Foster v. Vilsack

• Decision Date: 11 April 2016
• Docket Number: No. 14–3887.,14–3887.
• Citation: 820 F.3d 330
• Parties: Arlen FOSTER; Cindy Foster, Plaintiffs–Appellants v. Tom VILSACK, Secretary, United States Department of Agriculture, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

820 F.3d 330

Arlen FOSTER; Cindy Foster, Plaintiffs–Appellants

v.Tom VILSACK, Secretary, United States Department of Agriculture, Defendant–Appellee.

No. 14–3887.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 18, 2015.

Filed: April 11, 2016.

Thomas A. Lawler, Parkersburg, IA, for Plaintiffs–Appellants.

Cheryl Schrempp DuPris, AUSA, Pierre, SD, for Defendant–Appellee.

Before SMITH, BYE, and BENTON, Circuit Judges.

BYE, Circuit Judge.

Arlen and Cindy Foster brought this action to challenge the United States Department of Agriculture's (USDA's) determination that a portion of the Fosters' farmland is a wetland within the meaning of the pertinent federal statutes and regulations. The district court¹ granted summary judgment in favor of the USDA after concluding the agency's final decision was not arbitrary, capricious, or contrary to the law. We affirm.

I

Arlen and Cindy Foster own and farm land in Miner County, South Dakota. Miner County is located within what is generally referred to as the Prairie Pothole Region covering some of South Dakota, North Dakota, Minnesota, and parts of three Canadian provinces. The USDA uses its own nomenclature to describe various land areas within the United States; under that nomenclature larger Land Resource Regions (LRRs) are subdivided into Major Land Resource Areas (MLRAs). The Fosters' farm is located within LRR F, or the Northern Great Plains Spring Wheat Region, and more specifically within an MLRA called the Southern Black Glaciated Plains. For purposes of this appeal, the MLRA where the Fosters' farm is located is relevant for determining the types of soils found within the MLRA, which in turn is relevant for determining what types of vegetation would exist when a particular soil is in its natural state, including vegetation which would naturally be found in a wetland.

In 1985, Congress passed the Food Security Act of 1985 which contains “Swampbuster provisions authoriz[ing] the USDA to make determinations as to whether certain lands qualify as wetlands and whether wetlands that have been manipulated qualify as converted wetlands.” Clark v. United States Dept. of Agric., 537 F.3d 934, 935 (8th Cir.2008). Swampbuster was passed “[i]n order to combat the disappearance of wetlands through their conversion into crop lands[.]” Gunn v. United States Dep't of Agric., 118 F.3d 1233, 1235 (8th Cir.1997). Significantly, “a person determined to have converted wetlands may become ineligible to receive farm program payments” from the federal government. Clark, 537 F.3d at 935.

This appeal concerns a wetland determination made by the USDA affecting just under an acre (0.8 acres) of the Fosters' farm, a prairie pothole² which the parties call Site 1. On June 3, 2002, Arlen Foster initially sought a wetlands determination from the Natural Resource Conservation Service (NRCS), an agency within the USDA, for a larger tract of land which included Site 1. After a number of intermittent agency proceedings not relevant to this appeal, the NRCS ultimately certified Site 1 as a wetland on June 23, 2011. The Fosters appealed the June 2011 determination to the USDA National Appeals Division (NAD), a separate agency within the USDA established to address certain claims and disputes, including wetland determinations.

In the first step of the NAD appeal, the Fosters bore the burden of proving the NRCS's determination “was erroneous by a preponderance of the evidence.” 7 C.F.R. § 11.8(e). Both the Fosters and the NRCS were permitted to present evidence and conduct cross-examination at a hearing held in October 2011. On January 10, 2012, the NAD hearing officer issued a detailed fourteen-page decision determining the NRCS followed the proper procedures and had appropriately found that Site 1 was a wetland, and that the Fosters had not met their burden of proving the NRCS's determination was erroneous. Appellant's App. at 4–17.

