Amicus Curiae Brief — Arlen Foster, Petitioner v. Department of Agriculture, et al.

No. 23-133

In the Supreme Court of the United States

ARLEN FOSTER,

Petitioner,

v.

UNITED STATES DEPARTMENT OF AGRICULTURE, TOM VILSACK, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE

UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,

Respondents.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Eighth Circuit

BRIEF OF THE AMERICAN FARM BUREAU

FEDERATION AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

ELLEN STEEN

TRAVIS CUSHMAN

American Farm Bureau

Federation

600 Maryland Ave. SW

Suite 1000W

Washington, DC 20024

TIMOTHY S. BISHOP

Counsel of Record

BRETT E. LEGNER

Mayer Brown LLP

71 South Wacker Drive

Chicago, IL 60657

(312) 782-0600

tbishop@mayerbrown.com

Counsel for Amicus Curiae

QUESTION PRESENTED

Amicus American Farm Bureau Federation will

address the following question that is of critical importance to its members:

Whether 16 U.S.C. § 3822(a)(4) requires respondents to treat a wetlands certification issued pursuant

to the Swampbuster program as invalid and not in

effect when a person affected by that certification

requests review.

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... iv

INTEREST OF THE AMICUS CURIAE................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .................................................... 3

ARGUMENT .............................................................. 8

I.

THIS CASE IS AN EXCELLENT

VEHICLE TO ADDRESS THE

COURTS’ ROLE IN STATUTORY

INTERPRETATION IN THE

CONTEXT OF AN ISSUE THAT IS OF

THE UTMOST IMPORTANCE TO THE

NATION’S FARMERS..................................... 8

A.

The Eighth Circuit Failed To Use

The Full Toolkit Of Statutory

Interpretation And As A Result

Reached An Egregiously Wrong

Conclusion. ............................................ 8

B.

The Eighth Circuit’s Approach

Flatly Contradicts This Court’s

Precedent. ............................................ 11

C.

The Dire Consequences Of The

Eighth Circuit’s Error For

American Farmers Make This

Court’s Review Of The Issue A

Matter Of Urgency. ............................. 15

iii

TABLE OF CONTENTS

(continued)

Page(s)

D.

II.

The Eighth Circuit’s Approach

Thoroughly Undermines The

Constitution’s Careful Separation

Of Powers. ........................................... 16

IN THE ALTERNATIVE, THIS COURT

SHOULD SUMMARILY REVERSE

THE EIGHTH CIRCUIT’S DECISION ........ 18

CONCLUSION ......................................................... 19

iv

TABLE OF AUTHORITIES

Page(s)

Cases

B&D Land and Livestock Co. v. Veneman,

332 F. Supp. 2d 1200 (N.D. Iowa 2004) ........... 14

Barthel v. U.S. Dep’t of Ag.,

181 F.3d 934 (8th Cir. 1999) ............................. 16

Boucher v. U.S. Dep’t of Ag.,

934 F.3d 530 (7th Cir. 2019) ......................... 2, 16

Brandstad v. Veneman,

212 F. Supp. 2d 976 (N.D. Iowa 2002) ............. 14

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ....................... 3, 11, 17, 18

Michigan v. EPA,

576 U.S. 743 (2015) ........................................... 17

Osborn v. Bank of United States,

22 U.S. (9 Wheat.) 738 (1824) ........................... 17

Parker v. Matthews,

567 U.S. 37 (2012) ............................................. 19

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015) ............................................. 17

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018) .................... 3, 4, 11-13, 18

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Sexton v. Beaudreaux,

138 S. Ct. 2555 (2018) ....................................... 18

Shoop v. Cassano,

142 S. Ct. 2051 (2022) ....................................... 18

Shular v. United States,

140 S. Ct. 779 (2020) ......................................... 11

Utility Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ............................................. 5

Statutes

16 U.S.C. § 3822(a)(4) ................................. 3-5, 9, 14

35 U.S.C.

§ 311 .................................................................. 12

§ 312 .................................................................. 12

§ 312(a) .............................................................. 13

§ 313 .................................................................. 12

§ 314 .................................................................. 12

§ 318(a) .............................................................. 12

Food, Agriculture, Conservation, and Trade

Act of 1990, Pub. L. No. 101-624, 104

Stat. 3359 (Nov. 28, 1990) .................................. 4

Other Authorities

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

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Congressional Research Serv., Conservation

Compliance and U.S. Farm Policy (Oct.

