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For Immediate Release: Apr 18, 2006
Contact: Kirsten Stade (202) 265-7337

FEDERAL CONSERVATION PROGRAM SURMOUNTS LOCAL OPPOSITION

Court Rules South Dakota Zoning Board Cannot Block Stream Buffers


Washington, DC — A South Dakota farmer has won the right to plant federally-subsidized stream buffers on his own land, according to a court order posted today by Public Employees for Environmental Responsibility (PEER). The state Circuit Court in Douglas County ruled that the local zoning board did not have the authority to prohibit landowners from planting trees.

The fact that the case ended up in court is some indication of the depth of hostility in some rural areas against the ongoing shift away from crop subsidies and towards support for sustainable agriculture. Some officials in Douglas County, located just above the Nebraska border, oppose federal investment in farm conservation, contending it causes higher land prices and attracts absentee owners who buy land for recreation rather than for farming or ranching.

The Natural Resources Conservation Service, an arm of the U.S. Department of Agriculture, offers financial incentives for farmers to plant trees and shrubs along streams as a means for preventing soil erosion, creating wildlife habitat, and protecting water quality by keeping cattle from wallowing along denuded, overgrazed banks. In 2004, Gordon Heber, a Douglas County landowner, decided to go ahead and plant federally-subsidized riparian buffers along two sections of Choteau Creek, which is classified as an impaired waterway by state and federal environmental authorities.

In order to block the planting, Douglas County stepped in and imposed a new requirement for a county zoning permit prior to planting the trees for which Heber advanced $87,000 out of his own pocket. Heber challenged the need for a zoning permit in circuit court.

In a ruling dated April 12, 2006, Circuit Court Judge Bruce V. Anderson held that the county lacked authority to require a zoning permit to plant trees on agricultural land. Moreover, the court ruled that the county had “acted arbitrarily” by failing to specify any standards that had to be met before approval for the riparian buffer would be granted.

“The stakes of this case go far beyond South Dakota – the fight that Gordon Heber waged hopefully will mean that any farmer can take part in federal conservation programs free from local obstruction,” stated PEER Executive Director Jeff Ruch. “As discretionary federal budgets shrink, increasingly there will be a zero sum competition between subsidizing environmentally destructive land practices and supporting sustainable agriculture.”

During the next few months, Congress will again wrestle with the federal farm budget, including a proposal by President Bush to further cut funding for an array of farming stewardship programs, including the one used by Gordon Heber.

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Read the court order

Find out more about the case