Quadruple Jeopardy? Farmer Wins After Bizarre Wetlands Regulation Saga

Kurt Wilke prevailed in one of the most unusual land regulatory legal cases in USDA history, and the merry-go-round affair raises legitimate questions over process and power. ( Photo courtesy of Illinois Farm Bureau )

“I hope the government never tries to do this to anyone else.” Kurt Wilke says. “Honestly, I hope there’s not another story out there this crazy.”

In an extended, surreal chain of court battles, Wilke, and his father-in-law, Carl Hoffee, now deceased, defeated USDA’s Natural Resources Conservation Service (NRCS) four times in a wetlands dispute over the same piece of central Illinois farmland. As one of the most unusual land regulatory legal cases in USDA history, the merry-go-round affair raises legitimate questions over process and power.

“If we would have lost at any point, the case would have been over,” Wilke contends, “but when NRCS lost, they just reshuffled the deck, dealt four do-overs, and issued new determinations each time. It was unconscionable behavior and people need to know what happened.”

Harsh Lessons

In 2010, Hoffee spotted 80 acres of classic black dirt for sale by an ag broker, entirely surrounded by a patchwork of corn and soybean blocks in Macon County. Hoffee owned several farms in central Illinois, and the prospective 80 acres initially seemed ideal: a flat rectangle of ground, 100% tillable with no improvements, and a documented history of continuous cropping with a drain tile system in place for over 100 years.

A lifelong grower-attorney based in Springfield, specializing in real estate law, Hoffee examined the USDA Farm Service Agency (FSA) 156 form circulated prior to the sale. Within the 156 farm information sheet dated May 19, 2010, Hoffee noted a significant detail: “Tract does not contain a wetland.”

Hoffee purchased the 80 acres in 2010, under the assumption he was buying land as advertised according to USDA specifications. Included with the land’s provenance was a 1907 district drainage map with an accurate depiction of tile location. Hoffee’s plan was straightforward—improve the tile system and enable a tenant to continue with corn and soybean production.

In 2011, Hoffee filled out an AD-1026, a Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) Certification for the farmland and began making improvements on the drain tile system.

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“NRCS officials came out to the farm and said if Carl didn’t stop, all his payments would be jeopardized, along with the payments of his tenant, who worked thousands of acres,” Wilke recalls.

Boiled down, NRCS claimed a small portion of Hoffee’s 80-acre farm was a wetland, and any further drainage work would endanger farm program payments across his entire operation.

Unwittingly, Hoffee had stepped into a morass and was about to learn a harsh lesson: A victory in court meant nothing. Even worse, four victories in court meant nothing. Hoffee had entered a bureaucratic version of Groundhog Day.

Farm Journal contacted NRCS several times at both the national and state levels regarding the Hoffee litigation. In an email response, Dave Warner, NRCS director of external affairs, Farm Production and Conservation, stated: “While we can’t comment on individual producer cases, this administration has been committed to improving our wetlands process to be more transparent and fair for our farmers. We continue to work with stakeholder groups to ensure we are consistently applying our wetlands regulations in a way that reduces the burden on our customers.”

Round 1: Groundhog Day

NRCS insisted 22.4 acres of Hoffee’s ground was a wetland and issued a supporting wetlands determination in 2012. And what of the FSA 156 form, containing the clearly delineated, “Tract does not contain a wetland,” notation? NRCS painted it as a paperwork mistake—essentially a clerical error of no consequence.

“In later testimony, the government admitted the FSA 156 was real and didn’t deny it,” Wilke describes. “They just said the form was simply wrong. That’s it; they just said it was incorrect like it didn’t matter at all. Basically, the NRCS told Carl he was not entitled to rely on a government form.”

“A government form is just wrong, end of story?” asks Matthew Cate, Hoffee’s former law partner, and Wilke’s current law partner. “So what do you rely on, someone’s opinion? Your own opinion? No, of course not. You bank on the government’s record being correct. This case was unbelievable, and frankly, I’ve never seen another one this crazy.”

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Shortly after the first wetlands determination, Hoffee recognized his dispute with NRCS was headed for a full evidentiary hearing.

“Carl was tenacious and when he felt there was wrong. He’d move heaven and earth to make it right,” Wilke says. “He had an unusually strong sense of right and wrong, and even with failing health, he was committed to correcting this injustice.”

Despite a long-term battle with leukemia, he was ready for a day in court, convinced an administrative judge would properly weigh all evidence and cut through the impasse.

“Carl assumed if he could lay out the evidence to a judge, then he’d get a fair process and the whole thing would be over,” Wilke adds. “Assumed. Turns out, it was only beginning.”

In 2013, Hoffee appealed the initial NRCS wetlands determination to the National Appeals Division (NAD), and went through an evidentiary hearing with a court reporter, witnesses, exhibits and an administrative judge. A month later, the judge rendered a decision and ruled in Hoffee’s favor, stating NRCS “did not correctly determine” if 22.4 acres met the hydrology requirements for a farmed wetland.

Significantly, if Hoffee had lost the NAD appeal, the decision would have been final, with no further adjudication available to the Illinois landowner. No mulligans. However, NRCS had a seismic advantage. Even though NRCS’ position had been deemed in error by the NAD judge, the USDA agency could reach for a do-over as many times as necessary. And it did.

NRCS had opportunity to appeal the judge’s decision, but let the time window lapse, allowing Hoffee to believe the matter was closed. Several months later, much to Hoffee’s surprise, NRCS reissued the exact same wetlands determination on the 22 acres in question.

