LINCOLN, Neb. (DTN) -- South Dakota farmer Arlen Foster will have his long-fought wetlands determination case heard again by the same federal court that previously rejected his request for a rehearing.
The U.S. Court of Appeals for the Eighth Circuit remanded that case back to the U.S. District Court for the District of South Dakota as a result of a July 2024 Supreme Court decision.
The Supreme Court granted Foster's petition for a rehearing after overturning the so-called "Chevron doctrine." Chevron deference has been granted to federal agencies for about 40 years. Courts will no longer be able to defer to agency interpretation of statutes when laws are ambiguous.
The Miner County farmer has been fighting USDA's wetland determination on a 0.8-acre tract of land for more than 15 years.
Foster presented new evidence to USDA in 2020 that showed a tree belt installed on his farm by his father in 1936 causes large snow accumulations in the field. An annual spring melt has created a perpetual puddle the agency has deemed to be a protected wetland.
The NRCS denied Foster's request for a new assessment of the wetlands determination.
Foster's attorneys argued in a September 2024 brief filed in the Eighth Circuit that the demise of Chevron deference requires courts to use the "traditional tools of statutory construction" to determine a statute's best meaning.
"Foster advances the best reading of the statutory language," Foster's attorneys said in the brief.
"The statutory language places no limits or conditions on an affected person's right to request review of a final certification. The plain meaning of the statute is confirmed by the context and statutory history of the provision. In 1996, Congress removed appellees' discretion to determine when review is appropriate and instead gave farmers the right to trigger review."
In its brief filed in the Eighth Circuit, USDA said the Supreme Court's ruling does not change the agency's decision on Foster's case.
"Plaintiff's interpretation would not just undermine the finality of agency proceedings," USDA said in its brief. "It would also undermine the integrity of judicial proceedings. Plaintiffs' interpretation would allow farmers to invoke the jurisdiction of Article III courts to challenge federal agency action and then, if dissatisfied with those courts' decisions, unilaterally nullify the agency's decision on their own and restart the process all over again. This is not a hypothetical -- it is exactly what plaintiff tried to do here."
The Eighth Circuit originally upheld the decision of a federal judge in the district court in South Dakota. The district court granted Chevron deference to the USDA Natural Resources Conservation Service's denial of a rehearing requested by Foster in 2020.
Foster appealed to the Eighth Circuit after the district court denied his motion for summary judgment.
USDA rejected Foster's request because the new evidence did not represent a "natural" change to the physical geography of the land.
Foster also requested a review in 2017. At that time, the NRCS asked him to "supply additional information" not previously considered by the agency. Foster complied, although he was not required by law to do so.
Swampbuster Act provisions prohibit the draining of water from a wetland if farmers are to take part in farm programs.
Read more on DTN: "Foster Wetland Case Sent Back to 8th," https://www.dtnpf.com/…
Todd Neeley can be reached at todd.neeley@dtn.com
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