WASHINGTON, Aug. 24, 2016 - The Agriculture Department used a stacked deck when it said a small patch of land on a South Dakota farm contained wetlands, the Pacific Legal Foundation (PLF) contends in a petition filed with the U.S. Supreme Court. 

Arlen and Cindy Foster, who grow corn, soybeans and wheat and raise cattle, were denied constitutional due process when USDA found that wetland plants on 0.8 acres of their Miner County property signaled the presence of a prairie pothole, PLF argues. In addition, PLF says that the 8th Circuit Court of Appeals, which sided with USDA in an April decision, should not have deferred to the department’s expertise. The petition asks the Supreme Court to review the circuit court’s decision.

At the heart of the dispute is USDA’s use of a “comparison site” 33 miles away. USDA said the site complied with regulations because it supported similar vegetation and was “in the local area.” In its petition to the high court, however, PLF calls the site “remote” and says the “local area” in this case encompasses 10,835 square miles. In addition, PLF said the Fosters had not been able to question the use of the comparison site, which USDA chose as a point of reference back in 2000.

“This process violates their due process rights because they never really get, in the proper sense, a hearing about whether their property has wetland plants on it,” PLF attorney Tony Francois said in a podcast on the case. “The government substitutes the fact that another place has wetland plants for whether or not the Fosters’ property has wetland plants.”

The 8th Circuit, however, said the Fosters had not been able to show that sites located closer to their farm contained similar soils or were undisturbed, both requirements of USDA’s so-called Swampbuster regulations. 

“When a disputed site is not in its natural vegetative state, the NRCS must use a comparison site in the local area which contains the same soil type as the disputed site to determine what vegetation would typically be found if the disputed site had not been altered,” the appeals court said, affirming an earlier district court decision. 

Before reaching that stage of the legal process, the Fosters had unsuccessfully appealed the Natural Resources Conservation Service’s initial determination to USDA’s National Appeals Division.

Farming on land determined by NRCS to be a wetland could make the Fosters ineligible for USDA programs such as crop insurance, PLF noted in the petition. 

PLF, a donor supported foundation that litigates for a smaller government and property rights, says the 8th Circuit gave too much deference to USDA’s interpretation of its own regulations – specifically, NRCS’s interpretation of the term “local area’ to mean “major land resource area.”

“The federal court of appeals improperly accepted at face value the government’s argument” about what constituted the “local area,” Francois said, noting that the Fosters’ area, categorized as Southern Black Glaciated Plains, covers nearly 11,000 square miles.

NRCS has delineated 225 “local areas” of varying sizes in the continental U.S. “Some of them cover several states,” Francois said, calling that “an absurd reading of (NRCS’) own regulation.”

PLF has already had success representing landowners in wetlands disputes that have reached the high court. In May, a unanimous Supreme Court ruled that peat mining companies could sue the Army Corps of Engineers over a wetlands determination, instead of either applying for a permit – which they were almost certain not to get – or going ahead and extracting the peat, which would put them in danger of enforcement action.

NRCS would not comment on the Foster case. According to NRCS officials, less than 5 percent of wetland determinations are appealed annually. Over the past three years, NRCS has completed an average of 7,000 determinations per year in the Prairie Pothole region, an area of the northern Great Plains that contains thousands of shallow wetlands known as potholes.

The government’s response to the petition is due Sept. 12.


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