B & D Land and Livestock Co. v. Veneman, C 02-3051-MWB.
| Citation | 231 F.Supp.2d 895 |
| Decision Date | 15 November 2002 |
| Docket Number | No. C 02-3051-MWB.,C 02-3051-MWB. |
| Court | U.S. District Court — Northern District of Iowa |
| Parties | B & D LAND AND LIVESTOCK CO., an Iowa Corporation, Plaintiff, v. Ann VENEMAN, Secretary of the United States Department of Agriculture, Defendant. |
Thomas A. Lawler, Lawler & Swanson, PLC, Parkersburg, IA, for plaintiff.
Martha A. Fagg, U.S. Attorney's Office, Sioux City, IA, for defendant.
TABLE OF CONTENTS
I. INTRODUCTION .........................................................898
A. Factual Background ................................................898
B. The Agency Determination ..........................................899
C. The Action For Judicial Review ....................................900
D. The Motion For Preliminary Injunction .............................901
II. LEGAL ANALYSIS .......................................................902
A. Standards For Issuance Of A Preliminary Injunction ................902
B. Impediments To Injunctive Relief ..................................903
1. A complete bar .................................................903
2. Heightened requirements ........................................905
C. Application Of The "Dataphase Factors" ............................906
1. Likelihood of success on the merits ............................906
a. The meaning of "likelihood of success" ......................906
b. B & D's likelihood of success ...............................908
2. Irreparable harm ...............................................910
3. Balance of harms ...............................................911
4. The public interest ............................................912
D. The Bond Requirement ..............................................913
III. CONCLUSION ...........................................................914
This action for judicial review of a determination by the USDA that the plaintiff "converted" "wetland" in violation of the "Swampbuster" Act, 16 U.S.C. §§ 3801, 3821-24,1 comes before the court on the plaintiff's motion for a preliminary injunction on enforcement action by the USDA during the pendency of this court's review. Although it appears to the court that the central facts are largely undisputed, the parties focus on very different parts of the record, drawing therefrom opposite conclusions about the need for a preliminary injunction. The court must, therefore, determine the proper focus and the proper balance of threats, interests, and equities to decide whether the requested preliminary injunction should issue.
As mentioned above, the factual background to plaintiff B & D Land and Livestock Company's motion for a preliminary injunction — and indeed, its action for judicial review — appears to be largely undisputed. Nevertheless, the court will attempt to provide here only enough factual background, and enough identification of any factual disputes, to put in context the motion for a preliminary injunction. In doing so, the court is mindful of the general rule that "the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits." University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); accord Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 962 (8th Cir.1995) (); Circle R, Inc. v. Smithco Mfg., Inc., 919 F.Supp. 1272, 1289 (N.D.Iowa 1996) (); United States v. Barnes, 912 F.Supp. 1187, 1190 (N.D.Iowa 1996) (). Thus, any findings of fact in this ruling, made either here or in the course of the legal analysis to follow, as well as any conclusions of law forming part of the court's determination of whether a preliminary injunction should issue in this case, are intended to be subject to this "general rule" and are not to be considered "final."
There does not appear to be any 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. The tract in question is owned and farmed by plaintiff B & D Land and Livestock Company. The president and shareholder of B & D is Larry L. Doane. After purchasing the pertinent farmland, 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). B & D initiated an administrative appeal of the 1999 wetland determination, but then withdrew the administrative appeal after purportedly receiving assurances from Tony Moore, the District Conservationist of the NRCS, that B & D could remove certain "woody vegetation" from the Tract. There is no dispute that in 2000, B & D removed woody vegetation from the designated wetland on Tract # 1653, plowed the entire tract, except for the designated wetland in the southeast corner of the tract, then raised corn on the tract in the calendar year 2000 and soybeans in the calendar year 2001.
The agency action currently under review began in April 14, 2000, when Tony Moore, the NRCS District Conservationist, noticed that the woody vegetation had been "grubbed" from the designated wetland on Tract # 1653 while he was working on adjacent land owned by another producer.2 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 from Mr. Moore), see also id. at 45-46 ("Highly Erodible Land and Wetland Conservation Determination"). 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. Therefore, B & D sought review of the wetland "conversion" determination by the Farm Service Agency (FSA) County Committee, another department of the USDA.
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 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 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 was 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 administrative appeal, B & D requested review of the Hearing Officer's determination by the Director of NAD. On March 27, 2002, William A. Crutchfield, Acting Director of Review, NAD, issued his review, again upholding the Agency's determination. The Acting Director concluded, inter alia, as follows:
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 was aware of the wetland on field UN1 and removed shrubs and woody vegetation in violation of wetland provisions. The removal of the...
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