Round 2: Groundhog Day

Hoffee, short of stature and long in fight, had a lifeline possessed by very few ag producers. As an attorney, he was capable of self-representation, and therefore able to avoid the financial drain of legal expenses, although throughout the ordeal he would rack up substantial costs for witnesses and technical help. Regardless of right, wrong, guilt or innocence, U.S. citizens contesting federal agency decisions typically are overwhelmed by limitless government funds, and either fold, settle or seek pro bono help, but Hoffee, as a rare exception, was able to use his own voice in order to bootstrap his appeals to NAD.

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In 2014, Hoffee appealed NRCS’ second wetlands determination, once again in court before NAD and a new administrative judge. For the second time, the appeal went in Hoffee’s favor, and the judge ruled NRCS hadn’t properly followed its own procedures. Once again, NRCS didn’t appeal the judge’s decision, instead hitting the reset button and issuing a third wetlands determination on Hoffee’s tract.

“We were dumbfounded a landowner could be put through this ordeal again and again,” Wilke remembers. “People need to realize that each trial took more than a year in total and the emotional toll is extremely high. NRCS knew they were draining us of dollars because they could take as many bites of the apple as needed. I believe that was their position: ‘We can keep doing this until we win.’”

NRCS had five, six or seven people at these hearings—teams of conservationists, environmental engineers and officials, Wilke explains. “Defending against that is no small undertaking.”

However, leukemia took too great a toll on Hoffee, and he passed away in 2015. Wilke was left with a decision to either roll or bear the burden. “I could have walked away and let them have the 22 acres, but I dug into the evidence and realized just how right Carl was, and how wrong they were.”

Round 3: Groundhog Day

In mid-2015, NRCS rescinded its third wetlands determination on Hoffee’s ground, instead opting to perform a scope-and-effect analysis of the acreage. “We knew we were backed by the evidence,” Wilke recalls, “and brought in a drainage expert at considerable expense to scientifically prove what we knew to be the case from the drain tile system. We knew NRCS was coming back again. It was only a matter of time.”

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The respite was brief, and in November 2015, NRCS issued a fourth wetlands determination, this time decreasing their focus to 14.2 acres. Unbeknownst to Wilke, the hamster wheel finally was about to stop spinning.

Round 4: Groundhog Day

One last time, Wilke appealed to NAD. During the hearing before Administrative Judge Elizabeth Brown, Wilke asked Paula Hingson, NRCS Assistant State Conservationist, whether NRCS potentially would issue a fifth wetlands determination. The exchange is remarkable:

Q: If the judge finds that you used incorrect procedures in the scope-and-effect in this case, then is it your plan to do this over a fifth time?

A: If they find we made an error in the scope-and-effect?

Q: Yes

A: We would consider that. That would be one thing that we would consider.

Q: And how many times does a landowner have to go through this, all because you keep making mistakes?

A: Yes. That’s a good question.

Continuing in testimony, Hingson drops a stunning quote, all in open court directly before Administrative Judge Brown.

Q: So we have been put through a year and untold expense in pursuing a fourth case again because of error on the Agency’s part?

A: I suppose you could look at it that way, but you would not have had to go through that expense, likewise – right – if you would have wanted to just accept the decision that was made, the determination. So it really was your decision.

The subsequent ruling on the fourth wetlands determination—again in Wilke’s favor. Judge Brown stated: “I find [NRCS’s] decision arbitrary given that it is counter to the methodology contained in the NEH (National Engineering Handbook) and based purely on conjecture.”

Further, she ruled that NRCS’ analysis contained fatal flaws, and Wilke’s analysis was correct. Instead of reissuing a fifth wetlands determination in five years, NRCS appealed Brown’s ruling for the first time, requesting a Director review. Wilke finally was staring down the barrel at some sort of bookend decision—come what may.

On Dec. 21, 2016, after five years of court battles and wetlands resets, NAD Deputy Director James Murray opened the books, weighed the evidence, and issued a final decision in a Director Review Determination. His decision was wrapped in a direct statement: “In sum, I find NRCS’s arguments lacking in merit.”

“Can’t Be True”

Little wonder why NRCS had never appealed any of the NAD decisions prior to the Director Review Determination. It was far easier to saddle Hoffee and Wilke with a steady flow of wetlands determinations, which required no judicial approval. Each time the evidence and procedure was exposed to a judge, NRCS was stymied.

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And how much taxpayer-funded money did NRCS spend chasing 14.2 acres of Hoffee’s land across five years? “NRCS might have spent at least several hundred thousand dollars on our case,” Wilke estimates. "We're trying to recover $100,000 of what we spent through the Equal Access to Justice Act (EAJA), and that's just a portion of what this cost us."

The EAJA is a federal statute enabling private citizens who prevail against the government in court to seek compensation for expenses, provided the government’s position is unjustified. Wilke filed an EAJA petition in 2016; as of 2020, his application has been deemed eligible for fees and costs, but still awaits a judge’s ruling on the precise amount to be awarded.

Advice for Others

What is Wilke’s advice to other landowners and farmers? He emphasizes the need for legal representation and experts.

“You’ve got to be able to use the government’s own modeling formulas to show what the evidence really means, and that necessitates hiring experts and attorneys,” he says. “That’s a daunting task for a farmer and that’s exactly what NRCS already knows.”

Wilke hopes the future will include a more even playing field for landowners and the government. “If we had to accept the ruling of the very first case, then NRCS should have had to accept it also, otherwise everything becomes absurd.”

“Just look at the absurdity from start to finish,” Wilke concludes. “Five years and hundreds of thousands of dollars spent fighting the government all to get a result confirming there are no wetlands on our farm, which is exactly what the government’s own forms said when we bought the farm. Go figure.”

(Again, Farm Journal contacted NRCS several times at both the national and state levels regarding the Hoffee litigation. NRCS declined specific comment on the Hoffe case.)

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