Petition for Writ of Certiorari — Arlen Foster, Petitioner v. Department of Agriculture, et al.

Appendix i

Appendix

Table of Contents

Opinion, U.S. Court of Appeals for the

Eighth Circuit, filed May 12, 2023 ..................... 1a

Opinion and Order Granting Defendants’

Motion for Summary Judgment and

Denying Plaintiff’s Motion for Summary

Judgment, U.S. District Court for the

District of South Dakota, filed July 1, 2022 ..... 15a

Letter from Karen Cameron-Howell,

Resource Conservationist at NRCS,

to Arlen Foster, dated Feb. 19, 2008 ................ 46a

Letter from Kirk Lindgren, District

Conservationist at NRCS, to Arlen

and Cindy Foster, dated June 23, 2011 ............ 51a

Letter from Leonard Jordan, Acting Chief

at USDA, dated Aug. 1, 2017 ............................ 57a

Letter from Joel Toso, Senior Water Resources

Engineer at WENCK, to Deke Hobbick

at NRCS, dated April 20, 2020 ......................... 60a

Letter from Jeffrey J. Zimprich, State

Conservationist at USDA, to Arlen

Foster, dated May 14, 2020 ............................... 65a

Appendix 1a

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 22-2729

___________________________

Arlen Foster

Plaintiff - Appellant

v.

United States Department of Agriculture;

Tom Vilsack, in his official capacity as Secretary of

the United States Department of Agriculture;

The Natural Resources Conservation Service;

Terry Cosby, in his official capacity as Acting Chief of

the Natural Resources Conservation Service;

Tony Suseri, in his official capacity as Acting

South Dakota State Conservationist

Defendants - Appellees

____________

Appeal from United States District Court

for the District of South Dakota - Southern

____________

Submitted: March 21, 2023

Filed: May 12, 2023

____________

Before BENTON, ERICKSON, and KOBES, Circuit

Judges.

____________

ERICKSON, Circuit Judge.

In this action, Arlen Foster maintains several

administrative law claims against appellees. The

Appendix 2a

district court 1 granted summary judgment in favor of

appellees. We affirm.

I.

BACKGROUND

A. Statutory and Regulatory Framework

The Secretary of Agriculture (“Secretary”) is

responsible for “delineat[ing], determin[ing], and

certify[ing] all wetlands” and has authority to

promulgate rules necessary to implement the

provisions contained in 16 U.S.C. § 3821 et seq.

(“Swampbuster Act”). 16 U.S.C. §§ 3801(a)(21),

3822(a)(1), 3846(a). The National Resources

Conservation Service (“NRCS”) is a federal agency

that acts at the direction of the Secretary to certify

wetlands and otherwise administer the Swampbuster

Act. Id. § 3822(j); see 7 C.F.R. §§ 12.6(c), 12.30(a)(3).

To preserve wetlands, the Swampbuster Act precludes

farmers who convert wetlands or produce crops on

converted wetlands from receiving certain farmrelated benefits. See 16 U.S.C. § 3821(a)–(c); Clark v.

USDA, 537 F.3d 934, 935 (8th Cir. 2008) (citation

omitted). The Swampbuster Act generally does not

prohibit farmers from converting or farming on

artificial wetlands. See 16 U.S.C. § 3822(b)(1)(E),

(b)(2)(A).

The Swampbuster Act and United States

Department of Agriculture (“USDA”) regulations

work together to provide farmers with the right to

request reviews of wetland certifications. The

Swampbuster Act’s review provision (“Swampbuster

Review Provision”) provides that a prior wetland

certification “shall remain valid and in effect . . . until

1 The Honorable Roberto A. Lange, Chief Judge, United States

District Court for the District of South Dakota.

Appendix 3a

such time as the person affected by the certification

requests review of the certification by the Secretary.”

Id. § 3822(a)(4). In turn, a regulation (“Review

Regulation”) provides procedural requirements a

farmer must follow to make an effective review

request. Specifically, a farmer “may request review of

a certification only if a natural event alters the

topography or hydrology of the subject land . . . or if

NRCS concurs with an affected person that an error

exists in the current wetland determination.” 7 C.F.R.

§ 12.30(c)(6).

Other

regulations

provide

administrative appeal rights to persons subject to

adverse certifications. See generally id. §§ 11.1, 11.9,

614.1. After exhausting administrative remedies, a

farmer may seek judicial review of the NRCS’s

wetland determination in federal district court. See id.

§ 11.13(a); see also 7 U.S.C. §§ 6912(e), 6999.

B. Factual Background and Procedural

History

Foster owns a tract of land in South Dakota that

contains a tree belt. In the winter, snow accumulates

around the tree belt. When the snow melts in the

spring, some ponding in the nature of a shallow

puddle can occur on a portion of the property (“Site”).

In 2004, the NRCS certified the Site as a wetland.

Following a 2008 request by Foster to review the

certification, the NRCS reviewed the certification and

in 2011 recertified the Site as a wetland. In the 2011

recertification, the NRCS specifically found that the

Site is not an artificial wetland. Foster exhausted his

administrative remedies and sought judicial review in

the district court. The district court upheld the

agency’s determination as not arbitrary and

capricious, this Court affirmed, and the Supreme

Appendix 4a

Court declined to grant certiorari. See generally Foster

v. Vilsack, No. CIV. 13-4060-KES, 2014 WL 5512905

(D.S.D. Oct. 31, 2014), aff’d 820 F.3d 330 (8th Cir.

2016), cert. denied 137 S. Ct. 620 (2017).

In 2017, Foster requested review of the 2011

recertification. The NRCS did not conduct the review,

finding that Foster had failed to comply with the

Review Regulation because he failed to provide new

information that the NRCS had not previously

considered. In 2020, Foster submitted a third review

request, but this time, he also submitted an

engineering report that opined that the Site’s ponding

is the result of the tree belt and is properly considered

an artificial wetland outside the scope of the

Swampbuster Act. The NRCS noted the opinion and

asked Foster’s engineering firm to identify any

evidence that would show that the NRCS had not fully

considered the tree belt at the time of the 2011

recertification decision. Neither Foster nor the

engineering firm ever responded to the request.

Thereafter, the NRCS reviewed the engineering

report, “compared [it] to the agency record,” and

declined to consider Foster’s 2020 review request on

the ground that the request did not comply with the

Review Regulation.

In May 2021, Foster filed this action in the district

court alleging that: (1) the Review Regulation

contravenes the Swampbuster Review Provision;

(2) the Review Regulation was never submitted to

Congress or the Comptroller General as required by

the Congressional Review Act (“CRA”); and (3) the

NRCS’s decisions to refuse to consider Foster’s 2017

and 2020 review requests violated the Administrative

Procedure Act (“APA”). The district court granted

Appendix 5a

summary judgment in favor of appellees, holding:

(1) the Review Regulation does not conflict with the

Swampbuster Review Provision; (2) the CRA’s judicial

review provision precludes judicial review of Foster’s

CRA claim; and (3) the NRCS’s decisions to decline to

consider Foster’s 2017 and 2020 review requests did

not violate the APA. Foster appeals.

II. DISCUSSION

“We review the district court’s grant of summary

judgment de novo, viewing the evidence and drawing

all reasonable inferences in the light most favorable to

. . . the nonmoving party.” Kallail v. Alliant Energy

Corp. Servs., Inc., 691 F.3d 925, 929 (8th Cir. 2012)

(citation omitted).

Foster reasserts the claims raised below, urging

this Court to find the district court erred in each of its

three holdings. Specifically, Foster argues that the

Review Regulation is in conflict with the

Swampbuster Review Provision, the CRA does not

preclude judicial review of his CRA claim, and the

NRCS’s decisions to decline to consider his 2017 and

2020 review requests violated the APA. We discuss

each assertion in turn.

A. The Swampbuster Review Provision

and the Review Regulation

Foster contends the Review Regulation

unlawfully conflicts with the Swampbuster Review

Provision. He argues that the Review Regulation

limits a farmer’s right to request review of a wetland

certification while the Swampbuster Act permits

broad review upon request by a farmer. When asked

to review whether a regulation is consistent with a

statute, we apply the two-step framework from

Appendix 6a

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). See Voigt v. EPA,

46 F.4th 895, 900 (8th Cir. 2022) (citation omitted).

We first consider whether the statute is ambiguous

“us[ing] traditional tools of statutory construction,”

including the statute’s “text, structure, history, and

purpose.” See Kisor v. Wilkie, 139 S. Ct. 2400, 2415

(2019); Voigt, 46 F.4th at 900–01 (alteration in

original) (citation omitted). If the statute is

unambiguous, we must simply apply it. Voigt, 46

F.4th at 901 (citation omitted). If the statute is

ambiguous, we defer to and apply the agency’s

interpretation of the statute so long as it is reasonable.

Id. (citation omitted); see Ameren Corp. v. FCC, 865

F.3d 1009, 1012 (8th Cir. 2017) (quoting Entergy Corp.

v. Riverkeeper, Inc., 566 U.S. 208, 218 (2009)).

After closely reviewing the Review Regulation

and the Swampbuster Act, we conclude the Review

Regulation does not contravene the Swampbuster

Review Provision. The Swampbuster Review

Provision appears to us to suffer from some ambiguity

related to whether it disallows regulations

establishing procedural requirements for making

effective review requests. We first consider the text of

the statute, which provides that a wetland

certification “shall remain valid and in effect . . . until

such time as the person affected by the certification

requests review.” See 16 U.S.C. § 3822(a)(4). On one

hand, by suggesting a certification is effective “until”

a farmer requests review, the statute may reflect a

Congressional intent to provide that a farmer’s review

request in and of itself voids a prior certification

without the need to follow any procedural

requirements like those enumerated in the Review

Regulation. See also 142 Cong. Rec. S3038 (daily ed.

Appendix 7a

Mar. 28, 1996) (statement of Sen. Richard Lugar)

(“The agreement stipulates that current wetlands

delineations remain valid until a producer requests a

review.”). On the other hand, the Swampbuster

Review Provision provides no direction as to what

constitutes a proper review request and as a result

may not preclude the existence of procedural

requirements for making an effective review request.

The legislative history offers no clarification. In

1990, Congress amended the Swampbuster Act and

adopted a version of the Swampbuster Review

Provision that permitted the Secretary to update

“wetland delineations as the Secretary deem[ed]

appropriate.” 16 U.S.C. § 3822(a)(4) (1990) (amended

1996). These amendments also made the Secretary

responsible for creating a process to review wetland

certifications to “provide farmers with certainty as to

which of their lands are . . . wetlands.” H.R. Rep. No.

101-916 (1990), as reprinted in 1990 U.S.C.A.A.N.

5286, 5436.

By 1996, members of Congress recognized the

amendments had operated in a manner that increased

uncertainty. Senator Grassley noted that after the

amendments, the NRCS began conducting aerial

photography to delineate new wetlands, which

“caused a lot of anxiety and uncertainty for” farmers

who could not operate with constantly-changing

delineations. See 142 Cong. Rec. S4420 (daily ed.

Apr. 30, 1996) (statement of Sen. Charles Grassley);

see also 141 Cong. Rec. S1702–03 (daily ed. Jan. 27,

1995) (statement of Sen. Charles Grassley)

(requesting a moratorium on new wetland

delineations pending new legislation). As a result,

Congress proposed new amendments in 1996, and

Appendix 8a

senators expressed their understanding that these

new amendments would “give farmers certainty . . .