6, 2016) .............................................................. 15

Feeding the Economy (2023),

https://feedingtheeconomy.com/ ......................... 8

S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court

Practice (11th ed. 2019) ................................... 18

U.S. Dep't of Ag., Farmers and Ranchers:

The Foundation of our Nation's

Nutrition Assistance Programs (Oct. 11,

2019) .................................................................. 15

INTEREST OF THE AMICUS CURIAE1

Amicus American Farm Bureau Federation

(AFBF) was formed in 1919 and is the largest nonprofit general farm organization in the United States.

Representing about six million member families in all

50 States and Puerto Rico, AFBF’s members grow and

raise every type of agricultural crop and commodity

produced in the United States. Its mission is to protect, promote, and represent the business, economic,

social, and educational interests of American farmers

and ranchers. To that end, AFBF regularly participates in litigation, including as an amicus in this and

other courts.

AFBF’s members and constituents include farm

families whose lives are tied to their land and whose

livelihoods—and ability to produce abundant and affordable food and fiber for American consumers—often depend on participation in certain U.S. Department of Agriculture (USDA) benefit programs, including commodity support payments, disaster payments,

farm loans, and conservation program payments. Under the wetland conservation provisions of the Food

Security Act of 1985, as amended (the Swampbuster

Act), these farmers’ lands may be subject to delineation and certification as wetlands by the Secretary of

the USDA. Although the Swampbuster Act does not

forbid farmers from converting or altering delineated

wetlands on their properties for the purpose of making

that land productive, the Act does effectively mandate

1 No party or counsel for a party authored this brief in whole or

in part, and no one other than the amicus, its members, or its

counsel funded the preparation or submission of this brief. Ten

days prior to the filing of this brief, counsel of record for AFBF

gave notice to counsel of record for all parties of AFBF’s intent to

file this brief.

2

compliance with its wetland conversion provisions because it authorizes the USDA to withhold all benefits

(and require repayment of past benefits) in the event

of a violation. Given these harsh consequences, it is

essential that farmers have a robust ability to challenge a wetland delineation and certification that they

believe is erroneous so that they may maximize

productivity without risking the loss of essential government benefits.

The Eighth Circuit’s decision incorrectly undermines this vital right of review. According to the court

of appeals, the USDA was authorized to promulgate a

regulation (the Review Regulation) that imposes requirements that a farmer must follow in order to

make an effective review request. Going beyond mere

procedural requirements for seeking review, that regulation allows a farmer to request review of a wetland

certification only under certain substantive conditions, such as if a natural event alters the topography

or hydrology of the land or the National Resources

Conservation Service (NRCS) agrees that the current

wetland determination is erroneous.2

Congress, however, placed no such limitations on

a farmer’s right of review in the Swampbuster Act. By

reading congressional silence in the Swampbuster Act

to mean statutory ambiguity, the Eighth Circuit abdicated its statutory interpretation responsibilities and

deferred to an unlawful and very harmful administrative regulation. This Court’s intervention is necessary

2 NRCS “is the USDA’s scientific arm charged with making tech-

nical determinations about whether wetlands exist or have been

converted, as well as investigating failures to comply with the

Swampbuster provisions.” Boucher v. U.S. Dep’t of Ag., 934 F.3d

530, 532 (7th Cir. 2019).