In the second step of the NAD appeal, the Fosters sought review of the hearing officer's decision by the NAD director's office pursuant to 7 C.F.R. § 11.9. On July 16, 2012, the NAD director's office issued a decision upholding the hearing officer's decision, which in relevant part held the NRCS proved the presence of the three controlling criteria for a wetland determination by showing that Site 1:

(a) had a predominance of hydric soils, (b) was 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 would support a prevalence of hydrophytic vegetation.

Appellant's App. at 33; see also 16 U.S.C. § 3801(a)(27) ; 7 C.F.R. § 12.2 (setting forth the three criteria used to determine whether a specific area of land qualifies as a wetland under federal law). The NAD director's office also held the Fosters “did not prove by a preponderance of the evidence that the [NRCS] decision was erroneous.” Appellant's App. at 34. The decision from the NAD director's office constituted the USDA's final agency decision on the matter.

In May 2013, the Fosters filed a complaint in federal district court seeking judicial review of the USDA's final agency decision. Both parties filed motions for summary judgment. In the summary judgment proceedings, the Fosters did not dispute that Site 1 contains a predominance of hydric soils³ (the first of the three relevant criteria), but challenged the final agency decision with regard to whether Site 1 had the requisite hydrology⁴ to qualify as a wetland and whether its soil would support a prevalence of hydrophytic vegetation⁵ under normal circumstances (the last two of the three relevant criteria).

The district court granted USDA's motion for summary judgment and denied the Fosters' motion for summary judgment. The district court concluded the NAD's factual findings were supported by substantial (at times, uncontroverted) evidence and the record supported the NAD's legal conclusions. The district court therefore determined the Fosters had failed to show the USDA's final agency decision was arbitrary, capricious, or contrary to the law. This timely appeal followed.

II

We review the district court's grant of summary judgment de novo. Doud v. Toy Box Dev. Co., 798 F.3d 709, 712 (8th Cir.2015). The issue before the district court was whether the USDA's final agency decision was proper under the Administrative Procedures Act (APA), 5 U.S.C. § 706. Under the APA, judicial review of an agency decision is limited to determining whether the agency action is “arbitrary, capricious, [ ] an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). If the agency's decision is supportable on any rational basis, the court must uphold it. Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759, 763 (8th Cir.2004).

A

The Fosters first contend the USDA erred in determining Site 1 had the requisite hydrology to qualify as a wetland. More specifically, the Fosters challenge the methodology the NRCS used to determine the presence of wetland hydrology at Site 1's pothole. In this case, the methodology used by the NRCS included viewing aerial photographs of the pothole when it was under normal environmental conditions. The NRCS chose to view aerial photographs because Site 1 was drier than it would have been under normal conditions at the time of the agency's on-site visit in November 2010, and the Fosters had tilled the pothole so it was not in its natural condition.

Although the Fosters generally acknowledge the legitimacy of using aerial photographs to determine whether a site has the requisite hydrology to qualify as a wetland, they contend the NRCS improperly relied upon “color tone” differences in the aerial photographs as an authorized “signature” of a wetland. The Fosters argue that relying on color tone differences as a signature of hydrology is contrary to the prescribed methodology used to make a wetland determination.

The parties agree there are ten recognized signatures the NRCS may rely upon when using aerial photographs to determine a site's hydrology, which are set forth in the South Dakota Mapping Conventions. The ten wetland (or wetness) signatures are listed on a form labeled SD–LTP–33 (Form 33) and are as follows: (1) hydrophytic vegetation; (2) surface water; (3) saturated conditions; (4) stressed crops due to wetness; (5) differences in vegetation due to different planting dates; (7) inclusion of wet areas as set-aside or idled; (8) circular or irregular areas of unharvested crops within a harvested field; (9) isolated areas that are not farmed with the rest of the field; and (10) areas...