Leslie Downer v. United States of America, Acting by and Through the United States Department of Agriculture and Soil Conservation Service

(1st Cir.1990); ters, F.2d Brotherhood Electrical

Newell v. Int’l (5th Cir.1986). Workers, at the Board’s deci- The district court looked perspective from this and concluded sion genuine interpretation of represented We, too, think that constitution. Union’s interpreters and honest could reasonable steps the Board took have concluded necessary complaint, to avoid a RICO consequences of a given the dire re- which ceivership deemed an emer- could have been gency. argument that the Board Plaintiffs’ members, “fiduciary to the violated duties” just another invitation see 29 U.S.C. representative bypass institutions es- constitution; it falls tablished in the Union’s 101(a)(1). argument Any with more intensive review would substitute judge unelected for the elected Board as the body. governing members’ Affirmed. DOWNER, Appellant,

Leslie America, By acting UNITED STATES of Through DE UNITED STATES PARTMENT AND OF AGRICULTURE SERVICE, Ap

SOIL CONSERVATION pellee.

No. 95-2540. Appeals, Court of United States Eighth Circuit. Dec. Submitted Sept. Decided Sveen, Aberdeen, SD,

Jeffrey argued, T. appellant. for Holm, Attorney, John 0. Assistant U.S. Falls, SD, argued, appellee. Sioux McMILLIAN, GIBSON, Before R. JOHN BEAM, Judges. Circuit PER CURIAM. subsidy crop

Leslie Downer was denied payments crop for his 1989 the United after (USDA), Department Agriculture States through acting the Soil Conservation Service (SCS) Agricultural and the Stabilization and (ASCS),1 determined Conservation Service Swampbuster that Downer had violated the Act, Security provisions of the Food §§ 3821-3824 Downer ex- appeals his administrative and filed hausted court, contesting suit in federal district capricious. decision as granted summary judg- The district court agency. appeals, and ment to the Downer we affirm.

I. County,

Downer farms land Edmunds Dakota, including South two tracts con- “dugouts,” manmade or water holes. tained collectively ificity. 1. We will refer to these entities agency,” except clarity requires spec- "the where questions, as the lands. review of these participated in the Our

In 1988 and Adjustment parties agree, is limited to a determination Support and Production Price “arbitrary, capri- payments whether the decisions were Program, which he received cious, discretion, Swampbuster, an abuse of or otherwise government. Under from commodities plant agricultural with law.” 5 U.S.C. persons who accordance 706(2)(A). Swamp- in violation entails a on converted wetlands This narrow review government ineligible for buster become novo review of the “searching and careful” de price support payments. presented to determine administrative record 3801(a)(4)(A). 3821(a)(1), filled §§ was based on a consid- “whether the decision dugouts and the sur- the two man-made factors and whether eration of the relevant during period rounding area between judgment.” has been a clear error of there seasons, planted and growing 1988 and 1989 Coun- Oregon Marsh v. Natural Resources agricultural commodities over the cil, 360, 378, 109 S.Ct. 490 U.S. surrounding agency con- and the area. (1989). 104 L.Ed.2d 377 dugout in filling a manmade itself cedes that 3822(b)(2). 16 permissible. U.S.C. perform court To this review the However, dug- that the the SCS determined agency to whether the considered those looks wetlands, and that situated in outs had been consider; Congress it to factors intended spread fill over wetland areas Downer had agency factors Con whether the considered dugouts. beyond of the the boundaries consider; gress did not intend to whether through entirely the the de- an im appealed agency SCS failed to consider filling activity violated problem; that his whether the portant aspect termination of the ultimately Swampbuster, but the SCS Chief agency decision runs counter to the evidence question in were it; determined that the areas is such a lack of a before or whether there appealed Downer then converted wetlands. facts found rational connection between the through processes, the ASCS administrative disputed and the decision made that the deci tech- asking for reconsideration of the SCS’s to a difference sion cannot “be ascribed finding that his nical determination or for a expertise.” product agency view or the mitigated or excused under the violation was Farm Motor Vehicle State Ass’n Mfrs. exception Swampbuster. See good faith to Co., 29, 43, Auto. Ins. Mut. 3822(h)(l)(B)(i). again He was If 77 L.Ed.2d 443 S.Ct. unsuccessful. agency provided itself has not a reasoned action, may supply basis for its the court not May Downer refunded to the On one. Id. $4,624 support payments in price ASCS sought in 1989. He review he had received Nonetheless, may reviewing court §§ 702- in the district court under 5 U.S.C. judgment for that of the not substitute its 706, claiming and deter- that the SCS ASCS give agency and must substantial deference wrong, and minations were determinations. Id. This defer capricious, process him due and denied particularly appropriate when the ence is law. a

