B & D Land and Livestock Co. v. Veneman, C 03-3086-MWB.

• Court: United States District Courts. 8th Circuit. Northern District of Iowa
• Citation: 332 F.Supp.2d 1200
• Docket Number: No. C 03-3086-MWB.,C 03-3086-MWB.
• Parties: B & D LAND AND LIVESTOCK CO., an Iowa corporation, Plaintiff, v. Ann VENEMAN, Secretary, United States Department of Agriculture, Defendant.
• Decision Date: 17 August 2004

332 F.Supp.2d 1200 B & D LAND AND LIVESTOCK CO., an Iowa corporation, Plaintiff,
v.
Ann VENEMAN, Secretary, United States Department of Agriculture, Defendant. No. C 03-3086-MWB. United States District Court, N.D. Iowa, Central Division. August 17, 2004.

Page 1201

Thomas A. Lawler, Lawler & Swanson, PLC, Parkersburg, IA, for Plaintiff.

Martha A. Fagg, US Attorney's Office, Sioux City, IA, for Defendant.

MEMORANDUM OPINION AND ORDER ON JUDICIAL REVIEW OF FINAL AGENCY DETERMINATION

BENNETT, Chief Judge.

 TABLE OF CONTENTS
                I. INTRODUCTION .......................................................1201
                 A. Factual Background ..............................................1201
                 B. Procedural Background ...........................................1203
                 1. The first administrative appeal ..............................1203
                 2. The first action for judicial review .........................1204
                 3. The second administrative appeal .............................1205
                 4. The second action for judicial review ........................1206
                II. LEGAL ANALYSIS .....................................................1208
                 A. Federal Protection Of Wetlands ..................................1208
                 B. Standards For Judicial Review ...................................1208
                 C. Application Of The Standards ....................................1209
                 1. Reviewability of the 1999 wetland determination ..............1209
                 a. Arguments of the parties ..................................1209
                 b. Rules for statutory interpretation ........................1210
                 c. Provisions of 16 U.S.C. § 3822 .......................1211
                 d. Application of the provisions .............................1213
                 2. Other assertions of error ....................................1216
                III. CONCLUSION .........................................................1216
                

This action for judicial review is the plaintiff's second such action seeking review of a determination by the USDA that the plaintiff "converted" "wetland" in violation of the "Swampbuster" Act, 16 U.S.C. §§ 3801, 3821-24. In the plaintiff's first action, the court first preliminarily enjoined enforcement actions by the USDA, see B & D Land and Livestock Co. v. Veneman, 231 F.Supp.2d 895 (N.D.Iowa 2002), then remanded the action, at the Secretary's request, for further review upon a complete record. See B & D Land and Livestock Co. v. Veneman, No. C 02-3051-MWB, slip op. (N.D.Iowa Jan. 18, 2003). This second action for judicial review challenges the USDA's determination, after the prior remand, to stand upon its prior determination that the plaintiff "converted" "wetland" in 2000 and its further determination that the plaintiff is not entitled to equitable relief from the consequences of such a "conversion."

I. INTRODUCTION A. Factual Background

As was the case in the plaintiff's first action for judicial review, most of the facts in this action are undisputed. See B & D Land and Livestock Co., 231 F.Supp.2d at

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898. Indeed, the parties' briefing does not reveal any significant difference in the pertinent facts as presented in this action from those presented in the first action.

Thus, there is no dispute that this case involves a purported wetland violation, involving "conversion" of 0.9 acres of "wetland," on Tract # 1653, Section 32, Owen Township, Cerro Gordo County, Iowa. Tract # 1653 is owned and farmed by plaintiff B & D Land and Livestock Company (B & D). The president and sole shareholder of B & D is Larry L. Doane. After purchasing the pertinent farmland in 1997, B & D requested that the Natural Resources Conservation Service (NRCS), which is a department of the USDA, make a certified wetland determination as to Tract # 1653. The NRCS completed that wetland determination on April 27, 1998, and after a review requested by B & D, certified three areas on Tract # 1653 as "wetland," designated "W," on January 20, 1999 (hereinafter, the 1999 wetland determination). Administrative Record at 58.

B & D initiated an administrative appeal of the 1999 wetland determination, but then withdrew the administrative appeal. See Administrative Record at 48. Mr. Doane testified at the administrative hearing on his subsequent administrative appeal that he withdrew the administrative appeal of the 1999 wetland determination, because he "didn't understand the system." Administrative Record at 335. Moreover, Mr. Doane asserted that he had received assurances from Tony Moore, the District Conservationist of the NRCS, that B & D could remove certain "woody vegetation" from the Tract. The parties continue to dispute whether Mr. Moore ever gave Mr. Doane such assurances. The USDA maintains that Mr. Moore only told Mr. Doane that he could remove woody vegetation from "upland" areas of the Tract, but not from the designated "wetland" area.

