When Mr. and Mrs. Boucher cut down nine trees on their farm in 1994, they surely had no idea that it would spark a dispute with the United States Department of Agriculture (USDA) that would take decades to resolve and end up before the Seventh Circuit Court of Appeals. In a decision dated Aug. 8, 2019, the Seventh Circuit vindicated the Bouchers’ actions and reversed the USDA’s determination to strip the Bouchers of their USDA benefits based on the alleged conversion of “wetlands” as a result of cutting down those nine trees. Boucher v. USDA, __ F.3d ___, No. 16-1654, 2019 WL 3729270 (7th Cir. Aug. 8, 2019).
In the early 1990s, the Bouchers discovered that some persons unknown had been using portions of their farm property for illegal dumping. To help deter the covert dumping activities, the Bouchers cut down nine trees on their property that provided some cover for those bad actors. In June 2002, a representative from the USDA visited the Boucher Farm to consider a request from the Bouchers to establish a conservation filter strip around the perimeter of the farm. While at the Bouchers’ farm, the USDA representative noted the nine missing trees and reported the tree removal to the Natural Resources Conservation Service (NRCS) as a potential violation of federal law prohibiting the destruction of wetlands.
When the NRCS visited the Bouchers’ farm, they determined that the area in question did not have the proper wetland hydrology. However, after examining a different adjacent property that did have wetland hydrology (which the Seventh Circuit characterized as “entirely unsuitable” for comparison) the NRCS determined that the Bouchers must have altered their farm’s prior wetland hydrology at some point in the past. In February 2003, the NRCS issued a preliminary determination that the Bouchers’ property contained 2.8 acres of converted wetland. The Bouchers appealed that determination to the Farm Service Agency (FSA), but the FSA never issued a final decision and the matter was seemingly dropped by the agency.
Nearly 10 years later, Mrs. Boucher sought approval from the USDA for the removal of an old house and barn on the farm property. This prompted the USDA to discover that the FSA appeal had never been resolved, so the NRCS conducted another field visit to finalize the 2003 preliminary wetland determination. In March 2013, the USDA notified Mrs. Boucher of its final determination that the area in question constituted converted wetlands.
Mrs. Boucher appealed first to the USDA National Appeals Division, where the hearing officer found in favor of the NRCS. She then requested review by the director, who again found for the NRCS. Mrs. Boucher sought judicial review in the Southern District of Indiana and the District Court granted summary judgment to the NRCS.
Throughout these proceedings, Mrs. Boucher presented evidence that the alleged wetlands did not exhibit wetland hydrology and that the removed trees were not “hydrophytic vegetation” (i.e., the type of vegetation that grows in soils saturated with water). In the beginning of its opinion, the Seventh Circuit explained in detail that wetlands must exhibit three characteristics, and if any one of those characteristics is absent, the land is not a wetland. Specifically, the land must: (1) have “a predominance of hydric soils,” (2) be “inundated or saturated by surface or groundwater at a frequency . . . to support a prevalence of hydrophytic vegetation,” and (3) “under normal circumstances does support a prevalence of such vegetation.”
After wading through the scientific meaning of these three criteria and various agency policies and guidance as to how they should be determined, the Seventh Circuit quickly narrowed its discussion to whether the NRCS properly applied all three criteria to the Bouchers’ farm. Ultimately, the court determined that (1) the NRCS did not provide evidence that the land in question had the proper hydrology before removal of the nine trees, and (2) “the agency’s assertion—that the removal of nine trees removed wetland hydrology from several acres of land—is incompatible not just with common sense, but with the NRCS’s experts’” determination as well.
The Boucher opinion is remarkable in several respects. First, the court used a highly deferential standard of review—whether the NRCS’s determination was arbitrary, capricious or an abuse of discretion—and yet the court still found in favor of the property owner. Second, despite that deferential standard of review, the court displayed a willingness to be extremely “searching and careful,” as the court framed it, in its detailed review of the agency record and the underlying facts. And third, the court confirmed that in making its wetland determinations, the NRCS cannot simply skip one of the three wetland criteria. Each criteria must be independently supported in the agency record for a wetland determination to be lawful.