agency determination in issue concerns subject agency’s within the own area of ex II. Marsh, 377-78, pertise. 490 U.S. at A. of Review Standard making at 1861-62. An fact- S.Ct. in its own field of ex based determinations questions Four of the Downer raises pertise, particularly determina where those impli examples disputes of factual are classic judg 1) wrapped up tions with scientific are cating agency expertise: substantial ments, permitted rely on wetlands; must be “to question were whether the areas 3) qualified ex 2) converted; opinions reasonable of its own were whether such wetlands matter, if, court original even as an a perts the conversion was commenced be whether 4) 23, 1985; might contrary persuasive.” views more find fore December and whether 378, 109 at 1861. than natural wet- Id. at S.Ct. areas were artificial rather photographs, July Due annual aerial B. Process taken Substantive hot, summer, August, dry months of was eligibility to lose his For Downer examined to determine the saturation or in- supports, agency must crop price USDA history question. undation of the areas that the land in issue was a have determined worked, heavily Because the soil was wetland, wetland, that Downer converted the comparable visited sites it SCS deemed not start before De- that the conversion did the areas in to determine whether 23,1985, planted and that Downer cember supported supported sites would have commodity converted wet- prevalence hydrophytic vegetation be- dispute that he land.2 Downer does not fore Downer’s alterations. planted agricultural commodity on the issue; however, argues, he land complains that while the agency findings points on all the other factors, considered all three evi- capricious. arbitrary and methodology support dence and does its (B) (C). conclusions as to factors Specif- Determination 1. Wetland ically, complains pho- he of the use of aerial Swampbuster, Under the term “wet tography comparison sites. The to land that land” refers responds methodology that such is standard (A) soils; hydric predominance has a expertise in its field of and soil conservation. (B) by or is inundated or saturated surface Agency regulations bear out the groundwater frequency at a and duration 12.31(b)(2)(ii) contention. See 7 C.F.R. support prevalence hydro- sufficient to a of (1995). presents no evidence aside phytic vegetation typically adapted for life agency from the bald assertion that the conditions; in saturated soil and unacceptable method is or flawed. We must (C) sup- normal circumstances does reject complaints. therefore his port prevalence vegetation. a of such 3801(a)(16). There is also no that evidence the

