March 20, 2018
By Bonner Cohen, PhD
Franz Kafka at the top of his game could not have written a novel about one man’s struggle against a never-ending chain of absurd allegations to match the ordeal one Pennsylvania farmer has suffered through for the last 30 years.
When Robert Brace set out to convert pastureland to cropland on his farm in Erie County, little did he know that this simple, age-old farming practice would lead to decades of litigation that has cost him over a million dollars in fines and legal fees. Brace’s case involves four federal agencies with overlapping jurisdiction, each with its own interpretation of what landowners can and cannot do under the Clean Water Act (CWA). Add to this witches’ brew the machinations of environmental groups working hand in glove with federal regulators to undermine property rights and you have some idea of what Brace has been up against.
Wetlands to Croplands
In the late 1970s, Brace began rehabilitating the drainage system originally put in place by his grandfather. The work took place on a section of the farm that had been used for grazing, and Brace’s plan was to convert the moist pastureland to cropland. By 1986, he was growing crops on the land in question. But in 1987 the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers ordered Brace to cease and desist all discharge activities on his farm. In the eyes of the two federal agencies, Brace’s drainage activities violated the Clean Water Act’s provision protecting “waters of the United States,” i.e., wetlands.
Ratcheting up the pressure on Brace, the U.S. Justice Department (DOJ) in 1990 took the farmer to court, claiming he was draining a wetland. Meanwhile, Congress had enacted the Food Safety Act of 1985, which, among other things, authorized “commenced conversions” of wetlands to farmlands provided the conversion had taken place by December 23, 1985. In administering the Food Safety Act of 1985, the U.S. Department of Agriculture (USDA) specifically authorized commenced conversions, and they were subsequently (in 1990 and 1993) grandfathered retroactively as exclusions from regulation under the CWA.
As it happens, Robert Brace was among a select group of American farmers to secure a commenced conversion determination from USDA. He did so by providing sufficient documentation showing he had both commenced the conversion and committed substantial financial resources toward its completion.
According to evidence uncovered by attorney Lawrence A. Kogan, who now represents Brace, EPA and the Corps acted at the behest of the U.S. Fish & Wildlife Service (FWS) Pennsylvania Field Office. Together, the three agencies set about to undermine USDA’s commenced conversion determination so they could go after Brace for violating the CWA. Kogan has further unearthed evidence revealing how FWS actively undermined USDA-authorized commenced conversion determinations on farms in Minnesota, North Dakota, and South Dakota at approximately the same time Brace was being harassed. According to Kogan, FWS worked with several environmental groups, including Ducks Unlimited, Natural Resources Defense Fund, and Environmental Defense Fund.
In 1993, EPA and the Corps amended the Food Safety Act’s definition of prior converted cropland to their joint “waters of the United States” enforcement powers. Later that year, a district court, citing Brace’s commenced conversion exclusion, found the farmer’s activities to be exempt from regulation. But the Clinton DOJ appealed the decision, and it was reversed. Three years later, Brace and DOJ were back in court, where the farmer again triumphed, only to have the decision overturned by an appeals court.
At this point, 1996, Brace and DOJ entered into a consent decree under which Brace agreed to pay a $10,000 fine and restore the wetland. In return, DOJ agreed to drop the case and forego a $125,000 fine.
The Empire Strikes Back
The matter should have ended then and there, but in 2009 EPA, now guided by Obama political appointees, decided it was time to reopen the war against Brace. The agency sent notices to Brace informing him that he was in violation of the Clean Water Act, and EPA inspectors began making visits to his farm. Then, in 2014, EPA suddenly reversed itself, and gave Brace permission to use the land in question as cropland. But in a Nov. 28, 2014, letter, EPA said the permission had been issued in error and ordered Brace to restore the wetland. In January 2017, a few days before Obama left office, EPA filed two lawsuits against Brace alleging violations of Sections 301 and 404 of the CWA – one involving the land long in dispute, the other involving a adjacent parcel Brace acquired in 2012.
In going after Brace well over a decade after the farmer and DOJ had entered into a consent decree that should have put the wetlands conversion matter to rest, EPA was giving farmers across the country a foretaste of what was in store for them under Obama’s Waters of the United States (WOTUS) rule. That rule, since rescinded by President Trump, would have imposed federal zoning on millions of acres of private land and subjected landowners to the same relentless harassment Robert Brace has had to endure.
Now in his late seventies, Brace has stood up well under the onslaught of the federal wetlands bureaucracies. The case against Brace is still in mediation, as career attorneys at DOJ have shown no inclination to back off. Only an intervention by Attorney General Sessions or the Trump White House can put an end to Brace’s ordeal.
A “Taking” under the Fifth Amendment
As Brace’s attorney, Lawrence Kogan, points out, federal action against the farmer resulted in a “taking” of his property for a public use – preservation/restoration of wetlands as “waters of the United States” – without just compensation, as required by the Fifth Amendment to the U.S. Constitution. Kogan’s legal history of the Brace case, including his argument that it represents a taking of his property, will be published later this year by the San Joaquin Agricultural Law Review. A pre-publication version is available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3129191