3

to rectify this important problem that has the potential to affect countless of the Nation’s farmers.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court should grant review on the important

question presented by the Petition. In the Swampbuster Act, Congress provided farmers with a broad

right to obtain review of a wetland certification,

providing that a certification will remain effective

“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). Under that plain statutory provision, Congress has imposed no limits on a

farmer’s ability to seek review of a wetland certification. The Review Regulation, however, states that 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). The Review Regulation runs afoul of the basic command that

an agency may not read into a statute limitations or

exceptions where none have been placed by Congress.

See SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1355

(2018).

The Eighth Circuit’s decision to defer to the Review Regulation ignores this Court’s plain instruction

to lower courts to avail themselves of all the tools in

their statutory interpretation toolkit before declaring

a statute to be ambiguous and deferring to an administrative interpretation. See Kisor v. Wilkie, 139 S. Ct.

2400, 2415 (2019). The Eighth Circuit’s failure to follow this Court’s mandate in this case has particularly

severe consequences for countless farmers and warrants this Court’s intervention.

4

It would be one thing for NRCS to provide procedural requirements for seeking review of a wetland

certification, such as specifying the format of the request, page limitations, and general manner of filing.

It is quite another for NRCS to say that it will consider

review requests only if those requests assert particular, and narrow, substantive bases for review. See Pet.

App. 36a (District Court acknowledged that the Review Regulation “restricts the circumstances in which

an agency must review a final certification”). That sort

of narrowing of the right of farmers to petition that is

set forth in the Swampbuster Act is impermissible because it flatly contradicts the broad and unconditional

right to petition stated in the statute, is contrary to

law, and hence violates the APA. See SAS Inst., 138

S. Ct. at 1355 (“the duty of an administrative agency

is to follow [Congress’s] commands as written, not to

supplant these commands with others it may prefer”).

If Congress had meant that farmers may seek review

of a certification only on particular grounds, it easily

could have said so: Congress could have included the

limitations in the statute itself or it could have prohibited repeat requests for review unless certain conditions were satisfied. Congress did not do so, and the

NRCS cannot now narrow the right to seek review because the agency does not like the broad right Congress created for farmers.

It is particularly egregious for NRCS to have imposed substantive conditions on the grounds for review requests when Congress at one time granted the

agency that authority, but then took it away. The current statutory language replaces an earlier provision

that gave the agency discretion to set the conditions

for review. See Food, Agriculture, Conservation, and

Trade Act of 1990, Pub. L. No. 101-624, 1422, 104

Stat. 3359, 3573 (Nov. 28, 1990); 16 U.S.C.

5

§ 3822(a)(4) (1991) (“The Secretary shall provide by

regulation a process for the periodic review and update of such wetland delineations as the Secretary

deems appropriate”). Congress could hardly have been

clearer that it intended to eliminate that grant of discretion to the Secretary when it replaced that provision with the command that “[a] final certification under paragraph (3) shall remain valid and in effect

* * * 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). This history of the

statutory text shows that Congress intended to provide a broader right of review to farmers that NRCS

cannot now roll back through administrative rulemaking.

To be sure, it is inconvenient for NRCS to have to

conduct successive reviews when requested. See Pet.

App. 8a (deeming a scheme that allows repetitive review requests an “absurd result[]” because it undermines NRCS certifications); Pet. App. 9a (“from an

economic perspective, the Review Regulation preserves agency resources”). But agency convenience

cannot override plain statutory commands. The NRCS

has no power to “‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”

Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 325

(2014). If NRCS does not like the broad right of review

created by Congress, it can ask Congress to amend it.

NRCS also controls the speed and method of its review, within limitations of due process and the APA.

Here, however, NRCS simply refused to conduct a review at all unless its regulatory conditions were met.

That is not among the agency’s permissible options.

Furthermore, the practical risk that farmers will

routinely seek successive review of certifications,

6

thereby repeatedly invalidating certifications, is

vastly exaggerated. Certifications benefit farmers by

providing a safe harbor from losing federal agricultural benefits. Farmers have an incentive to seek review only if they firmly believe—and think they can

establish to NRCS’s satisfaction, or on appellate review—that a certification erroneously removes land

from productive use. The “absurd result” and resource

drain foreseen by the Eighth Circuit fails to take this

practical reality into account.

