According to DOJ, which has poured millions of taxpayer dollars into its pursuit of Brace, the Erie County producer is a prolific defiler of the environment and a destroyer of wetlands. Yet, the overall beauty of Brace’s farming landscape is picturesque, almost as if pulled from a postcard.
Blood And Dirt: A Farmer’s 30-Year Fight With The Feds
On a crisp May morning set against a striking backdrop of farmland tucked between rolling hills in northwest Pennsylvania, Randy Brace, 23, looked south after a tillage pass and watched in surprise as a 12-car caravan pulled alongside his fields. Time slowed and the young farmer’s chest tightened when a phalanx of officials from the U.S. Army Corps of Engineers, Environmental Protection Agency and a mix of state agencies spilled from the vehicles and walked onto his land.
Confused and fighting a rush of dread, he climbed down from the box and ran toward the security of his father. Patriarch of the family operation, Bob Brace listened in the milk house as his son described roughly 20 government reps moving across Brace farmland. The regulatory die was cast. Fists clenched, the elder Brace walked out of the milk house and into one of the longest legal fights in agriculture history. Brace’s “damned nightmare” began that fateful May in 1987. Over 31 years later, it is yet to end.
By draining 30-plus acres of pasture, Brace was deemed to have violated the Clean Water Act (CWA). Regulatory agencies claimed the ground was a wetland and threatened the Erie County producer with imprisonment and severe financial penalties. As Brace vehemently protested his innocence through exemptions and exclusions, the merit of his pleas was lost to judicial interpretation and a courtroom gavel.
Since 1987, Brace has paid over $1.5 million in litigation costs and refused to bow to the biggest law firm in the world: The United States Department of Justice (DOJ). Three decades in the making, Brace’s case lays bare a labyrinth of agency contradictions and begs two echoing questions: What is normal farming? What are the real-world boundaries of CWA jurisdiction?
As of 2018, what is arguably agriculture’s longest running legal saga may be entering its final stages, with EPA doubling down with more charges against Brace, and Brace countering with an $8 million suit. “They want to fine me $145,000 each day because those numbers are intended to crush me and should tell everyone something about my case,” Brace says. “Don’t be fooled by the numbers; they want my blood, not my money.”
Peeling the layers on Brace’s case requires a step back in time. Brace, 79, was born and raised on a family farm 15 miles south of Lake Erie in Waterford Township. In 1975, he purchased the farm from his father, and in 1976, began draining the land by replacing and repairing tile laid by his grandfather. The ground was used for hay and pasture, and Brace intended to switch it to row crops. Along a tiny creek, beaver had built several small dams, increasing drainage issues. At the request of Brace, the beaver were trapped and removed by the Pennsylvania Game Commission (PGC).
“I did what any normal farmer does,” Brace says. “I tried to make the most of my land and I didn’t hide a damn thing. In fact, I made sure USDA knew every single thing I was doing to make sure I had approval.”
He hired a dynamite crew in 1977 to clear ditches and restore drainage function, all with USDA’s nod, notes Brace’s attorney Larry Kogan, Kogan Law Group: “Mr. Brace did everything with the authorization of USDA, certifying his father’s conservation and water plan dating back to 1962. Beginning in 1977, he received technical support and partial funding from USDA Soil Conservation Service to develop drainage tile systems on one of the three parcels of land in question. The homestead farm was his original focus and then he expanded out to other ground with USDA technical support.”
“Ultimately this evolved into a conversion of the land itself, from one common form of farming—pasture farming—to another common form of farming—cropping. The former ASCS (Agriculture Stabilization and Conservation Service) was involved with cost-shares for a minimum of 10 years. At this point, Mr. Brace had the full support of government agencies,” Kogan describes.
Every year in the late 1970s and early 1980s, Brace shaped the fields, and began growing corn on the ground in 1986. “It became beautiful, beautiful land,” Randy Brace describes. “And then 1987 came and everything went straight to hell.”
According to DOJ, which has poured millions of taxpayer dollars into its pursuit of Brace, the Erie County producer is a prolific defiler of the environment and a destroyer of wetlands. Yet, the overall beauty of Brace’s farming landscape is picturesque, almost as if pulled from a postcard. The condition of the Brace farm is sharply manicured, with fields, equipment and buildings presenting the appearance of a remarkably ordered operation. “Bob’s place is just about perfect and always has looked beautiful,” describes Tom Coffin, 75, who grows corn and soybeans on 500 acres to the northwest of the Brace’s operation. “I’m talking about the hardest working farm family I’ve ever seen. In the evening, I head home and they’re still in the field. The entire family.”
Brace again began having trouble with beaver proliferation in 1987, and asked the PGC for removal. When a senior PGC official arrived and began asking questions about permitting, Brace had no idea a regulatory sledgehammer was about to drop across his farmland. “The boss was Andy Martin and he came out and started asking for permits. He and dad got into an argument and I believe that was the trigger point for the next 30-plus years,” Randy Brace says.
