Farmer Continues Wetlands Court Fight

Arlen Foster Wetlands Case in Hands of 8th Circuit Court, as Farmer Seeks Review

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
Connect with Todd:
South Dakota farmer Arlen Foster continues to fight for a review of a 2011 USDA wetlands determination. (Photo courtesy of Pacific Legal Foundation)

LINCOLN, Neb. (DTN) -- A conveyor belt of major snowstorms has covered Arlen Foster's Minor County, South Dakota, farm like a blanket this year.

Though he anxiously waits for the melt, not much will change on his land.

Like a faithful friend, a puddle will reappear behind a tree belt on a 0.8-acre tract of Foster's farm, as it has for generations.

"Yes, we again have 6-foot-plus drifts in the tree belt, but the effects on the puddle remain the same as they have been over the years," Foster told DTN.

What he hopes will change eventually is his ability to farm that stretch of ground.

For more than a decade, Foster has been unable to farm the tract because the USDA's Natural Resources Conservation Service says the puddle is a wetland that cannot be touched if the farm is to remain in USDA programs.

In recent weeks, attorneys for Foster made yet another legal argument before yet another court -- this time the U.S. Court of Appeals for the Eighth Circuit.

Foster hired a wetlands consultant in recent years, who determined the small tract of land was not a wetland. He sought review of his wetland status and was denied despite scientific proof in his favor.

The amount of lost production, lost inputs and other losses has mounted for Foster.

"It isn't just only about loss of production, but also about loss of inputs," Foster told DTN.

"For example, the times when we are able to fertilize, plant, and spray, if we get a heavy rainfall event or events, the growing crop may drown out."


Foster's Pacific Legal Foundation attorney Jeffrey McCoy delivered an oral argument on March 21 before the Eighth Circuit, making the case the Swampbuster Act requires USDA to grant a review.

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

"One issue the NRCS has had in this case and at argument is articulating objective standards for when a farmer can request a review of a certified wetland delineation," McCoy told DTN.

"Instead, the agency believes it gets to subjectively decide when a farmer gets a review. But Swampbuster is clear: A farmer can request a review at any time. As the Sixth Circuit said in a 2015 decision, Maple Drive Farms v. Vilsack, the NRCS has created a 'bureaucratic labyrinth' under Swampbuster.

"Any amendments to the statute that can clarify and streamline the procedures for determining wetlands would be beneficial to farmers."

Sen. Mike Rounds, R-S.D., introduced legislation this week that would change the way the NRCS handles wetlands compliance,….

McCoy said the if the Eighth Circuit rules against Foster, they will likely pursue a hearing before all the judges in the circuit or petition the Supreme Court.

Brian Toth, an attorney for USDA, argued before the Eighth Circuit that USDA could reject Foster's review request without explanation as it did in this case.

"Plaintiff in this case makes the extraordinary assertion that it may compel the Department of Agriculture to accept its request for review by virtue of nothing more than the fact that it lodged the request with the department," Toth said during arguments.

"There's no support in the statute or what a fair reading of the statute shows that neither the text of the statute, its context nor its history, supports plaintiffs reading of that statute. I think this is really an end-run APA (Administrative Procedure Act) claim, in the sense that the agency is required to provide reasons explaining its decision, but they need not be elaborate reasons, especially for a denial that's following a record where this issue of whether there was an artificial wetland on land as property was extensively litigated."


McCoy argued that NRCS's review denial was unreasonable because it didn't allow Foster a hearing based on the latest wetlands science.

In this case, NRCS denied a review because it wasn't a natural event that altered the alleged wetland on Foster's property.

"There is evolving science, but that would not fall under their standard of natural topography," McCoy told the court. "There's evolving science, there's more evidence. There are situations where wetland science advances and someone would not be able to get a review of that even if there was advances in science. So that is still unreasonable."

Roger McEowen, a professor of agricultural law and taxation at Washburn University School of Law and at Kansas State University, said the Eighth Circuit case boils down to whether NRCS' interpretation of Swampbuster is accurate or whether denying Foster a review was arbitrary and capricious.

McEowen said the Supreme Court has increasingly granted what is called Chevron deference -- essentially giving government agencies the benefit of the doubt when it comes to interpreting federal law.

"The statute actually is pretty clear," McEowen said. "If a farmer wants a review of a final certification, it's to be upon request. And so the USDA came in and said, 'Well, yeah, it says that if you're a person affected by the certification, you can seek a review of that,' but the USDA's regulation of that statutory provision requires an affected person such as Arlen to show that there was a natural event that changed the topography or hydrology of the wetland that caused the certification to no longer be a reliable indicator of site conditions. None of that's in the statute."

In 2020, Foster presented new evidence showing the land USDA deemed a wetland was artificial in nature.

So, Foster requested an NRCS review of the new information and to complete a new assessment of the 2011 determination. The request was denied.

The new analysis paid for by Foster, found a tree belt installed on the property in 1936 causes massive snow piles in the field.

McEowen, who has represented farmers in similar cases, said he was surprised by USDA's reasoning for rejecting Foster's request.

"The statute doesn't say anything about what the farmer has to do to get review, it just says you're entitled to review," McEowen said.

"Now the other thing that USDA was arguing and the whole battle here is, well, who does the review, and see, they made an argument that well, he didn't go to the right person."


McEowen said the statute is silent on where farmers go for reviews.

"Does this mean we're at the director level?" he said. "Does this mean we're at the administrative law judge level? Does this mean we're back at the NRCS level? That's the kind of stuff that the agency has the discretion to write into rules as to where you go. The argument here is you don't have the discretion to just flat-out deny the review because Congress said that if you want a review of a final determination, you're entitled to it."

Toth said during oral arguments that if Foster's review request was accepted, it would open the agency to a slew of new requests.

"With enough money, any farmer could go and get a new consultant to prepare any report based on new precipitation data from the next year and then claim that it's new information the agency's compelled to make a new determination," he told the court.

"But that should not be the standard because it would create a ton of work for the agency."

McEowen said he found the agency's argument "astounding."

"You mean to tell me yeah, if a farmer's got money, that's what you're concerned about?" he said. "You'll have to follow the law if they've got money. But if they don't, we just bought them off, which is basically what they were saying."

Read more on DTN:

"SD Farmer Appeals Wetlands Decision,"….

Todd Neeley can be reached at

Follow him on Twitter @DTNeeley

Todd Neeley

Todd Neeley
Connect with Todd: