] swampbuster regulations, does the government win even if it loses? In 2005, Hood purchased 30 acres of former timberland in southeast Virginia, sought USDA’s [U.S. Department of Agriculture] approval to improve the acreage, and met with agency officials on scores of occasions across a decade of land improvements. In 2016, NRCS came knocking and claimed he was in violation of USDA’s wetlands and swampbuster regulations.
Two years later, on June 14, 2018, Hood, 62, prevailed in court when the presiding judge weighed the facts and dismissed NRCS’ claims. Yet, Hood’s victory may ring hollow. Within weeks of the ruling, NRCS sent Hood a letter announcing a new wetlands swampbuster determination. (The letter also requested a response regarding an NRCS site visit by Aug. 10.)
Essentially, the court decision may be a mere inconvenience to a federal agency determined to place full regulatory power across Hood’s ground. Out with an old wetlands determination, in with a new one. Meanwhile, a farmer’s future hangs in the balance. “I trusted and was lied to over and over by NRCS officials. I don’t think the judge believed a word they said. They may know how to check boxes on a piece of paper, but they don’t know a thing about farming. I’m a private man, but I want the public to know what has happened.”
The gravity of Hood’s case leads directly to uncomfortable questions for U.S. landowners: When a wetlands determination is ruled invalid in court, yet the associated agency simply pushes the reset button, does the court decision mean anything of significance to a landowner? Backed by unlimited resources, how many bites at the same wetlands apple does a government agency get?
“Not Even Close”
In 2006, just two miles above the North Carolina line, 30 acres of cutover tree farm ground came open in Southampton County, and the possibilities grabbed Hood’s attention. The 40-year, part-time employee of the Farm Service Agency (FSA) and small farmer already grew 100 acres of corn, cotton, peanuts and soybeans on 100 rented acres of adjacent farmland, and at $800 per acre, the former timber ground was priced to move. Hood was a dawn-to-dusk grinder, and he wasn’t going to allow opportunity to skate, regardless of how much restoration work might be involved.
The property was relatively flat and surrounded by ditches on all sides. Hood brought in retired NRCS soil scientist Jerry Quesenberry (1975-2005) to take a long look at potential wetlands issues. “Jerry is as smart a wetlands expert as you’ll find and that’s what he’s done across his whole career. He checked the acreage thoroughly and said it was very well drained and could make for good grain land. With the right work and cleanup, I knew I could get it ready for soybeans.”
Quesenberry advised Hood to follow procedure and check with appropriate agencies, including the U.S. Army Corps of Engineers. “Charles wanted to do ditch work and I told him to check with Corps. The Corps gave him full permission to do maintenance on the existing ditches. The property is totally isolated and has very good drainage.”
With three decades of wetlands delineation under his belt, Quesenberry is adamant: “The acreage is not a wetland and doesn’t reach the three criteria of hydrology, hydric soils and predominance of wetland vegetation. Boiled down, the property does not meet hydrology or vegetation criteria. It’s got spots of hydric soils, but even those were there prior to the property ever being ditched. It’s not even close.”
“A judge has seen the evidence and hammered NRCS’ behavior,” Quesenberry adds. “But now NRCS gets to go right back to the drawing board and do it again? As a 30-year NRCS employee, I want this whole story to come out to show people how a small farmer with a tiny piece of land is being harassed by ego-driven government officials.”
Excited to restore the acreage, Hood leaped into EQIP, pollinator plots, cover crops, minimum till, stump shearing, timber path grating, and more. From Hood’s perspective, he was improving the ground with every move countenanced by NRCS.
(NRCS declined comment on all FJ questions related to the Hood case.)
“They told me part of my land was a farmable wetland and I did all my work in the open. I never dreamed I was doing anything wrong. NRCS was always involved on my land and one of their officials, Yamika Bennett, personally met with me at least 60 times over the years. She never said nothing about me doing things wrong. I trusted them all.”
(Bennett, a district conservationist with Virginia NRCS, declined comment related to the Hood case.)
By 2014, Hood had soybeans on part of the property and averaged 40 bu. per acre — close to the county average.
He followed in 2015 with 35 bu. per acre. (Hood hasn’t been able to plant crops on the land since 2015.) The property was beginning to respond to restoration efforts and Hood felt he was sliding building blocks into place. But in a matter of months, the entire foundation of his effort was quaking. When an NRCS computer spit out the location of a Southampton County farm for a random spot-check, the bureaucratic crosshairs zeroed on the name of Charles Hood.
“In May (2016) I was on top of the world with two solid crops and suddenly things went crazy when NRCS made a new wetlands determination. They sent out an official named Greg Hammer and he says my land is a wetland and what I’ve been doing is illegal. I’m a simple man and was suddenly dealing with officials that were arrogant and smug beyond belief. There was no way to reason with them. They were checking off boxes, coming up with whatever data they wanted, and all I could do was watch. You don’t know what helpless is until you’ve experienced this type of control.”
(Citing pending litigation, Hammer, a resource soil scientist with Virginia NRCS, declined comment related to the Hood case.)
