Foster Loses CWA Case in 8th Circuit

Eighth Circuit Rules Against South Dakota Farmer in Wetlands Case

Todd Neeley
By  Todd Neeley , DTN Environmental Editor
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The U.S. Court of Appeals for the Eighth Circuit ruled South Dakota farmer Arlen Foster did not follow USDA regulations in seeking a review of a wetland determination. (DTN file photo)

LINCOLN, Neb. (DTN) -- Arlen Foster, a farmer from Minor County, South Dakota, lost in his appeal to the U.S. Court of Appeals for the Eighth Circuit on Friday in his ongoing battle with USDA on a wetlands determination made over three-tenths of an acre on his farmland.

The Eighth Circuit found NRCS's decisions to refuse to consider Foster's 2017 and 2020 review requests were not arbitrary and capricious because, "Foster failed to comply with the review regulation, as he never provided evidence that a natural event altered the site or that an error exists" in the NRCS's current wetland certification."

For more than a decade, Foster has been unable to farm the tract because 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.

Foster presented new evidence to prove the land in question does not contain a wetland, but USDA refused to grant a review.

The court said that under Foster's interpretation, "farmers could unilaterally nullify wetland certifications as the NRCS makes them by filing vague and facially meritless review requests.

"This ability to request review would be without limit and would grant farmers the unfettered ability to render any attempted certification by the NRCS uncertain. The review regulation imposes reasonable procedural requirements a farmer must follow to make an effective review request and thereby delimit a prior wetland certification. Because the Swampbuster review provision is silent as to the nature of an effective review request, the review regulation does not conflict with the Swampbuster review provision."

Jeffrey W. McCoy, a Pacific Legal Foundation attorney representing Foster, told DTN he believes the court got it wrong.

"We are disappointed with the decision," he said. "As we argued in our brief, we believe that courts should not defer to an agency's interpretation of the law, but have a duty to independently review the meaning of a statute. Indeed, the Supreme Court will address this issue next term in Loper Bright Enterprises v. Raimondo. We are discussing our options for how to continue."

The Loper Bright case directly challenges a 1984 Supreme Court precedent known as the Chevron ruling that stated federal courts should defer to federal agencies some latitude in drafting rules for federal laws. The Supreme Court earlier this month announced it would hear the Loper Bright case in its next term.

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.

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

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.

Read more on DTN:

"Farmer Continues Wetlands Court Fight," 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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