Property Rights Foundation of America®

by Carol W. LaGrasse, reprinted from Positions on Property, Vol. 2, No. 3 (PRFA, July 1995)

A Microcosm of Corruption

Unrepentant Congress
Ideological Usurpation of Government to Destroy Family Farms

"It's easy to point your finger at the Fish and Wildlife or Army Corps or whatever and say it's their fault. No, it's Congress's fault. We passed the legislation or we failed to change it if the courts made a bad decision in interpretation."

Congressman Richard Pombo
(Republican, California)

This is a story about the inverted attitude many members if Congress have about themselves and the people they represent.

Congress, which creates agencies that infringe on the lives of Americans, seems to bear little sense of responsibility for the fruits of its enactments.

The irony of the story that follows is that, by simply enacting laws, Congress could withdraw the pointed gun directed at farmers. No sacrifice by Congressmen is required and, as the reader can see, no constituency of the present Congress would be burned. Unless there's more than meets the eye...

The story also tells how many different Congressional enactments effectuated the bureaucratic power that abused farmers. It further shows how Congress allowed and passed inconsistent legislation. Congress thereby set up situations where the courts have to reconcile the legislation and, in effect, have the final power of enactment.

Perhaps worst of all, it shows the insensitivity of Congress to its responsibility to minimize arbitrary power in the hands of bureaucrats. Every step of the way, in this brief retelling, the question must be asked why Congress set up a framework for repression on a national level.

What fanatical mindset that overreaches innate American respect for farming did Congress set in motion?

And, considering that corruption of run-of-the-mill petty bureaucrats on a local level has always found its way into overpowerful governments, why hasn't Congress structured citizen control boards, appeal procedures and other methodologies to put farmers on a footing to deal with the abuse of corrupted agencies outside of federal court?

The Bart Dye Story
Briefly, this is how Bart Dye's 130-year-old family farm has become entrapped by the bureaucracy created by Congress to supposedly "help" farmers.

It is also the story of how extreme environmentalism has corrupted the workings of a federal bureaucracy that was conceived for the well-being of American agriculture and the production of food for Americans.
In 1984, Bart Dye's 130-year-old farm and chattels were illegally seized by the Farmers Home Administration (FmHA) without due process, in violation of Congressional laws, FmHA regulations and federal court orders.

In his testimony before Congress, Bart Dye, whose farm has been in his family since 1865, stated,

"We then found an under-the-table agreement between FmHA and Hoosier National Forest for a land swap between the two agencies. FmHA further violated Congressional laws and their own regulations in excepting me personally from lease/buy back for 7 years. FmHA mismanagement has caused major damage to my farm." (2)

His bad fortune, along with that of several other farmers in his area of Shoals in southwestern Indiana, began in 1977, when, as president of the Martin County Farm Bureau, he organized the farmers to oppose the expansion of nearby Hoosier National Forest, which was gobbling up farmland. That section of Indiana is bounded on the northwest by the Crane Naval Weapons depot, and confined inside a U-shape on the north, east and south by the National Forest. In addition, the National Forest and Indiana Department of Natural Resources own many parcels checkerboarding the area that are outside the official bounds of the federal and state forests.

When the forest expansion became known, the Cooperative Extension Service performed an elaborate study of citizen attitudes toward land-use in the two effected counties, which showed that 94.3% of those surveyed opposed expansion of federal land and well over half the citizens preferred a reduction of federally owned forests.

The farmers succeeded in getting the Indiana Legislature to pass a law, since receded, blocking the expansion of the National Forest.

But their victory unleashed a vendetta.

Banking became very difficult for the farmers. They were driven into the arms of the FmHA itself by the sinister tightening of credit at local banks where they had dealt for years. Bart Dye found yearly operating funds scarce. He learned of a black-list of 35 farmers, all current in their finances, that was circulated to banks by the FmHA. Over the years, several of the farms were "taken down" by the FmHA, as the farmers express it. The 1983 drought desiccated the Dye farm and he was coerced into the seizure, the beginning of the period to this day when the FmHA effectively asserted title to his farm.

When he applied for "buy back" of his farm, federal environmentalism had moved in. Using authority of the Endangered Species Act and an executive order signed by President Richard Nixon under the National Environmental Policy Act, the Fish and Wildlife Service (which is part of the U.S. Department of Interior) had executed a memorandum of understanding with the FmHA (which is part of the Department of Agriculture) to obtain conservation easements on "inventory farms."