16 The administrative any agency Congress considered factors did agency record establishes that the considered samples making not intend it to consider in deter all three factors. The took soil its SCS mination, dispute nor is there indication that the from the areas and used those agency important aspect to samples to determine that the areas had a failed consider an hydric predominance problem.3 of soils. A series of of the wetlands determination Inc., 517, argues e.g., Fantasy, Fogerty to Downer also that the had 510 U.S. 533- 2. 35, 1023, 1033, artificially determine that the wetland was not 114 S.Ct. 127 L.Ed.2d 455 place. agency argues (1994); created in the first step The this Astoria Fed. Sav. & Ass’n v. Solimi Loan performed. irrelevant need is not be no, 104, 108, 2166, 2169-70, U.S. S.Ct. 111 we Because of our discussion in Part II. B.4. (1991). background 115 L.Ed.2d 96 This in need not this issue. resolve only retroactivity the cludes not convention that intended, clearly must be but also the convention 3822(a), argues that 16 U.S.C. which generally that federal benefits and subsidies are Secretary Agriculture instructs the of to create according the at fixed to law in effect the time of maps, applied wetland delineation should be ret- 632, grant. Jersey, the Bennett v. New roactively to his case. The amendment was en- 105 S.Ct. 84 L.Ed.2d 572 Downer, having acted in while exhausted retroactively, provisions applied If these reviews, appealing his local and state was the they require would the reexamination of five through determination the national ad- years’ worth of decisions. In these circum- process. application ministrative Retroactive stances, interpret Congress’s we as intentional statutes is disfavored in the absence of clear subject retroactivity. silence on the It is tell- congressional contrary. intent to the See Miller ing Congress only not did not that make Emergency Management Agency, v. Federal retroactive, specifically (8th Cir.1995). subsection disallowed Congress clearly F.3d map- application the subsection’s retroactive indicated those subsections of section 3822 3822(a)(2). ping appeals. It is clear which it intended to have retroactive effect. See ASCS, Congress trying penalties was to soften the National Fed’n v. Wildlife (8th Cir.1992). give any Swampbuster through 1204-05 It did not and fine tune the focus of mapping causing was to be indication subsection section while as little administra- possible. disruption retroactive. tive USDA, Further, Finally, managing agency, Congress presumed is to know See, responsibility implementing legal background legislating. which has in which it find- vigorously disputes these fore. Downer determination is agency’s technical only dug- asserting that he filled the ings, expertise and was squarely within its field of outs, surrounding He also areas. experts’ not qualified on its own made reliance fundamentally have disputes that his actions other relevant of the sites and examination changed characteristics of-the surround- not rational and does data. The decision was ing showing wetlands. evidence: tests run counter to the showing soils; hydric photographic evidence filled the no that Downer There is conditions; of bur- history evidence a of wet just dispute as to the extent and dugouts, sites; vegetation at the hydrophytic ied Agency took the fill. soil scientists effect of compa- hydrophytic vegetation at evidence job fill and found that Downer’s test bores Thus, the dis- rable but sites. undisturbed dug- beyond the boundaries of the extended agency expertise, pute is within the realm surrounding wetlands and that outs onto the capricious arbitrary and not the result of contoured to enhance drain- the fill had been decision-making. by Relying experts visits its age. on site photography, also deter- aerial Agency Determination ditching had been enhanced at mined that Conversion Wetland Downer, turn, presented one of the sites. Swampbuster, a wetland has been Under expert’s soil tests to show his own converted when it has been: job to the and did fill was tailored drained, filled, leveled, dredged, or other- substantially beyond extend those bound- (including any activity manipulated wise aries. impairing reducing or that results cut- there is evidence the record While water) circulation, flow, or reach of for the ways, ting both was entitled making purpose to have the effect of rely on the tests and observations made commodity production agricultural of an photographic experts. its own The aerial possible if— surrounding dug- records show wetlands the (i) production would not have been such manipulation of those outs before Downer’s action; possible but for such areas, and site visits established that the (ii) action— before such being produce agricultur- areas were used to (I) wetland; and such land was al commodities after the wetlands drained, covered, (II) and recontoured. The highly such was neither ero- land agency’s sup- of determination conversion highly crop- dible land nor erodible ported the evidence and is not land. capricious. 3801(a)(4)(A). § The administrative record shows that Agency Determination determined, through soil tests the Date of Conversion observations, filling and field that Downer’s crop when a dugouts of the extended onto the surround There is no loss of subsidies commodity activity produces ing area and that farmer an wetland Downer’s produce agricultural if the conversion of possible had made it on converted wetlands those wetlands commenced before December commodities on land where such commodities 3822(b)(1)(A). Down- regularly produced not have be- 1985. 16 U.S.C. could been retroactivity provisions softening penal Security Swampbuster for the the Food tory Act and statu- scheme, (a) nonretroactivily provisions modify not to has construed subsection ties and for retroactively, construing apply while certain ing way underlying the we determine the viola (sub- other subsections of section 3822 to do so construction of the tions is a reasonable mitigation through providing resto- sections for Swampbuster statutory scheme. See Chevron ration, graduated withholding subsidies de- Council, v. Natural Resources U.S.A. Defense violation, pending gravity on the of the Inc., 837, 843-45, 467 U.S. 104 S.Ct. Swampbuster made in reliance on the errors 2781-83, (1984); 81 L.Ed.2d 694 Sullivan v. errors). 