[by] allow[ing] prior delineations of wetlands to be

changed only upon request of the farmer.” 142 Cong.

Rec. S4420. The 1996 amendments contained the

current Swampbuster Review Provision. See 16 U.S.C.

§ 3822(a)(4) (1996) (amended 2008).

Foster suggests that when Congress amended the

Swampbuster Act to permit only farmers to initiate

reviews, it necessarily granted individual farmers the

right to freely make review requests that

automatically void prior wetland certifications. This is

a broader reading of the statute than is supported by

the legislative record. The legislative history suggests

that the sole purpose of the 1996 amendments was to

promote certainty by preventing the NRCS from

constantly changing wetland delineations. Nothing in

the legislative history can be fairly read to evince a

Congressional purpose to prevent the USDA from

implementing a reasonable process to facilitate a

farmer’s ability to seek a new wetland determination.

Under Foster’s interpretation, farmers could

unilaterally nullify wetland certifications as the

NRCS makes them by filing vague and faciallymeritless review requests. This ability to request

review would be without limit and would grant

farmers the unfettered ability to render any

attempted certification by the NRCS uncertain. The

absurd results construction canon supports the

validity of the Review Regulation. Because the

relevant tools of construction demonstrate the

Swampbuster Review Provision is ambiguous, we

defer to the USDA’s interpretation (as reflected by the

Review Regulation) so long as it is reasonable.

Appendix 9a

The Review Regulation imposes reasonable

procedural requirements a farmer must follow to

make an effective review request and thereby delimit

a prior wetland certification. Because the

Swampbuster Review Provision is silent as to the

nature of an effective review request, the Review

Regulation does not conflict with the Swampbuster

Review Provision. Moreover, from an economic

perspective, the Review Regulation preserves agency

resources by allowing the NRCS to refuse to consider

facially-meritless review requests, and it promotes

certainty among farmers by preventing farmers from

nullifying certifications at will. We note our decision

is consistent with an agency adjudication that

addressed the same issue. See generally In re XXXXX,

Case No. 2014E000753 (USDA June 22, 2016) (URL

omitted). Because the USDA’s interpretation is

reasonable, we will defer to it and find the Review

Regulation does not contravene the Swampbuster

Review Provision.

B. CRA Claim

Foster next asserts the district court erred in

finding the CRA’s judicial review provision precludes

review of his CRA claim. Under the CRA, “[b]efore a

rule can take effect, the Federal agency promulgating

such rule shall submit [the rule] to each House of the

Congress and to the Comptroller General.” 5 U.S.C.

§ 801(a)(1)(A)(i). Congress may then pass a joint

resolution disapproving the rule to nullify it and

prevent the agency from reissuing another rule “in

substantially the same form.” Id. § 801(b). If Congress

takes no action, the rule automatically takes effect.

See id. § 801(a)(3). Finally, the CRA contains a judicial

review provision, 5 U.S.C. § 805, which provides that

Appendix 10a

“[n]o determination, finding, action, or omission under

[the CRA] shall be subject to judicial review.”

Because “legal lapses and violations occur”

without consequences, “[t]here is a strong

presumption that administrative action is subject to

judicial review,” and “[o]nly upon a showing of ‘clear

and convincing evidence’ of a contrary legislative

intent should the courts restrict access to judicial

review.” Mach Mining, LLC v. EEOC, 575 U.S. 480,

489 (2015); Clark v. United States, 482 F.2d 586, 590

(8th Cir. 1973) (citations omitted). Nevertheless, an

agency may overcome the presumption of judicial

review by showing there is no “substantial doubt” that

Congress intended to bar judicial review. See Block v.

Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984). This

Congressional intent may be “fairly discernible in” a

judicial review provision’s “express language, . . .

structure[,] . . . its objectives, its legislative history,

and the nature of the administrative action involved.”

Id. at 345, 351 (citations omitted); see also Clark, 482

F.2d at 590 (noting judicial review is unavailable

“where a statute specifically precludes judicial

review”).

Here, the CRA’s judicial review provision

precludes review of Foster’s CRA claim. Section 805

states that “[n]o determination, finding, action, or

omission under [the CRA] shall be subject to judicial

review.” 5 U.S.C. § 805. This language is broad and

unambiguous. It precludes judicial review of all

omissions under the CRA, including those of agencies

such as the USDA. Because Foster’s CRA claim is

based on the USDA’s alleged omission in failing to

submit the Review Regulation to Congress and the

Appendix 11a

Comptroller General, we lack the authority to review

his claim.

Foster contends § 805 does not apply because it

only precludes review of alleged omissions of Congress

as only Congress can engage in all four of the

enumerated activities in § 805 (i.e., determinations,

findings, actions, and omissions). But § 805’s broad

language covers all omissions under the CRA,

including agency omissions, so whether an agency can

make “determinations” and “findings” or take other

“actions” under the CRA is irrelevant. Foster raises

several other arguments against our interpretation,

but we find the decisions of our sister circuits that

have reached the same conclusion we have persuasive.

See Kan. Nat. Res. Coal. v. U.S. Dep’t of the Interior,

971 F.3d 1222, 1235–38 (10th Cir. 2020) (considering

§ 805’s plain language, other canons of construction,

and legislative history); Montanans for Multiple Use

v. Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009)

(Kavanaugh, J.) (relying on § 805’s plain language

alone); see also Ctr. for Biological Diversity v.

Bernhardt, 946 F.3d 553, 562–64 (9th Cir. 2019)

(citations omitted) (adopting the Tenth’s and D.C.

Circuit’s approaches when finding § 805 precluded

review of a claim based on an action of Congress). 2

2 Foster suggests the Second and Federal Circuits have adopted

his construction of § 805. However, the cited decisions do not

address § 805. See Nat. Res. Def. Council v. Abraham, 355 F.3d

179, 201–02 (2d Cir. 2004); Liesegang v. Sec’y of Veterans Affs.,

312 F.3d 1368, 1372–76 (Fed. Cir. 2002).

Appendix 12a

C. APA Claim

1. Exhaustion

Before reaching the merits of Foster’s APA claim,

appellees suggest Foster failed to exhaust his APA

claim by failing to administratively appeal the

NRCS’s decisions to refuse to consider his 2017 and

2020 review requests. “[A] person shall exhaust all

administrative appeal procedures . . . before the

person may bring an action . . . against” the Secretary,

the USDA, or “an agency, office, officer, or employee of

the” USDA. 7 U.S.C. §§ 6902(1), 6912(e). Assuming

without deciding that one of the exceptions applies,

Foster’s APA claim fails on the merits. See Ace Prop.

& Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992,

999 (8th Cir. 2006) (determining §6912(e) sets forth an

administrative exhaustion requirement and is nonjurisdictional and may be waived or excused).

2. APA Claim

Foster argues the district court erred by finding

the NRCS’s decisions to deny his 2017 and 2020

review requests did not violate the APA. Agency

actions, findings, and conclusions that are “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law” are to be set aside. 5 U.S.C.

§ 706(2)(A). “This is a highly deferential standard”

providing a “narrow” standard of review. Org. for

Competitive Mkts. v. USDA, 912 F.3d 455, 459 (8th

Cir. 2018) (quoting FCC v. Fox Television Stations,

Inc., 556 U.S. 502, 513 (2009)). While we must ensure

an agency has considered “relevant data and

articulate[d] a satisfactory explanation for its action,”

we are to uphold that action if it is “supportable on

any rational basis.” Id. (citation omitted). We will not

Appendix 13a

interfere with agency action based on the agency’s

failure to fully explain its decision so long as “the

agency’s path may reasonably be discerned.” Voigt, 46

F.4th at 900 (quoting Alaska Dep’t of Env’t

Conservation v. EPA, 540 U.S. 461, 497 (2004)).

The NRCS’s decisions to refuse to consider

Foster’s 2017 and 2020 review requests were not

arbitrary and capricious because Foster failed to

comply with the Review Regulation as he never

provided evidence that a natural event altered the

Site or that an error exists in the NRCS’s current

wetland certification. See 7 C.F.R. § 12.30(c)(6).

Regarding Foster’s 2017 review request, Foster does

not assert that he complied with the Review

Regulation. We find the NRCS’s refusal to consider his

2017 review request was not arbitrary and capricious.

The NRCS also did not arbitrarily and

capriciously decline to review Foster’s 2020 review

request because that request also failed to comply

with the Review Regulation. While Foster asserts the

NRCS unreasonably refused to consider the “new

information” he provided in his engineering report,

before the NRCS made any decision regarding the

2020 review request, the NRCS requested Foster’s

engineering firm to identify evidence showing the

NRCS had failed to consider the tree belt on the Site

when it made its prior certification. The record shows

no indication that Foster or his engineering firm

responded to this request. After affording Foster an

opportunity to provide the additional information, the

NRCS denied the 2020 review request, noting Foster

failed “to supply the specific information and data

sufficient to justify a review.” It “may reasonably be

discerned” from the NRCS’s decision and the record

Appendix 14a

that the NRCS declined to consider the 2020 review

request because Foster failed to show the NRCS’s

prior certification was erroneous in that it did not

account for the tree belt. See Voigt, 46 F.4th at 900

(citation omitted). Because Foster failed to make this

showing and did not otherwise claim there had been

any natural change in the Site, he necessarily failed

to comply with the Review Regulation.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment

of the district court.

___________________________

Appendix 15a

Filed July 1, 2022

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

ARLEN FOSTER,

4:21-CV-04081-RAL

Plaintiff,

vs.

THE UNITED STATES

DEPARTMENT OF

AGRICULTURE, TOM

VILSACK, IN HIS

OFFICIAL CAPACITY AS

SECRETARY OF THE

UNITED STATES

DEPARTMENT OF

AGRICULTURE; THE

NATURAL RESOURCES

CONSERVATION

SERVICE, TERRY

COSBY, IN HIS

OFFICIAL CAPACITY AS

ACTING CHIEF OF THE

NATURAL RESOURCES

CONSERVATION

SERVICE; AND TONY

SUSERI, IN HIS

OFFICIAL CAPACITY AS

ACTING SOUTH

DAKOTA STATE

CONSERVATIONIST;

Defendants.

OPINION AND

ORDER GRANTING

DEFENDANTS’

MOTION FOR

SUMMARY

JUDGMENT AND

DENYING

PLAINTIFF’S

MOTION FOR

SUMMARY

JUDGMENT

Appendix 16a

Arlen Foster (“Foster”) owns a piece of farmland

that was certified as a “wetland” in 2011 pursuant to

the Swampbuster Act, 16 U.S.C. §§ 3801, 3821–3824.

Foster brought this complaint against the United

States Department of Agriculture (“USDA”), the

Natural Resources Conservation Service (“NRCS”),

and their named representatives (collectively

“Defendants”) seeking to set aside the 2011 wetland

certification based on various legal theories including

an Administrative Procedure Act (“APA”) claim that

Defendants’ refusal to review the 2011 wetland

certification was arbitrary and capricious. The parties

filed cross-motions for summary judgment. For the

reasons discussed, Defendants’ motion for summary

judgment is granted, and Plaintiff’s motion for

summary judgment is denied.

I.

Facts and Procedural History

A. The Swampbuster Act

The Swampbuster Act, 16 U.S.C. §§ 3801, 3821–

3824, refers to the wetland conservation provisions of

the Food Security Act of 1985. See Barthel v. U.S.