The agricultural law, however, made it plain that the farmer had first preference for his farm over the environmental agency when the memo and executive order were implemented.

At the time, the Food Security Act of 1985, was in effect mandating the preference to a previous farmer. The Agricultural Credit Act of 1987 made the preference principle crystal clear:

"The Farmer Programs Leaseback or Buyback Program will permit the previous owner of real property that was security for a Farmer Program loan(s) to have first opportunity to lease or purchase that property from the FmHA." (3)

But later this was to change, and the preference dropped.

The Dye farm had no known endangered species, but the Fish and Wildlife Service built up a flimsy assertion of potential habitat for the federally endangered bald eagle and Indiana bat. The agency did not revise its wish list of land from the Dye farm when the bald eagle was removed from the endangered species list. When Bart Dye complained that they broke their promise not to impose the easements, the Fish and Wildlife Service and FmHA invented wetlands in addition.

Then they cultivated an even-weightier allegation of potential impact on the federally endangered Eastern fanshell and rough pigtoed mussels growing up and down the East Fork White River that borders the farm. The FmHA ultimately used this allegation to build up the requirement for a conservation easement to one-third of the farm, including much of the bottomland, for "wetlands" protection.

None of the other 14 farms seized in 1984 including those as close as 2 miles away along the same river had wetlands restrictions to prevent the supposed soil erosion from farm runoff. Ironically, the river itself receives drainage from an upstream population of 600,000 including urban runoff. Moreover, since the 1970's the fish in the river have been declared unsafe because of PCB dumping and raw sewage. The river includes an artificial 10,000-acre lake built upstream in the 1960's for flood control, but now used for recreation requiring sustained water flow, causing heavier bank erosion. No concern is expressed by the Fish and Wildlife Service for the artificial federal Lake Monroe upstream, where mussels, which need flowing water, cannot survive.

Meanwhile, while trying to regain his farm, Bart Dye sought a court order in the Southwestern Division of North Dakota U.S. District Court against the FmHA because it failed to abide by legal procedures when it seized his farm. He asked for the order on the basis of "contempt of court" by the FmHA because the agency had been ordered earlier by federal court in a national class action to respect the rights of farmers by following appeal procedures laid out in law.

Bart Dye's lawsuit was rejected in the District Court in 1991 on the grounds of "sovereign immunity" of the United States government.

To no avail, the Saine family, who also were losing much of their North Carolina farm to FmHA wetlands easements, joined his petition to the Eighth Circuit Court of Appeals.

Bart Dye and his group pursued the case to the U.S. Supreme Court in 1993, where they were refused hearing.

A separate case brought by Myron Miles in Oregon progressed to the 9th Circuit Court of Appeals over numerous points of law about the imposition of the environmental easements on this farm by the FmHA, and lost, even though represented by a leading conservative legal organization, the Mountain States Legal Foundation.

A third major case was brought in the South to challenge the easements. W. L. Harris, a Mississippi rice farmer, his livelihood destroyed by the duplicity of the FmHA and the Fish and Wildlife Service, carried a case against the FmHA to the U.S. Court of Appeals, Fifth Circuit, where it was rejected this year in a decision that demonstrates the complexity of Congressional legislation and administrative law whereby the Federal Court feels that the FmHA may impose the environmental easements.

In another case, it became clear that if the farmers had been dealing with commercial lenders rather than primarily the FmHA they would have been able to get around the easements.

Not only do the easements preclude any farming use of the lands directly encumbered, but they put the viability of all the remaining area of the farm at the mercy of the Fish and Wildlife Service. The conservation easement the Fish and Wildlife Service prepared for the Dye farm in 1989 required that Bart Dye agree that:

"The vegetation or hydrology of the described easement area will not be altered in any way or by any means or activity on the property conveyed by this deed, or property owned or under the control of the landowner, including (1) cutting or mowing; (2) cultivation; (3) grazing; (4) harvesting wood products; (5) burning; (6) placing of refuse, chemicals, wastes, sewage, or other debris, (7) draining, dredging, channeling, filling, discing, pumping, diking, impounding and related activities or (8) diverting or affecting the natural flow of surface or underground waters into, within, and out of the easement area."(4)

At the same time the compulsory easement were initially being foisted on farmers in many states, Richard Mallory, the director of the Farmers Home Administration for the State of California, interpreted the law to mean that farmers indeed had priority rights to their land over the Fish and Wildlife Service. He rejected the FmHA-imposed easements on California farms.

