SCOTUS Still Considers Foster Petition

Foster Supreme Court Wetland Case Hinges on Previous Case Argued Before Court

Todd Neeley
By  Todd Neeley , DTN Environmental Editor
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An attorney for South Dakota farmer Arlen Foster said his Supreme Court case may hinge on another case already argued before the court. (Photo courtesy Pacific Legal Foundation)

LINCOLN, Neb. (DTN) -- A Pacific Legal Foundation attorney representing South Dakota farmer Arlen Foster believes the Supreme Court's inaction to grant or deny Foster's petition to review his wetland case eight months after it was filed is good news for the farmer.

Foster, a Miner County farmer, appealed to the Supreme Court for a second time in August 2023. That came after the U.S. Court of Appeals for the Eighth Circuit rejected his claim that USDA's Natural Resources Conservation Service unjustly rejected his request for a review of a wetlands determination on an 0.8-acre tract of land.

Foster has been fighting the agency's determination for about 15 years.

The Supreme Court designated Foster's case for conference in January -- meaning the court has been considering the petition since then.

PLF Senior Attorney Jeffrey W. McCoy told DTN it is likely the court is waiting to render an opinion on another case argued before the court in January 2024.

"We believe that the court is holding onto the case until it decides Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce," McCoy said.

"Both of those cases will decide how much deference, if any, a court should give to an agency's interpretation of a statute. Because the Eighth Circuit in Mr. Foster's case deferred to the agency's interpretation, we think the outcome of Loper Bright and Relentless will affect Foster."

Foster's attorneys also asked the court to consider overruling the so-called Chevron deference -- a legal doctrine established by the court in a 1984 ruling in Chevron USA v. Natural Resources Defense Council.

The Chevron deference is the latitude federal judges give agencies on how they interpret statutes when disputes arise. That is, if statutory language is clear, agencies are required to follow the letter of the law. If wording and context in a statute is ambiguous, a court must defer to the agency's discretion.

"Once Loper Bright and Relentless are decided, the court will once again conference on the Foster petition," McCoy told DTN.

"The justices will then decide whether to take the case, deny the case or (as we think is most likely) send the case back to the Eighth Circuit to apply the standards the court articulates in Loper Bright and Relentless."

Foster has been fighting USDA's National Resources Conservation Service's determination that a puddle on his farm is a wetland. The NRCS turned down his petition to review the determination after Foster presented a new study that he said shows there is not a natural wetland preventing him from taking part in federal programs if he farms the tract of land.

That new analysis purports to show a tree belt installed on the land in 1936 caused large snow piles in the field and is the source of the puddle.

The NRCS maintains it would not review the wetland determination because the agency's review regulation restricts reviews only if a natural event alters the topography of the hydrology of the land in question.

Foster's latest petition to the Supreme Court was supported by the American Farm Bureau Federation (AFBF) in an amicus brief filed last fall.

The AFBF argued Foster is entitled to a review because Congress changed the previous statute that granted USDA broad discretion over the terms of such reviews and replaced that with an "unconditional right to obtain review," according to the AFBF's amicus brief.

"This court should grant review on the important question presented by the petition," AFBF said in the brief.

"In the Swampbuster Act, Congress provided farmers with a broad right to obtain review of a wetland certification, providing that a certification will remain effective 'until such time as the person affected by the certification requests review of the certification by the secretary.' "

Read more on DTN:

"Farmer Continues Wetlands Court Fight,"…

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Todd Neeley

Todd Neeley
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