Downer v. U.S. By and Through U.S. Dept. of Agriculture and Soil Conservation Service, 95-2540

• Decision Date: 19 September 1996
• Docket Number: No. 95-2540,95-2540
• Citation: 97 F.3d 999
• Parties: 27 Envtl. L. Rep. 20,306 Leslie DOWNER, Appellant, v. UNITED STATES of America, acting By and Through the UNITED STATES DEPARTMENT OF AGRICULTURE AND SOIL CONSERVATION SERVICE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 999

97 F.3d 999

27 Envtl. L. Rep. 20,306

Leslie DOWNER, Appellant, v. UNITED STATES of America, acting By and Through the UNITED

STATES DEPARTMENT OF AGRICULTURE AND SOIL

CONSERVATION SERVICE, Appellee.

No. 95-2540.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 11, 1995.

Decided Sept. 19, 1996.

Jeffrey T. Sveen, argued, Aberdeen, SD, for appellant.

John O. Holm, Assistant U.S. Attorney, argued, Sioux Falls, SD, for appellee.

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

PER CURIAM.

Leslie Downer was denied crop subsidy payments for his 1989 crop after the United States Department of Agriculture (USDA), acting through the Soil Conservation Service (SCS) and the Agricultural Stabilization and Conservation Service (ASCS), ¹ determined that Downer had violated the Swampbuster provisions of the Food Security Act, 16 U.S.C. §§ 3821-3824 (1994). Downer exhausted his administrative appeals and filed suit in federal district court, contesting the agency decision as arbitrary and capricious. The district court granted summary judgment to the agency. Downer appeals, and we affirm.

I.

Downer farms land in Edmunds County, South Dakota, including two tracts that contained manmade "dugouts," or water holes. In 1988 and 1989, Downer participated in the Price Support and Production Adjustment Program, under which he received payments from the government. Under Swampbuster, persons who plant agricultural commodities on converted wetlands in violation of Swampbuster become ineligible for government price support payments. 16 U.S.C. §§ 3821(a)(1), 3801(a)(4)(A). Downer filled the two man-made dugouts and the surrounding area during the period between the 1988 and 1989 growing seasons, and planted agricultural commodities over the dugouts and the surrounding area. The agency concedes that filling a manmade dugout in itself is permissible. 16 U.S.C. § 3822(b)(2). However, the SCS determined that the dugouts had been situated in wetlands, and that Downer had spread fill over wetland areas beyond the boundaries of the dugouts.

Downer appealed through the SCS the determination that his filling activity violated Swampbuster, but the SCS Chief ultimately determined that the areas in question were converted wetlands. Downer then appealed through the ASCS administrative processes, asking for reconsideration of the SCS's technical determination or for a finding that his violation was mitigated or excused under the good faith exception to Swampbuster. See 16 U.S.C. § 3822(h)(1)(B)(i). He was again unsuccessful.

On May 26, 1993, Downer refunded to the ASCS the $4,624 in price support payments he had received in 1989. He sought review in the district court under 5 U.S.C. §§ 702-706, claiming that the SCS and ASCS determinations were wrong, and arbitrary and capricious, and denied him due process of law.

II.

A. Standard of Review

Four of the questions Downer raises are classic examples of factual disputes implicating substantial agency expertise: 1) whether the areas in question were wetlands; 2) whether such wetlands were converted; 3) whether the conversion was commenced before December 23, 1985; and 4) whether the areas were artificial rather than natural wetlands. Our review of these questions, as the parties agree, is limited to a determination of whether the decisions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This narrow review entails a "searching and careful" de novo review of the administrative record presented to determine "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989).

To perform this review the court looks to whether the agency considered those factors Congress intended it to consider; whether the agency considered factors Congress did not intend it to consider; whether the agency failed entirely to consider an important aspect of the problem; whether the agency decision runs counter to the evidence before it; or whether there is such a lack of a rational connection between the facts found and the decision made that the disputed decision cannot "be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). If the agency itself has not provided a reasoned basis for its action, the court may not supply one. Id.

