Barthel v. U.S. Dep't of Agriculture, 98-2754

• Decision Date: 21 January 1999
• Docket Number: No. 98-2754,98-2754
• Citation: 181 F.3d 934
• Parties: (8th Cir. 1999) KEITH BARTHEL; DOROTHY BARTHEL, APPELLANTS, v. UNITED STATES DEPARTMENT OF AGRICULTURE, DANIEL GLICKMAN, SECRETARY, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 934

181 F.3d 934 (8th Cir. 1999)

KEITH BARTHEL; DOROTHY BARTHEL, APPELLANTS, v.UNITED STATES DEPARTMENT OF AGRICULTURE, DANIEL GLICKMAN, SECRETARY, APPELLEE.

No. 98-2754

U.S. Court of Appeals, Eighth Circuit

Submitted: January 21, 1999

Decided June 18, 1999

Appeal from the United States District Court for the District of Nebraska.

Before McMILLIAN, Beam, and Loken, Circuit Judges.

Beam, Circuit Judge.

Keith and Dorothy Barthel(the Barthels) appeal the district court's decision upholding the United States Department of Agriculture's (USDA) limitation on the dredging of a drainage ditch.¹The limitation leaves the Barthels' hay meadow flooded.We reverse and remand.

I.BACKGROUND

In 1916, the South Fork of the Elkhorn river was straightened to improve drainage.The straightened portion, referred to as "the ditch," allowed certain land to be used for hay and pasture.The ditch was dredged in 1951 to clean out obstructions and silting which had occurred through the passage of time and caused water to back-up.In 1957, the Barthels purchased their 450-acre hay meadow.The meadow is drained by the ditch which runs along the south side of the Barthels' property.The ditch also runs on adjacent property owned by Gene and Erna Liermann.The Liermanns' land is directly downstream from the Barthels' tract.

The Barthels, together with a neighbor, dredged the ditch again in 1983.The Liermanns gave permission for this work to be done to the portion of the ditch on their land as well.The following year the county replaced a culvert under a county road where it crosses over the ditch.Road department workers testified that sometime in 1986, the culvert was lowered by approximately eighteen inches.In the interim period, on December 23, 1985, the Food Security Act (the Act) became effective.The Act contains federal Swampbuster provisions aimed at preserving wetlands.SeeGunn v. USDA, 118 F.3d 1233, 1235(8th Cir.1997), cert. denied, 118 S. Ct. 1042(1998).

By 1987, the ditch had again become obstructed with debris and clutter, allegedly caused by the Liermanns' cattle crossing the ditch.The Barthels sought to dredge the ditch on the Liermanns' property or in the alternative have the Liermanns clean that portion pursuant to their state law obligations.This time the Liermanns refused, and eventually the Barthels filed suit in Nebraska state court.A mandatory injunction was issued requiring the Liermanns to clean out the portion of the ditch on their property "so that water will flow."Admin. R.at 327(state court injunction).Because cleaning and maintenance of the ditch impacted a potential wetland area, the USDA,² the agency responsible for enforcement of the Swampbuster provisions, became involved.Initially, the USDA determined that the cleaning and maintenance required by the state court did not violate any Swampbuster provisions.However, after the Liermanns appealed, the USDA reversed course.Based upon reliable evidence that the culvert was lowered eighteen inches in 1986, the USDA determined the grade and depth of the ditch required under the Swampbuster provisions and implementing regulations, and refused to allow dredging that exceeded eighteen inches above the bottom of the downstream culvert.At that level and grade, the Barthels' hay meadow is flooded.

Following exhaustion of administrative appeals, the Barthels brought suit in federal district court.The district court affirmed the USDA's decision, and the Barthels appeal.The Barthels argue that the agency interpretation of the federal statute is incorrect.They contend that although they were able to produce hay, and pasture their milk cows on the land before December 23, 1985, the agency's determination has left their land completely and permanently underwater.³

II.DISCUSSION

"In order to combat the disappearance of wetlands through their conversion into crop lands, Congress passed a law known commonly as'Swampbuster.'" Gunn, 118 F.3d at 1235(citingFood Security Act of 1985 §§ 1201, 1221-23, 16 U.S.C. §§ 3801,3821-24).The law denies eligibility for several federal farm-assistance programs if wetlands are converted to agricultural use.SeeNational Wildlife Fed'n v. Agricultural Stabilization and Conservation Serv., 955 F.2d 1199, 1200(8th Cir.1992).⁴In addition, the law provides for exemptions, namely wetlands that were converted before December 23, 1985 the effective date of the law.⁵SeeGunn, 118 F.3d at 1235.Land meeting this exemption can be maintained as it was prior to the effective date of the Act without loss of federal benefits.Neither the Barthels nor the USDA dispute that the land in question here, a 450-acre hay meadow, was altered by the ditch and drained prior to the effective date of the Act.SeeBarthel v. Glickman, No. 4: 96CV3034, mem. op. at 7(D. Neb.May 1, 1998).The only dispute is the extent to which the land was altered and can now be maintained.The Barthels contend that the land was previously used for hay production and pasture and should be maintained at the level of prior use.The USDA argues that the current level of the ditch should be maintained, whatever the effect upon the property.

