Foster v. U.S. Dep't of Agric.
| Decision Date | 01 July 2022 |
| Docket Number | 4:21-CV-04081-RAL |
| Parties | Arlen FOSTER, Plaintiff, v. The UNITED STATES DEPARTMENT OF AGRICULTURE, Tom Vilsack, in his Official Capacity as Secretary of the United States Department of Agriculture; The Natural Resources Conservation Service, Terry Cosby, in his Official Capacity as Acting Chief of the Natural Resources Conservation Service; and Tony Suseri, in his Official Capacity as Acting South Dakota State Conservationist, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Christopher D. Sommers, Redstone Law Firm LLP, Sioux Falls, SD, Anthony L. Francois, Pro Hac Vice, Jeffrey W. McCoy, Pro Hac Vice, Pacific Legal Foundation, Sacramento, CA, for Plaintiff.
Alison J. Ramsdell, U.S. Attorney's Office, Sioux Falls, SD, Paul G. Freeborne, Pro Hac Vice, U.S. Department of Justice, Enrd Natural Resources Section, Washington, DC, for Defendants The United States Department of Agriculture, Tom Vilsack, The Natural Resources Conservation Service, Terry Cosby, Tony Suseri.
Arlen Foster ("Foster") owns a piece of farmland that was certified as a "wetland" in 2011 pursuant to the Swampbuster Act, 16 U.S.C. §§ 3801, 3821 – 3824. Foster brought this complaint against the United States Department of Agriculture ("USDA"), the Natural Resources Conservation Service ("NRCS"), and their named representatives (collectively "Defendants") seeking to set aside the 2011 wetland certification based on various legal theories including an Administrative Procedure Act ("APA") claim that Defendants’ refusal to review the 2011 wetland certification was arbitrary and capricious. The parties filed cross-motions for summary judgment. For the reasons discussed, Defendants’ motion for summary judgment is granted, and Plaintiff's motion for summary judgment is denied.
The Swampbuster Act, 16 U.S.C. §§ 3801, 3821 – 3824, refers to the wetland conservation provisions of the Food Security Act of 1985. See Barthel v. U.S. Dep't of Agric., 181 F.3d 934, 936 (8th Cir. 1999). The purpose of the Swampbuster Act is "to combat the disappearance of wetlands through their conversion into crop lands."
B & D Land & Livestock Co. v. Schafer, 584 F. Supp. 2d 1182, 1190 (N.D. Iowa 2008) (citation omitted); see also Barthel, 181 F.3d at 937 (). As an enforcement mechanism, the Swampbuster Act sets forth that persons who convert certified wetlands to crop lands are disqualified from receiving federal farm benefits. 16 U.S.C. § 3821 ; Schafer, 584 F. Supp. 2d at 1190.
16 U.S.C. § 3822(a)(4) concerns the "Duration of Certification" and states that once an area is certified as a "wetland" under the Swampbuster Act, that certification remains valid and enforceable "as long as the area is devoted to an agricultural use or until such time as the person affected by the certification requests review of the certification by the Secretary." 16 U.S.C. § 3822(a)(4). In 1996, the Code of Federal Regulations imposed criteria on when a party could request review of a wetland certification, stating that a "wetland" certification " 7 C.F.R. § 12.30(c)(6) (emphasis added). Therefore, pursuant to 7 C.F.R. § 12.30(c)(6), a wetland certification is binding and enforceable if and until a person affected by the certification requests review of that certification and natural changes to the wetland make the certification unreliable, or until such a person requests review and NRCS agrees that the wetland certification is erroneous.
This case concerns .8 acres of land ("the site") in Miner County, South Dakota, which is covered by approximately 8.5 inches of water at points during the year. Doc. 1 at 4, 7; Doc. 35 at 2–3; Doc. 38 at 5–6. Foster's grandfather purchased land containing the site in 1900. Doc. 1 at 5; Doc. 35 at 2. Around 1936, Foster's father planted a tree belt on the south side of the site to prevent soil erosion. Doc. 1 at 5–6; Doc. 35 at 2; Doc. 38 at 4. Snow accumulated around the tree belt in the winter and melted in the spring, creating an 8.5 inch puddle or shallow pond on the site. Doc. 1 at 7; Doc. 35 at 2; Doc. 36 at 3; Doc. 38 at 4. Foster now owns the site and surrounding land, which he farms. Doc. 1 at 3, 7–9; Doc. 35 at 2–3; Doc. 38 at 6. In approximately half of the crop years, the water on the site will dry out in time to farm the site and the surrounding area. Doc. 1 at 8; Doc. 35 at 3; Doc. 36 at 3. In the other years, the site does not dry out, and the land surrounding it cannot be farmed without draining the site. Doc. 1 at 8; Doc. 35 at 3; Doc. 36 at 3.