Although it would be easy enough for this Court

to hold the petition for Loper Bright—and at a minimum it should do so—the Eighth Circuit’s rote reliance on Chevron to defer to the Review Regulation is

not, ultimately, the problem here. The problem arose

in the lower courts’ failure to apply the standard tools

of statutory interpretation to give meaning to the

Swampbuster Act’s provisions. Only that failure triggered the courts’ determination that the statute is ambiguous, which in turn triggered deference under

Chevron. This case provides an excellent vehicle for

the Court to address the importance of federal courts

taking seriously their obligation to carefully and faithfully interpret statutory language, even if they believe

the results are inefficient or otherwise unpalatable,

and to explain that agency inconvenience is no reason

to depart from the intent of Congress as determined

by using the usual canons of statutory interpretation.

The reordering of the judicial approach to the relations of Congress, executive agencies, and the federal

courts that this Court is currently undertaking in order to restore the separation of powers required by our

Constitution cannot be achieved solely by curtailing

Chevron deference or explaining that agencies cannot

allocate to themselves the power to decide questions

of major social or economic significance. It also

7

requires directing the lower courts, which have displayed considerable recalcitrance in shifting authority

from agencies back to Congress, that statutes must be

given a fair reading and not distorted to enhance

agency power. The lower courts’ complicity in agencies’ expansion of their authority should be halted at

the threshold by requiring the courts to do what they

are uniquely suited to do—apply their statutory interpretation tools to determine the meaning of Congress’s enactments.

The Court should take the respondents at their

word when they argued below, after the grant of certiorari in Loper Bright, that their “primary argument”

in this case is not a plea for deference but “that the

regulation is the better interpretation in light of the

statutory text, purpose, and history, and that these

sources do not support Plaintiff’s reading of the Act.”

Appellees’ C.A. Not. of Supp. Auth. at 2 (May 4, 2023).

Addressing that issue will provide valuable guidance

to the federal courts in regulatory cases and will deter

lower courts from shifting from deference to farfetched statutory interpretations to preserve unwarranted agency authority.

Granting plenary review in this case is especially

appropriate given the enormous practical importance

of the Swampbuster legislation to America’s farmers,

and a Nation that depends on them for food security

and to supply plentiful and affordable food, fiber, and

other agricultural products. As attested to by AFBF’s

decades-long efforts in Congress, the agencies, and the

federal courts to prevent unlawfully overbroad regulatory definitions of “waters of the United States” under the Clean Water Act, designated wetlands are

ubiquitous on farmlands, and wetland designation errors are exceedingly costly to farm families. The loss

8

of federal agricultural benefits—which often are essential for farmers to survive annual variations in climate conditions and the vagaries of markets for their

agricultural products—that can follow from erroneous

Swampbuster wetland certifications is a critical issue

for farmers nationwide. And review-by-request is the

method by which Congress balanced NRCS’s power to

halt productive farming over considerable areas of

land with the rights of farmers to test wetland certifications. Granting review in this case would thus address an issue of great legal and practical importance

to the Nation’s agricultural, food and related industries, which in 2022 amounted to $8.6 trillion in production and employed 23 million people. See Feeding

the Economy (2023), https://feedingtheeconomy.com.

ARGUMENT

I.

THIS CASE IS AN EXCELLENT VEHICLE

TO ADDRESS THE COURTS’ ROLE IN

STATUTORY INTERPRETATION IN THE

CONTEXT OF AN ISSUE THAT IS OF THE

UTMOST IMPORTANCE TO THE NATION’S

FARMERS

A. The Eighth Circuit Failed To Use The

Full Toolkit Of Statutory Interpretation

And As A Result Reached An Egregiously

Wrong Conclusion.

