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Truth, Lies and Power – A farmer fights the Feds

(Editor’s Note: Today, the Roanoke-Chowan News-Herald concludes a three-part series about a farmer in the Boykins, VA area with ties to Northampton County who is currently locked in a legal battle with agricultural officials at the federal level. The series is published with the permission of Farm Journal.)

By CHRIS BENNETT

Farm Journal

In its closing argument, submitted March 5, 2017, FSA/NRCS (Farm Service Agency/ National Resources Conservation Service) flatly denied misleading Charles 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.

As noted in the first two parts of this series, in 2005, Hood purchased 30 acres of former timberland in southeast Virginia, sought USDA’s 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.

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, Gary Baise, an attorney retained by Hood, 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 (Yamika Bennett; a district conservationist with Virginia NRCS) 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, Administrative Judge Christopher 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.”

Jerry Quesenberry, an expert wetlands delineator with 17 years experience with NRCS, 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.”

Fellow Southampton County farmer Sammy 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,” he said.

(The NRCS declined comment on all Farm Journal questions related to the Hood case.)

Chris Bennett works as the Technology and Issues Editor with Farm Journal.