In 2004, the Natural Resources Conservation Service (NRCS) and the United States Department of Agriculture (USDA) reviewed the site and certified it as a "wetland" under 16 U.S.C. § 3822 of the Swampbuster Act. Doc. 1 at 2; Doc. 35 at 4. Due to the certification, Foster cannot drain the site to farm it and the surrounding land without losing the federal farm benefits on which he relies for his fanning operation. Doc. 35 at 3.
In 2008, Foster requested an administrative review of the wetland certification. Doc. 1 at 15; Doc. 35 at 4; Doc. 38 at 6. After several years of review, in June 2011, NRCS recertified the site as a wetland. Doc. 1 at 16; Doc. 35 at 4; Doc. 38 at 6. Foster administratively appealed that certification to the USDA, but the USDA upheld the certification. Doc. 1 at 16; Doc. 35 at 4. Foster then brought an action in federal district court under the Administrative Procedure Act (APA) arguing that the certification was arbitrary and capricious. Doc. 1 at 16; Doc. 22 at 2. Doc. 36 at 4; Doc. 38 at 7. The district court affirmed NRCS's decision to certify the site as a wetland. Foster v. Vilsack, No. CIV. 13-4060-KES, 2014 WL 5512905 (D.S.D. Oct. 31, 2014) ; Doc. 1 at 16; Doc. 22 at 2; Doc. 36 at 4; Doc. 38 at 7. Foster appealed to the United States Court of Appeals for the Eighth Circuit, which affirmed the district court in 2016. Foster v. Vilsack, 820 F.3d 330 (8th Cir. 2016) ; Doc. 1 at 16; Doc. 22 at 2. Doc. 36 at 4; Doc. 38 at 7.
In June 2017, Foster submitted another request to NRCS to review the 2011 wetland certification. Doc. 1 at 16; Doc. 36 at 4; Doc. 38 at 8. Consistent with 7 C.F.R. § 12.30(c)(6), NRCS responded that Foster needed to submit new information showing that the topography or hydrology of the site had changed so that the 2011 certification was no longer reliable, otherwise it would not review the certification. Doc. 1 at 16; Doc. 22 at 9; Doc. 24-1 at 9; Doc. 36 at 4–5.
In April 2020, Foster submitted another request to review the 2011 certification. Doc. 1 at 16; Doc. 38 at 8. In that request, Foster did not claim there had been a change to the topography or hydrology of the site as required by 7 C.F.R. § 12.30(c)(6). Doc. 24 at 5. However, he submitted an engineering report analyzing the volume of snow accumulation under the tree belt and providing an opinion that the site was an artificial wetland. Doc. 1 at 16–1; Doc. 24-1 at 22–35; Doc. 35 at 5; Doc. 38 at 8–9.
Deke Hobbick, an assistant state conservationist at NRCS, considered Foster's 2020 review request and the engineering report. Doc. 24 at 3–5. He concluded that the information presented in the report, concerning whether the site was an "artificial wetland," was previously considered and rejected by NRCS when reaching the 2011 wetland certification. Doc. 22 at 9; Doc. 24 at 4; Doc. 35 at 6. Hobbick also concluded Foster had not alleged or shown that there was any change in the topography or hydrology of the site, as required by 7 C.F.R. § 12.30(c)(6), which would qualify the 2011 wetland certification for review. Doc. 24 at 5. Hobbick submitted an affidavit explaining that:
In reviewing the Fosters’ 2020 request for review of the agency's final certified wetland determination, I reviewed the original information submitted by the Fosters in 2019 and the supplemental information received in 2020. Their request asserted that the area in question should be considered an artificial wetland, as defined in 7 C.F.R. § 12.2 .... I reviewed the information and data that underlies the 2011 final wetland certification and observed that NRCS previously considered, on multiple occasions, whether or not a nearby shelter belt was causing an artificial wetland. I also observed that the information submitted with the 2020 request included newly created data in the engineer's report and conclusions based on that data; however, the data and conclusions appeared to be based upon the same artificial wetland argument that the agency had considered and rejected in connection with the 2011 determination and subsequent administrative and judicial review. The 2020 request also did not assert that there had been a natural change in the topography or hydrology of the area in question. As a result of my review of the 2020 request and NRCS records, I recommended that the State Conservationist respond to the request by stating that NRCS was unable to determine whether any of the conditions identified in 7 C.F.R. § 12.30(c)(6) governing requests for review of a final certified wetland determination applied.... [Foster has] not provided any further...
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