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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