Cardinal Land Conservancy, Inc. v. United States Dep't of Agric.

• Decision Date: 16 March 2022
• Docket Number: 1:18-cv-00534
• Parties: Cardinal Land Conservancy, Inc., Plaintiff, v. United States Department of Agriculture., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Cardinal Land Conservancy, Inc., Plaintiff,
v.
United States Department of Agriculture., et al., Defendants.

No. 1:18-cv-00534

United States District Court, S.D. Ohio, Western Division

March 16, 2022

OPINION & ORDER

MICHAEL R. BARRETT, JUDGE

This matter is before the Court on the Motion for Summary Judgment filed by Plaintiff Cardinal Land Conservancy, Inc. (Docs. 37, 40, 41) and the Motion for Summary Judgment filed by Defendants United States Department of Agriculture; Secretary, United States Department of Agriculture; National Appeals Division; Director, National Appeals Division; National Resources Conservation Service; Acting Chief, Natural Resources Conservation Service; State Conservationist, Natural Resources Conservation Service; and Commodity Credit Corporation (collectively, "Federal Defendants") (Docs. 38, 39).^[1]

I. BACKGROUND

a. The Parties

Plaintiff is a non-profit land trust headquartered in Milford, Ohio, that helps preserve natural land and farmland in Southwestern Ohio.^[2] Plaintiff works closely with

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landowners who want to legally preserve their land. The property at issue consists of two parcels of land ("Parcels") that combine for a total of 154.40 acres and lie directly east of the Great Miami River. (Doc. 22-4 PageID 360); (Doc. 29-2 PageID 641-51). Carriage House Farm Services, LLC ("Carriage House Farm")-a registered sesquicentennial farm owned by the same family for over 150 years^[3]-owns the Parcels. (Doc. 22-4 PageID 361). Carriage House Farm currently grows corn, soybeans, and vegetables, and also boards approximately 30 horses on the Parcels. (Id.) Plaintiff works with Carriage House Farm to preserve the Parcels.

Defendant United States Department of Agriculture ("USDA") is a federal executive department made up of federal agencies.^[4] Defendant National Resources Conservation Service ("NRCS") is an agency within Defendant USDA and provides conservation planning and assistance programs to landowners.^[5] Defendant NRCS implements its various programs using the funds, facilities, or authorities of Defendant Commodity Credit Corporation, a wholly-owned government corporation within Defendant USDA. (Doc. 29-2 PageID 476, 480, 512). Defendant National Appeals Division ("NAD") is an independent office within Defendant USDA that conducts administrative appeals hearings of adverse program decisions by, inter alia, Defendant NRCS.^[6] 7 C.F.R. § 11.2.

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One of the assistance programs that Defendant NRCS implements is called the Agricultural Conservation Easement^[7] Program. 16 U.S.C. § 3865 et. seq.; (Doc. 29-2 PageID 525). One purpose of the Agricultural Conservation Easement Program is to protect the agricultural viability and related conservation values of eligible land by limiting nonagricultural uses of that land. (Doc. 29-2 PageID 525). Stated otherwise, one purpose of the program is long-term agricultural protection. The Agricultural Conservation Easement Program is one easement program with two easement enrollment components: agricultural land easements and wetland reserve easements. 16 U.S.C. § 3865a; (Doc. 29-2 PageID 525). Pertinent here, an agricultural land easement is an easement or other interest in eligible land that is conveyed for the purpose of protecting natural resources and the agricultural nature of the land; and permits the landowner the right to continue agricultural production and related uses. 16 U.S.C. § 3865a(1).

b. 2015-2016

On September 18, 2015, via letter and in response to Plaintiff's application, Defendant NRCS offered Plaintiff enrollment of the Parcels into the Agricultural Conservation Easement Program for an agricultural land easement. (Doc. 29-2 PageID 637). Defendant NRCS instructed Plaintiff to return two signed documents, one titled "Notice of Grant and Agreement Award" and another titled "Cooperative Agreement," to move forward on the application. (Id.) Defendant NRCS noted that Plaintiff's "easement grantees must provide clear title and written, recordable right of access to the easement area" and that "[t]his may require obtaining subordination

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agreements from a bank or other lending institution for any debts that may encumber the property." (Id.)

