Shore farmers may see more hurdles with appeal

By BRUCE HOTCHKISS
Senior Editor

The now-celebrated case of three Eastern Shore farming operations in a struggle against the USDA and its Natural Resources Conservation Service is headed into yet another appeal process on a road that may be just as full of legal potholes.
Papers are being drawn which, ultimately, will reach the desk of Roger Klurfeld, director of the USDA’s National Appeals Division seeking to either set aside an NRCS ruling against the farm operations or at least voiding a demand that some $1 million in grants under the old Conservation Security Program be returned to Uncle Sam.
Lifting the repayment requirement is called “equitable relief” and, according to a high-ranking NRCS official, noting that auditors of the Office of the Inspector General had ruled the original payments improper, said that “equitable relief” normally is not approved under those circumstances.
However, continued Ed Nilson, coordinator of national appeals and equitable relief for the NRCS Compliance Division, NAD would have four options on the appeal.
It could simply uphold the ruling; it could uphold the determination and still grant relief, either in whole or in part; it could reinstate the contracts, or it could send the package of cases back for further hearing if it determined that some portion of the record was “missing something” and needed to be completed.
As NAD reviews the record, Nilson said officials will listen to the entire recording of the three-day hearing held in Easton in November and read all of the documents included in Hearing Officer Karen King’s final report and determination and even are privileged to seek information which may not have been available at the time of the hearings or that just became available.
Nilson said that under normal circumstances, appeals to the NAD can be decided between 60 and 90 days from the date of the receipt of the appeal papers.
To review: The Hutchison Brothers and Mike Elben in Cordova and Sonny Eaton in Queen Anne and the 12 farmland owners for whom they till the land, were notified Jan. 14 that they would have to repay a total approaching $1 million to the USDA, money they received under those then five-year-old NRCS contracts.
The contracts were signed in 2006 and the on-farm conservation work, which the grants funded, was all performed as specified. In 2007, the Office of the Inspector General audited the active CSP contracts drawn in Maryland, but found fatal flaws in only those 15 in Talbot.
The OIG ruled the contracts invalid because, its auditors said, the contracts for the landowners should have been included in the Hutchison Brothers, Elben and Eaton contracts and not drawn separately.
Hearing Officer King wrote in her ruling: “Appellant did not correctly identify its agricultural operation. An agricultural operation is all the agricultural land under the control of an applicant and constituting a cohesive management unit that is operated with equipment, labor accounting system and management that is substantially separate from any other.”
The farmers have testified that they asked for, and received help on how to fill out the grant applications from NRCS staffers at both the county and state levels. Nilson noted that when Congress drew the CSP legislation, it made it a “self-certification program” which did not require any on-farm verification.
“We accepted it, that way,” Nilson said. “We took their word for it.”