Branstad v. Veneman
| Decision Date | 04 June 2001 |
| Docket Number | No. C 01-3030-MWB.,C 01-3030-MWB. |
| Citation | 145 F.Supp.2d 1011 |
| Parties | Edward A. BRANSTAD, and Monroe Branstad, Plaintiffs, v. Ann VENEMAN, Secretary of the United States Department of Agriculture, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Thomas A. Lawler, Lawler & Swanson, P.L.C., Parkersburg, IA, for Plaintiffs.
Kandice A. Wilcox, Assistant U.S. Attorney, Cedar Rapids, IA, for Defendant.
TABLE OF CONTENTS
I. INTRODUCTION ........................................................ 1013
II. LEGAL ANALYSIS ...................................................... 1016
A. Issues Presented For Review ...................................... 1016
B. Subject Matter Jurisdiction ...................................... 1017
1. Exhaustion of administrative appeals .......................... 1018
2. Violation of the CCC's anti-injunction protections ............ 1021
C. Injunctive Relief ................................................ 1022
1. Likelihood of success on the merits ........................... 1023
2. Irreparable harm .............................................. 1024
3. Balance of harms and public interest .......................... 1024
D. Rule 65's Bond Requirement ....................................... 1025
III. CONCLUSION .......................................................... 1025
Much as in a prior case for judicial review and injunctive relief brought by these plaintiffs, Branstad v. Glickman, 118 F.Supp.2d 925 (N.D.Iowa 2000) (Branstad I), one of the questions presented here is whether or not the plaintiff farmers are entitled to preliminary injunctive relief from enforcement actions by the USDA for violation of the "Swampbuster" Act while they pursue judicial review of an administrative determination that they improperly "converted" "wetlands" by repairing a tile drainage system on their farmland. However, a different — indeed, preliminary and potentially dispositive — question presented in the present action is whether or not the USDA's enforcement action should be overturned, because the USDA allegedly arbitrarily refused to consider the plaintiffs' administrative appeal on the ground that it was untimely, when the plaintiffs asserted "extenuating circumstances" on the basis that their timely notice of appeal had been lost in the mail.
The present action involves the same tile drainage system as was at issue in Branstad v. Glickman, 118 F.Supp.2d 925 (N.D.Iowa 2000) (Branstad I), but the question in the administrative action in this case was the effect of that tile drainage system on a different, albeit adjacent, tract of farm land, tract # 1475, whereas Branstad I involved tract # 2024. In Branstad I, the court provided extensive background on the "Swampbuster" Act to put in context the dispute between the parties. Suffice it to say here that Congress enacted the Food Security Act of 1985 §§ 1201, 1221-23, 16 U.S.C. §§ 3801, 3821-24, commonly known as "Swampbuster," "`[i]n order to combat the disappearance of wetlands through their conversion into crop lands.'" Barthel v. USDA, 181 F.3d 934, 936 (8th Cir.1999) (quoting Gunn v. USDA, 118 F.3d 1233, 1235 (8th Cir. 1997), cert. denied, 522 U.S. 1111, 118 S.Ct. 1042, 140 L.Ed.2d 108 (1998)). "The law denies eligibility for several federal farm-assistance programs if wetlands are converted to agricultural use." Id. (citing National Wildlife Fed'n v. Agricultural Stabilization and Conservation Serv., 955 F.2d 1199, 1200 (8th Cir.1992)). However, the law also provides exemptions for "wetlands" that were "converted" before December 23, 1985 — the effective date of the law. Id. Specifically, "[l]and meeting this exemption can be maintained as it was prior to the effective date of the Act without loss of federal benefits." Id.
In the present action, as in Branstad I, the USDA commenced administrative action against the Branstads based on a "whistleblower" complaint that repairs to a tile drainage system that had been authorized, inspected, and approved by the USDA had nevertheless improperly "converted" "wetlands." The USDA contends in the present action that the request for and grant of permission to repair the tile drainage system pertained only to tract # 2024, the one at issue in Branstad I, not to tract # 1475, the tract now at issue, even though it is the same tile drainage system, not a separate drainage system for a separately designated tract of land.
During the administrative proceedings, on September 27, 2000, the Branstads entered into a "Wetland Restoration Agreement: Good Faith Restoration" as to tract # 1475, with a deadline for compliance of December 1, 2000. They have not, however, completed the restoration provided for in that agreement. In the administrative action pertaining to tract # 1475, as in the action concerning tract # 2024, the USDA determined, at the lower levels of the administrative process, that the Branstads had improperly "converted" "wetlands." The Branstads were notified of that adverse administrative decision by letter decision dated November 2, 2000. They were also notified in that letter that they had thirty days to appeal the administrative decision to the next administrative level, the National Appeals Division (NAD). Assuming seven days for mailing, the Branstads' deadline for requesting such an appeal was December 9, 2000.