“Mr. Martin saw the conversion work and thought it was the worst wetland destruction he had ever seen. He didn’t have a clue what he was talking about,” Kogan says. “He went to the U.S. Fish and Wildlife Service (USFWS) in 1987 and reported on Mr. Brace’s land. Then the EPA and Corps jumped in, and they all descended together.”
“Despite lacking a warrant, a showing of probable cause, or Mr. Brace’s affirmative consent, Mr. Martin illegally entered Mr. Brace’s private land to conduct his unscientific eyeball investigation at the time when Brace ‘No Trespass’ and ‘Private Property’ signs were clearly visible to the public,” Kogan adds.
Congressman Glenn Thompson (R-Pa 5th District), vice-chairman of the House Committee on Agriculture, describes government action against Brace as an “egregious assault” on private property rights. “At the federal, state, local, game commission, and so many other levels, I’ve never seen anything even close to what the Brace family has been experiencing for three decades. I’ve never seen a case like this in my career. If this was a football game, yellow flags would be flying everywhere for piling on.”
In his role as a farmer and landowner, Coffin claims he has never seen “anything as crazy and wrong” as regulatory action on Brace land. “I’ve watched shameful behavior from my own government officials as they change rules. In all of my life, I’ve never witnessed a court case where the government wanted to win so badly,” he says.
Pared down, regulatory officials demanded Brace restore the ground to a wetland. The 12-vehicle visit in May 1987, was the government’s opening salvo, according to Randy Brace: “One day you’re working ground and suddenly the feds bring in a small army to your land. You would have thought they were looking for Al Capone.”
Based on CWA violations, the Corps and EPA ordered the Braces to end all discharge activities on the acreage. Brace had no wiggle room: Stop or face a $50,000 per day penalty. “I couldn’t even protest. Finally, the government sued us in 1990 and we got to start the court process,” Brace explains.
Despite the potential consequences, Brace was relieved when DOJ took him to court in 1990: “Basically, I’d accumulated $68 million in fines and couldn’t contest anything, because you can’t sue the government until the government sues you. I was ready to finally go to court.”
DOJ cast Brace in the same light as private land developers, and framed its argument as a CWA Section 404 wetlands case. CWA Section 404 generally prohibits the dredging and filling of Waters of the United States (WOTUS), including adjacent wetlands, without a Corps permit, unless the landowner can meet one of the statutory exemptions or exclusions.
Brace was accused of recklessly converting land without regard to the environment. The portrayal was baseless, Kogan contends: “This is simply about a farmer on his own land who undertook a tremendous amount of work and was stunned to find out how far the government claimed federal jurisdiction could reach.”
Rep. Thompson served as chair of the Conservation, Energy & Forestry Subcommittee for six years, prior to his current role as chair of the Nutrition Subcommittee. The Brace case is a textbook example of the perils associated with CWA “ambiguity,” according to Thompson: “Bob’s case demonstrates the serious problems landowners face regarding ambiguity of wetlands designations. The Clean Water Act has been abused by bureaucrats and these punitive actions were not originally intended by Congress. We need once-and-for-all clarity on Section 404 which contains agricultural exemptions. A change must incorporate all normal farming practices or ranching practices … We need to get rid of ambiguity. Ambiguity gives bureaucrats more room to maneuver.”
Brace’s district court date finally arrived in December 1993. He claimed his activity followed the guidelines of a government-approved conservation plan and was backed by all required permits—and former Judge Glenn Mencer (United States District Court for the Western District of Pennsylvania, Erie) agreed that Brace’s activity constituted normal farming practices. At first glance, it was case closed and a return to row cropping for Brace. In reality, Brace’s relief turned bitter as the case took on a byzantine level of complication. Despite a bench trial victory in his pocket, Brace’s trouble was only just beginning.
(Citing pending litigation, the Corps and EPA declined comment on the Brace case. Pennsylvania Game Commission declined comment. DOJ and USFWS offered no response to FJ phone calls or emails.)
DOJ appealed the decision to the Philadelphia-based Third Circuit Court of Appeals. In short, the Third Circuit and Judge Robert Cowen said Mencer was wrong and determined Brace was never engaged in “normal agricultural activity.”
Brace contends judicial deference shown by the Third Circuit to EPA, Corps and USFWS agency (but not to USDA) recommendations was impossible to fight. “Suddenly, the facts didn’t matter in court. My permits didn’t matter. I get in front of the judge and he only relies on the word of government experts? What’s the point? I can’t compete against Chevron deference. It’s a terrible, tight spot to be in and I know there are other landowners that have been in the same predicament,” Brace notes.
“The Third Circuit said my farming wasn’t normal. What is normal? I was legal before all of this and I’ve always been legal since. They say whatever they want in a courtroom because administrative law does what it wants. We’re at the point where people who have never farmed in their lives or set foot outside an office building get to define normal farming.”
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