Dep’t of Agric., 181 F.3d 934, 936 (8th Cir. 1999). The

purpose of the Swampbuster Act is “to combat the

disappearance of wetlands through their conversion

into crop lands.” B & D Land & Livestock Co. v.

Schafer, 584 F. Supp. 2d 1182, 1190 (N.D. Iowa 2008)

(citation omitted); see also Barthel, 181 F.3d at 937

(“The [Swampbuster] Act’s proclaimed purpose is to

preserve wetlands, or, if wetlands are altered, to

preserve the conditions as altered.”). As an

enforcement mechanism, the Swampbuster Act sets

forth that persons who convert certified wetlands to

crop lands are disqualified from receiving federal farm

Appendix 17a

benefits. 16 U.S.C. § 3821; Schafer, 584 F. Supp. 2d at

1190.

16 U.S.C. § 3822(a)(4) concerns the “Duration of

Certification” and states that once an area is certified

as a “wetland” under the Swampbuster Act, that

certification remains valid and enforceable “as long as

the area is devoted to an agricultural use or until such

time as the person affected by the certification

requests review of the certification by the Secretary.”

16 U.S.C. § 3822(a)(4). In 1996, the Code of Federal

Regulations imposed criteria on when a party could

request review of a wetland certification, stating that

a “wetland” certification “will remain valid and in

effect until such time as the person affected by the

certification requests review of the certification by

NRCS. A person may request review of a certification

only if a natural event alters the topography or

hydrology of the subject land to the extent that the final

certification is no longer a reliable indication of site

conditions, or if NRCS concurs with an affected person

that an error exists in the current wetland

determination.” 7 C.F.R. § 12.30(c)(6) (emphasis

added). Therefore, pursuant to 7 C.F.R. § 12.30(c)(6),

a wetland certification is binding and enforceable if

and until a person affected by the certification

requests review of that certification and natural

changes to the wetland make the certification

unreliable, or until such a person requests review and

NRCS agrees that the wetland certification is

erroneous.

B. 2011 Wetland Certification of Foster’s

Land

This case concerns .8 acres of land (“the site”) in

Miner County, South Dakota, which is covered by

Appendix 18a

approximately 8.5 inches of water at points during the

year. Doc. 1 at 4, 7; Doc. 35 at 2–3; Doc. 38 at 5–6.

Foster’s grandfather purchased land containing the

site in 1900. Doc. 1 at 5; Doc. 35 at 2. Around 1936,

Foster’s father planted a tree belt on the south side of

the site to prevent soil erosion. Doc. 1 at 5–6; Doc. 35

at 2; Doc. 38 at 4. Snow accumulated around the tree

belt in the winter and melted in the spring, creating

an 8.5 inch puddle or shallow pond on the site. Doc. 1

at 7; Doc. 35 at 2; Doc. 36 at 3; Doc. 38 at 4. Foster now

owns the site and surrounding land, which he farms.

Doc. 1 at 3, 7–9; Doc. 35 at 2–3; Doc. 38 at 6. In

approximately half of the crop years, the water on the

site will dry out in time to farm the site and the

surrounding area. Doc. 1 at 8; Doc. 35 at 3; Doc. 36 at

3. In the other years, the site does not dry out, and the

land surrounding it cannot be farmed without

draining the site. Doc. 1 at 8; Doc. 35 at 3; Doc. 36 at 3.

In 2004, the Natural Resources Conservation

Service (NRCS) and the United States Department of

Agriculture (USDA) reviewed the site and certified it

as a “wetland” under 16 U.S.C. § 3822 of the

Swampbuster Act. Doc. 1 at 2; Doc. 35 at 4. Due to the

certification, Foster cannot drain the site to farm it

and the surrounding land without losing the federal

farm benefits on which he relies for his farming

operation. Doc. 35 at 3.

In 2008, Foster requested an administrative

review of the wetland certification. Doc. 1 at 15; Doc.

35 at 4; Doc. 38 at 6. After several years of review, in

June 2011, NRCS recertified the site as a wetland.

Doc. 1 at 16; Doc. 35 at 4; Doc, 38 at 6. Foster

administratively appealed that certification to the

USDA, but the USDA upheld the certification. Doc. 1

Appendix 19a

at 16; Doc. 35 at 4. Foster then brought an action in

federal district court under the Administrative

Procedure Act (APA) arguing that the certification

was arbitrary and capricious. Doc. 1 at 16; Doc. 22 at

2. Doc. 36 at 4; Doc. 38 at 7. The district court affirmed

NRCS’s decision to certify the site as a wetland. Foster

v. Vilsack, No. CIV. 13-4060-KES, 2014 WL 5512905

(D.S.D. Oct. 31, 2014); Doc. 1 at 16; Doc. 22 at 2; Doc.

36 at 4; Doc. 38 at 7. Foster appealed to the United

States Court of Appeals for the Eighth Circuit, which

affirmed the district court in 2016. Foster v. Vilsack,

820 F.3d 330 (8th Cir. 2016); Doc. 1 at 16; Doc. 22 at

2. Doc. 36 at 4; Doc. 38 at 7.

In June 2017, Foster submitted another request

to NRCS to review the 2011 wetland certification. Doc.

1 at 16; Doc. 36 at 4; Doc. 38 at 8. Consistent with 7

C.F.R. § 12.30(c)(6), NRCS responded that Foster

needed to submit new information showing that the

topography or hydrology of the site had changed so

that the 2011 certification was no longer reliable,

otherwise it would not review the certification. Doc. 1

at 16; Doc. 22 at 9; Doc. 24-1 at 9; Doc. 36 at 4–5.

In April 2020, Foster submitted another request

to review the 2011 certification. Doc. 1 at 16; Doc. 38

at 8. In that request, Foster did not claim there had

been a change to the topography or hydrology of the

site as required by 7 C.F.R. § 12.30(c)(6). Doc. 24 at 5.

However, he submitted an engineering report

analyzing the volume of snow accumulation under the

tree belt and providing an opinion that the site was an

artificial wetland. Doc. 1 at 16-1; Doc. 24-1 at 22–35;

Doc. 35 at 5; Doc. 38 at 8–9.

Deke Hobbick, an assistant state conservationist

at NRCS, considered Foster’s 2020 review request and

Appendix 20a

the engineering report. Doc. 24 at 3–5. He concluded

that the information presented in the report,

concerning whether the site was an “artificial

wetland,” was previously considered and rejected by

NRCS when reaching the 2011 wetland certification.

Doc. 22 at 9; Doc. 24 at 4; Doc. 35 at 6. Hobbick also

concluded Foster had not alleged or shown that there

was any change in the topography or hydrology of the

site, as required by 7 C.F.R. § 12.30(c)(6), which would

qualify the 2011 wetland certification for review. Doc.

24 at 5. Hobbick submitted an affidavit explaining

that:

In reviewing the Fosters’ 2020 request for

review of the agency’s final certified wetland

determination, I reviewed the original

information submitted by the Fosters in 2019

and the supplemental information received in

2020. Their request asserted that the area in

question should be considered an artificial

wetland, as defined in 7 C.F.R. § 12.2 . . . . I

reviewed the information and data that

underlies the 2011 final wetland certification

and observed that NRCS previously

considered, on multiple occasions, whether or

not a nearby shelter belt was causing an

artificial wetland. I also observed that the

information submitted with the 2020 request

included newly created data in the engineer’s

report and conclusions based on that data;

however, the data and conclusions appeared

to be based upon the same artificial wetland

argument that the agency had considered and

rejected in connection with the 2011

determination

and

subsequent

administrative and judicial review. The 2020

Appendix 21a

request also did not assert that there had been

a natural change in the topography or

hydrology of the area in question. As a result

of my review of the 2020 request and NRCS

records, I recommended that the State

Conservationist respond to the request by

stating that NRCS was unable to determine

whether any of the conditions identified in 7

C.F.R. § 12.30(c)(6) governing requests for

review of a final certified wetland

determination applied. . . . [Foster has] not

provided any further information that would

permit review under the conditions sets forth

in 7 C.F.R. § 12.30(c)(6).

Doc. 24 at 4–5 (emphasis added). Consistent with

Hobbick’s conclusions, NRCS rejected Foster’s request

to review the 2011 wetland certification. Doc. 1 at 17;

Doc. 35 at 6; Doc. 38 at 9.

In May 2021, Foster filed this complaint 1 raising

five counts:

1) Constitutionality of the Swampbuster Act;

2) Whether 7 C.F.R. § 12.30(c)(6) contravenes the

Congressional Review Act (“CRA”), 5 U.S.C. § 801;

3) Whether 7 C.F.R. § 12.30(c)(6) violates the

Swampbuster Act and the due process clause;

4) Whether Defendants’ denials of Foster’s 2017

and 2020 requests for review were arbitrary and

capricious under the APA;

1 The initial plaintiffs in this case were Arlen Foster and his wife

Cindy Foster. Doc. 1. Cindy Foster has since passed away and

was dismissed from this action. Doc. 33; Doc. 40; Doc. 44.

Appendix 22a

5) Claim that the 2011 wetland certification is no

longer in effect.

Doc. 1 at 19–27. Defendants filed a motion to dismiss

for lack of jurisdiction, failure to state a claim,

judgment on the pleading, or alternatively for

summary judgment, Doc. 21, and Foster responded

with a cross-motion for summary judgment, Doc. 34.

Foster also filed a motion to supplement the

administrative record with three letters pertaining to

the review process leading up to the 2011 wetland

certification. Doc. 41; Doc. 42 at 1.

II. Legal Standards

Defendants bring their motion to dismiss for lack

of subject matter jurisdiction under Rule 12(b)(1) of

the Federal Rules of Civil Procedure. Doc. 22 at 10–

11. On a motion to dismiss under Rule 12(b)(1), the

standard of review depends on whether the defendant

is making a facial attack or factual attack on subject

matter jurisdiction. Stalley v. Cath. Health Initiatives,

509 F.3d 517, 520–21 (8th Cir. 2007). When a

defendant makes a facial attack to challenge whether

the facts alleged in the complaint establish subject

matter jurisdiction under Rule 12(b)(1), the plaintiff is

afforded similar safeguards as in a Rule 12(b)(6)

motion. See Osbom v. United States, 918 F.2d 724, 729

n.6 (8th Cir. 1990). Namely, the Court must “accept as

true all factual allegations in the complaint, giving no

effect to conclusory allegations of law,” and determine

whether the plaintiff’s alleged facts “affirmatively and

plausibly suggest” that jurisdiction exists. Stalley, 509

F.3d at 521. A court’s review then is limited to the face

of the pleadings. Branson Label, Inc. v. City of

Branson, 793 F.3d 910, 914 (8th Cir. 2015).

Appendix 23a

On the other hand, when a defendant attacks the

factual basis for subject matter jurisdiction, a court

can consider matters outside the pleadings, “and the

non-moving party does not have the benefit of 12(b)(6)

safeguards.” Osborn, 918 F.2d at 729 n.6. “A factual

attack occurs when the defendant challenges the

veracity of the facts underpinning subject matter

jurisdiction.” Davis v. Anthony, Inc., 886 F.3d 674, 679

(8th Cir. 2018) (cleaned up and citation omitted). In

that case, “no presumptive truthfulness attaches to

the plaintiff’s allegations,” and a “court is free to

weigh the evidence and satisfy itself as to the

existence of its power to hear the case.” Osborn, 918

F.2d at 730 (citation omitted). Defendants consider

their motion to dismiss for lack of jurisdiction to be a

factual attack under which this Court may consider

matters outside of the pleadings. Doc. 22 at 10–11.

