Former congressman wins appeal in wetlands dispute

By Ed White
Associated Press

DETROIT (AP) — The U.S. Department of Agriculture “demonstrated a disregard for its own regulations” in a 2.2-acre wetlands dispute with a former Michigan congressman whose family farm has been cut off from federal crop programs since 2009, an appeals court said Wednesday.

The court, in a 3-0 decision, ruled in favor of former U.S. Rep. Nick Smith, a Republican from Hillsdale County, and ordered the case be sent back to regulators with strict instructions.

USDA accused Smith, 80, of illegally converting a wetland and blocked him and family members from crop programs, including corn subsidies and other benefits. They own more than 2,000 acres in Hillsdale and Lenawee counties in southern Michigan, used mostly for corn, soybeans and wheat.

The 2009 decision sent Smith on a “bureaucratic labyrinth” with appeals to agency officials at various levels in Michigan and Washington, the 6th U.S. Circuit Court of Appeals said.

The government didn’t consider evidence that the land alterations in Hillsdale County’s Somerset Township had little effect on surrounding wetlands, the court said.

“USDA signed a mediation agreement with Smith, permitting him to plant the parcel in the spring and cut down trees so long as Smith did not remove stumps,” the court said. “USDA has never argued that Smith intentionally violated this agreement. Nonetheless, USDA has permanently deprived Smith of program benefits. ... All the while, USDA has demonstrated a disregard
for its own regulations and insisted that Smith mitigate his land when the relief he seeks is not based on regulations requiring mitigation.”

The court said the case could have consequences for thousands of farmers. An email seeking comment was sent to USDA.

Smith, who was a member of the House Agriculture Committee, said he’s pleased with the decision. His son, Brad, a lawyer, represented him.

“There was no question in my mind they were playing hardball with me, but they’ve done the same hardball with a lot of other farmers, too,” Smith said. “I just hope this makes a little bit of a difference and makes USDA look more carefully at what they’re doing with farmers.”