Foster 8th Circuit Wetland Battle Rages

USDA Fights to Keep Wetland Reg in Place Although Not Approved by Congress

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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South Dakota farmer Arlen Foster and attorneys for USDA have filed briefs in an ongoing legal battle on a wetland determination made on a .8-acre tract of land. (Photo courtesy Pacific Legal Foundation)

LINCOLN, Neb. (DTN) -- South Dakota farmer Arlen Foster did not have the right to seek review on a wetlands determination made on his farm, attorneys for the USDA argue in court, because he offered no new information in a review request.

Foster has been fighting the USDA on its determination that a perpetual puddle caused by snow accumulation from a tree belt is a wetland, forbidding the farmer from farming the .8-acre tract of land.

The conflict doesn't necessarily prevent Foster from farming the land but USDA wetland rules detail that the department is required to deny federal government payments and benefits to farmers who drain wetlands to grow agricultural commodities. Since the 2014 farm bill, farmers who drain wetlands also risk the loss of crop-insurance premium subsidies as well.

Both sides in the case are making arguments to the U.S. Court of Appeals for the Eighth Circuit in St. Louis, Missouri, and the USDA in a brief filed last week rejected Foster's arguments that an agency review rule is not legal because it was not approved by Congress.

Foster's attorneys at the Pacific Legal Foundation have asked the Eighth Circuit to strike down the lower court's ruling and require USDA to conduct a review.

"In 2019, plaintiff again asked NRCS to review the 2011 certification and determine that the wetland at the site was an 'artificial wetland,'" USDA said in its brief filed in the Eighth Circuit.

"To that end, plaintiff provided an engineer's report about the degree to which snow gathering by the tree belt contributes to the hydrology of the wetland. The NRCS conservationist asked plaintiff's consultant to identify 'where in the agency record you found (NRCS) didn't consider the tree belt.' There is no indication from the record that plaintiff or his consultant ever responded to that request."

USDA has repeatedly rejected Foster's requests for review, claiming the review rule doesn't allow it. Foster's attorneys argued in a brief filed with the court in September that once a landowner requests a review of a previous wetland determination under the Swampbuster Act the original determination is void.

Foster has been battling USDA's wetland determination since 2008. USDA declared a puddle in one of his fields to be a wetland in 2011.

NRCS received new evidence from Foster in 2020 that showed a tree belt installed on his farm by his father in 1936 causes massive snow piles in the field. The yearly spring melt has created a perpetual puddle.

A study conducted by engineers found the so-called wetland was artificial. Foster requested the Natural Resources Conservation Service to review the new information and complete a new assessment of the 2011 determination. That request was denied.

A federal judge in the U.S. District Court for the District of South Dakota rejected Foster's motion for summary judgment because Foster did not present to NRCS evidence of a "natural" change to the physical geography of the land.

Foster filed requests for review on his Miner County, South Dakota, farm in 2017 and 2020.


Although the law allows for landowners to receive wetland reviews when error is committed in the original determination, USDA attorneys said, "NRCS was under no obligation to admit an error and allow for review once again."

Congress approved an amendment to the law in 1996 to address a pattern by NRCS to "repeatedly" revise existing wetland determinations on its own initiative.

"It was not giving farmers the unilateral authority to invalidate the secretary's certifications -- let alone the authority essentially to set aside court decisions upholding those certifications," USDA said in its brief.

"Because Congress was legislating against a backdrop that agencies have broad discretion in deciding whether to reconsider past decisions, its failure to specify any grounds for rejecting such requests cannot reasonably be understood as compelling NRCS to accept all such requests, however unmeritorious or redundant."

In his brief filed with the court in September, Foster argues USDA's rejection was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."

Foster's attorneys said the language of the Swampbuster Act "contains no limits on when a person can request review and, once he or she requests a review, the previous certification is invalidated.

"If Congress intended for NRCS to control when a farmer could review a previous certification, it would have structured the process in a manner that puts the agency in control of initiating the review process."

Foster said the agency's review regulation "conflicts with the plain language of the statute because it allows a review of a previous certification 'only if a natural event alters the topography or hydrology of the subject land' or 'if NRCS concurs with an affected person that an error exists in the current wetland determination.'"


USDA attorneys have further argued that Foster isn't entitled to a review because he had not completed the NRCS process for such requests before filing his lawsuit.

As it stands, if Foster decided to farm the land in question, he would be ineligible for farm programs.

According to Swampbuster regulations, a final wetland certification remains valid and in effect as long as the land is devoted to agricultural use or until the person affected by the certification requests a review.

The Supreme Court previously ruled the government cannot force people to waive constitutional rights as a condition of receiving federal benefits, including from farm programs.

Under Swampbuster Act provisions, Foster is allowed to farm the land but cannot drain water from the site because it is deemed to be a wetland. Because he's unable to drain water from the land, Foster has been unable to farm the ground consistently.

In July 2008, Foster asked the NRCS to reconsider an earlier wetland delineation it performed, according to a petition he filed with the Supreme Court.

Foster continued to challenge NRCS through a series of court cases, eventually losing in an appeal to the Eighth Circuit in April 2016.

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Todd Neeley

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