A judgment on the pleadings is reviewed under

“the same standard used to address a motion to

dismiss for failure to state a claim under Fed. R. Civ.

P. 12(b)(6).” Clemons v. Crawford, 585 F.3d 1119, 1124

(8th Cir. 2009) (cleaned up and citation omitted).

Under this standard, “well-pleaded facts, not legal

theories or conclusions, determine the adequacy of the

complaint. . . . The facts alleged in the complaint must

be enough to raise a right to relief above the

speculative level.” Id. (cleaned up and citations

omitted).

Under Rule 56(a) of the Federal Rules of Civil

Procedure, summary judgment is proper “if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see

also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Appendix 24a

A party opposing a properly supported motion for

summary judgment “may not rest upon mere

allegations or denials” in his pleadings but “must set

forth specific facts showing that there is a genuine

issue for trial.” Gacek v. Owens & Minor Distrib., Inc.,

666 F.3d 1142, 1145 (8th Cir. 2012). To establish that

a material fact is genuinely disputed, the party

opposing summary judgment must “cit[e] to particular

parts of materials in the record” that establish a

genuine dispute or “show[] that the materials cited do

not establish the absence . . . of a genuine dispute

. . . .” Fed. R. Civ. P. 56(c)(1)(A), (B). In ruling on a

motion for summary judgment, the facts and

inferences fairly drawn from those facts are “viewed

in the light most favorable to the party opposing the

motion.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587–88 (1986) (cleaned up and

citation omitted).

“There is authority for the proposition that a

summary judgment motion should be denied

whenever its proponent does not meet his initial

burden” under Fed. R. Civ. P. 56(a). Handeen v.

Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997). But the

United States Court of Appeals for the Eighth Circuit

has made clear that there is “no reason to prevent a

district court from granting summary judgment if the

unchallenged facts cannot, as it turns out, sustain a

viable cause of action. In these situations, we agree

with our counterparts on the Fifth Circuit that the

submission should be evaluated similarly to a 12(b)(6)

motion to dismiss. . . . Where a motion for summary

judgment is based solely on the pleadings and makes

no meaningful reference to affidavits, depositions, or

interrogatories, it makes no difference whether the

motion is evaluated under Rule 56 or Rule 12(b)(6)

Appendix 25a

because both standards reduce to the same question.”

Id. (cleaned up and citations omitted); see also Ashe v.

Corley, 992 F.2d 540, 544 (5th Cir. 1993). “Therefore,

a court should grant [a] motion [for summary

judgment[] and dismiss [an] action ‘only if it is clear

that no relief could be granted under any set of facts

that could be proved consistent with the allegations.’”

Handeen, 112 F.3d at 1347 (quoting Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984)).

III. Discussion

A. Constitutionality of the Swampbuster

Act

Foster’s first claim is that the Swampbuster Act

violates the Commerce Clause and the Tenth

Amendment. Doc. 1 at 19–22; Doc. 39 at 16–19. He

argues that wetlands are neither an instrument of

commerce nor have a substantial effect on interstate

commerce, so the Swampbuster Act is outside of

Congress’s plenary power. Doc. 1 at 20; Doc. 36 at 35–

41. Foster also claims that the Swampbuster Act

violates the Tenth Amendment by usurping a state’s

police power over local land use. Doc. 1 at 21.

Alternatively, he claims that the Swampbuster Act is

outside of Congress’s Article I § 8 spending power.

Doc. 36 at 41–43. Defendants argue that Foster’s

constitutional claims are barred by the six-year

statute of limitations set forth in 28 U.S.C. § 2401(a).

Doc. 22 at 13–14; Doc. 37 at 3–6.

“Section 2401(a) of 28 U.S.C. is a general statute

of limitations for suits against the government, which

provides that ‘every civil action commenced against

the United States shall be barred unless the complaint

is filed within six years after the right of action first

Appendix 26a

accrues.’” Izaak Walton League of Am., Inc. v. Kimbell,

558 F.3d 751, 759 (8th Cir. 2009) (quoting 28 U.S.C.

§ 2401(a)). “A claim against the United States first

accrues on the date when all the events have occurred

which fix the liability of the Government and entitle

the claimant to institute an action.” Id. (cleaned up

and citation omitted).

Defendants argue that Foster’s claim accrued no

later than 2012, when the USDA upheld the 2011

wetland certification on administrative appeal. Doc.

37 at 2–4. Foster responds with two arguments. First,

he claims that a statute of limitations defense is

nonjurisdictional, and therefore Defendants waived

this defense by failing to raise it in their answer. Doc.

39 at 17; see Day v. McDonough, 547 U.S. 198, 199

(2006) (stating that “[a] statute of limitations defense

is not jurisdictional”). Second, Foster argues that his

cause of action accrued in 2020 when Defendants

denied his petition to review the 2011 wetland

certification, and therefore 28 U.S.C. § 2401(a) does

not bar his claim. Doc. 36 at 37; Doc. 39 at 19–20.

“Generally, a motion to dismiss may be granted

when a claim is barred under a statute of limitations.

. . . In order for a party to avail itself of this defense,

the party must specifically plead the defense in its

answer. However, while this failure would normally

result in the waiver of a limitations defense, . . . we

recognize that when it appears from the face of the

complaint itself that the limitation period has run, a

limitations defense may properly be asserted through

a Rule 12(b)(6) motion to dismiss.” Vamer v. Peterson

Farms, 371 F.3d 1011, 1016 (8th Cir. 2004) (cleaned

up and citations omitted); see also Wycoff v. Menke,

773 F.2d 983, 984–85 (8th Cir. 1985). Here, the site

Appendix 27a

was first certified as a wetland under the

Swampbuster Act almost two decades ago in 2004.

Doc. 1 at 2; Doc. 35 at 4. Therefore, it is clear from the

face of the complaint that the statute of limitations

period has run, and this Court may properly consider

Defendants’ statute of limitations defense as pled in

their motion to dismiss.

Further, Foster’s claim that his cause of action

challenging the constitutionality of the Swampbuster

Act accrued in 2020 ignores the lengthy factual and

procedural history of this most recent case. Foster

would have become aware, or with due diligence

should have become aware, of any alleged

unconstitutionality of the Swampbuster Act no later

than when the site was initially certified as a wetland

under the Swampbuster Act in 2004, and certainly no

later than 2013 when he brought an action in federal

district court challenging the 2011 certification based

on the Swampbuster Act. Foster, No. CIV. 13-4060KES, 2014 WL 5512905, at *1. Foster did not bring his

claim that the Swampbuster Act is unconstitutional

until over six years later in May 2021. Therefore,

Foster’s constitutional claims appear barred by 28

U.S.C. § 2401(a). See Burt Lake Band of Ottawa &

Chippewa Indians v. Zinke, 304 F. Supp. 3d 70, 74–75

(D.D.C. 2018) (holding that § 2401(a) applies to

constitutional claims and, as “a jurisdictional

condition attached to the government’s waiver of

sovereign immunity . . . must be strictly construed”).

Even if Foster’s constitutional claims were not

barred, courts have affirmed that the Swampbuster

Act is within Congress’s Article I § 8 spending power.

“The Constitution empowers Congress to lay and

collect Taxes, Duties, Imposts, and Excises, to pay the

Appendix 28a

Debts and provide for the common Defence and

general Welfare of the United States.” South Dakota

v. Dole, 483 U.S. 203, 206 (1987) (citation omitted).

“Incident to this power, Congress may attach

conditions on the receipt of federal funds, and has

repeatedly employed the power to further broad policy

objectives by conditioning receipt of federal moneys

upon compliance by the recipient with federal

statutory and administrative directives.” Id. (cleaned

up and citation omitted). Congress’s spending power

is limited in that “the exercise of the spending power

must be in pursuit of the general welfare. . . . In

considering whether a particular expenditure is

intended to serve general public purposes, courts

should defer substantially to the judgment of

Congress.” Id. (cleaned up and citations omitted). In

United States v. Dierckman, the United States Court

of Appeals for the Seventh Circuit explained that the

Food Security Act—and the provisions of the

Swampbuster Act in particular—were enacted under

the spending power and rejected an argument that the

Food Security Act violated the Commerce Clause,

stating: “the argument falters because it assumes that

the [Food Security Act] is a creature of the Commerce

Clause. The [Food Security Act] is not an exercise of

direct regulatory power; instead, the [Food Security

Act] conditions the receipt of USDA farm benefits on

the preservation of wetlands. This is indirect

regulation invoking the spending power and is not

limited by the enumeration of Congressional powers in

Article I, section 8 of the Constitution.’’ 201 F.3d 915,

922 (7th Cir. 2000) (emphasis added) (citing Dole, 483

U.S. at 207).

Additionally, the Swampbuster Act does not

violate the Tenth Amendment, which states: “[t]he

Appendix 29a

powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.”

U.S. CONST. amend. X. Under the Tenth Amendment,

“[n]o matter how powerful the federal interest

involved, the Constitution simply does not give

Congress the authority to require the States to

regulate. The Constitution instead gives Congress the

authority to regulate matters directly and to pre-empt

contrary state regulation.” New York v. United States,

505 U.S. 144, 178 (1992). “The Tenth Amendment . . .

has been consistently construed as not depriving the

national government of authority to resort to all

means for the exercise of a granted power which are

appropriate and plainly adapted to the permitted

end.” F.E.R.C. v. Mississippi, 456 U.S. 742, 766 (1982)

(cleaned up and citation omitted); see also Hodel v.

Virginia Surface Mining & Reclamation Ass’n, Inc.,

452 U.S. 264, 286 (1981) (“Congressional power over

areas of private endeavor, even when its exercise may

pre-empt express state-law determinations contrary

to the result that has commended itself to the

collective wisdom of Congress, has been held to be

limited only by the requirement that the means

chosen by Congress must be reasonably adapted to the

end permitted by the Constitution.” (cleaned up and

citation omitted)). Here, the Swampbuster Act is

within Congress’s Article I § 8 spending power and

does not infringe upon state sovereignty by requiring

states to implement a federal program, statute, or

regulation. See F.E.R.C., 456 U.S. at 765–66 (rejecting

a Tenth Amendment challenge to a federal statute

when the statute did not “directly compel[]” a state to

enact a legislative program and thereby impair the

state’s ability to function independently). Defendants

Appendix 30a

are entitled to summary judgment on Foster’s count

seeking declaratory relief that the Swampbuster Act

is unconstitutional.

B. Whether 7 C.F.R. § 12.30(c)(6)

Contravenes the Congressional Review

Act

Foster’s second claim seeks declaratory relief that

7 C.F.R. § 12.30(c)(6) does not comply with the

Congressional Review Aet (CRA), 5 U.S.C. § 801, and

is therefore unlawful. Doc. 1 at 22–23; Doc. 36 at 26–

33. In March 1996, Congress enacted the CRA, which

requires federal agencies to submit administrative

rules to Congress before enacting those rules. 5 U.S.C.

§ 801. Congress may then submit a joint resolution

disapproving of the rule if certain provisions of the

CRA are satisfied. 5 U.S.C. § 802. The CRA defines a

“rule” as “the whole or a part of an agency statement

of general or particular applicability and future effect

designed to implement, interpret, or prescribe law or

policy or describing the organization, procedure, or

practice requirements of an agency . . . .” 5 U.S.C.

