820 F.3d 330
8th Cir.2016Background
- Arlen and Cindy Foster own a farm in Miner County, SD, within the Southern Black Glaciated Plains MLRA; a ~0.8 acre prairie pothole on their land (Site 1) was certified a wetland by the NRCS in 2011.
- Wetland status affects eligibility for federal farm program payments under the Swampbuster provisions of the Food Security Act of 1985.
- NRCS found Site 1 met the three regulatory criteria for wetlands: predominance of hydric soils (undisputed), wetland hydrology, and that under normal conditions the soil would support a prevalence of hydrophytic vegetation.
- Fosters appealed within USDA (NAD hearing officer and NAD director both upheld NRCS); they then sued in federal district court seeking APA review, challenging the agency’s hydrology methodology and choice of comparison site for vegetation.
- District court granted summary judgment for USDA; Eighth Circuit reviews de novo, sustaining agency action unless arbitrary, capricious, or contrary to law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NRCS improperly relied on "color tone" in aerial photos to establish hydrology | Foster: Checking "CT" on agency Form 28 shows reliance on unauthorized "color tone" signature, contrary to mapping conventions | USDA: "CT" is an internal abbreviation; testimony showed identification of authorized signatures in required years; form shorthand does not undermine substantive evidence | Court: Upheld USDA—unchallenged testimony that authorized signatures appeared in requisite years was sufficient; form shorthand not fatal |
| Whether NRCS used an impermissibly remote comparison site to assess whether Site 1 would support hydrophytic vegetation | Foster: Kingsbury County comparison site (~40 miles away) is outside the required "local area" and thus improper | USDA: "Local area" reasonably interpreted as the same MLRA; comparison site was same hydric soil map unit, undisturbed, and on approved list | Court: Upheld USDA—agency's interpretation of "local area" as same MLRA is reasonable and entitled to deference |
Key Cases Cited
- Clark v. United States Dept. of Agric., 537 F.3d 934 (8th Cir.) (Swampbuster wetlands determinations can affect program eligibility)
- Gunn v. United States Dep't of Agric., 118 F.3d 1233 (8th Cir.) (purpose of Swampbuster is to prevent wetland conversion to cropland)
- Doud v. Toy Box Dev. Co., 798 F.3d 709 (8th Cir. 2015) (standard for de novo review of district court grant of summary judgment)
- Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759 (8th Cir.) (agency action must be upheld if supportable on any rational basis)
- Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115 (8th Cir.) (deference to agency expertise in technical determinations)
- Downer v. United States, 97 F.3d 999 (8th Cir.) (upholding USDA use of remote comparison site when it met regulatory criteria)