The regulations implementing the Swampbuster provisions classify the Barthels' land as "other wetland area" because it is seasonally flooded or ponded but was "manipulated prior to December 23, 1985."7 C.F.R. § 12.32(a)(3)(1992)."Persons may continue to farm such wetlands... as they did prior to December 23, 1985.However, no action can be taken to increase effects on the water regime beyond that which existed on such lands" on or before that date.Id.§ 12.33(a)(1992)(emphasis added).

As noted, the Barthels had manipulated the water regime on their land before the effective date of the Act by improving drainage.The record provides uncontroverted examples of this.When the time came to clean the drainage ditch, the USDA denied permission despite a state mandatory injunction.The agency denied permission based upon the National Food Security Act Manual (the Manual), which more specifically defines the technical application of the Swampbuster provisions.Seeid.§ 12.6(c).

The Manual classifies the Barthels' land as "farmed wetland pasture or hayland."SeeNFSAM § 514.23.⁶For farmed wetland, the Manual provides that the land can be used as it was before December 23, 1985, including "managed for pasture or hayland and the drainage or other hydrologic manipulations can be maintained, but not improved."Id.§ 514.23(d).The Manual goes on to state that a hydrologic manipulation can be maintained to the same "scope and effect" as before December 23, 1985.Id.§ 515.10(a).The Manual concludes that the agency "will determine the scope and effect of original manipulation on all farmed wetlands."Id.§ 515.11(b).

To determine the original scope and effect of the manipulation, the USDA focused solely on the depth of the ditch that drains the hay meadow.In essence, the USDA interprets the manipulation to be the ditch.This led all involved to drudge through the mud of determining its precise depth.The agency argues, with supporting evidence, that the level of the culvert on or before December 23, 1985, was eighteen inches higher than its current level and as a result the ditch can only be maintained at that level.Unfortunately, this results in flooding on the Barthels' land.The Barthels challenge the agency's interpretation of the Swampbuster provisions and argue that maintenance of the manipulation should allow them to use the land as they did prior to the passage of the Act.

"We must uphold the [agency's] decision unless it is'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"Von Eye v. United States, 92 F.3d 681, 685(8th Cir.1996)(quoting5 U.S.C. § 706(2)(A)).Yet, an "overreaching and erroneous interpretation of the statute" cannot be in "accordance with law."Downer v. United States, 97 F.3d 999, 1010(8th Cir.1996)(Beam, J., Concurring and Dissenting).Certainly there is no worse statute than one misunderstood by those who interpret it.We conclude that the agency's interpretation misses the clear focus of the Swampbuster provisions and the implementing regulations.

The Act's proclaimed purpose is to preserve wetlands, or, if wetlands are altered, to preserve the conditions as altered.The Act says nothing about preserving the precise depth of drainage ditches or culverts.The government emphasizes that "'[w]etlands are a priceless resource whose contributions have long gone unrecognized.'"Appellee's Briefat 12(quotingH. R. Rep. No. 99-271, pt. 1, at 87(1985), reprinted in1985 U.S.C.C.A.N. 1103, 1190).However, a drainage ditch is not the envisioned protected area.The agency's implementing regulations also focus on the wetlands.Under the regulations, farming of a wetland should be maintained at the level that was achieved prior to the Act.The "water regime" is maintained, not necessarily the ditch and culvert levels.See, e. g., Gunn, 118 F.3d at 1235(focusing on the notion that a person cannot "improve the land's drainage").As further evidence of this point, the current regulation on "use of wetland and converted wetland" provides that changes in the watershed due to human activity which increases the water regime on a person's land, can result in a person being allowed "to adjust the existing drainage system to accommodate the increased water regime."7 C.F.R. § 12.33(a).

This is not to say that the level of a ditch or culvert cannot provide an accurate indication of the water regime which previously existed.In fact, the Manual states that "any other available information relating to systems installed before 12/23/85" can be applicable in determining the "original scope and effect" of a wetland manipulation.NFSAM § 515.11(e).In the Barthels' case, the USDA's findings for the ditch and culvert depths apparently conflict with...