USDA’s sweeping Swampbuster power over private land is conservation by coercion and therefore unconstitutional, according to a blockbuster lawsuit filed by Iowa farmland owner Jim Conlan.
Swampbuster statutes compel farmers to steer clear of wetlands in perpetuity or risk losing all federal agriculture benefits. USDA is judge and jury: designating wetlands, weighing landowner violations, administering penalties, and holding power over appeals.
Conlan contends Swampbuster is compelled conservation under the threat of lost benefits—all government stick and no carrot.
Sealed in Perpetuity
In 2022, Jim Conlan bought a 71-acre (71.85) farm in eastern Iowa’s Delaware County, bringing his total farmland to 1,075 acres as owner of CTM Holdings.
Within the 71-acre farm, 21 acres is forested, of which 9 acres—broken into five separate spots across the timberland—are wetlands, designated by USDA’s Natural Resources Conservation Service (NRCS) in 2010.
Conlan’s 9 acres of wetlands do not the fit the public perception of bottomland, swamp, delta, or property adjacent to water. “My wetland isn’t wet,” he says. “It’s the polar opposite of a wetland. It’s extremely valuable black dirt and there’s no water on it at any point of the year. We could remove the trees and farm it tomorrow with no need for tile or drainage.”
In October 2022, Conlan asked NRCS for a wetlands redetermination. Four months later, in January 2023, NRCS declined Conlan’s request and said he had no right to appeal, citing the finality of its prior 2010 wetlands determination. “The same agency that makes the wetlands designation, NRCS, is the same agency that gets to judge the sufficiency of its own designation,” Conlan notes.
(USDA-NRCS declined all Farm Journal questions related to Jim Conlan’s lawsuit, citing pending litigation.)
According to NRCS, Conlan’s 9 acres of wetlands are permanently designated. Case closed.
“It’s outrageous,” he says. “The government took a permanent easement on my land and doesn’t have to pay a dime, forever. If we dare to work that land, USDA can cut off us and everyone associated with us from all farm program benefits, including all the tenants that work the rest of the 1,000 acres. And the whole process stays in-house with one agency, NRCS, the entire time.”
“That is constitutionally off on so many levels,” Conlan emphasizes. “Most landowners and farmers get bullied by USDA, but I’m fighting and our lawsuit shows exactly why Swampbuster is fundamentally wrong.”
Classic Overreach?
Attached to the 1985 Farm Bill, Swampbuster (a common byname) was promoted as a wetlands conservation measure. However, its passage was conservation by government force, Conlan alleges.
Swampbuster withholds federal farm program benefits from anyone planting “an agricultural commodity on a converted wetland that was converted by drainage, dredging, leveling, or any other means (after December 23, 1985),” or anyone converting “a wetland for the purpose of or to make agricultural commodity production possible (after November 28, 1990).”
Right, wrong, good, bad, or ugly, Swampbuster enabled USDA to drop a hammer on any farmer or farmland owner that worked any acreage deemed as wetlands. As in, adios to USDA loans, payment programs, and crop insurance subsidies on all farmland—in Conlan’s case well over 1,000 acres. (Additionally, a producer in violation of Swampbuster rules could lose future Conservation Reserve Program payments and be required to refund all payments from 8 years prior.)
Further, USDA’s denial of benefits stretches far beyond the landowner or entity within the Swampbuster crosshairs, potentially extending to spouse, minor child, guardian of a minor child, tenant, and participants or stockholders of a corporation, partnership, and joint venture.
“Where does USDA’s authority to do all of this on private land come from?” Conlan asks. “It’s certainly not in the Constitution. In fact, this is exactly the type of government behavior our forefathers were trying to prevent when they wrote the Constitution.”
On April 16, 2024, Conlan sued USDA and NRCS in the U.S. District Court for the Northern District of Iowa, represented pro bono by Liberty Justice Center, Pacific Legal Foundation, and Upper Midwest Law Center.
“Swampbuster requires that if a farmer wants any federal USDA benefits they must first agree, without compensation, to conserve any part of their property that the government designates as wetlands,” says Loren Seehase, attorney with Liberty Justice Center. “Then any land determined to be wetlands is to remain in perpetuity untouched, undeveloped, and definitely not used for any agriculture. Otherwise, the government could not only revoke all USDA benefits for that property—like crop insurance, disaster payments, farm dwelling loans, and agricultural structure loans, but also for other properties owned or run by the farmer, and even in some instances require the farmer to repay benefits previously received. That is unconstitutional.”
