SCOTUS Rejects Petition

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) – The U.S. Supreme Court rejected a petition filed by South Dakota farmer Arlen Foster challenging a USDA wetlands determination system, the court ruled last week.

Foster challenged the Natural Resource Conservation Service’s use of a so-called "reference site" in Kingsbury County about 33 miles from the Foster farm and a 0.8-acre tract of land that Foster contends is not a wetland. The petition said NRCS investigated Foster’s land and found it had been disturbed and naturally occurring vegetation altered. Foster contends repeated snow melt onto the land is the reason for standing water.

Pacific Legal Foundation attorney Tony Francois, who filed Foster’s petition to the high court, said in a statement he will continue to argue the USDA’s wetlands determination system is flawed.

"The absurd bureaucratic interpretation in this case was how big a ‘local area’ is under a federal law that requires the department to limit its wetland investigations to the ‘local area’ surrounding any given farm," Francois said in a blog posted to the PLF website.

"… Under this obviously unreasonable interpretation of ‘local area’ the department looked at a wetland research site more than 30 miles from the Fosters’ property, and decided that because that remote site is a wetland, so is a wet spot on the Fosters’ farm. Sadly, the lower federal court simply took the federal worker’s word for it, instead of exercising its constitutional responsibility to interpret the law independently."

Francois said the PLF will "continue to argue that judges have an independent duty to determine the requirements of federal law, and should not defer to the clearly unreasonable legal opinions of bureaucrats."

Foster could not be reached for comment at press time.

A 0.8-acre tract of land on Foster’s farm in Miner County, South Dakota, in the southeastern part of the state, frequently is underwater in spring. The USDA declared it was a wetland making it difficult if not impossible for Foster to farm. The NRCS has faced a backlog of requests for wetlands determinations, leaving some landowners waiting for years.

After Foster made a determination request, NRCS used a comparison site to make a determination. Though he argued the system deprives him of his rights, such comparisons are allowed by NRCS procedures.

In July 2008, Foster asked the NRCS to reconsider an earlier wetland delineation it performed, according to the petition. Foster continued to challenge NRCS through a series of court cases eventually losing 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.

The Pacific Legal Foundation asked the Supreme Court to consider a number of questions, including whether the use of a comparison site selected a decade ago to make the wetlands determination violates Foster’s Fifth Amendment rights to due process.

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

Follow him on Twitter @toddneeleyDTN

(CC\SK)