The law mandating the easements solidified during the years Bart Dye fought to escape the clutches of the program. Since the enactment of the Endangered Species Act, Executive Order 11990 and the numerous other validifications cited by federal courts, the mandatory easement program had been written into Title 7 Section 1985g of the Agricultural Law by Congress in the 1990 Farm Bill, declaring the power of the Secretary of Agriculture to impose the easements.

Yet, the current FmHA Administrative Notice issued out of Washington, DC still carries the contradictory protection for farmers for transfers of properties to the Fish and Wildlife Service and other federal and State agencies.

"Transfers will only be considered after all Leaseback/Buyback and Homestead Protection Rights are exhausted."(5)

By the end of federal fiscal 1994, over one-quarter million acres of farmland, or 1,942 farms, had been transferred from FmHA "inventory" by easement or full title to the Fish and Wildlife Service under the program. This doesn't include the collateral affected areas of farms where the farmer was coerced into an agreement giving the Fish and Wildlife Service control over his land.

In 1991, Bart Dye was finally granted a leaseback on his farm.

At the time FmHA shut Bart Dye down he had "130 head of beef brood cows, calves in the feed lot and sows farrow to finish." He cultivated alfalfa on 100 acres, with 326 acres for row crop and 200 acres for pasture.

During seven years of FmHA management, his pasture became infested with weeds, 18 miles of fence were destroyed, a 155 foot-long bridge over Indian Creek collapsed, his tile lines and terraces destroyed, his Soil Conservation Service soil management plan totally disregarded, and a great deal of other damage to his buildings, roads, and land took place.

Where he could have been building equity, he paid rent.

Without means of obtaining adequate operating funds and barely a year remaining during which he retained the buy back right on his farm, Bart Dye contacted the Property Rights Foundation of America late in 1994. Afterwards, however, a number of legal experts advised that the court of law would offer no further hope. Only Congress could rectify the unjust situation.

We decided to exercise our First Amendment right "to petition the Government for redress of grievances."

Our cause was just and affected many people, was tied to deeply held American traditions of private property and family farming, and was in harmony with the new Congressional philosophy of getting government off the backs of people. Moreover, even though many people are afraid to speak out because of government retaliation, Bart Dye, a citizen with a lifetime of leadership in the farm community, was willing to tell his story.

Therefore, from the extensive history that Bart Dye kept and further research by the Foundation, we made formal files to distribute and explain to interested members of Congress. In this way, we had in their hands the history of the law and thorough documentation of how it panned out in Bart Dye's situation and that of other farmers across the country.

Aside from the fundamental unconstitutionality of the U.S. Government acquiring easements for habitat and wetlands protection, the immediate problem to farmers for Congress to correct has three facets,

1. the mandatory imposition of the easements on farms
2. the need to allow a grace period for farmers who had been blocked from buying their farms, and
3. the need to allow farmers whose equity had been drained as many as five or more years of lease payments on account of the compulsory easements to be allowed to apply the lease payments to buyback.

Any bill would have to take into account the complicated grounds by which the many federal court rulings held the easements could be imposed.

Because the 8th Congressional District of Congressman John Hostettler includes the Dye farm, we conveyed information to his office in Washington, the first of many such visits, while Bart Dye visited the Indiana office. Knowing of the star freshman Congressman David McIntosh's interest in regulatory reform, we met with his staff in Washington. He took Bart Dye's story home to read over his weekend and personally thanked us for bringing the regulatory abuse to his attention.

Soon Bart Dye's name appeared in the Congressional Record. Representative McIntosh made a speech in March mentioning him during debate about property rights legislation.

"Another example is the tragic story of a southwestern Indiana farmer named Bart Dye. Mr. Dye stands to lose his farmland which has been in his family since 1865," the Representative said. He referred to the Fish and Wildlife Service's concern for "mussels in a river adjacent to Mr. Dye's land" and the "possibility that someday a bald eagle may decide to land on his property."
"...none have been sighted, no nests have been found, and as far as anyone can tell, there are no bald eagles in the neighborhood, but the potential that it may be a habitat for that species has threatened to rob Mr. Dye of the use of his farm and prevent him from ever owning it," Mr. McIntosh pointed out.

When Congressman McIntosh held hearings on regulatory reform in Indianapolis, he invited Bart Dye to testify.