Review of the Eighth Circuit’s decision offers an

excellent vehicle for this Court to make clear to the

lower courts that they are obliged to employ all of

their statutory interpretation powers to determine the

meaning of congressional enactments. All too often,

lower courts follow an easier path, barely undertaking

any meaningful statutory interpretation before

9

declaring a statute ambiguous and then deferring to

the agency’s interpretation of the statute.

This case perfectly illustrates this all-too-common

problem. The Eighth Circuit failed to apply basic principles of statutory interpretation before throwing up

its hands and deferring to a self-serving and farfetched agency interpretation that saved agency resources but obliterated a right that Congress conferred on farmers.

Congress’s intent here is especially clear. Congress amended the Swampbuster Act to eliminate the

agency’s discretion to set conditions for review of wetland certifications. Congress substituted instead a

guarantee that farmers have a broad right of review.

See pp. 4-5, supra.

Originally, Congress granted the Secretary broad

discretion over the terms of review. 16 U.S.C.

§ 3822(a)(4) (1991) (“The Secretary shall provide by

regulation a process for the periodic review and update of such wetland delineations as the Secretary

deems appropriate”). Subsequently, it took that discretion away and replaced it with an unconditional

right to obtain review. 16 U.S.C. § 3822(a)(4) (“A final

certification made under paragraph (3) shall remain

valid and in effect * * * until such time as the person

affected by the certification requests review of the certification by the Secretary”). There is no reasonable

way to read that amendment except to provide farmers with a clear and certain right to obtain review of a

wetlands certification, and to restrict the ability of the

agency to condition the terms of that review.

The lower courts nevertheless failed to give any

weight to that significant change in the statute. Rather than see in the change a clear statement of

10

congressional intent, the Eighth Circuit proclaimed

that the Act is silent as to the agency’s authority to

condition review. It acknowledged that the current

statutory language could “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.” Pet. App. 6a-7a

(citing 142 Cong. Rec. S3038 (daily ed. Mar. 28, 1996)).

But it concluded that the statute “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.” Pet. App. 7a. The court then purported to examine legislative history and—though it acknowledged that the amendments to the Swampbuster Act

were intended to provide farmers with certainty “by

allowing prior delineations of wetlands to be changed

only upon request of the farmer”—it held that

“[n]othing 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.” Pet. App. 8a (cleaned up). The court thus

concluded that “the relevant tools of construction

demonstrate” the statute to be ambiguous. Pet. App.

8a.

Noticeably missing from the court’s analysis is

any discussion of the “relevant tools of construction”

beyond resort to a superficial consideration of “legislative history.” The court did not meaningfully consider the plain language of the statute in light of the

change in that language and the purposes of that

change. Nor did the court offer any reasoned explanation why Congress’s silence as to substantive conditions on a farmer’s right to review meant the statute

11

was ambiguous as to the agency’s authority to impose

conditions rather than unambiguously broad as to a

farmer’s right to seek review. Rather, the court invoked the crutch of deference without rigorous application of its interpretative toolkit.

B. The Eighth Circuit’s Approach Flatly

Contradicts This Court’s Precedent.

The Eighth Circuit’s approach is in clear conflict

with this Court’s precedent. “[B]efore concluding that

a rule is genuinely ambiguous, a court must exhaust

all the ‘traditional tools’ of construction” including the

text, structure, history, and purpose of the statute. Kisor, 139 S. Ct. at 2415. For “only when that legal

toolkit is empty and the interpretative question still

has no single right answer can a judge conclude that

it is ‘more [one] of policy than of law’” appropriate for

reasonable resolution by an agency. Ibid. (quoting

Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696

(1991)). In other words, the court cannot do what the

Eighth Circuit did here and “wave the ambiguity flag”

just because it saw arguments on both sides of the interpretative question. Ibid. To the contrary, “when a

reviewing court employs all of the traditional tools of

construction, the court will almost always reach a conclusion about the best interpretation, thereby resolving any perceived ambiguity.” Shular v. United

States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring) (internal quotation marks omitted). Here,

that “best interpretation” is not a close call; the ambiguity simply is not there.