Sammy Drake, 71, grows peanuts, corn, cotton and soybeans in Southampton County. He was on-site during a June 29, 2017, NRCS person
nel visit to Hood’s land. “It is hard to describe the condescending attitude from the NRCS people I witnessed. Charles Hood is the single most honest man I know and you won’t find anyone who has helped more farmers. This is how NRCS treats him? Only unaccountable people would dare to behave this way.”
Labeled a wetlands violator, NRCS wanted Hood to return approximately $35,000 in EQIP and other program payments. Hood took his protests from the county committee to the state committee and then to the National Appeals Division. He obtained the services of attorney Gary Baise, OFW Law. Baise, wielding a lifetime of wetlands-swampbuster legal experience, was laser-focused on addressing the facts. Since the inception of the Clean Water Act in 1973, Baise has seen innumerable wetlands-related cases filter through the U.S. court system, but he contends the Hood case is uniquely filled with “mendacity and duplicity” from agency officials.
Pulled directly from Baise’s NAD brief (Case No. 2017E000755), submitted March 5, 2017: T25864 [Hood’s land] has been a tree farm for decades and a soybean field for seven years. Hydric soil does exist on the property but there is no evidence, only conclusions, in the record of hydrology or prevalence of hydrophytic vegetation on the property … just conclusions by a NRCS employee and his work has never been double checked by anyone else in NRCS.
Baise contends NRCS’ actions related to Hood’s land during the 10-plus years following 2006 are entirely incongruent with the agency’s enforcement action in 2016. “NRCS knew it was clear-cut timber. They put him in the EQIP program and paid him,” Baise explains. “Now they want the cash back and pretend he was making all these violations? Are you kidding? They lied and they are out of control. This case is a stunner and they didn’t want a judge or the public to know any of this. Their personnel met with Hood on countless occasions and even had one official meet with him over 60 times.”
Pulled from Baise’s March 5, 2017,NAD brief: Testimony by Ms. Stokes [Yamika Bennett] indicates that over the next 11 years, possibly 60 meetings between Appellant and Ms. Stokes occurred to discuss activities which could be taken on the land designated as converted wetland.
“Go across the nation and you can find some wonderful people in NRCS. But in this case, NRCS agents were caught dead-wrong. They won’t admit a thing, but they’ll sure double-down, even if it means running over a small farmer with 30 acres and ruining him,” Baise adds.
Significantly, in 2016-2017 paperwork filled out regarding Hood’s alleged violations, NRCS never mentioned the site was atypical and had been clear-cut. Additionally, NRCS didn’t admit the site had ditches on all sides of the property, according to Baise.
Fired by Accident?
Hood’s case (Charles Hood, Jr. vs Farm Service Agency) was assigned to Administrative Judge Christopher Hanifin, but prior to the NAD date, FSA terminated Hood’s employment. “When the judge found out they fired me, the government literally told him it was a clerical error. I’m not kidding. Inside the courtroom, they seriously claimed that after 40 years as an FSA employee, I had been fired by accident. They actually tried to slide that past the judge in court. That tells you what you need to know about my case and their arrogance.”
“They fired Hood right before the trial and the judge was outraged, so they gave him his job back. It was unreal,” Baise echoes.
Hanifin was tasked with ruling on the preponderance of evidence; a judgement based on facts. On its face, the case was simple: Did NRCS do its job properly on the Hood property?
The government’s position unraveled on the witness stand, according to Baise, who navigated the minutia of wetlands complication. “They hadn’t followed procedure. They just said it was a wetland and expected their word would rule the day. It was disgraceful and Judge Hanifin saw through it all. We caught them in repeated lies and it didn’t go over well in court.”
Again, pulled directly from Baise’ brief: On September 18, 2006, NRCS employees Yamika Stokes (Bennett) and Greg Hammer allegedly completed a wetland determination on T25864. There are no exhibits, calculations, or records on data forms that record that NRCS employees followed the procedures as required by the NFSAM or the COE 1987.
Additionally, from Baise’s brief: NRCS and Mr. Hammer used discretion and acted arbitrarily, capriciously and recklessly in determining T25864 is a wetland. No evidence exists in the record showing Mr. Hammer’s work was ever checked. Jerry Quesenberry, an expert wetlands delineator with 17 years experience with NRCS, testified that Mr. Hammer was wrong in his conclusions regarding T25864.
Quesenberry’s credibility held strong on the stand. “I knew it wasn’t a wetland and explained why to the judge. I backed up what I said with data and on-site testimony. He was getting evasive BS from the other side, sort of like evasion tactics.”
In the footnotes of Hanifin’s eventual ruling, the judge wrote remarkably tell-tale praise related to Quesenberry’s testimony: “I base my credibility finding on Appellant’s [Hood] retired NRCS soil expert’s [Quesenberry] testimony, professional and earnest demeanor, lack of motive to achieve a result, unwavering conviction and lack of hesitancy when answering questions, and in detailed statements throughout the evidentiary record. Finally, I find credible the expert’s capacity to recollect and communicate honestly events, including not stating conclusions unless the soil expert was sure of the answer and its veracity, especially when otherwise doing so would be self-serving or push the bounds of believability.”