12.5(b)(6) (8). own C.F.R. — Everhart, 110 S.Ct. 964- any question there were as to the retro- Even if 108 L.Ed.2d (a), activity policy the of subsection USDA's dugouts in There is no evidence in the record to address digging the argues that er added). (emphasis “manipulating” the this issue.” place constituted first wetlands; therefore, “manipulation” be- argument This statement dooms Downer’s merely gan 1985 and Downer was before First, for two reasons. it is an admission process by his activi- continuing ongoing present point that he failed to before the argues dug that he He also ties agency. arguments We need not consider wetlands, drainage ditch in 1983 one of the parties agency. failed to raise before the activity was a continuation the 1989 Manpower Metro. Area See Texarkana Con conversion. ongoing of that wetland Donovan, (8th 1162, 1164 sortium v. F.2d So, “com- boils down to what Cir.1983). interpreted means. The has menced” Second, pursuit” in Downer has admitted that “commenced” to mean “active carry completion proof. of the he failed to his burden of that “efforts toward the activity regu- regulations specifically assign continued on a the burden of conversion have delays except proof ... for due to circum- on this issue to Downer. 7 C.F.R. lar basis 12.5(b)(9). 12.5(b)(9) explic beyond person’s control.” 7 Section states stances (cid:127) 12.5(b)(5)(ii). itly: responsibility “It The farmer has the is the C.F.R. seeking exemption that he falls within this ex- related to converted burden to show disqualified. provide not be wetlands under this section to evi ception and thus should data, receipts, crop history such as Id. dence information, drawings, plans or similar Here, photographic there is a record purposes determining whether the conver showing conditions from 1980 saturated exempt sion or other action is in accordance activity through only between the 1988. The not, however, with this section.” Downer has pre-1980 construction of the and the established the facts to show that he would subsequent filling of the wetlands is a ditch only exemption, fall within the but relies and the aerial record constructed extremely quoted general assertion change existing shows that did pointed nothing in above. He has characteristics of the wetland areas until the for the ex record to demonstrate basis years actual six later. The ad conversion emption applying to him. The has supports ministrative record more than Downer was notified that must stated that he that Downer did not determination inform the local authorities of begin pursuit” the “active of conversion until wetlands, not plans to convert but he did 1989. do so. The burden rests with Downer not only warranting exemp facts to establish Artificial 4. Wetlands agency, tion before the but also to demon argues Downer that it was the construction to this court where in the record those strate dugouts of the that created the wetlands may facts be found. .We have examined the dugouts, surrounding the and that 16 U.S.C. evidence, in vain for such but in the record 3822(b) exempts ineligibility from those is not on this court to search end the burden artificially convert created wetlands. who for error. v. Jotori the record Wilson Downer states that the wetlands “were obvi- Inc., (8th 370, Dredging, 999 F.2d 372 Cir. ously by excavating diking created and/or 1993) (citing United States v. 738 Cohen purposes land to collect and retain water for (8th Sarver, 287, Cir.1984)); F.2d Holt such as water for livestock.” Downer cites Cir.1971). (8th 304, nothing support in the record to his assertion fact, filling that In the wetlands are artificial. No one contends violation; affirmatively Swampbuster be- states that there is no was a the issue filling in record before the fore us concerns the of wetlands sur- evidence on the issue agency. utterly rounding dugouts. The record made His brief states: the “USDA 23, 1985 Downer failed to consider or determine whether natu- clear that after December to, prior dugout outside the areas with ral wetlands existed in these areas filled wetlands fill, of, dugouts. foreign and re- or in the absence the artificial four to ten inches were determined the SCS to drainage provided pos- that areas which ditch worked Further, showing There is no drainage to the road culvert. be converted wetlands. itive dugouts, permissible doing while filling of the before that he consulted with the SCS itself, basin or so, in and of affected the wetland relied in its a fact on which the SCS sites, court drainage of the as the district Appeals determination dat- National Division argues that agency cogently stated. The Thus, Downer had ade- ed March between is thus a rational connection there quate notice. decision of evidence in this case and the SCS, that it was not an and so Hearing capricious determination. adequacy contests the Downer also separate hearings In all there were nine in hearing. After he acted the face of of his part of the and reconsiderations above, Downer was warnings described record, this determination. On the basis of was re given process extensive before he only conclude that the district we can $4,624 in His quired to refund the issue. analysis painstaking in a of the administra- local, state, at the case was reviewed record, concluding tive did not err levels; agency experts national at least seven Swampbuster violated and was not entitled question; and scientists visited the sites exemption. agency scientists reviewed and additional Downer was those tests and determinations. Procedural Due Process C. visits, present during at two site least 1. Notice presented his case either argues Downer also that he was writing re at the various levels deprived process he did not of due because given Downer’s claim that he was not view. receive notice before his activities that con wholly adequate hearing is without merit. ineligi could him version of wetland render crop subsidy payments.4 Regardless ble for III. A, appli than of whether the USD rather judgment affirm the of the district subsidy, duty We cant for has the to insure court. applicant program’s informed of the be restrictions, the administrative record shows assertion that he did not re Downer’s BEAM, Judge, concurring Circuit specifi

