Foster Wetland Case Sent Back to 8th

SCOTUS Sends South Dakota Wetland Case Sent Back to Eighth Circuit After Chevron Ruling

Todd Neeley
By  Todd Neeley , DTN Environmental Editor
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A federal appeals court will rehear the case of South Dakota farmer Arlen Foster, who contends he deserves a review of the USDA's determination that a 0.8-acre tract of land contains a wetland. (Photo courtesy of the Pacific Legal Foundation)

LINCOLN, Neb. (DTN) -- The wetlands case of South Dakota farmer Arlen Foster will be heard again by the U.S. Court of Appeals for the Eighth Circuit. The Supreme Court on Tuesday granted Foster's petition for a rehearing after overturning the so-called Chevron doctrine last week.

The Eighth Circuit had upheld the decision of a federal judge in the U.S. District Court for the District of South Dakota that granted Chevron deference to the USDA Natural Resources Conservation Service's denial of a rehearing requested by Foster in 2020.

The Miner County farmer has been fighting USDA's wetland determination on a 0.8-acre tract of land for more than 15 years.

Foster presented new evidence to USDA in 2020 that showed a tree belt installed on his farm by his father in 1936 causes large snow accumulations in the field. An annual spring melt has created a perpetual puddle the agency has deemed to be a protected wetland.

Chevron deference has been granted to federal agencies for about 40 years. Following the Supreme Court's decision, courts will no longer be able to defer to agency interpretation of statutes when laws are ambiguous.

As a result, the Eighth Circuit has been ordered by the Supreme Court to reconsider Foster's case on the legal merits of the law.

In addition, the Supreme Court granted petitions in eight other non-agriculture cases connected to the Chevron decision, according to the court's orders.

Jeffrey W. McCoy, a senior attorney at the Pacific Legal Foundation who is representing Foster, said he's hopeful the Eighth Circuit will side with Foster.

"We are very happy that the Supreme Court has sent the case back to the Eighth Circuit to reconsider its decision without deferring to the NRCS's interpretation of the statute," McCoy told DTN.

"We are confident that when the court of appeals reads the plain language of Swampbuster without having to defer to the agency, it will determine that Arlen is entitled to a review of his current wetlands determination."

The NRCS denied Foster's request for a new assessment of the wetlands determination.

Foster appealed to the Eighth Circuit after the district court denied his motion for summary judgment.

USDA rejected Foster's request because the new evidence did not represent a "natural" change to the physical geography of the land.

Foster also requested a review in 2017. At that time, the NRCS asked him to "supply additional information" not previously considered by the agency. Foster complied, although he was not required by law to do so.

Swampbuster Act provisions prohibit the draining of water from a wetland if farmers are to take part in farm programs.

Read more on DTN:

"Ag Effects Limited in Chevron Decision," https://www.dtnpf.com/…

"Supreme Court Tosses Chevron Doctrine," https://www.dtnpf.com/…

"SD Farmer Appeals Wetlands Decision," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley

Todd Neeley
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