§ 804; 5 U.S.C. § 551. 5 U.S.C. § 805 of the CRA states

that “[n]o determination, finding, action, or omission

under this chapter shall be subject to judicial review.”

5 U.S.C. § 805.

Foster argues that 7 C.F.R. § 12.30(c)(6), which

restricts the circumstances in which a party may

request review of a wetland certification, was not

submitted to Congress pursuant to the CRA and is

therefore invalid. Doc. 1 at 22–23; Doc. 35 at 6–7; Doc.

36 at 26–35; Doc. 38 at 10; Doc. 39 at 13–15. Foster

asserts that if 7 C.F.R. § 12.30(c)(6) is unenforceable,

then Defendants were required to accept his 2017 and

2020 requests to review the 2011 certification under

Appendix 31a

16 U.S.C. § 3822(a)(4). Doc. 1 at 23. Defendants

respond that this claim is barred because the CRA

does not waive sovereign immunity to challenge 7

C.F.R. § 12.30(c)(6) on these grounds. Doc. 22 at 14–

15; Doc. 37 at 7–8.

“Congress is generally free to limit the jurisdiction

of federal courts.” Ctr. for Biological Diversity v.

Bernhardt, 946 F.3d 553, 563 (9th Cir. 2019) (citing

United States v. Hudson, 7 Cranch 32, 33 (1812)). “But

in order to do so, Congress must enact a statute that

provides ‘clear and convincing evidence that Congress

intended to deny’ access to judicial review.” Id.

(quoting Bd. Governors of Fed. Reserve Sys. v. MCorp

Fin., Inc., 502 U.S. 32, 44 (1991)). “A statute provides

such clear and convincing evidence, ‘and the

presumption favoring judicial review [is] overcome,

whenever the congressional intent to preclude judicial

review is fairly discernible in the statutory scheme.’”

Id. (quoting Block v. Cmty. Nutrition Inst., 467 U.S.

340, 351 (1984)).

Most courts examining 5 U.S.C. § 805 have

determined that it is a “Jurisdiction-Stripping

Provision” that “bars judicial review.” Id. (collecting

cases); Kansas Nat. Res. Coal. v. U.S. Dep’t of the

Interior, 382 F. Supp. 3d 1179, 1183–85 (D. Kan. 2019)

(explaining that most courts have found 5 U.S.C. § 805

precludes judicial review while “[o]nly two district

court cases specifically have found that § 805 does not

preclude relief when an agency fails to submit a rule

to Congress under the CRA”). For instance, the Tenth

Circuit has held that “the plain language of § 805”

denies a court subject matter jurisdiction over a claim

that an agency failed to submit an administrative rule

to Congress prior to its enactment as required by

Appendix 32a

§ 801(a)(1)(A) of the CRA. Kansas Nat. Res. Coal. v.

United States Dep’t of Interior, 971 F.3d 1222, 1235

(10th Cir. 2020). Likewise, the Ninth Circuit has held

§ 805 “deprived [it] of jurisdiction to review any claim

challenging a ‘determination, finding, action, or

omission’ under the CRA,” including a failure to

comply with 5 U.S.C. § 801. Bernhardt, 946 F.3d at

562–63 (quoting 5 U.S.C. § 805).

An agency’s alleged failure to submit an

administrative rule to Congress, such as 7 C.F.R.

§ 12.30(c)(6), is an omission under 5 U.S.C. § 801 of

the CRA. Therefore, the plain language of 5 U.S.C.

§ 805—that “[n]o determination, finding, action, or

omission under this chapter shall be subject to judicial

review”—bars this Court from exercising jurisdiction

over Foster’s claim that 7 C.F.R. § 12.30(c)(6) was

enacted in violation of the CRA. 5 U.S.C. § 805; see

Kansas Nat. Res. Coal., 382 F. Supp. 3d at 1183–85

(holding 5 U.S.C. § 805 precluded judicial review of a

claim that a Fish and Wildlife agency rule was invalid

because the rule was not submitted to Congress as

required by 5 U.S.C. § 801); Montanans For Multiple

Use v. Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009)

(holding 5 U.S.C. § 805 precluded judicial review of a

forest management plan that the plaintiffs alleged

was not submitted to Congress in compliance with 5

U.S.C. § 801(a)(1)(A)). Defendants are entitled to

summary judgment on Foster’s second count seeking

declaratory relief that 7 C.F.R. § 12.30(c)(6) is invalid

and unenforceable.

Appendix 33a

C. Whether 7 C.F.R. § 12.30(c)(6) violates

the Swampbuster Act and the Due

Process Clause

Next, Foster alleges that 7 C.F.R. § 12.30(c)(6)

violates 16 U.S.C. § 3822(a)(4) by limiting a review of

a wetland certification to “only [when] a natural event

alters the topography or hydrology of the subject land

to the extent that the final certification is no longer a

reliable indication of site conditions, or [when] NRCS

concurs with an affected person that an error exists in

the current wetland determination.” Doc. 1 at 23–25;

7 C.F.R. § 12.30(c)(6). As discussed, 16 U.S.C.

§ 3822(a)(4) concerns the “Duration of Certification”

and states that once an area is certified as a “wetland”

under the Swampbuster Act, that certification

remains valid and enforceable “as long as the area is

devoted to an agricultural use or until such time as

the person affected by the certification requests

review of the certification by the Secretary.” 16 U.S.C.

§ 3822(a)(4). Foster claims that because 16 U.S.C.

§ 3822(a)(4) does not discuss any restrictions on

requesting a final certification review, the statute

implicitly imposes a mandatory duty on agencies to

conduct a review and issue a new certification every

time an aggrieved party requests such a review. Doc.

1 at 23–25. Foster also argues that 7 C.F.R.

§ 12.30(c)(6) violates the due process clause by

restricting review of wetland certifications. 2 Doc. 1 at

24–25; Doc. 36 at 24–26.

“[W]hen a court reviews an agency’s construction

of the statute which it administers, it is confronted

2 In the complaint, Foster does not specify whether he is alleging

a substantive due process violation or a procedural due process

violation. Doc. 1 at 24–25. In Foster’s motion for summary

Appendix 34a

with two questions. . . . First, applying the ordinary

tools of statutory construction, the court must

determine whether Congress has directly spoken to

the precise question at issue. If the intent of Congress

is clear, that is the end of the matter; for the court, as

well as the agency, must give effect to the

unambiguously expressed intent of Congress. . . . But

if the statute is silent or ambiguous with respect to the

specific issue, the question for the court is whether the

agency’s answer is based on a permissible

construction of the statute.” City of Arlington v.

F.C.C., 569 U.S. 290, 296 (2013); see also Mayo Clinic

v. United States, 997 F.3d 789, 792 (8th Cir. 2021).

“Generally speaking, the language in the [the

Swampbuster Act], just as in any statute, is to be

given its ordinary meaning.” Mayo Clinic, 997 F.3d at

793 (citation omitted). “It is a fundamental canon of

statutory construction that the words of a statute

must be read in their context and with a view to their

place in the overall statutory scheme.” Id. at 794

(citation omitted).

Here, the question is whether Congress imposed

any restrictions on how often or under what

circumstances a party may request a review of a final

certification, or if Congress required an agency to

repeat the certification process whenever an

unsatisfied party requests a review. Section

3822(a)(4) does not address any restrictions on when

a party can request a review, much less impose a

nondiscretionary duty on an agency to repeat the

certification process whenever requested to do so by

an unsatisfied party. 16 U.S.C. § 3822(a)(4). The other

judgment, he alleges that 7 C.F.R. § 12.30(c)(6) violates his

procedural due process rights. Doc. 36 at 24–26.

Appendix 35a

provisions of the Swampbuster Act also do not address

or set forth any requirements for requesting review of

a wetland certification. 16 U.S.C. §§ 3801, 3821–3824.

Because the Swampbuster Act is silent on the

requirements for requesting review of a wetland

certification, the question becomes whether 7 C.F.R.

§ 12.30(c)(6) is a permissible interpretation of 16

U.S.C. § 3822(a)(4). See City of Arlington, 569 U.S. at

296.

“In determining whether a particular regulation

carries out the congressional mandate in a proper

manner, we look to see whether the regulation

harmonizes with the plain language of the statute, its

origin, and its purpose.” Nat’l Muffler Dealers Ass’n v.

United States, 440 U.S. 472, 477 (1979); see also Mayo

Clinic, 997 F.3d at 794. “When an agency invokes its

authority to issue regulations, which then interpret

ambiguous statutory terms, the courts defer to its

reasonable interpretations. . . . We have interpreted

this deference as amounting to controlling weight

unless the regulation is arbitrary, capricious, or

manifestly contrary to the statute.” Clark v. U.S. Dep’t

of Agric., 537 F.3d 934, 939 (8th Cir. 2008) (cleaned up

and citation omitted). When possible, courts should

also seek to harmonize statutes and agency

regulations. See, e.g., Carmichael v. The Payment Ctr.,

Inc., 336 F.3d 636, 640 (7th Cir. 2003) (stating “[a]

statute and its implementing regulations should be

read as a whole and, where possible, afforded a

harmonious interpretation”); Powell v. Heckler, 789

F.2d 176, 179 (3d Cir. 1986) (stating that “statutes

and regulations should be read and construed as a

whole and, wherever possible, given a harmonious,

comprehensive meaning”); McCuin v. Sec’y of Health

& Human Servs., 817 F.2d 161, 168 (1st Cir. 1987)

Appendix 36a

(stating that, “[i]n interpreting statutes and

regulations, courts must try to give them a

harmonious, comprehensive meaning, giving effect,

when possible, to all provisions”).

Here, 7 C.F.R. § 12.30(c)(6) is easily reconciled

with 16 U.S.C. § 3822(a)(4) and the other provisions of

the Swampbuster Act. 7 C.F.R. § 12.30(c)(6) merely

restricts the circumstances in which an agency must

review a final certification to when it receives

information that (1) the final certification was no

longer reliable due to changes in natural conditions,

or (2) the NRCS agrees with the party requesting

review that the final certification is no longer

accurate. 7 C.F.R. § 12.30(c)(6). 7 C.F.R. § 12.30(c)(6)

does not contradict any provision of the Swampbuster

Act and is rationally related to promoting efficiency in

the certification review process. West v. Bergland, 611

F.2d 710, 725 (8th Cir. 1979) (upholding a regulation

that was “unchallenged” for decades, “reasonably

designed to preserve the integrity and reliability of a

government agricultural program, and was “not

inconsistent either with an express statutory

provision or with the agriculture laws taken as a

whole”).

Additionally, 7 C.F.R. § 12.30(c)(6) does not

violate the due process clause. “To have a property

interest in a benefit,” protected by the due process

clause, “a person clearly must have more than an

abstract need or desire and more than a unilateral

expectation of it. He must, instead, have a legitimate

claim of entitlement to it. . . . Such entitlements are,

of course, not created by the Constitution. Rather,

they are created and their dimensions are defined by

existing rules or understandings that stem from an

Appendix 37a

independent source such as state law.” Keating v.