ceive notice is baseless. Downer was dissenting. cally presence alerted to the of wetland areas I. BACKGROUND them on his farms and warned to convert background appeal The factual to this consulting agency, without at the risk in the district court set out some detail losing eligibility. April his On forms filed opinion accompanying administrative March and March States, record. Downer v. United See produce Downer certified that he would not (D.S.D.1995). essence, In F.Supp. 1348 commodity agricultural on converted wet dugouts during Downer filled two man-made consulting lands without first with the grow- period between the 1988 and 1989 USDA. In the SCS notified Downer ing The determined that the seasons. SCS might present that wetlands be and if con in dugouts had been sited “wetlands” as de- planned, was an on version of wetland area by Swampbuster and that fill had been fined investigation requested site SCS should be spread beyond over “wetland” area any The communi before conversion. SCS dugouts. The con- boundaries of cation also stated that there were wetlands dugout in hydric filling cedes that a man-made itself and soils on Downer’s farm. Downer 3822(b)(2). § planted agricultural permissible. commodities in the two See 16 U.S.C. prescriptions.” vagueness argument part Horn v. Burns and 4. Downer includes a and fulfill its Roe, Cir.1976). (8th theory. We lack of notice "A noncriminal con his prescriptions Swampbuster very unconstitutionally vague de statute is not ... where sider the Thus, ordinary person ambiguous. exer- tailed and not in the least its terms are such that the impermissibly vague. cising sufficiently common sense can understand statute is not beyond argues The issue is whether Downer went that pre-1980 it was the “wetland,” surrounding that and altered the dry construction in areas that so, and if whether Downer’s actions fall into created the in place, wet areas the first and exemptions Swampbuster. one of the If exempted ineligibility thus he is from by 16 3822(b). (b) Downer’s actions amount to “conversion” of U.S.C. exempts Subsection “wetland,” surrounding and do not fall ineligibility from those who farm or convert exemption, Swamp- into an he has violated by excavating “wetland created diking or 3821(a)(1); §§ buster. See U.S.C. nonwetland to collect and retain water.” Id. 3801(a)(4)(A). A violator who then farms the Specifically, ineligible converted “wetland” becomes No ineligible shall become price support payments crop year. for that program loans, section 3821 of this title for 3821(a)(1). Id. A determination that payments, and benefits— good violator faith acted that the and/or (1) production as the result of the of an violator has taken certain remedial actions agricultural commodity on— however, may, complete partial result in or program restoration of farm subsidies. Id. 3822(h)(1) & (B) lake, an artificial pond, or wetland by appealed, through many excavating created diking the SCS’s or nonwet-

