For nearly four decades, the federal government has protected environmentally sensitive farmland through a simple bargain with farmers known as “conservation compliance.” If they want to receive farm program benefits, growers can’t plow up wetlands and they must take steps to protect highly erodible acreage.
A series of lawsuits have been seeking to strike down the wetlands restrictions, known as Swampbuster. The latest action, filed in federal court in Iowa, argues that Swampbuster is unconstitutional and that USDA is barring use of an excessive amount of farmland.
The lawsuit alleges USDA improperly “conditions federal benefits on the relinquishment of farmland for conservation easements – without providing just compensation for the taking. It will continue to do so unless and until a court orders them to stop.”
The Swampbuster restrictions originated in the 1985 farm bill and have been carried forward in every farm bill since, with some modifications to the benefits affected. Under current law, farmers who violate Swampbuster restrictions can lose the right not only to commodity and conservation program payments but also to federal crop insurance.
Under the law, property deemed to be wetlands can’t be “drained, dredged, filled, leveled, or otherwise manipulated.” There are several exemptions from the requirements, including one for wetlands that were converted to crop production before 1986.
The latest lawsuit, filed on behalf of Jim Conlan, who owns a 72-acre tract in Delaware County with nine acres of USDA-designated wetlands, alleges that Swampbuster unconstitutionally prevents farmers from using land without compensation and violates the Constitution’s Commerce Clause because the Conlan farm's wetlands have no connection to interstate commerce.
“Conditioning pre-existing government programs on what amounts to signing away your rights doesn’t let the government ignore the Takings Clause of the Constitution,” according to a description of the case by the Pacific Legal Foundation (PLF), one of two conservative organizations supporting Conlan farm in the suit filed in U.S. District Court in Cedar Rapids.
A photo included with the Iowa lawsuit identifies the wooded area as a USDA-deemed wetland.“It’s no different than if the government said it’s not giving you Social Security unless you give them an easement on your property.”
PLF goes on to argue that Swampbuster will become increasingly important as the government implements changes to Clean Water Act regulations as a result of the Supreme Court’s Sackett decision, which limited federal jurisdiction over "adjacent wetlands" to those with a continuous surface connection to regulated waters such as streams and rivers.
The lawsuit goes on to allege that USDA has exceeded its legal authority to regulate wetlands under Swampbuster, including by preventing removal of “woody vegetation” (trees) on the Iowa land and by denying the farm’s request to reconsider the wetlands designation on the property.
The argument that USDA is essentially taking over some of the farmers’ land without compensation may be the toughest for the Iowa farm to win, according to legal experts.
Courts have rarely agreed with landowners that government restrictions amount to an unconstitutional taking “unless plaintiffs cannot use their land at all,” said Brigit Rollins, a staff attorney for the National Agricultural Law Center.
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The government will argue that a farmer who doesn’t want to abide by Swampbuster restrictions can simply drop out of federal farm programs.
Brigit Rollins (National Agricultural Law Center)Roger McEowen, an agricultural law specialist at Washburn University in Kansas, believes some claims in the suit could get traction, including the Commerce Clause argument that the wetlands involved have no connection to navigable waters and “there is no substantial effect on interstate commerce.”
But Rollins notes that the 7th Circuit rejected this argument in a 2000 case involving an Indiana farmer, Jerry Dierckman. The 7th Circuit ruled that the government’s authority for Swampbuster is derived from Congress’ spending power, not its authority to regulate interstate commerce. In effect, it says Congress has the constitutional authority to put conditions on payments that it makes to farmers.
A similar principle was behind a 1987 Supreme Court decision that upheld the federal government’s right to cut highway funding to states that failed to raise the drinking age to 21.
As for the rest of the latest Swampbuster lawsuit, McEowen believes there is merit to the Iowa farm’s argument that farmers should be allowed to get USDA’s Natural Resources Conservation Service to reconsider wetlands designations. McEowen argues that was the intent of Congress under an amendment authored by Sen. Chuck Grassley, R-Iowa, in the 1990s.
The amendment provided “a blanket authority in the hands of farmers to get a recertification when they want it, upon request, and that's what he intended,” McEowen said.
But the challenge facing the Iowa farmer is that the 8th U.S. Circuit Court of Appeals ruled in 2022 that NRCS properly denied the request of a South Dakota farmer, Arlen Foster, to review the designation of wetlands on his land. Iowa also lies in the 8th Circuit, which would have to reverse the decision in the Foster case.
Jim Murphy, a lawyer for the National Wildlife Federation, says the lawsuit would be a slam dunk to defeat except that courts have become less predictable.
“It is clear that the government has the power to give out benefits and condition those benefits,” he said. “The obvious answer if you don't want your land impacted by conditions with those benefits, you just don't take the benefits.”
The lawsuit argues in effect that farmers are “entitled to do whatever they want to do with their land and they're entitled to government handouts without having to give whatever the government wants in exchange for that,” he said.
As for USDA’s enforcement of Swampbuster, NWF believes that NRCS has, if anything, identified too little acreage as wetlands, not too much.
A recent court case won by NWF is requiring NRCS to come up with a new rule explaining how it plans it identify wetlands on farmers’ property.
The issue in the case was whether wetland determinations made between 1990 and 1996 were properly “certified” by NRCS. NWF alleged NRCS improperly changed its policy to allow old maps to be used so long as they were “legible.” The agency had previously required on-the-ground verification of wetlands determinations made before 1996.
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