In its closing argument, submitted March 5, 2017, FSA/NRCS flatly denied misleading Hood at any stage of the case: Furthermore, there is no evidence that the Agency misinformed Appellant or engaged in any misconduct with regard to its communication with him.
Additionally in its closing argument, FSA/NRCS claimed Hood should have been aware of regulations and restrictions on his land due to 40 years of FSA employment:
The Agency asserts that over the course of his employment he knew or should have had reason to know about what restrictions existed regarding his use, improvement or changes to his land. Whether it be through required training, his job duties or other experiences throughout his career, Appellant should have been well aware of what could be determined to be prohibited activities on his property.
On March 26, 2017, Baise offered a reply to the agency’s closing argument memorandum, with close attention to NRCS’ assertion that Hood’s career placed him at fault:
The audacity of this argument is stunning in light of Ms. Stokes (Bennett) testimony that she met with Appellant approximately 60 times to discuss and enroll him in a USDA program.
NRCS’s memorandum singles out Appellant as a FSA employee who should have known the intricate rules of what is a wetland. Appellant is a part-time employee of FSA. Being a diligent and honest person, he sought advice after purchasing T25864 … after it had been clear cut by a professional logging firm. Appellant would not have purchased T25864 if he had known it was not farmable. He paid $800 per acre for the clear cut timber land. As a wetland it is only worth $500 per acre. Today the property is worth $3,000 per acre without such a designation…”
On June 14, 2018, Hanifin ruled decisively in Hood’s favor: “Based on the facts and evidence presented, I conclude that Appellant (Hood) sufficiently demonstrated that a natural water event of water receding altered the hydrology of his land. This hydrological change proves that the wetland determinations are now no longer reliable indicators of site conditions on Appellant’s land. In addition, I conclude that I need not address NAD’s authority over the 2006 wetland determination, the merits of the 2006 wetland determination, the 2016 NRCS final technical determination, and that the converted wetlands are atypical because these issues are moot.”
All Over Again?
Less than one month after Hanifin’s ruling, NRCS sent Hood a letter cordially announcing a restart to the entire affair, signed by state conservationist John A. Bricker on July 13.
Dear Mr. Gary H. Baise and Mr. Charles Hood, Jr.: On June 14, 2018, the National Appeals Division (NAD) Administrative Judge determined that you sufficiently demonstrated that the NRCS technical determination was in error. NRCS agrees to implement the NAD decision.
We will be contacting you in the future to arrange a time to conduct the new determination.
Twelve days later, July 25, Bricker wrote again. Included in the letter:
Dear Mr. Baise and Mr. Hood:
On July 13, 2018, NRCS notified you that the agency agreed to implement the June 14th NAD administrative judge decision and that we would contact you to arrange a time to conduct a new determination.
If we do not here (sic) from you by August 10, 2018, we will schedule a date for a site visit and proceed to conduct the determination.
The NRCS letter is emblematic of the entire case, Hood contends: “The top of the letter says they’ll abide by the judge’s decision. The bottom of the letter says they’re coming to do another wetlands determination. In the end, they do whatever they want—because they can. They don’t have to answer to anyone and never get voted out of office.”
Quesenberry says the actions of his former employers portray a bureaucracy “out of control.” The NRCS decision to proceed with another wetlands determination within weeks of the court ruling makes a mockery of the system, he asserts: “Overreach is all I see. They got proven wrong in court and it means nothing? There is no limit on how many times they can force their way onto his land to make another determination? Charles didn’t threaten FSA, didn’t convert a thing and doesn’t have a wetland. They can lie, but they don’t have their own facts straight. I want the public to know what NRCS has done so maybe, just maybe, someone can be held accountable for how they’ve affected Charles Hood’s life.”
Drake’s frustration over Hood’s situation boils over as he punctuates each word with emphasis: “NRCS was overwhelmed by facts. They thought they could steamroll Charles, but Mr. Baise countered them with the truth. I don’t know their motivation except to say it had to be personal because they’ll never, never admit they were wrong. As a farmer, this has got to be the most disgusting governmental behavior I’ve ever seen.”’
Pride and Pain
Regardless of motivation, wetlands litigation dangles farmers over bankruptcy, financial ruin, and severe family stress. The ongoing emotional drain never ends, Hood describes: “As an American, I can’t believe this has happened. I don’t sleep knowing this entire mess will end up costing me the value of my operation. I worked for the FSA for 40 years and never once did I try to run over a farmer.”
As a former federal employee, Hood’s case is particularly disturbing to Quesenberry. “I took pride in my NRCS job. I can’t even tell people how upsetting it is to watch this type of abuse taking place. No one is accountable?”
Hood waits and wonders, fully aware NRCS is again at the farm door. “I know it wouldn’t have mattered what technique or what permission I had. They were going to do whatever they wanted. I take it for what it is: a bureaucratic vendetta.”
(Again, NRCS declined comment on all FJ questions related to the Hood case.)
CHRIS BENNETT can be contacted via email at firstname.lastname@example.org or tweet @Cbennett71.