Nebraska Pub. Power Dist., 660 F.3d 1014, 1017 (8th

Cir. 2011) (citations omitted). “The requirements of

procedural due process apply only to governmental

decisions which deprive individals of liberty or

property interests within the meaning of the Due

Process Clause of the Fifth or Fourteenth

Amendment.” United States v. Long, 977 F.2d 1264,

1276 (8th Cir. 1992) (cleaned up and citation omitted);

see also Demming v. Hous. & Redevelopment Auth. of

Duluth, 66 F.3d 950, 953 (8th Cir. 1995). “The

relevant consideration for [a procedural due process]

analysis is a two-part inquiry. We must determine

(1) whether the [Foster was] deprived of a protected

interest, and if so, (2) what process was due.”

Schneider v. United States, 27 F.3d 1327, 1333 (8th

Cir. 1994).

Foster has not established that he suffered any

due process violation because there is no law or

independent source of authority giving Foster a right

to certification review upon request. As discussed, 7

C.F.R. § 12.30(c)(6) is a permissible interpretation of

16 U.S.C. § 3822(a)(4) and restricts the circumstances

in which a final certification merits review. Thus, 16

U.S.C. § 3822(a)(4) does not create a protected liberty

or property interest requiring certification review

upon request. See also United States v. Dierckman, 41

F. Supp. 2d 870, 878 (S.D. Ind. 1998) (holding “the

Food Security Act and its implementing regulations

easily clear the substantive due process hurdle,” and

“[t]he Swampbuster provisions undoubtedly relate to

Congress’ goal of curtailing wetland conversion and do

so within Constitutional limits”). Defendants are

entitled to summary judgment on Foster’s count

seeking declaratory relief that 7 C.F.R. § 12.30(c)(6)

Appendix 38a

violates 16 U.S.C. § 3822(a)(4) and the due process

clause.

D. Whether Defendants’ Denials of Foster’s

2017 and 2020 Requests for Review were

Arbitrary and Capricious under the

APA

Next Foster argues Defendants’ refusal to accept

his 2017 and 2020 requests to review the 2011

wetland certification were arbitrary and capricious,

and therefore should be set aside under the

Administrative Procedure Act (APA). Doc. 1 at 25–27.

Foster’s claim rests on the premise that 16 U.S.C.

§ 3822(a)(4) requires an agency to repeat the

certification process whenever an aggrieved party

requests review of a final certification. Doc. 1 at 25–

27. Alternatively, Foster argues his 2020 review

request should have been accepted pursuant to 7

C.F.R. § 12.30(c)(6) because it was accompanied by an

engineering report stating the site was an artificial

wetland. Doc. 1 at 25–27.

“The APA waives the United States’ sovereign

immunity in either one of two ways[:]” 5 U.S.C. § 702

and 5 U.S.C. § 704. Wright v. Langdeau, 158 F. Supp.

3d 825, 833–34 (D.S.D. 2016); see also Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 882 (1990) (discussing

avenues for relief under 5 U.S.C. § 702 and 5 U.S.C.

§ 704). If a party has established either 5 U.S.C. § 702

or 5 U.S.C. § 704 waives sovereign immunity for its

claim, the reviewing court shall review the agency

action and “shall set aside agency action found to be

‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.’” Preferred

Risk Mut. Ins. Co. v. United States, 86 F.3d 789, 792

(8th Cir. 1996) (cleaned up) (quoting 5 U.S.C.

Appendix 39a

§ 706(2)(A)); 5 U.S.C. § 706. Foster brings this claim

under both 5 U.S.C. § 702 and 5 U.S.C. § 704, and this

Court will address each statute in turn. Doc. 1 at 3,

17.

First, 5 U.S.C. § 702 waives sovereign immunity

for a person seeking injunctive relief who “suffer[ed]

legal wrong because of agency action, or [was]

adversely affected or aggrieved by agency action

within the meaning of a relevant statute.” 5 U.S.C.

§ 702. Section 702’s waiver of sovereign immunity

“contains two separate requirements: 1) the person

claiming a right to review must identify some agency

action, and 2) the party seeking review must show

that he has suffered a legal wrong or been adversely

affected by that action within the meaning of a

relevant statute.” Preferred Risk Mut. Ins. Co., 86 F.3d

at 792. An “agency action” is defined “as the whole or

a part of an agency rule, order, license, sanction, relief,

or the equivalent or denial thereof, or failure to act.”

Lujan, 497 U.S. at 882 (cleaned up and citation

omitted). “A legal wrong is any invasion of a legally

protected right.” Smith v. U.S. Dep’t of Agric., 888 F.

Supp. 2d 945, 954 (S.D. Iowa 2012) (citing Preferred

Risk Mut. Ins. Co., 86 F.3d at 793 n.5). “[T]o be

adversely affected or aggrieved within the meaning of

a statute, the plaintiff must establish that the injury

he complains of (his aggrievement, or the adverse

effect upon him) falls within the ‘zone of interests’

sought to be protected by the statutory provision

whose violation forms the legal basis for his

complaint.” Lujan, 497 U.S. at 883 (cleaned up and

citation omitted).

Here, Defendants’ denials of Foster’s 2017 request

and 2020 request to review the 2011 wetland

Appendix 40a

certification are agency actions under 5 U.S.C. § 702.

However, the second requirement of 5 U.S.C. § 702—

requiring the party seeking review to establish that

he or she “suffer[ed] legal wrong because of agency

action, or [was] adversely affected or aggrieved by

agency action within the meaning of a relevant

statute”—is not satisfied. 5 U.S.C. § 702. As discussed,

Foster’s claim that 16 U.S.C. § 3822(a)(4) required

Defendants to review the 2011 certification is not

supported by the statutory text. 16 U.S.C. § 3822(a)(4)

sets forth the duration of a wetland certification

stating that the certification of a wetland endures “as

long as the area is devoted to an agricultural use or

until such time as the person affected by the

certification requests review of the certification by the

Secretary.” 16 U.S.C. § 3822(a)(4). As explained above,

7 C.F.R. § 12.30(c)(6) is a permissible interpretation of

16 U.S.C. § 3822(a)(4) that limits certification review

to when “a natural event alters the topography or

hydrology of the subject land to the extent that the

final certification is no longer a reliable indication of

site conditions, or [when] NRCS concurs with an

affected person that an error exists in the current

wetland determination.” 7 C.F.R. § 12.30(c)(6).

Therefore, Foster cannot show he suffered a “legal

wrong or been adversely affected . . . within the

meaning of a relevant statute.” Preferred Risk Mut.

Ins. Co., 86 F.3d at 792.

A party may also seek relief under 5 U.S.C. § 704

of the APA. Section 704 states that a “final agency

action for which there is no other adequate remedy in

a court [is] subject to judicial review.” 5 U.S.C. § 704.

In these cases, where the “review is sought not

pursuant to specific authorization in the substantive

statute, but only under the general review provisions

Appendix 41a

of the APA [5 U.S.C. § 704], the ‘agency action’ in

question must be ‘final agency action.’” Lujan, 497

U.S. at 882. “Two conditions must be satisfied for an

agency action to be “final”: First, the action must mark

the consummation of the agency’s decisionmaking

process. . . . The agency’s action cannot be tentative or

interlocutory in nature. . . . Second, the action must be

one by which rights or obligations have been

determined, or from which legal consequences will

flow.” Sisseton-Wahpeton Ovate of Lake Traverse

Reservation v. United States Corps of Engineers, 888

F.3d 906, 915 (8th Cir. 2018) (cleaned up and citation

omitted). “To constitute a final agency action, the

agency’s action must have inflicted an actual, concrete

injury upon the party seeking judicial review.” Id.

(cleaned up and citation omitted).

Here, Defendants’ denial of Foster’s requests for

review in 2017 and 2020 were final agency actions.

The refusals, after administrative appeals and

judicial appeals had been exhausted, barred any

further review of the 2011 wetland certification and

ensured that the enforcement provisions of the

Swampbuster Act remain in place for the .8 acre site

at issue. See Sierra Club v. U.S. Army Corps of

Engineers, 446 F.3d 808, 813 (8th Cir. 2006) (stating

that if an “agency has issued a definitive statement of

its position, determining the rights and obligations of

the parties, that action is fmal for purposes of judicial

review despite the possibility of further proceedings in

the agency to resolve subsidiary issues” (cleaned up

and citation omitted)). Therefore, Section 704 waives

sovereign immunity for Foster’s claim, and this Court

now reviews whether Defendants’ 2017 and 2020

denials of Foster’s requests for review of the 2011

Appendix 42a

wetland certification were “arbitrary and capricious.”

See Preferred Risk Mut. Ins. Co., 86 F.3d at 792.

7 C.F.R. § 12.30(c)(6) requires that “a natural

event alter[] the topography or hydrology of the

subject land to the extent that the final certification is

no longer a reliable indication of site conditions, or

[that] NRCS concur[] with an affected person that an

error exists in the current wetland determination” to

merit a review of a final certification. 7 C.F.R.

§ 12.30(c)(6). Foster does not allege or point to any

evidence in the record suggesting that NRCS believed

the 2011 wetland certification was erroneous when he

brought his requests for review in 2017 and 2020. See

Doc. 1 at 25–27; Doc. 36.

In 2017, Foster did not submit any new

information suggesting that the natural conditions of

the site had changed pursuant to 7 C.F.R.

§ 12.30(c)(6). See Doc. 1 at 25–27. Therefore,

Defendants’ denial of Foster’s 2017 review request

was not arbitrary or capricious. Foster’s 2020 request

for review is a somewhat closer question. Foster

submitted a report stating that the wetland was an

artificial wetland. However, NRCS determined that

the report did not allege or show the topography of the

site had changed such that the 2011 wetland

certification was no longer reliable as required by 7

C.F.R. § 12.30(c)(6). Doc. 1 at 17, 25–27; Doc. 24 at 5;

Doc. 35 at 6. Neither does Foster allege or show that

the report presented information that the topography

of the site had changed. Doc. 1 at 16, 25–27; Doc. 24-1

at 22–35; Doc. 35 at 5–6. Rather, the engineering

report addressed how the longstanding tree belt

affected the topography of the site. Doc. 1 at 16, 25–

27; Doc. 24-1 at 22–35; Doc. 35 at 5. Therefore, by all

Appendix 43a

accounts, Defendants’ denial of Foster’s 2020 request

for review complied with 7 C.F.R. § 12.30(c)(6) and

was not arbitrary and capricious. Summary judgment

for Defendants thus enters on Foster’s fourth count

seeking to set aside Defendants’ denials of his 2017

and 2020 requests for review.

E. Claim that the 2011 Wetland

Certification is No Longer in Effect

Next, Foster seeks declaratory relief that the 2011

wetland certification is no longer valid due to Foster’s

2017 and 2020 requests for review. Doc. 1 at 27. In

support, Foster relies on his claim that 16 U.S.C.

§ 3822(a)(4) sets forth that a final certification is no

longer valid whenever an aggrieved party requests

review of that certification. As discussed, 16 U.S.C.

§ 3822(a)(4) governs the duration of a certification and

cannot be read to nullify a wetland certification

whenever an aggrieved party requests review. See 16

U.S.C. § 3822(a)(4). Instead, because 7 C.F.R.

§ 12.30(c)(6) is a permissible interpretation of 16

U.S.C. § 3822(a)(4), a wetland certification is subject

to review when a qualifying party requests review of

the certification and “a natural event alters the

topography or hydrology of the subject land to the

extent that the final certification is no longer a

reliable indication of site conditions,” or a qualifying

party requests review and the “NRCS concurs with an

affected person that an error exists in the current

wetland determination.” 7 C.F.R. § 12.30(c)(6).