SAS Institute is particularly instructive. There,

this Court examined the process by which the Patent

Office conducted “inter partes review,” or review by

“private parties to challenge previously issued patent

claims in an adversarial process before the Patent

12

Office that mimics civil litigation.” 138 S. Ct. at 1352.

The question before the Court was whether the Patent

Office must resolve all the claims raised in the inter

partes review, or may it choose to limit its review to a

subset of the claims.

Under the inter partes review system, a party

must file a petition to institute review of a patent and

identify each patent challenged, the grounds for the

challenge, and the evidence supporting the challenge.

138 S. Ct. at 1353 (discussing 35 US.C. §§ 311-312).

The patent owner then responds, explaining why no

inter partes review should be instituted, and the Director decides whether to institute the review. Ibid.

(discussing 35 U.S.C. §§ 313-314). This Court concluded that, once the Director decides to institute the

review, the agency must address every claim in the

petition; it is not allowed to pick and choose what

questions raised by the petition to answer. Id. at 1354.

This conclusion was compelled by “the plain text of [35

U.S.C.] § 318(a),” which directs “[i]f an inter partes review is instituted” the agency “shall” issue a final decision with respect to “any patent claim” challenged.

Ibid.

The Court explained that “[w]here a statute’s language carries a plain meaning, the duty of an administrative agency is to follow its commands as written,

not to supplant those commands with others it may

prefer.” 138 S. Ct. at 1355 (citing Soc. Sec. Bd. v.

Nierotko, 327 U.S. 358, 369 (1946)). Application of

that fundamental rule meant that the agency had to

address the patentability of all the claims raised in

the petition for inter partes review, “not just those the

decisionmaker might wish to address.” Ibid.

Relying on the plain language of the statute, the

Court rejected the agency’s claim that it had

13

discretion to determine which claims to entertain once

it allowed a petition for inter partes review. 138 S. Ct.

at 1355. The Court explained that the statute “envisions that a petitioner will seek an inter partes review” and “Congress chose to structure a process in

which it’s the petitioner, not the Director, who gets to

define the contours of the proceeding.” Ibid. (discussing 35 U.S.C. § 312(a)). Congress’s “structural

choices” are “presumed to be deliberate” and the

Court’s interpretation of the statute must account for

that. Ibid. Further, “if Congress wanted to adopt the

Director’s approach it knew exactly how to do so.”

Ibid.

Finally, this Court rejected the argument that the

agency’s interpretation was entitled to deference because “after applying traditional tools of interpretation here, we are left with no uncertainty that could

warrant deference. The statutory provisions before us

deliver unmistakable commands.” 138 S. Ct. at 1358.

While the Director believed that his interpretation

permitting the agency discretion to choose which

claims to address was grounded in sound policy, “policy considerations cannot create an ambiguity when

the words on the page are clear.” Ibid.

SAS Institute is a strong example of the required

use of the judiciary’s statutory interpretation toolkit

to meaningfully consider competing interpretations

and determine which is the correct reading of a statute. The Eighth Circuit ignored this process. Among

other things, that court gave far too little weight to

Congress’s deliberate structural choices that placed

the determination of whether to seek review in the

hands of the farmer, just as Congress placed the question of whether to seek inter partes review in the

hands of the petitioner. In both cases, the agency had

14

no authority to fill in “blanks” in the statute with restrictions on the process. The statutory silence was reflective of a structural choice, not an ambiguous policy

choice to be left to an executive agency.

The Eighth Circuit’s error is even worse considering that at least two district courts within that Circuit

have properly applied the statutory construction

framework to interpret Swampbuster’s review provision. In Brandstad v. Veneman, 212 F. Supp. 2d 976,

994-998 (N.D. Iowa 2002), the district court provided

a lengthy and in-depth discussion of the statutory

changes to the review provision and other relevant

parts of the Act, and concluded that the plain meaning

of the statute allows a landowner to request review of

a prior determination without substantive restrictions.