On September 21, 2015, Plaintiff, Defendant NRCS, and Defendant Ohio Department of Agriculture entered into a 3-year Cooperative Agreement for the purchase of the agricultural land easement to protect the agricultural use of Parcels. (Id. PageID 641-51). Pursuant to the Cooperative Agreement, Defendant NRCS agreed to provide Plaintiff a $385, 000.00 grant-that was to be combined with $171, 542.00 in funding from Defendant Ohio Department of Agriculture-that would be used to purchase the agricultural land easement. (Id.) Pursuant to the Cooperative Agreement, Plaintiff agreed to "ensure that the title to the lands or interests therein will be unencumbered or that outstanding or reserved interests are subordinated to the agricultural land easement." (Id. PageID 646).

c. 2016-2017

On March 23, 2016, Attorney G. Robert Hines, Plaintiff's title agent, provided a title opinion letter-addressed to representatives for Defendant NRCS and Defendant Ohio Department of Agriculture and carbon copying Plaintiff's representative-that sets forth the state of the title for the Parcels. (Id. PageID 703-06); see (Doc. 29-3 PageID 840-41). Attorney Hines explained that a Commitment of Title Insurance would issue, in the name of Defendant Ohio Department of Agriculture and the amount of $171, 542.00, within 14 days of the date of that letter. (Doc. 29-2 PageID 703). Attorney Hines found that the fee simple title to the Parcels is vested in Carriage House Farm. (Id. PageID 705). He then found that the Parcels are subject to certain exceptions including, inter alia, flowage easements in favor of the United States. (Id.) The title insurance commitment,

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accordingly, listed those flowage easements as exceptions to the title insurance coverage. (Id. PageID 703 - Doc. 29-3 PageID 770-824, 827-29). Attorney Hines opined that, subject to his findings regarding the certain exceptions, the title to the Parcels is good and marketable. (Doc. 29-2 PageID 706).

The flowage easements in favor of the United States are specifically in favor of the United States Army Corps of Engineers ("USACE"), and are associated with the operation of the Markland Locks and Dam on the Ohio River. (Id. PageID 740-73). The flowage easements allow the USACE to permanently flood the land on the Parcels that is below elevation 456 feet Mean Sea Level ("MSL"); allow the USACE to occasionally flood the land on the Parcels that is above elevation 456 feet MSL; allow the USACE to clear and remove any brush, debris, and natural obstruction that is below elevation 463 feet MSL; and prohibit the construction of any structure on the land without written approval of a USACE representative. (Id.)

In August 2016, one of Defendant NRCS's two primary representatives on the Parcels' project emailed the other Defendant NRCS primary representative on the project regarding the title opinion letter. (Doc. 29-3 PageID 831-32). She stated that she read the USACE flowage easements to mean that the USACE could permanently flood any land on the Parcels that is below elevation 500 feet, and questioned whether NRCS should request a subordination before proceeding with the agricultural land easement on the Parcels. (Id.)

In September 2016, via email, Defendant NRCS's two primary representatives project continued to question whether NRCS should proceed with project in light of the USACE flowage easements. (Id.) The two representatives first questioned whether

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Parcels are already protected due to the USACE flowage easements, as the easements prohibit construction of infrastructure on the land. (Id.) The representatives next questioned whether the USACE flowage easements would permit long-term agricultural protection on the Parcels, as the easements permit permanent flooding on a large portion of the land. (Id.) One representative stated that, based on her review of a map^[8] of the Parcels and the USACE flowage easement language, she thought that the USACE easements permitted the USACE to permanently flood 90% of the Parcels. (Id.) The other representative, in response, wondered if Plaintiff could request that the USACE release the flowage easements. (Id.)

d. January 2017 - July 18, 2017

On April 26, 2017, Attorney Hines-in an email to, inter alia, the primary representatives working on the Parcels' project for Plaintiff, Defendant NRCS, and Defendant Ohio Department of Agriculture-explained that the USACE has had flowage easements up and down the Ohio River, and all of the rivers flowing into it, since the construction of the Markland Dam in 1964. (Id. PageID 838-39). He explained that the flowage easements shield the USACE from liability for claims by land owners whose property abuts the Ohio River and the Great Miami River for any flooding that results from closing the dam gates. (Id.) He opined that the USACE would never consider a request for a release or subordination of the flowage easements. (Id.)

Later that day, a Defendant NRCS employee-who was not on Attorney Hine's earlier email, is not one of two NRCS primary representatives on the Parcels' project, and who is an NRCS realty specialist who works for an easement support services team-

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sent an email to, inter alia, Attorney Hines and the primary representatives on the Parcels' project for Plaintiff, Defendant NRCS, and Defendant Ohio Department...