B & D grew grass or hay on the Tract in 1998 and 1999, cutting the hay around existing woody vegetation. Mr. Doane testified that he did not encounter any problems from excessive wetness in growing or cutting hay on the Tract. There is no dispute that in 2000, B & D removed woody vegetation from the designated wetland on Tract # 1653. Mr. Doane testified that the woody vegetation removed was less than one inch in diameter and approximately six feet tall at most, although very dense. He testified that he removed the woody vegetation, because it was "an aggravation to farming." Administrative Record at 343. He testified, further, that larger trees were removed from the "upland" area, which was not designated as wetland. He then plowed the entire tract, except for the designated wetland in the southeast corner of the Tract, which is not at issue here. B & D raised corn on the Tract in the calendar year 2000 and soybeans in the calendar year 2001. Mr. Doane testified at the administrative hearing that he had no difficulties with wetness in planting or harvesting the row crops in 2000 or 2001.

Tony Moore, the District Conservationist, discovered the removal of woody vegetation from the designated wetland on April 14, 2000, shortly after it occurred, in the course of other business on an adjacent tract of land owned by a different producer. Mr. Moore took photographs of removed vegetation, some of it partially burned; a bulldozer on the property; and a trench, partially filled with water despite no recent rainfall, into which some of the cut vegetation had been dumped. By letter dated April 17, 2000, Mr. Moore notified B & D that B & D had "converted" wetland in violation of 16 U.S.C. § 3821-24 on 0.9 acres of Tract # 1653 "by grubbing of trees and shrubs on this wetland area." See Administrative Record at 42 (letter

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from Mr. Moore);¹ see also id. at 45-46 ("Highly Erodible Land and Wetland Conservation Determination").² B & D appealed this preliminary determination, contending that the shrubs and woody vegetation were removed with a field cultivator, not by a bulldozer, but Mr. Moore upheld his preliminary determination upon review. B & D's administrative odyssey then began.

B. Procedural Background 1. The first administrative appeal

In the first round of B & D's administrative appeal, the FSA County Committee determined that there was merit to the appeal and asked the NRCS State Conservationist to review the file. However, the State Conservationist, Leroy Brown, notified the Director of the FSA County Committee on July 30, 2001, that the file had been reviewed and that "[t]he administrative record has ample technical documentation per current technical federal wetland determination methodology that the site has wetland and the manipulation in 2000 caused the site to meet converted wetland criteria." Administrative Record at 205. Specifically, the State Conservationist concluded that "[t]he 0.9 acres of CW+2000 determination is correct per Federal Wetland Delineation Methodology." Id.

B & D next appealed the determination that it had "converted" wetland to the USDA's National Appeals Division (NAD). A NAD Hearing Officer held an evidentiary hearing on December 6, 2001, at Mason City, Iowa, at which B & D presented evidence, but no one appeared on behalf of the agency. Instead, the USDA subsequently submitted a written statement in support of its position. On January 18, 2002, the Hearing Officer issued an appeal determination in which he also concluded that B & D had converted a wetland by removing woody vegetation. Although the Hearing Officer found that the NRCS District Conservationist had told B & D's president that he could remove certain woody vegetation on Tract # 1653, the Hearing Officer determined that the permission was for the removal of woody vegetation other than that in the designated wetland. See Administrative Record at 213. The Hearing Officer then concluded that "[i]n 2000 the Appellant converted the wetland (W) by removing woody vegetation from it." Id. The Hearing Officer next concluded that, while 7 C.F.R. § 11.9(e) grants the Director of the NAD the authority to grant equitable relief, that authority is not granted to Hearing Officers, who instead are responsible for developing the record for the Director to make a decision on equitable relief. Id. The Hearing Officer's specific "determination" was as follows: "The Agency's designation of a site as a converted wetland (CW+2000) is not erroneous." Id.

At the final stage of its first administrative appeal, B & D requested review of the Hearing Officer's determination by the Director of NAD. On March 27, 2002, William A. Crutchfield, the Acting Director of Review at NAD, issued his review, again upholding the Agency's determination. The Acting Director concluded, inter alia, as follows:

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On December 1, 1997, the Appellant requested a certified wetland determination on FSN 2091, tract 1653. In 1998, NRCS designated three fields on tract 1653 as wetlands and notified the Appellant of such. In April 2000, NRCS found that the Appellant had converted wetland on field UN1. The Appellant...