31 years ago, Congress passed the Food Security Act of 1985. Under the Swampbuster provisions of this Act, the USDA may make determinations as to whether certain lands qualify as wetlands and whether wetlands which have been manipulated qualify as converted wetlands. The Act, passed during the Reagan Administration, was written to oppose the conversion of wetlands into cropland. The Eight Circuit Court of Appeals has previously ruled that a person found to have converted wetlands into cropland may become ineligible to receive farm program payments from the federal government. Some of these wetlands are what I call cattail swamps, and I spent part of my youth hunting in them.

Faced several years ago with a wetlands designation for part of their land, South Dakota farmers Arlen and Cindy Foster challenged the USDA’s decision that certain parts of Foster’s acreage were wetlands. These bureaucratic proceedings took over five years. The USDA based its decision, in part, on a comparable wetlands site some 30 miles away from the Foster’s property in Miner County. Wetland regions in the U.S. include the Prairie Potholes of North and South Dakota as well as other states.

When the Foster case was later ruled upon by the U.S. District Court for South Dakota, the Fosters were unable to provide the court with substantial evidence that the USDA wetlands decision-making process was wrong. The District Court said that “Plaintiffs (the Fosters) have not shown, beyond a bare assertion, that the range of rainfall shared by both locations or the differences in the depth of the potholes renders the (USDA comparison) site insufficiently “local.” The trial judge also stated that the Fosters did not challenge the USDA expert testimony about rainfall averages on the land. The Fosters then appealed this decision to the Eighth Circuit Court of Appeals. The Court of Appeals in its decision upheld the District Court and ruled that the original USDA agency decision was a reasonable interpretation of USDA regulations and that courts should give deference to the “informed discretion of responsible federal agencies.”

The Fosters have now filed a Petition to have the case heard by the United States Supreme Court. Unfortunately for the Fosters, weak facts make bad law. The Foster case, in my view, will not be accepted by the U.S. Supreme Court. Although the Foster Petition to the Supreme Court presents important arguments about agency authority to make decisions and about a court’s deference to an agency decision, the Court will also look at the underlying facts of the case before it. The facts of the Foster case are not strong. However, just because the Supreme Court may not hear the case does not mean that the issues raised by the Fosters are without grounds. Overreaching by the USDA in Swampbuster and wetlands decision and rulemaking is a genuine issue. Proposed legislation filed this year in Congress is intended to address some of these challenges. The sponsors of the filed bill argue that the new law would ensure more timely decisions by the USDA; would make the appeals process more efficient for a landowner/farmer and would improve government transparency in providing information to landowners and farmers affected by the Swampbuster process. The intention behind the current Swampbuster law has merit, but I am reminded of what my father said about raising me: “David, my intentions with you were good. It is the outcome that is questionable.”

David Ganje practices law in the area of natural resources, environmental and commercial law. His website is Lexenergy.net

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