In his extensively documented testimony to a committee of Representative McIntosh, and Minnesota Representatives Gil Gutknecht and Collin C. Peterson, Mr. Dye told his story publicly for the first time, concluding,

"As a result of these excessive restrictions I have been unable to acquire operating and mortgage funds on my farm."
"Congressmen, this situation of mine as well as thousands of other property owners violates the very precepts on which this country was founded and has thus far survived," he testified.
"I am a combat veteran, with the U.S. Air Force, and I assure you that I and thousands of other veterans did not go into combat to come back and have our property taken from us by the same government for which we went into combat," he concluded.(6)

The Indiana Policy Review Foundation published the story of Bart Dye in May, which we felt made it easier for members of Congress to understand how this insensitive Congressional legislation panned out to destroy vulnerable family farms.

David L. Littman, First Vice President and Senior Economist of Comerica Bank in Detroit, told the story of Bart Dye on the Op Ed page of the Washington Times in May.

Our goal during many visits from January to June 1995 to Congress was firm commitment to frame legislation that would end the easement program. We had a fall-back in case we ran into opposition. If there were farmers who desired the devaluation of their farmland because of the easements, we could save farms by a compromise that made the easements optional at the choice of the farmer. I volunteered my time for meeting after meeting in Senate and Representative offices in whatever committees and subcommittees that we felt might take effective interest.

For example, staff from Representative Barbara Vucanovich's office were setting up procedures for House Speaker Newt Gingrich's "Corrections Days," to be held regularly to eliminate onerous regulations by circumventing most of the committee structure. To get a Correction Bill for Bart Dye's problem, we taught ourself the new procedures, as well as what we could about Congressional operations.

But in the end it was apparent that without a moneyed interest or a block of organized votes such as a certain municipality or business interest group, we had no one in Congress to shepherd our bill through Correction Day.

The relief we sought for Bart Dye was a problem only to family farmers, and, although a number of local county farm bureaus freely joined in our effort, and there was some state farm bureau interest, our hopes of national Farm Bureau level involvement were ill-grounded.

Many people helped us with information and publication assistance, such as Henry Lamb of ECO, based in Hollow Rock, Tennessee, who once studied the enforced FmHA easements in his former post at the Land Improvement Contractors of America. W. L. Harris, now 72 years old, took time out from his work to build up his Mississippi rice farm again to write letters this year to Congress against the mandated easement program.

"If the Fish and Wildlife Service had kept what they agreed to, this would have been the best wildlife refuge in the country," he said in September.

A number of key members of Congress took a practical interest in the easement issue. Idaho Senator Larry Craig of the Farm Credit Subcommittee of the powerful Agriculture Committee headed by Indiana Senator Richard Lugar sponsored an amendment to eliminate the easements altogether. On the House side, Representative McIntosh and Agriculture Committee members Hostettler and Wayne Allard (Colorado) began work in June on an amendment dealing with the easements.

But in the end, although we basically understood the Congressional process, access was only by fiat. Except among our friends, we were clearly outsiders, the unwashed "governed," with no inherent right to information, much less to an actual redress of a grievance.

In Congress, as has often been pointed out, Sunshine Law does not apply.

Exactly one year had passed since we took up the effort in Congress. The Congressional debate drags on around Freedom to Farm, whether to reduce a commodity crop support or to lift the rules stifling agricultural production, while property rights protections and endangered species reforms of a group of heroic Congressmen are hostage to Congressional infighting and ambition, and the threatened Presidential veto.

The truth remains, however, that ultimately Congress's hand— not the FmHA or the Fish and Wildlife Service, nor the hand of time, nor drought, nor farmer misjudgment, nor the changing times — brought the brunt of the federal environmental easements down on vulnerable farmers.

In the final analysis, only Congress can end this unjust treatment of farmers by government before their five-year buyback rights terminate. -CWL

(1) Congressman Richard W. Pombo, October 14, 1995 "Property Rights Legislation in Congress," an address at the First Annual New York Conference on Private Property Rights, sponsored by the Property Rights Foundation of America, Inc., in Albany, New York
(2) Bart Dye, testimony before U.S. House of Representatives Subcommittee Hearing, National Economic Growth, Natural Resources and Regulatory Affairs. April 17, 1995, p1
(3) Agricultural Credit Act of 1987
(4) Conservation Easement Deed, par. II B, conveyed by David C. Hudak, Supervisor, Bloomington Field Office, U.S. Fish and Wildlife Service, Nov. 29, 1989
(5) FmHA, Administrative Notice No. 2864, Sept. 20, 1993 (Instruction 1955-C) "Transfers of Farm Inventory Property to Federal or State Agencies for Conservation Purposes."
(6) ibid, Bart H. Dye, Congressional Testimony Apr. 17, 1995 p2

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