Illinois Farmer Stands His Ground Against Wrongful NRCS Wetlands Determination

When Kurt Wilke’s father-in-law, Carl Hoffee, wanted to expand his central Illinois farm in 2010, he purchased 80 acres of land on which crops had grown for more than 100 years – land that USDA’s forms verified as non-wetland. However, soon after Hoffee began improving the farm’s drain tile system, USDA’s Natural Resources Conservation Service asserted the farm had 22 acres of wetlands. The assertion, based on undated aerial photographs taken on a single day, forced Hoffee to stop his drain tile repairs and await the agency’s formal determination, which came in 2012.

Hoffee appealed to USDA’s National Appeals Division, which ruled in his favor.

“But the NRCS didn’t appeal that order. Instead, they just re-issued the exact same determination, forcing a ‘do-over’ and dragging us back through the entire process all over again,” Wilke explained.

Not satisfied, NRCS issued the same determination two more times, pulling Hoffee back through the time and expense of a flawed appeals process. NAD ruled in favor of Hoffee in the second appeal but NRCS withdrew its determination just before a third hearing in 2015. Hoffee died as the third determination and appeal were playing out and Wilke continued with the appeal.

Almost beyond belief, NRCS marched on with a fourth do-over, resulting in Wilke having to appeal again in 2016. As they had twice before, NAD found in Hoffee’s favor. Currently, NRCS has not asked for a fifth determination and Wilke is still waiting to learn if the agency will pay for his and Hoffee’s legal fees and costs, a request he made in 2017 after the NAD ruling in the fourth appeal.

Hoffee and Wilke not only had the facts on their side, unlike most other farmers, they had the benefit of being attorneys who could represent themselves in preparing and making their case. Still, as Wilke emphasized, it’s an expensive and daunting process.

“This cost us hundreds of thousands of dollars to go through that five-year battle. These appeals also cost the farm almost $100,000 for technical experts and consultants to map and scope the entire drain system. We even had to hire and pay our own court reporter to take the transcript at all these hearings,” Wilke said.

Wilke’s determination to repeatedly stand up to NRCS was largely driven by his father-in-law’s unwillingness to “be knuckled under,” but few farmers can afford this kind of fight.

“In fact, in the fourth trial, the sworn testimony was presented. We asked the government, ‘Why can you do this over and over and over again? How is that fair?’ Because unlike the government, if we had lost any of those appeals, we would not have had any opportunity to redo it. And their testimony was, ‘Well, if you would just accept our decision, you wouldn't have to go through this.’ That's in the transcript. It was unbelievable. But Carl was very tenacious, he would not give in,” Wilke said.

Don Parrish, American Farm Bureau Federation senior director of regulatory relations, said Wilke and Hoffee’s experience was far from unique.

“I wish I could say that this horror story is an isolated occurrence, but unfortunately, I can’t. It is hard to say how many calls I get from farmers with similar stories or how many times I’ve heard them say that NRCS just ignores evidence they provide or that the agency doesn’t even follow its own regulations and guidance,” Parrish said.

He continued, “NRCS’ unlimited ability and resources for ‘do-overs’ is one of the most unsettling aspects of this story. There is nothing fair about allowing the agency to continue to drag farmers back through this ‘process,’ while farmers only get one shot if they lose. Farmers deserve due process and a fair chance.”