Nonetheless, the reviewing court may not substitute its judgment for that of the agency and must give substantial deference to agency determinations. Id. This deference is particularly appropriate when the agency determination in issue concerns a subject within the agency's own area of expertise. Marsh, 490 U.S. at 377-78, 109 S.Ct. at 1861-62. An agency making fact-based determinations in its own field of expertise, particularly where those determinations are wrapped up with scientific judgments, must be permitted "to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Id. at 378, 109 S.Ct. at 1861.

B. Substantive Due Process

For Downer to lose his eligibility for USDA crop price supports, the agency must have determined that the land in issue was a wetland, that Downer converted the wetland, that the conversion did not start before December 23, 1985, and that Downer planted an agricultural commodity on the converted wetland. ² Downer does not dispute that he planted an agricultural commodity on the land in issue; he argues, however, that the agency findings on all the other points were arbitrary and capricious.

1. Wetland Determination

Under Swampbuster, the term "wetland" refers to land that

(A) has a predominance of hydric soils;

(B) is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and

(C) under normal circumstances does support a prevalence of such vegetation.

16 U.S.C. § 3801(a)(16). The administrative record establishes that the agency considered all three factors. The SCS took soil samples from the areas in dispute and used those samples to determine that the areas had a predominance of hydric soils. A series of annual aerial photographs, taken in July and August, the hot, dry months of summer, was examined to determine the saturation or inundation history of the areas in question. Because the soil was heavily worked, the SCS visited sites it deemed comparable to the areas in question to determine whether the sites supported or would have supported a prevalence of hydrophytic vegetation before Downer's alterations.

Downer complains that while the agency considered all three factors, the agency's evidence and methodology does not support its conclusions as to factors (B) and (C). Specifically, he complains of the use of aerial photography and comparison sites. The agency responds that such methodology is standard in its field of expertise and soil conservation. Agency regulations bear out the agency's contention. See 7 C.F.R. § 12.31(b)(2)(ii) (1995). Downer presents no evidence aside from the bald assertion that the agency method is unacceptable or flawed. We must therefore reject his complaints.

There is also no evidence that the agency considered any factors Congress did not intend it to consider in making its determination, nor is there any indication that the agency failed to consider an important aspect of the wetlands determination problem. ³ The agency's technical determination is squarely within its field of expertise and was made in reliance on its own qualified experts' examination of the sites and other relevant data. The decision was rational and does not run counter to the evidence: tests showing hydric soils; photographic evidence showing a history of wet conditions; evidence of buried hydrophytic vegetation at the sites; and evidence of hydrophytic vegetation at comparable but undisturbed sites. Thus, the dispute is within the realm of agency expertise, and not the result of arbitrary and capricious decision-making.

2. Agency Determination of Wetland Conversion

Under Swampbuster, a wetland has been converted when it has been:

drained, dredged, filled, leveled, or otherwise manipulated (including any activity that results in impairing or reducing the flow, circulation, or reach of water) for the purpose or to have the effect of making the production of an agricultural commodity possible if--

(i) such production would not have been possible but for such action; and

(ii) before such action--

(I) such land was wetland; and

(II) such land was neither highly erodible land nor highly erodible cropland.

16 U.S.C. § 3801(a)(4)(A).

The administrative record shows that the agency determined, through soil tests and field observations, that Downer's filling of the dugouts extended onto the surrounding wetland area and that Downer's activity had made it possible to produce agricultural commodities on land where such commodities could not have been regularly produced before. Downer vigorously disputes these findings, asserting that he only filled the dugouts, not the surrounding areas. He also disputes that his actions have fundamentally changed the characteristics of the surrounding wetlands.

There is no question that Downer filled the dugouts, just a dispute as to the extent and effect of the fill. Agency soil scientists took test bores and found that Downer's fill job extended beyond the boundaries of the dugouts onto the surrounding wetlands and that the fill had been contoured to enhance drainage. Relying on site visits by its experts and aerial photography, the agency also determined that ditching had been enhanced at...