Defendants are entitled to summary judgment on

Foster’s fifth count requesting a declaration that the

2011 wetland certification is no longer in effect.

Appendix 44a

F. Foster’s Motion to Supplement the

Administrative Record

After the parties filed cross-motions for summary

judgment, Foster filed a motion to supplement the

administrative record. Doc. 41. He seeks to add three

documents to the administrative record: a letter dated

February 19, 2008 from resource conservationist

Karen Cameron-Howell; a letter dated April 6, 2009

from NRCS rescinding a 2009 wetland certification of

the site; and a letter dated January 15, 2010 from

NRCS

rescinding

a

subsequent

wetland

determination of the site. Doc. 41; Doc. 42 at 1. Foster

argues these letters are necessary to resolve disputed

issues of fact in the record concerning the review

process leading up to the 2011 wetland certification,

and these documents are necessary to complete the

administrative record. Doc. 42 at 1–2, 6–7; Doc. 46.

Defendants oppose the motion and argue that

these letters were properly excluded fi:om the

administrative record. Doc. 45 at 2–4. These letters

are now part of the record of this Court, so to that

extent Foster’s motion is granted. However, while

these three documents may have significance to the

2011 wetland certification, they do not alter the

analysis in this opinion and order.

IV. Conclusion and Order

For the reasons discussed, it is hereby

ORDERED that Defendants’ Motion for Summary

Judgment, or in the alternative Defendants’ Motion to

Dismiss for Lack of Jurisdiction, Motion to Dismiss for

Failure to State a Claim, or Motion for Judgment on

the Pleading, Doc. 21, is granted. It is further

Appendix 45a

ORDERED that Plaintiff’s Motion for Summary

Judgment, Doc. 34, is denied. It is finally

ORDERED that Plaintiff’s Motion to Complete or

Supplement the Record, Doc. 41, is granted to the

extent that the three documents are now part of this

Court’s CM/ECF record for any appeal that Plaintiff

may wish to file.

DATED this 1st day of July, 2022.

BY THE COURT:

/s/ Roberto A. Lange

ROBERTO A. LANGE

CHIEF JUDGE

Appendix 46a

United States Department of Agriculture

NRCS

Natural Resources Conservation Service

520 Third Ave PO Box 626

Phone: (605) 692-2344

Brookings, SD 57006-0626

Fax: (605) 597-6723

Arlen Foster

24314 421st Ave

Fulton, SD 57340

2/19/08

Dear Arlen:

I received your CD this morning and reviewed the

three photos. In your original note (2/7/08) you asked

if there is any procedure for a reconsideration of your

certified wetland determination.

The appeal rights from your certified

determination have expired. I completed the certified

wetland determination in November 2004.

However, the most recent 4th Edition of the

National Food Security Act (Amendment 4, January

2008) part 514C states that “all certified wetland

determinations, conditions, and exemptions remain

valid and in effect as long as the area is devoted to an

agricultural use or until such time as the person

affected by the certification requests review of the

certification.” So, I think this is telling us that we can

take another look at it since you are offering

additional hydrology information in the form of the

CD.

I think the best way to proceed is to visit the FSA

office in Miner County (or whichever county your farm

is administered in) and sign a 1026 indicating your

request for a wetland determination on this site. The

district conservationist, Kirk Lingren, will then refer

Appendix 47a

the request to the Brookings Field Support Office to

complete.

If you have any questions, please call this office or

Kirk Lingren at the Miner County office.

Sincerely,

/s/ Karen Cameron-Howell

Karen Cameron-Howell

Resource Conservationist

Cc (w/ enc.) Kirk Lingren, DC, Howard

Gary Coplan, ASTC(FO), Brookings

Appendix 48a

Title 180 - National Food Security Act Manual

(1) Certified wetland determinations must be

completed by a qualified NRCS employee, as

determined by the State Conservationist.

Qualified employees must meet all of the

following criteria:

(i) Have completed all the required training,

including update courses.

(ii) Have the appropriate job

authority and classification.

approval

(iii) Have demonstrated proficiency in making

certified wetland determinations.

(2) State Conservationists will be responsible for

maintaining a roster of qualified employees, by

training

and

experience,

who

have

demonstrated knowledge and skills to conduct

wetland determinations/delineations, scope

and

effect

evaluations,

functional

assessments, minimal effects evaluations,

mitigation

planning,

and

mitigation

easements.

(3) In accordance with Part 518, State

Conservationists will carry out appropriate

quality control reviews of certified wetland

determinations.

C. Effective Period of Certifications

All certified wetland determinations, conditions,

and exemptions remain valid and in effect as long

as the area is devoted to an agricultural use or

until such time as the person affected by the

certification requests review of the certification.

[16 U.S.C. Sec. 3822(a)(4)] Agricultural use refers

Appendix 49a

to land used for the production of food, fiber, or

horticultural crops; used for haying or grazing; left

idle in accordance with USDA program

requirements; or diverted from crop production to

an approved cultural practice that prevents

erosion or other natural resource degradation.

D. Appeals of Certified Wetland Determinations

(1) Before

finalizing

a

certified

wetland

determination, NRCS will notify the person

affected by the certification and provide an

opportunity to appeal it. NRCS will certify the

wetland determination as final 30 days after

providing the person notice of certification or, if

an appeal is filed with USDA, after the

administrative

appeal

procedures

are

exhausted or discontinued by the affected

person. (See the 440-Conservation Programs

Manual, Part 510 for NRCS policy and

procedure regarding appeals.) NRCS appeal

procedures are contained in 7 CFR 614.

(2) In the case of an appeal, NRCS must review

and certify the accuracy of the determination

for all lands subject to the appeal to ensure that

it is accurate. Before a decision is rendered on

the appeal, NRCS will conduct an onsite

investigation of the subject land.

E. Preparing the Certified Wetland Determination

(1) NRCS will delineate all wetlands subject to the

WC provisions by outlining the boundaries of

the wetland on aerial photography, digital

imagery, or other graphic representation. If

possible, NRCS will use GPS to digitally map

Appendix 50a

the wetland boundary in the field and to import

that data onto digital orthophotoquadrangle

maps (DOQs) or other GIS digital photographic

imagery. Refer to Part 514, Subparts B–E, to

determine the appropriate labels to apply to the

delineated wetlands.

(2) The complete boundaries and acreage of all

fields that were delineated and identified must

be shown on the map, including areas identified

as non-wetland (NW). This must be clearly

depicted on the wetland determination map.

The label and acreage information from the

map will be used to prepare the CPA-026e. A

copy of the CPA-026e, along with the

delineation map, will be provided to the USDA

program participant and Farm Service Agency

(FSA). A copy should be retained in the

participant’s file located in the NRCS office.

(180-V-NFSAM, Fourth Edition, Amend. 4,

January 2008)

Appendix 51a

United States Department of Agriculture

NRCS

Natural Resources Conservation Service

200 Fourth Street SW

Phone: (605) 352-1200

Huron, South Dakota 57530 Fax: (605) 352-1270

CERTIFIED MAIL – RETURN RECEIPT

REQUESTED

June 23, 2011

Arlen and Cindy Foster

24314 421st Ave

Fulton, SD 57340

Dear Mr. and Mrs. Foster:

As a result of your request for a certified wetland

determination on July 23, 2008 via form AD-1026,

Highly Erodible Land Conservation (HELC) and

Wetland Conservation (WC) Certification, from the

Miner County Farm Service Agency Office, based on a

site visit of November 23, 2010, the NRCS has made a

preliminary certified wetland determination on the

outlined portion of Tract # 400, located in SE1/4,

Section 28, T105N R58W, in Miner County, South

Dakota (SD).

Please refer to the attached certified wetland

map(s) provided as a part of this preliminary technical

determination to help you understand the

explanations contained in this letter. All areas

identified on the attached certified wetland

determination maps are considered part of the

preliminary technical determination. The remaining

areas of the tract not covered by this preliminary

Appendix 52a

technical determination retain their original wetland

determination. Please also refer to Section 2 of the

NRCS-CPA-026E, Highly Erodible Land and Wetland

Conservation Determination, for a listing of the

wetlands identified. Additional information may be

found in the accompanying report.

The results of this preliminary technical

determination confirm that Site 1 is a wetland farmed

under natural conditions and meets the definition of a

wetland as set forth at 7 CFR Part 12.2(a) because the

site has predominance of hydric soils; is inundated or

saturated by surface or groundwater at a frequency

and duration sufficient to support a prevalence of

hydrophytic vegetation typically adapted for life in

saturated soil conditions; and under normal

circumstances does support a prevalence of such

vegetation.

Further, Site 1 is not an Artificial Wetland (AW)

as defined in 7 CFR Part 12.2(a) because the site was

not formerly a non-wetland; non-hydric soils were

found in other locations within the mapped soil unit

(Clarno-Stickney-Tetonka

complex)

potentially

affected by snow accumulation in the shelterbelt; the

Tetonka soil is listed as a hydric soil unit on the Miner

County Hydric Soil Interpretation; the Tetonka soil is

pothole landform; and the approved Tetonka

Reference site (which did not contain a shelterbelt)

meets the definition of a wetland because the

reference site has a predominance of hydric soils; is

inundated or saturated by surface or groundwater at

a frequency and duration sufficient to support a

prevalence of hydrophytic vegetation typically

adapted for life in saturated soil conditions; and under

Appendix 53a

normal circumstances does support a prevalence of

such vegetation.

The Wetland Conservation (WC) Provisions of the

Food Security Act (FSA) of 1985 prohibit United

States Department of Agriculture (USDA) program

participants from converting wetlands to agricultural

use. Persons who convert wetlands (CW) after

November 28, 1990, are ineligible for USDA program

benefits, until the CW’s are restored or mitigated.

This preliminary technical determination has

been conducted for the purpose of implementing the

WC Provisions of the FSA of 1985. This determination

may not be valid for identifying the extent of the COE

Clean Water Act jurisdiction for this site. If you intend

to conduct any activity that constitutes a discharge of

dredged or fill material into wetlands or Other

Waters, you should request a jurisdictional

determination by contacting the COE, (605) 2248531, Pierre, SD, before starting the work.

There may be opportunities to utilize mitigation if

you have an interest in converting the labeled

wetlands (W’s), farmed wetlands (FW’s), and farmed

wetland pasture (FWP), found in this determination.

Mitigation is the compensation of lost wetlands

through wetland restoration, enhancement, or the

creation of new wetlands. Mitigation can not occur at

the expense of the federal government. Mitigated

wetlands must be in the same local watershed as the

wetlands you wish to convert. The landowner must

grant an easement that remains in effect as long as

the original W(s) remains converted and the easement

will be recorded on public land records for the

mitigated wetlands. All of the above activities, as well

Appendix 54a

as, a mitigation plan, must be completed before any

wetland conversions could occur.

You may appeal this preliminary technical

determination in accordance with the laws and federal

regulations set forth at 7 CFR 614, the NRCS Appeals

Procedures, 7 CFR 780, the Food Security Act Appeals

Procedures, and 7 CFR 11, the National Appeals

Division (NAD) Rules of Procedure, as follows:

(1) Reconsideration with a field visit will be made

by the NRCS to review with you the basis for

our preliminary technical determination,

answer any questions you have concerning

the determination, and to gather additional

information from you concerning the

preliminary determination.

Within 15 days of the field visit, the NRCS

will reconsider the preliminary technical

determination:

A. If the reconsidered determination is no

longer adverse to the participant, a final

technical determination will be issued.