layers process, land to collect pur- administrative the SCS and retain water for filling activity poses that such determination his had vio- as water for livestock ... or control; Swampbuster. flood lated He was unsuccessful. appealed, through

He then the ASCS admin- processes, istrative for reconsideration of the or; technical SCS determination for a and/or finding mitigated that his violation was or (2) for the of— conversion good exception excused under the faith (A) lake, pond, an artificial or wetland Swampbuster. again He was unsuccessful. by excavating diking created nonwet- May On Downer refunded to the land to pur- collect and retain water for $4,624 price support payments ASCS poses such as water for livestock ... or which he had received 1989. He then flood control. sought review the district under 5 complains Id. Downer has 704-706, §§ claiming that the deter- pre- not shown that the at “wetlands” issue by minations SCS ASCS were dugouts. date the maintains wrong, capricious, once shows that the area became a him process denied due of law.5 “wetland” and was “converted” as those 3801(a)(4)(A) terms are defined in sections & II. DISCUSSION (a)(16), supra see at 1002-04 & it need II.A, II.B.l, II.B.2, I concur in Parts II. not show how or when the “wetland” came B.3, opinion. my and II.C. of the In court’s about. The asserts section view, 3822(b) the result permits filling production reached the court Part of and (Artificial Wetlands) II.B.4 agricultural is both unfair to on commodities artificial lakes Downer and un- dugouts, filling pro- validates an incorrect and but not the of and 3822(b) lawful construction of 16 U.S.C. duction of commodities 12.6(9) Thus, “wetlands,” by § and 7 C.F.R. the SCS. I however or whenever created.6 dissent. agency gives The no basis or rationale for overlap chronology 5. There is some in the of I that note the district court did not consider procedural question events. Downer filed the initial suit the of whether the “wetlands” were Rather, good artificially before the last ASCS determination of no created to be irrelevant. that faith, price support payments addressing question, and refunded the in the seems to have only government after the counterclaimed for assumed the answer rather than find it in the are, however, States, overlaps them. These irrelevant record. See Downer v. United 894 1348, (D.S.D.1995). purposes appeal. F.Supp. for of this 1357 1008 abundantly clear course, 3822 makes is, contrary original section which of

