Seven long years: ND organic farmer wins USDA appeal
LITCHVILLE, N.D. -- John "Jack" Olson spreads a collection of folders containing hundreds of pages on his pickup box cover. The papers detail his travails with the U.S. Department of Agriculture and his victory through the National Appeals Divisi...
LITCHVILLE, N.D. - John "Jack" Olson spreads a collection of folders containing hundreds of pages on his pickup box cover. The papers detail his travails with the U.S. Department of Agriculture and his victory through the National Appeals Division - without a lawyer.
Olson, reflecting on his journey with the USDA, wants farmers to know they have rights and can represent themselves.
"Call this number, 800-541-0483," he says, handing over a brochure describing the USDA's National Appeals Division.
Mary Podoll, North Dakota State Conservationist with the Natural Resources Conservation Service, says NAD systems should not require lawyers.
Derrick Braaten, a Bismarck, N.D., lawyer, says lawyers can help keep paperwork straight and point out mechanisms not immediately apparent to farmers.
Olson, now 67, owns 480 acres and farmed about 350 acres, raising organic buckwheat, millet, soybeans, hard red spring wheat and flax. He had converted the farm southwest of Valley City, N.D., to certified organic production long before that was typical.
Olson's seven-year NAD saga began on March 9, 2009, when his wife, Helen, then 51, suffered a stroke. Doctors in Fargo, N.D., referred her to Mayo Clinic in Rochester, Minn. Without health insurance, the Olsons faced paying off several surgeries at tens of thousands of dollars each. To pay the bills, Olson in 2009 sold 22 stock cows and calves and took out bank loans.
To pay off loans, his banker suggested he enroll his lowland acres into the Wetland Reserve Program, administered through the USDA's NRCS. A one-shot WRP payment would cover 30 years of rent and some of Helen's surgeries.
On May 13, 2009, Olson signed up for the WRP at the Barnes County NRCS office in Valley City. According to his documents, Brent Gustafson, an area conservationist at the NRCS office in Jamestown, met him at the farm three weeks later and explained his application paperwork had been lost.
On July 16, 2009, Olson signed up again. In addition to the NRCS, he went to the Farm Service Agency. A full-time farmer, he had never signed up for any farm program before.
On Oct. 26, 2009, Gustafson said the WRP application was too late, even though it had been delayed by the NRCS itself.
Olson reapplied on Dec. 15, 2009.
His WRP contract was tentatively accepted on March 31, 2010, and on May 11, 2010, he signed the form to give the first $50,00 in WRP payments to the bank. About 200 acres went into the WRP. About a third was lowland, flooded in 2011. About 70 acres of lowlands would have to be seeded to native grasses in 2012.
"Now, the homestead is saved," Olson remembers thinking.
Because he's an organic farmer, Olson ordered "organic, native seeds" from Albert Lea Co. for $5,028.70. The seed arrived on May 3, 2012, but adverse conditions delayed planting.
On June 22, 2012, Amanda Brandt, a new Barnes County NRCS district conservationist, and Curt Francis, a private lands biologist for the North Dakota Game and Fish Department, agreed seeding could wait until 2013.
Olson the next year had to reorder about $1,000 worth of seed that had gotten too old and failed germination tests at the North Dakota State Seed Department.
More rain and delays in obtaining, cleaning and using a conservation district drill held up planting in 2013, but the land was seeded by early July.
Brandt on July 10, 2013, told him he was unlikely to get cost-share money. He says she offered no appeal or rebuttal opportunities. He was distraught.
Officials who stopped at the farm to count living prairie grasses on Aug. 14, 2013, told Olson to send appeal correspondence to Podoll.
Podoll on Oct. 2, 2013, told Olson he wouldn't get reimbursed because he missed a June planting deadline. Podoll says she considered the interactions informal conversations, not the formal appeals Olson took them to be.
Declining to discuss Olson in particular, Podoll says NRCS policy is to give farmers their appeal rights in the cases of adverse decisions. The agency denies payments if a farmer hasn't met contract specifications, have missed deadlines or otherwise failed to install a practice correctly.
The NAD option
Olson on Dec. 18, 2014, went to Ryan Nagle, an aide to U.S. Sen. Heidi Heitkamp, D-N.D., who pointed him toward the NAD. Olson sent an NAD appeal letter the next day.
Frances Raskin, an appeals officer for NAD, presided over a hearing on Feb. 24, 2015. In April she reopened his case and on July 3, 2015, she ruled the NRCS decision was erroneous.
Olson had won, but he had to make a new payment request.
On July 17, 2015, a new NRCS biology team assessed the plantings, which a biologist had found lacking in 2014, and the next day, Olson received a four-page rebuttal letter from NRCS in Bismarck. The rebuttal said Olson hadn't seeded enough grasses and that he hadn't acted in "good faith" to get it planted on time.
But Austin Lang, a biologist from Jamestown NRCS, on July 24, 2015, gave the opposite message, saying "favorable conditions" allowed the grass to get established.
Olson on Jan. 4, 2016, learned via a letter from NAD Deputy Director James T Murray that he had prevailed. He re-applied for relief and received his payment on Feb. 19, 2016.
"I finally got paid after fighting the NRCS for seven long, hard years," he says.
From Oct. 2014 to May 2017, NRCS has had 357 NAD appeals, Podoll says. Only 14 of these were WRP cases and only one was from North Dakota.
"No appeal has ever required a lawyer," Podoll emphasizes.
But Braaten says lawyers experienced with NRCS jargon and procedures can help. Sometimes farmers can get their lawyer fees paid through the Equal Access to Judgment Act.
"Sometimes there isn't a lot of money at stake and we can go through the file with the farmer and explain how we'd present the case," he says.