The Branstads maintain that their counsel requested an appeal by mailing such a request by ordinary mail on December 2, 2000. On December 1, 2000, counsel also mailed to the NAD copies of Authorizations for Representation of the Branstads in the appeal and, on December 13, 2000, mailed to the District Conservationist a request for an extension of the "Wetland Restoration Agreement: Good Faith Restoration" as to tract # 1475 pending disposition of the administrative appeal. However, the NAD has no record of receiving the Branstads' December 2, 2000, appeal request.
When counsel discovered that the appeal request had not been received, he filed a second request for appeal, postmarked January 12, 2001, which was received by the NAD on January 16, 2001. However, the NAD denied the January 12, 2001, request for appeal as untimely by letter dated January 29, 2001. The denial of appeal included the following information:
In accordance with the preamble to NAD Final Rule set forth at Federal Register Vol. 64, No. 120, page 33369.[Sic] If there are extenuating circumstances, you may request a review of this determination within 15 days of the date of this notice by the Director of the National Appeals Division.
Plaintiffs' Motion For Preliminary Injunction, Attachment "H" (January 29, 2001, NAD denial of appeal), p. 1.
The Branstads then attempted to obtain reversal of the denial of their appeal as untimely on the basis of "extenuating circumstances." On February 1, 2001, counsel for the Branstads sent a letter to the NAD explaining his attempts to file a timely appeal and his belief that the December 2, 2000, mailing of his request for an appeal "[a]pparently ... has been lost in the U.S. mail system." Plaintiffs' Motion For Preliminary Injunction, Attachment "I" (February 1, 2001, request that appeal be allowed based on "extenuating circumstances"), p. 2.1 In that letter, the Branstads also asserted "that having [Edward Branstad's] request for appeal lost in the United States Postal System is an extenuating circumstance and that Edward Branstad's request for appeal should be allowed by NAD." Id.
The NAD replied to the Branstads' February 1, 2001, request that their administrative appeal be allowed by letter from Assistant Director William A. Crutchfield, Sr., dated February 13, 2001. The letter from Assistant Director Crutchfield states, in pertinent part, the following:
The Director, National Appeals Division, considered your letter of February 1, 2001. Unfortunately, the circumstances you raise do not establish good cause to relieve Mr. Branstad from the requirement of our rules. It is reasonable that a representative seeking to file appeals would check such for filing requirements, and as the appeal in this instance does not conform to our requirements, it cannot be accepted.
An attorney is ordinarily responsible for knowing published requirements pertaining to the matters for which he or she undertakes a representative role. Our regulations at 7 C.F.R. § Section 11.6(b)(1)(2) are published in the Federal Register at Vo. 64, No. 120, Wednesday, June 23, 1999/Rules and Regulations, and provide that an appeal request "be not later than 30 days after the date on which the participant first received notice of the adverse decision ..." and "shall be in writing and personally signed by the participant ..."
Plaintiffs' Motion For Preliminary Injunction, Attachment "J", p. 1. The remainder of the letter is "boilerplate" language concerning USDA prohibitions on discrimination and means for filing a complaint of discrimination. Id. at pp. 1-2.
The Branstads filed the present action for judicial review on March 19, 2001, and the Secretary has been given until July 30, 2001, to file an answer. On May 9, 2001, the Branstads also filed the present Motion For Preliminary Injunction, which the Secretary resisted on May 21, 2001. The court heard oral arguments on the Branstads' motion for preliminary injunction on May 29, 2001. At those oral arguments, plaintiffs Edward A. Branstad and Monroe Branstad were represented by Thomas A. Lawler of Lawler & Swanson, P.L.C., in Parkersburg, Iowa. The Secretary was represented by Assistant United States Attorney Kandice A. Wilcox in Cedar Rapids, Iowa. The motion for preliminary injunction is therefore fully submitted.
The first question the court must resolve is whether review...
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B & D Land and Livestock Co. v. Veneman, C 02-3051-MWB.
...injunctions in "Swampbuster" cases, Branstad v. Glickman, 118 F.Supp.2d 925 (N.D.Iowa 2000) (Branstad I), and Branstad v. Veneman, 145 F.Supp.2d 1011 (N.D.Iowa 2001) (Branstad II), as well as the decision of the Eighth Circuit Court of Appeals in Barthel v. USDA, 181 F.3d 934 (8th Cir. 1999......
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B & D Land and Livestock Co. v. Veneman
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