this assertion here “wetlands” the import of section that whether language and plain the relevant indeed. 3822(b). contrary artificially created is to were is also This assertion exempt regulations which agency’s own statute, or agency interpreted the Had the on ar- agricultural commodities production of noted, (which, regulations as its own even 7 tificially “wetlands.” C.F.R. created verbatim, of the version merely replicate, 12.5(b). merely regulation re- § Because the (b) the time of their in effect at subsection verbatim, iterates, statutory exemption its issue),8 the benefit of we would have “wetlands,” it is the artificially created for considering subsection whether expertise I turn. statute to which (b)(1)(B) (the permitting produc- exemption I must defer to a reasonable While artificially agricultural of commodities tion U.S.A. statutory interpretation, see Chevron “wetlands”) lakes, neces- ponds, and created Council, Inc. v. Natural Resources Defense exemption conver- sarily implies an for the 2778, Inc., 104 2781- S.Ct. Or, if permits production. which sion (1984), I cannot defer to 694 81 L.Ed.2d (b)(2)(A) applies not, ret- subsection whether noninterpretation. interpretation or obtuse However, roactively. because subsection has, fact, interpret failed to The (b)(1)(B) exempts impliedly, if obligatorily, (2)(A) 3822(b)(1)(B) all. The at sections artificially an created “conversion” of out, might, point as it well agency does not “wetland,” retroactivity of the clarifica- (b)(1)(B), exempts pro- which that subsection (b)(2)(A) by need provided subsection tion agricultural commodities on artifi- of duction us. not concern “wetlands,” cially was included created 1985; as “Agricultural commodities” are defined but original Swampbuster enacted commodity planted and (b)(2)(A), “any agricultural explicitly exempts which subsection tilling “wetlands,” by ... annual of the soil.” produced artificial was “conversion” of 3801(a)(1)(A). production, § Such district 16 U.S.C. by the 1990 amendments. The added therefore, filling necessarily requires the later, applied version of sec court issue, 3822(b) artificially pond. lake or This the created it considered the tion when why the agency concedes. I see no reason evidently agency failed to alert because the entity, artificially exempted change. a third listed there had been that court 1222(a), “wetland,” subject any Act, would be Security § created Compare Food (codi (1985) language 99-198, interpretation. plain The different No. 99 Stat. 1508 Pub.L. 1986)) 3822(b)(1)(B) exempts “production (Supp. § of section at 16 U.S.C. 3822 IV fied Act, commodity on ... an artifi- agricultural § of an Agriculture Food and with (1990) lake, 101-624, (Emphasis add- pond, cial or wetland.” 3573 Pub.L. No. Stat. 3822(b) ed). (codified always § has contained Section as amended at 16 U.S.C. 1991)).7 agricul- exemption production of separate for (Supp. III The version of the ex “wetlands,” ori- commodities on emption “wetlands” in effect at tural for artificial possible gin, production such is made production agricul when the time of Downer’s thus, entirely drought.9 natural events such perhaps, was not as tural commodities 3822(b)(1)(D). Thus, produc- How explicit as after the 1990 elucidation. exempted in ever, commodities exposition, the 1990 tion even without regulation, zling. older version of the U.S.C.A. 3822 The I realize that the notes to 16 12.5(d)(l)(ii) (1989), reproduces that the 1990 amendment of that section state C.F.R. (b) change did not subsection other than reletter- proscription against original a determi- statute’s Code, however, ing. Examination of the U.S. pro- ineligibility "as the result of the nation of to be in error. shows those notes agricultural commodity [a]n on ... duction of an wetland,” puts artificiali- ... which also artificial regulations reproduce exemptions 8. USDA's clearly ty does not address in issue. First, artificially created "wetlands." regulations in its assertion or even mention these 12.5(b)(l)(iv)(A) (1995) explicitly ex- C.F.R. irrelevance. any penally empts an SCS a farmer from from finding [i]f of wetland ... of "conversion present wetland,” exemption in section alternate making 9.This area is ... artificial ... originally passed, puz- and as amended. agency’s 3822 both as claim of irrelevance all the more (b)(1)(B) tion, production apparently must be judgment subsection made has made no as to artificially possible by manipulation Rather, of creat- the issue at all. it relies on the bald Otherwise, ed “wetlands.” the inclusion of possible assertion that origin artificial of (b)(1)(B) is “wetland” subsection mere sur- the “wetlands” is irrelevant. That assertion plusage. simply wrong. is agency interpretation An application statutory of a seheme must Congress presumed using must be to be incorporate, with, or at least deal the statuto- provides statutory the definitions it for a ry exemptions embedded within that scheme. Here, Congress clearly exempted scheme. place I find no in the administrative record “production agricultural an commodi- question where the of artificial creation is “lake[s], ty” artificially pond[s], on created or explicitly addressed, considered or and the wetland[s],” provided and at the same time agency does not direct us to such deter- penalties the definitions and for “conversion” agency mination. Because the has not ad- of “wetlands.” Thus the mere determination important aspect problem dressed an of the enough. of “wetland” and “conversion” is not any way, agency’s I would find the deter- There must be a determination the “wet- mination that Downer’s of “wet- conversion naturally occurring.10 lands” in lands” him ineligible crop rendered subsi- Congress’s To find would otherwise render dy payments arbitrary, capricious, to be exemption “produce agricul- of those who not otherwise in accordance with law. Id. commodity” tural on artificial “wetlands” nu- gatory meaningless. interpreta- Such an simply The court ignore chooses to this tion cannot be correct. statutory by agency. dereliction It ac- complishes by asserting this first that Down-

While the evidence the administrative present point” er “faded to before the type may to record as soil be sufficient for an agency. Supra at 1006. This is error. expert determination that the “wetlands” While Downer conceded that no evidence on predated dugouts, we are not authorized point by party, was offered either he has qualified or to make such a determination. legal asserted inception this issue from the may photographs There also be aerial exis- dispute. this predated tent which show that the wet areas dugouts, photographs but no such are in Next, assigns the court to Downer the may agency this record. Or it be that the proof necessary burden of of the facts implicitly scientists determined that legal establish this of the essential element naturally occurring pre- “wetlands” were against claim Downer. This is also dugouts. dated the construction of the I do says error. The statute that “[n]o not know and the other members of the ineligible price support shall become [for panel agency cannot know because the has payments] production ... as the result of ... given guidance. us no ... by on an artificial ... wetland created argued excavating diking