Similarly, in B&D Land and Livestock Co. v. Veneman, 332 F. Supp. 2d 1200, 1210 (N.D. Iowa 2004), the

court rejected the agency’s claim that the farmer could

not obtain review under Section 3822(a)(4) of a wetland determination, explaining, after a lengthy and

detailed discussion of the history, text, and structure

of the statute, that the plain language gave a farmer

an unrestricted right to review. In both Brandstand

and B&D Land &Livestock, the courts did what this

Court has instructed but what the Eighth Circuit refused to do: they employed their statutory toolkit and

interpreted the Swampbuster review provision without resort to agency deference. The Eighth Circuit’s

deeply flawed analysis and conclusion undoes the

work of those courts (and of Congress).

15

C. The Dire Consequences Of The Eighth

Circuit’s Error For American Farmers

Make This Court’s Review Of The Issue A

Matter Of Urgency.

The consequences to farmers of this case necessitates this Court’s involvement. As the USDA has explained, “[f]armers and ranchers are the backbone of

America, working from sun-up to sundown, taking

care of the land and livestock and providing food for

their fellow citizens and the rest of the world.” U.S.

Dep’t of Ag., Farmers and Ranchers: The Foundation

of our Nation’s Nutrition Assistance Programs (Oct.

11, 2019).3 As one example, the agriculture supported

by farmers provides “the critical link” to 15 nutrition

programs the USDA offers, in 2019 supplying over $1

billion in “high quality, U.S.-grown products” that

were provided to those in need across the country.

Ibid. The USDA also recognizes that “[a]griculture is

a risky business” and that USDA programs help farmers “prepare for and recover from the impacts of natural disasters and market volatility.” U.S. Dep’t of Ag.,

Protection and Recovery.4 To that end, “USDA provides a suite of disaster assistance programs to help

offset losses as well as crop insurance and other coverage options to help manage risk and provide a safety

net.” Ibid. These federal benefits can include “commodity support payments, disaster payments, farm

loans, and conservation programs payments, to name

a few.” Congressional Research Serv., Conservation

Compliance and U.S. Farm Policy Summary (Oct. 6,

Usda.gov/media/blog/2019/10/11/farmers-and-rancers-foundation-our-nations-nutrition-assitance-programs#.

3

4

Farmers.gov/protection-recovery.

16

2016); see id. at 6, Table 2 (USDA Benefits Affected

by Conservation Compliance).

The importance of those programs to farmers

makes the consequence of violating Swampbuster’s

provisions severe. “The law denies eligibility” for

those federal farm-assistance programs “if wetlands

are converted to agricultural use.” Barthel v. U.S.

Dep’t of Ag., 181 F.3d 934, 936 (8th Cir. 1999); see also

Boucher v. U.S. Dep’t of Ag., 934 F.3d 530, 532 (7th

Cir. 2019) (“These laws condition the availability of

important USDA farm program benefits on farmers’

willingness to protect wetlands on their property.

Farmers who convert * * * wetlands for agricultural

purposes are denied those benefits.”).

The Eighth Circuit’s decision places restrictions

on farmers’ ability to obtain review of wetland certifications. As a result, farmers unable to obtain review

will leave more land out of agricultural production rather than risk the drastic loss of access to important

federal assistance programs. This is so even if the wetland determination was in error. This Court’s intervention is necessary to address this issue of extreme

importance to many of the Nation’s farmers.

D. The Eighth Circuit’s Approach Thoroughly Undermines The Constitution’s

Careful Separation Of Powers.

The continued failure of lower courts, including

the lower courts here, to properly apply statutory construction principles distorts the separation of powers.

Decisions like that by the Eighth Circuit are quick to

find statutory ambiguity and then, under Chevron, to

defer to the agency’s interpretation.

Under the separation of powers, the “[j]udicial

power” is exercised “always for the purpose of giving

17

effect to the will of the Legislature; or, in other words,

to the will of the law.” Osborn v. Bank of United

States, 22 U.S. (9 Wheat.) 738, 866 (1824). James

Madison acknowledged that the legislature’s enactments will often be ambiguous when he wrote that

“[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature

deliberation, are considered as more or less obscure

and equivocal, until their meaning be liquidated and

ascertained by a series of particular discussions and

adjudications” by the courts. The Federalist No. 37, at

183 (Madison). Alexander Hamilton envisaged “that

the courts were designed to be an intermediate body

between the people and the legislature, in order,

among other things, to keep the latter within the limits assigned to their authority.” The Federalist No. 78,

at 404 (Hamilton). In that view, “[t]he interpretation

of the laws is the proper and peculiar province of the

courts” and it is the courts’ job to ascertain “the meaning of any particular act proceeding from the legislative body.” Ibid. In short, “[t]he judicial power was understood to include the power to resolve [statutory]

ambiguities over time.” Perez v. Mortgage Bankers

Ass’n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring

in judgment).

Decisions like the Eighth Circuit’s discard that allocation of power to the judiciary by pursuing a path

that is all too quick to find statutory ambiguity—and

thus place the proper interpretation of the law primarily in the executive agency, see Michigan v. EPA,

576 U.S. 743, 761-762 (2015) (Thomas, J., concurring).

—instead of exhausting the statutory interpretation

toolkit as espoused by this Court in Kisor. Clearly, the

lower Federal courts need more direction from this

Court, and urgent reminders that they must take

their interpretive obligations seriously rather than

18

defer to self-interested agencies. A grant of certiorari

here, rather than a hold for Loper Bright, would set

the lower courts on the right path.

II. IN THE ALTERNATIVE, THIS COURT

SHOULD SUMMARILY REVERSE THE

EIGHTH CIRCUIT’S DECISION

In the alternative to granting plenary review, this

Court should exercise its authority to grant certiorari

and summarily reverse the Eighth Circuit’s decision

because that decision was obviously wrong and is

squarely foreclosed by this Court’s precedent. See S.

Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court Practice § 5.12(c) (11th ed.

2019); Shoop v. Cassano,142 S. Ct. 2051, 2057 (2022)

(Thomas, J. dissenting).

Summary reversal is especially appropriate because this Court has already admonished the lower

courts how to properly address the statutory interpretation question at issue. See Sexton v. Beaudreaux,

138 S. Ct. 2555, 2558-2559 (2018) (per curiam) (summarily reversing circuit court decision where this

Court had “previously described the approach” to be

employed to answer the legal question at issue)

(cleaned up). In particular, this Court has directed the

lower courts that they are to apply all of the statutory

construction tools in their toolkit and undertake a rigorous analysis of whether a statute interpreted by an

agency is ambiguous. See Kisor, 139 S. Ct. at 2415.

Further, the Court has already illustrated the manner

in which to employ that toolkit in a closely analogous

context. See SAS Inst., 138 S. Ct. at 1352-1358; supra,

pp. 11-13. The lower courts’ failure to undertake a

meaningful effort to construe the Swampbuster Act’s

review provision and to give due consideration to SAS

Institute is the result of a “plain and repetitive error”

19

by the courts finding a statute ambiguous too quickly

and in a manner that abdicates a core judicial function. See Parker v. Matthews, 567 U.S. 37, 49 (2012)

(summary reversal of appellate court decision that

was based on “plain and repetitive error” in legal analysis). In these circumstances, summary reversal is appropriate.

CONCLUSION

The petition for a writ of certiorari should be

granted for plenary review. In the alternative, the

Court should grant certiorari and summarily reverse

the Eighth Circuit’s decision.

Respectfully submitted.

ELLEN STEEN

TIMOTHY S. BISHOP

TRAVIS CUSHMAN

Counsel of Record

American Farm Bureau BRETT E. LEGNER

Federation

Mayer Brown LLP

600 Maryland Ave. SW

71 South Wacker Drive

Suite 1000W

Chicago, IL 60606

Washington, DC 20024

(312) 782-0600

tbishop@mayerbrown.com

Counsel for Amicus Curiae

SEPTEMBER 2023