OMAHA (DTN) -- A United States Supreme Court decision in December to hear a case involving Vietnam War veteran James L. Kisor and a government denial of benefits, could lead to the end of an administrative law doctrine that gives broad powers to federal agencies in how they interpret regulations.
If the court eventually overrules the so-called "Auer deference," landowners like South Dakota farmer Arlen Foster and others who face difficulties on wetlands and other determinations from USDA, EPA and the U.S. Army Corps of Engineers, would be in a better legal position to challenge agency decisions.
The Auer deference is a legal doctrine where courts defer to agency interpretations of regulations in legal challenges as long as they are not inconsistent with regulatory text. Interpretations of rules or laws such as the Clean Water Act are not subject to notice or the rulemaking process, making it difficult to challenge in court.
An overruling of the doctrine could help Foster in his decade-long battle with USDA on a 2008 wetland determination. An 0.8-acre tract on Foster's farm was declared a wetland based on a USDA process that he unsuccessfully petitioned the Supreme Court to review.
"While it may look like my case is dead with the Supreme Court declining to hear it, the issue is exactly the same in the Kisor case that they have agreed to hear," Foster told DTN in an email.
Proponents of eliminating the doctrine say it is necessary to restore the balance of power between courts and federal agencies.
In September 2018, Pacific Legal Foundation Senior Attorney Anthony L. Francois wrote an opinion piece on the doctrine for Investor's Business Daily. Francois, who has represented Foster in his case, did not respond to DTN's request for comment.
"But this fundamental system of neutral judicial review has gone missing from the federal regulatory process," he wrote. "Today's judges have surrendered their role as a check on executive branch agencies. Instead of independently determining what the rules mean and holding the government to those rules, federal judges now routinely 'defer' to the regulatory agencies, whose senior bureaucrats routinely tell the judges what the rules mean."
The Natural Resources Conservation Service instead used a comparison site to make a determination, Foster said. This deprived him of his rights, he contended in his appeal years ago. Such comparisons are allowed by NRCS procedures. The NRCS deemed the land was similar to a known wetland 33 miles away.
Foster's case was cited in the Kisor petition as an example of why the court should hear the case.
"The agency's local comparison site was a tract of land over 30 miles away," the brief said.
"The Fosters argued that 'local area' meant adjacent or in close proximity, but the district court deferred to agency staff's post-hoc testimony interpreting 'local area' to mean anywhere within the 10,835 square-mile major land resource area (larger than the Commonwealth of Massachusetts) in which the Fosters' farm was located."
In July 2008, Foster asked the NRCS to reconsider an earlier wetland delineation it performed, according to a petition he filed with the SCOTUS. Foster continued to challenge NRCS through a series of court cases eventually losing an appeal to the U.S. Court of Appeals for the Eighth Circuit in St. Louis in April 2016.
Wetland conservation provisions in the Food Security Act place no restrictions on farming wetlands if natural conditions allow for it. The wetlands provision prohibits converting wetlands to crop production by draining, filling or other means.
In representing Foster, the Pacific Legal Foundation asked the Supreme Court to consider a number of questions, including whether the use of a comparison site selected a decade ago to make the wetlands determination violates Foster's Fifth Amendment rights to due process.
The American Farm Bureau Federation and the National Cattlemen's Beef Association filed briefs in favor of the court hearing the Kisor case.
Kisor sued the U.S. Department of Veteran Affairs for denying him 23 of the benefits for suffering from post-traumatic stress disorder although acknowledging his diagnosis, ruling his military combat records were not relevant to that diagnosis. The denial was based on a different interpretation of the word "relevant" in DVA regulations.
Todd Neeley can be reached at firstname.lastname@example.org
Follow him on Twitter @toddneeleyDTN
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