Thursday, January 21, 2010

Legal stuff: Wetlands and perverse incentives

Right now I'm in the midst of discussions with Ecology about the wood chip case.  They've filed a motion for partial summary judgement, seeking to narrow the issues in the case,  and simultaneous to that I've been in talks with them about settling the land matter.   Yea, farming at its best. 

So I'm sitting there today in this conference room and Ecology makes their point that they're interested in the states water quality, and I make my point that if you take enough land away from a farm that pretty soon the entire farm becomes economically impossible, and we're going back and forth with various issues. 

During this discussion one of the participants in this discussion points out that I've got a relationship with a law firm, and that I might have used them to give me some legal advice on my land prior to purchase, and I looked at this fellow, and it took a while to figure out what I was thinking, so here it is: 

There is no place I can go, as someone interested in buying land, and ask the question "Is this farmland", and in fact, there's no surety at all that I won't be charged with this or many other laws that they've got on the books.  There is literally no provision for farming in the law that they're using here -- even planting seeds could be charged as a violation.   

I can ask for a legal opinion from an attorney, and I can check the zoning, and the land use rules and regulations, and I can look at the practices of the land owners on either side of me, and in fact I did all that. 

What I think they're saying is that I should have consulted with someone else, and that this particular fight was started by me for farming.  That if I had just asked the right question that I should have known all this regulatory crap would happen. 

This is roughly equivalent to walking up to a police officer and asking politely if there's anything that you've done that they might give you a ticket for.  "Officer, let me describe several incidents that I've got questions about, and you can tell me whether they're things you might cite me for".

Who in their right mind would do that? 

So here's the perverse incentive thing.  The basic thrust of the Ecology complaint about my farm is that the land wasn't in "continuous agricultural production", that woody shrubs growing on it is prima facia evidence of that, and because of that it's now a wetland forever more. 

So what I'm going to predict, is that when this becomes widely known, that woody shrubs are bad, that there's going to be a race to the tractors and you're going to see more mowing and weeding and herbicide application (crossbow, anyone?) than you've seen in years in Snohomish county.

A situation where you can lose 75% or more of the value of your farmland is a HUGE incentive to remove all possible causes of regulatory action.  In essense this sort of enforcement action will result in the clearing of thousands of acres of land in the next couple of years. 


sheila said...

Woody shrubs will grow in 3 to 5 years on any land that isn't tilled, grazed, mowed or burned. Shrubs and eventually trees will take over even in an abandoned parking lot. That doesn't make it wetland.

You are right, people will make sure nothing is allowed to grow, just to preserve their right to use their property. Sounds counter productive to the stated goal of preserving wetlands. Just dumb.

damae said...

This link is the best explanation I know of as to why you are being put through the wringer: