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SD Farmer Sues USDA on Wetlands Battle
By Todd Neeley
Friday, May 7, 2021 1:18PM CDT

LINCOLN, Neb. (DTN) -- For more than a decade, Minor County, South Dakota, farmer Arlen Foster has fought a USDA wetland determination that a puddle in the middle of one of his fields is a wetland. The agency refused to reconsider when Foster presented new evidence in 2020 that may have proven to the contrary.

The third-generation farmer is once again suing the agency, asking a federal court on Wednesday to declare the Swampbuster Act violates the Constitution.

Because of the determination that field is a wetland, Foster would not be eligible for farm programs if he farmed the land.

Foster has been battling USDA's wetland determination on an 0.8-acre tract of land since 2008. USDA declared it a wetland in 2011 based on an agency process and Foster convinced even the Supreme Court to review the determination.

New evidence emerged in 2020 showing a tree belt installed on his farm by his father in 1936 is what has caused massive snow piles in the field. The yearly spring melt has created a perpetual puddle.

Foster presented the evidence to USDA in April 2020, but the agency declined to update its 2011 determination, which hasn't allowed him to farm the ground.

"This case is about whether the USDA can require farmers to keep seasonal mud puddles muddy as a condition of being eligible for farm programs, and about whether the NRCS can ignore its legal obligations to review outdated farm wetland certifications in light of new information," Pacific Legal Foundation Senior Attorney Tony Francois told DTN.

The Pacific Legal Foundation is representing Foster in his new lawsuit filed in the U.S. District Court for the District of South Dakota. The foundation takes on cases that have the potential to set precedent in the Supreme Court.


According to the lawsuit, the mud puddle does not dry out at the same pace as surrounding fields because it receives additional snow melt from the tree belt.

In about half of those years, the mud puddle dries out soon enough that its soil also is dry enough to support the use of farm equipment.

"In those years, the Fosters produce an agricultural crop (in recent years, typically corn) on the entire 44-acre field, including the mud puddle and the immediately surrounding area," the lawsuit said.

"In some years with higher snowfall, however, the mud puddle does not dry out fast enough to allow the use of farm equipment in and around it before it is too late to plant a crop. In these 'wetter years,' the Fosters are unable to produce an agricultural crop either in the mud puddle or the surrounding portions of the field, totaling between 1.6 and 2 acres out of the 44 acres in the field, unless they were to drain the mud puddle to speed up its 'drying out.'"

The Fosters' technical report to USDA in 2020 as part of a requested review of the 2011 certification, demonstrates the mud puddle was created "incidentally to the development of the tree belt and is therefore an 'artificial wetland,'" the lawsuit said.

That information was not available to the Fosters or USDA ahead of the 2011 wetland certification.

"Defendant NRCS (Natural Resources Conservation Service) did not consider the information or analysis in the 2020 request when it completed the 2011 certification," the lawsuit said.

"Despite this, defendant NRCS again refused to review the 2011 certification on May 14, 2020. The 2020 denial was again based exclusively upon the review regulation's requirement that the agency first agree with the Fosters that the prior certification was wrong before it would agree to review the prior certification."

The Fosters argue the 2011 determination is no longer valid "due to plaintiffs' requests that it be reviewed. Plaintiffs are informed and believe that defendants contest all of these contentions.

"Plaintiffs are injured by the Swampbuster Act, the review regulation, and defendants' 2017 and 2020 denials," the lawsuit said, "because plaintiffs hold beneficial interests in property on which they may not grow a crop in many years while remaining eligible for ARC and PLC payments from the CCC, crop insurance premium assistance, and other USDA agricultural benefit programs without which they would have difficulty making a living farming their land."


The lawsuit alleges the Swampbuster Act is unconstitutional because it "regulates every wetland in the United States of America, however small, however ephemeral, and however distant or unconnected from any other water body, so long as it is on a farm.

"The Swampbuster Act requires those it regulates to submit to this unconstitutional control of their private property by the Congress and defendants as a condition of the distribution of federal agricultural benefits, in violation of the Unconstitutional Conditions doctrine."

In June 2019, the Supreme Court ruled courts could no longer automatically defer to federal agency interpretation of federal rules. https://www.dtnpf.com/…

The Supreme Court issued a ruling in Kisor v. Wilkie, a case involving Vietnam War veteran James L. Kisor and a government denial of benefits. That case challenged an administrative law doctrine that gives broad powers to federal agencies in how they interpret regulations. The doctrine is known as "Auer deference."

The legal doctrine allows courts to defer to agency interpretations of regulations in legal challenges as long as they are not inconsistent with regulatory text.

The Fosters' case was cited in the Kisor petition as an example of why the court should hear the case. Foster appealed a decision by the Natural Resources Conservation Service to use a comparison site to make a wetland determination on his land.

He previously argued unsuccessfully in court NRCS deprived him of his rights by deeming his land was similar to a known wetland 33 miles away.

In July 2008, Foster asked the NRCS to reconsider an earlier wetland delineation it performed, according to a petition he filed with the Supreme Court. Foster continued to challenge NRCS through a series of court cases, eventually losing in an appeal to the U.S. Court of Appeals for the Eighth Circuit in St. Louis in April 2016.

Wetland conservation provisions in the Food Security Act place no restrictions on farming wetlands if natural conditions allow for it. The wetlands provision prohibits converting wetlands to crop production by draining, filling or other means.

Read more DTN coverage on Arlen Foster's case here:




Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

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