B. If the reconsidered determination

remains

adverse

the

preliminary

technical determination and agency

record will be forwarded to the assistant

state conservationist for field operations

for a final technical determination; a final

technical determination will be issued as

soon as practicable. The technical

determination issued becomes a final

technical determination upon receipt by

the participant.

OR

Appendix 55a

(2) Mediation may be used in an attempt to settle

your concerns with the preliminary technical

determination:

Contact: Gerald E. Jasmer

State Resource Conservationist

Natural Resources Conservation

Service

200 Fourth Street SW

Huron, South Dakota 57350-2475

Phone: (605) 352-1234

Fax: (605) 352-1261

If none of the previously discussed options have

been selected, this determination becomes final

30 days after the date this letter is received. If

the final technical determination is a result of the

expiration of the 30-day period following receipt of this

preliminary technical determination, it may be

appealed to either of the following, within 30 days of

the determination becoming final:

• Appeal to the Miner County Farm Service

Agency County Committee

OR

• Appeal to the NAD at the following address:

National Appeals Division, Western

Regional Office

755 Parfet Street, Suite 494

Lakewood, Colorado 80215-5506

Phone: (800) 541-0483 or (303) 236-2862

TTY: (800) 497-0253

Fax: (303) 236-2820

If you are the owner of this tract of land and have

a tenant, I urge you to discuss this letter and

accompanying NRCS-CPA-026E with your tenant.

Appendix 56a

Likewise, if you are the tenant of this tract of land, I

urge you to discuss this letter with your landlord.

Sincerely,

/s/ Kirk Lindgren

Kirk Lindgren

District Conservationist

Attachments

Cc:

Curtis Elke, ASTC(FO), NRCS, BFSO (without

attachments)

Gerald Jasmer, SRC, NRCS, Huron SO (without

attachments)

Leah Turgeon, CED, FSA, Howard SC (without

attachments)

Appendix 57a

USDA

United States Department of Agriculture

August 1, 2017

Mr. Arlen and Cindy Foster

24314 421st Avenue

Fulton, South Dakota 57340

Dear Mr. and Mrs. Foster:

Thank you for your letter of June, 6, 2017,

requesting review of the Certified Wetland

Determination (CWD) for Sampling Unit (SU) 1 in

Tract 400, located in the S1/2 of Section 28-T105NR58W, in Miner County. It appears you originally sent

this request in March, but your June 6, 2017 request,

which included a copy of a request dated March 6,

2017, is the first communication the Natural

Resources Conservation Service (NRCS) received. I

apologize for the delayed response.

According to the regulations found at Title 7 of the

Code of Federal Regulations (CFR), Part 12, and 16

U.S.C. § 3822, the CWD completed by the NRCS is

still valid and remains in effect. This CWD was

recently upheld by the U.S. Court of Appeals for the

Eight Circuit, in a decision that the U.S. Supreme

Court declined to review. (See 820 F.3d 330 (8th Cir.

2016), cert denied, 137 S. Ct. 620 (2017)).

As you correctly note in your request, 16 U.S.C.

§ 3822(a)(4) allows for a review of a CWD by the

Secretary; however, Section 3822(a)(4) must be read

in conjunction with 7 C.F.R. § 12.30(c)(6), which sets

forth what constitutes a valid request for review

under the statute. Specifically, a person may request

Appendix 58a

a review of a wetland certification only if a natural

event alters the topography or hydrology of the subject

land to the extent that the original determination is

no longer a reliable indication of site conditions, or if

NRCS concurs with an affected person that an error

exists in the current wetland determination.

Per statute, absent a valid request under Section

3822(a)(4), NRCS is prohibited from completing any

additional CWDs for land covered under an existing

certified determination.

In order to request a CWD review, you are

required to provide specific information and data

sufficient to justify the review. NRCS is unable to

justify a review based on the information you enclosed

with your June 6 letter. If you would like to submit a

new request for review under Section 3822(a)(4) based

on an error in the wetland determination, you must

supply additional information that has not previously

been considered by NRCS.

If you have any further questions, or would like to

review your request in person, please contact Jeff

Zimprich, South Dakota State Conservationist, at

605-350-1200.

Thank you once again for your letter and for your

on-going commitment to the conservation of natural

resources.

Sincerely,

/s/ Leonard Jordan

Leonard Jordan

Acting Chief

Appendix 59a

cc: (w/copy of incoming correspondence)

Kevin Wickey, Regional Conservationist, Central,

NRCS, Washington, D.C.

Jeff Zimprich, State Conservationist, NRCS, Huron,

South Dakota

Appendix 60a

WENCK

April 20, 2020

Deke Hobbick

NRCS

Huron, South Dakota

Via email

Re: NRCS Wetland Determination for the

Foster Property, Fulton, SD.

Dear Mr. Hobbick:

I have been retained by the Fosters to look further

into the Natural Resources Conservation Service’s

(NRCS) Certified Wetland Delineation (CWD)

completed for their property (see Attachment 1). You

may recall our brief telephone conversation this past

winter. This letter provides our findings to date and

requests that NRCS review the CWD based on this

additional information.

I have looked over the large amount of

information related to this determination and

disagreement between the parties. The NRCS has

followed their standard protocol for a delineation of a

typical wetland. The depression area of concern

however is certainly not typical in that its hydrology

is significantly affected by the adjacent tree line wind

break. This is counter to what I understand the NRCS

has stated, that the tree line has no effect on the

hydrology of the area. A purpose of this letter is to

provide evidence that the area’s hydrology is

significantly affected by the adjacent wind break,

enough so that it may support a wetland.

Appendix 61a

Figure 1 shows the depression area watershed

based on LiDAR data. A relatively basic hydrologic

model of the depression area was created using a

spreadsheet. The approach is to show the effect of the

trees with a basic model and avoid complications and

controversy that additional detail may cause. The

model accounts for the following factors:

• Runoff from the depression watershed using

NRCS curve number hydrology for rain events.

• Snow melt input based on information from the

2019 Banner report (See Attachment 2). The

last page of the Banner report provides pictures

of the drifted snow along the shelter belt. The

water content of the snow drift is shown to be

2.4-inches over the watershed of the

depression. My analysis shows that the

depression will fill to a depth of approximately

12-inches and overflow with less than 1.5inches of runoff over the watershed. Based on

the expected drifting on an average winter, the

depression will be filled with water after snow

melt in spring.

• Evaporation from ponding based on the

aerodynamic method considering wind speed,

temperature, and relative humidity. The wind

input accounts for the shelter belt tree line

effect when the wind has a southerly

component. Two on site weather stations, one

near the tree line and one approximately 700feet north at the edge of the field, show that

wind speed near the depression area is typically

30% of the unobstructed wind speed.

Appendix 62a

• Infiltration from ponding based

characteristics and observations.

on

soil

Wetland hydrology considers conditions during

the growing season. It is assumed for this analysis

that the growing season starts by May 1st. Weather

data for the model uses historical data for an average

precipitation period. 2013 data most closely matches

these conditions and is relatively current data. Data

from Mitchell, SD are used given that it is the closest

station with continuous record of all the input data

used in the model. The hydrologic effect of the tree line

shelter belt will be most noted during the early

growing season due to the added soil moisture from

the tree line snow drift. Data from April, May, and

June are used for modeling.

Table 1 shows primary input data and the model

results for two conditions, existing conditions with the

tree line shelter belt and without the tree line shelter

belt. The input data are shown in Columns 2 to 6,

right of the date. The estimated runoff is shown in

Column 7. The estimated evaporation from the

ponded water and the depth of water in the depression

for existing conditions are shown in Columns 8 and 9.

The effect of the trees includes runoff from the melted

snow drift and reduction of evaporation due to

sheltering of the wind by the tree line.

The second condition shown in Columns 10 and 11

removes the tree line shelter belt. Without trees there

will be no drifting of the snow and the winds will not

be diminished. Modeling assumptions and a basis for

the assumptions are provided in Table 2.

For existing conditions, the snow drift melts and

fills the depression area as stated above. This water

Appendix 63a

starts to infiltrate when the frost leaves the ground

typically by April 1. Based on average conditions the

ponding extends to the middle of April. The soil is

expected to be saturated to within 1-foot of the surface

until approximately the start of May or the start of the

growing season. Significant rains in May cause runoff

to the depression as can be seen in the modeling

results. Given that the soil has had limited time to

dry, the sustained saturation caused by the rainfall

runoff leads to crop stress. It is this crop stress that

causes identifiable signatures in aerial photographs.

If there were no trees, there would be no snow

accumulation within the depression or within the

depression watershed. The ground would start

relatively dry in early April and be even drier at the

start of the growing season. The added evaporation

potential is shown by the shaded cells in Table 1. Soil

dries significantly faster without trees to block the

wind. The drier soil has greater capacity to absorb

runoff and maintain good growing conditions.

Wetland hydrology may not exist in the basin as with

other depressions in the area without adjacent shelter

belt trees. The watershed area to wetland area is very

limited, less than 5 to 1, and not conducive to wetland

hydrology.

The basic modeling in this analysis shows a

significant hydrologic effect of the tree line shelter belt

adjacent to the depression area. Even a relatively

small effect should be considered given the borderline

results of the aerial photography review. Without the

trees the area would not likely sustain wetland

hydrology. It is requested that NRCS review the CWD

with this new information.

Appendix 64a

Please contact me at 612-296-7732 if you have any

questions or need additional information.

Sincerely,

/s/ Joel Toso

Joel Toso, PhD, PH, PE

Senior Water Resources Engineer

Appendix 65a

USDA

United States Department of Agriculture

May 14, 2020

Mr. Arlen Foster

24314 421st Avenue

Fulton, South Dakota 57340

Dear Mr. Foster:

The Natural Resources Conservation Service

(NRCS) has received your request that the existing

Certified Wetland Determination (CWD) dated

June 23, 2011, for the 0.8 acre wetland delineated in

Field 5, Tract 400, located in the S 1/3 of the SE 1/4 of

Section 28, T105N, R58W, in Miner County, be

reviewed.

According to the regulations found at Title 7 of the

Code of Federal Regulations (CFR), Part 12, the CWD

completed by the NRCS on June 23, 2011, is still valid;

therefore, the NRCS is not obligated to complete a new

CWD.

The NRCS is prohibited from completing any

additional CWDs for land covered under an existing

certified determination. According to the regulations,

you may request a review of a wetland certification

only if a natural event alters the topography or

hydrology of the subject land to the extent that the

original determination is no longer reliable or if the

NRCS concurs that an error exists in the current

wetland determination.

The responsibility is on you to supply the specific

information and data sufficient to justify a review.

You submitted work that was completed by Banner

Appendix 66a

Engineering in January 2019, and a work completed

by Wenck Engineering in April 2020. The work was

reviewed in depth and compared to the agency record.

Based upon the evidence you provided, I am unable to

determine that any of the conditions mentioned above

for a redetermination apply.

If you have any further questions, please contact

Deke Hobbick, Assistant State Conservationist for

Compliance, at (605) 352-1287.

Sincerely,

/s/ Jeffrey J. Zimprich

JEFFREY J. ZIMPRICH

State Conservationist

Enc.

cc:

Deke Hobbick, ASTC(Compliance), NRCS, Huron SO

Ryan Ransom, CS, NRCS, Huron SO

Kirk Lindgren, DC, NRCS, Howard FO

Lynsee Planting, RUC, NRCS, Madison FO