“The government cannot condition the receipt of federal benefits on the relinquishment of a constitutional right, nor can the government require a private property owner to create a conservation easement without paying just compensation,” Seehase adds. “This is classic government overreach and a violation of private property rights. There are many, many farmers out there who have had wetlands on their farms for decades with absolutely no compensation, but they can’t afford to fight the federal government and jeopardize their federal benefits thereby risking their farm’s financial viability. That is why we are fighting this unconstitutional scheme.”
Act of God
Conlan’s legal case against USDA and NRCS rests on five claims.
One, violation of the Commerce Clause. Federal power to regulate interstate commerce does not include an isolated wetland on private property in Iowa, i.e., Conlan’s 9 acres of wetlands have no effect on commerce and therefore are outside the scope of federal regulation.
Two, government benefits cannot be conditioned on the surrender of a constitutional right.
Three, government is in breach of the Fifth Amendment: “nor shall private property be taken for public use, without just compensation.”
Four, action beyond authority. Without congressional approval, NRCS beefed up the text of the Swampbuster rule by adding “removal of woody vegetation.”
Five, a second action beyond authority. The Swampbuster statute allows landowners to request review of a wetlands determination. However, the NRCS administrative rule only allows reviews if there is an Act of God change in the landscape or if NRCS feels that they previously made an error.
Paige Gilliard, attorney with Pacific Legal Foundation, summarizes the claims. “The government believes that to be eligible for farm programs that predate Swampbuster, a landowner must have the property delineated and if any wetlands are discovered the landowner cannot touch those parts of the property.”
“However, the government cannot condition benefits on a landowner signing away their right to use private property as they see fit,” Gilliard continues. “Normally, if the government takes your property, they must pay you. As it stands right now, we’re talking about forced non-use and the government never paying anything.”
Frozen Forever
How many acres of private land are categorized as wetlands? According to a USDA spokesperson, the “estimate for wetlands on non-federal land is 111.2 million acres.”
When asked how many acres of U.S. farmland are in the Swampbuster scope, the same USDA spokesperson says: “NRCS does not track wetland determination results in a way that acreage totals are available on a national or state basis.”
Conlan contends most farmers with Swampbuster acreage would contest the determination if money and time allowed. “I believe the majority of producers do not want any part of their property designated as a wetland. What makes it even more egregious is that the value of land has changed so much since 1985. Farmland values, both by sale or rent, are much higher, and therefore the economic pain is far greater today than in 1985, and the government’s taking has grown in terms of economic impact with no compensation.”
Could Conlan’s lawsuit reach the Supreme Court? Gilliard says SCOTUS recently has shown considerable interest in cases related to agency overreach and protection of private property rights under the Constitution—both of which are tapped by Conlan’s claims.
“The arguments here, if successful, have the potential to help a lot of farmers and landowners. That is part of why Jim Conlan is doing this. This case also has an interesting connection to the Clean Water Act,” says Gilliard, who was a member of the PLF team that won the benchmark 2023 Sackett v. EPA case before SCOTUS. “We’re convinced that since SCOTUS recently scaled back the government’s reach via the Clean Water Act, the agencies may look to use Swampbuster to regulate land.”
In summation, Seehase says the direct link between Swampbuster and loss of USDA benefits is an “egregious” constitutional violation. “No one should have to forfeit their constitutional right to just compensation to ensure they don’t lose their federal benefits, but that’s exactly what’s been happening to Jim Conlan and many other farmers out there. If you are a farmer and your land has been put under a similar designation, please reach out to us for help at LibertyJusticeCenter.org.”
As for Conlan, he is confident in his constitutional standing: “This case is a legal winner because it is backed by the Bill of Rights. USDA can’t take a piece of private property and let it sit frozen forever. It’s true the government can take property—but they have to pay for it with just compensation. That’s what the Constitution says.”
For more articles from Chris Bennett (cbennett@farmjournal.com or 662-592-1106), see:
Power vs. Privacy: Landowner Sues Game Wardens, Challenges Property Intrusion
Corn and Cocaine: Roger Reaves and the Most Incredible Farm Story Never Told
American Gothic: Farm Couple Nailed In Massive $9M Crop Insurance Fraud
Priceless Pistol Found After Decades Lost in Farmhouse Attic
Cottonmouth Farmer: The Insane Tale of a Buck-Wild Scheme to Corner the Snake Venom Market
Tractorcade: How an Epic Convoy and Legendary Farmer Army Shook Washington, D.C.