When has neither nor or nonwetland ... or for issue, important may lake, pond, addressed an we not do the conversion of ... an artificial wetland_” Ass’n, 3822(b). it for them. See Motor Vehicle It is Mfrs. asserting ineligi- 463 U.S. at 103 S.Ct. at 2866-67. If the who is Downer’s thus, provided bility; proof ineligibility itself has not a reasoned should be action, may supply government. According basis for its the court the burden of the may court, judg- one. Id. We not substitute our all the must do is assert theirs, This, agency, relying ineligibility. then, according ment for and here the to the clearly statutory interpreta- on a erroneous shifts to Downer the burden of afftr- 3801(a)(4)(B) We, course, any finding 10. Section farther confirms the ne- do not make means, cessity “naturally occurring” of such a determination. That subsection what or on the finding interplay "artificially directs that there shall be no of “convert- between that and created.” “production Perhaps ed wetland[s]” if of an "artificial” "wetlands" become "natu- commodity” possible long passage periods due to a natural occur- ral" after the of time. drought interpretive rence such as and "is not assisted These are the sorts of nuances which producer destroys Congress agency's expertise action of the natural wet- committed to the added). (emphasis land characteristics." Id. the first instance. 706(2)(A))(empha- conclusion, § (quoting 5 U.S.C. at 685 refuting legal matively this bald added). that is assertion in the face of sis even statutory construc- upon an erroneous based overreaching and erro- Given the disagree. I tion. statute, its deci- interpretation of the neous agency regulation, 7 points to an The court law.” “in accordance with cannot be sion 12.5(b)(9), regulation applica- § a C.F.Ri Further, any regulation purports to re- play in this matter. procedures ble to the obligation to follow the of its lieve regula- And, applicable, the arguably if even inappli- by Congress is either law as enacted underlying that de- statute tion violates See, e.g., disregarded. or must be cable regulation states ineligibility. The fines (8th Chater, 688, 92 F.3d 693-94 Newton v. pertinent part: Cir.1996). (9) responsibility of It is the exemption related to converted seeking III. CONCLUSION provide [section 12.5] wetlands unsupport- agency, relying on Because the history evidence, crop receipts, as such interpretation, prop- failed to statutory able data, informa- drawings, plans or similar question the land in erly establish whether tion, determining purposes of whether for “wetlands,” not, I would re- regulatable exempt in other action is the conversion or ineligibility as ar- the determination of verse 12.5], [section accordance with with bitrary, capricious and not in accordance added). 12.5(b)(9)(emphasis 7 C.F.R. tempest this to the the law. I would remand 3822(b)(1)(B) Here, in 16 U.S.C. impor- of this agency teapot for consideration (2)(A), the land issue is whether or not tant issue. indeed, is, naturally occurring “wet- regulated by the statute at all. The lands” is, to be an initial determina-

point there has tion, agency, that the at the burden of the production occurs is upon

land which- the Swampbuster legis- purview of the within the WILSON, Appellant, J. Candace is, If it then the burden of establish- lation. v. exemption upon producer ing an falls The PRUDENTIAL INSURANCE ineligible. of 7 to be Use C.F.R. shown AMERICA, 12.5(b)(9) COMPANY OF responsibility to throw this first Appellee. statutory scheme upon violates the and, government perhaps, process. due No. 95-3309. throughout proceeding, this has contended Appeals, Court of United States man-made to the that a its brief Eighth Circuit. regulat- “dugout” produces hole” a or “water subject of ineli- ed “wetland” to declaration 16, Feb. Submitted interpretation, gibility under the Act. This Sept. Decided however, plain, clearly in the face of the flies Suggestion Rehearing Rehearing and language unambiguous En Banc Nov. 1996.* Denied 3822(b)(1)(B) (2)(A). decision de review an administrative We States, Eye v.

novo. Von United (8th Cir.1996) (citing Lockhart 684-85 (8th Cir.), cert. Kenops, 927 F.2d denied, 186, 112 S.Ct. (1991)). uphold the

L.Ed.2d 148 We must ‘arbitrary, capri agency decision “unless it is discretion, cious, or otherwise not an abuse of ” Eye, 92 F.3d in accordance with law.’ Von * Beam, McMillian, Bowman, Judge Murphy grant suggestion. Judge Judge would Judge

Case Details

Case Name: Leslie Downer v. United States of America, Acting by and Through the United States Department of Agriculture and Soil Conservation Service

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 19, 1996

Citation: 97 F.3d 999

Docket Number: 95-2540

Court Abbreviation: 8th Cir.