Petition for Writ of Certiorari — Prokop v. Department of Agriculture
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No V1 -613 AUC 8 200K
OPP E Or he Cent
In The
Supreme Court of The United States
ROBERT J. PROKOP, M.D., PETITIONER
V.
UNITED STATES of AMERICA acting by and through the
UNITED STATES OF DEPARTMENT OF AGRICULTURE, and
FARM SERVICE AGENCY, RESPONDENT.
On Petition For Writ Of Certiorari To The
United States Court of Appeals For The Eighth Circuit
PETITION FOR WRIT OF CERTIORARI
Robert J. Prokop M.D.
Pro Se
320 Hickory St., P.O. Box 14
Wilber, Nebraska 68465
(402) 821-2697
ARAL A ERAS LOREAL REELED SILLA PION EOLL LLL ELL DELIA SLED L AED LAI AS AERIAL EI
.
QUESTIONS PRESENTED
1. Was the U.S. Constitutional Amendment 5 violated?
AMENDMENT 5-... nor be deprived of life, liberty or property without
due process of law ...
2. Was the U.S. Constitutional Amendment 14, Section 1,
violated? AMENDMENT 14-... nor shall any state deprive any person
of life, liberty, or property, without due process of law, nor deny to any
person within its jurisdiction the equal protection of the law.
3. Has The Law Governing Lawyers been violated?
“A lawyer may not knowingly communicate ex parte with a judicial
officer before whom a proceeding is pending concerning the matter,
except as authorized by law.”
4. Is there a conflict of judicial opinion between the Barthel v.
U.S. Dept. of Ag., 181 Fed. Rep.3d 934 (Eighth Circuit , 1999) [Opinion
delivered September 18, 1999], and this litigation on the same subject
matter?
RULE 29.6 LISTING
All parties appear in the caption of the case on the cover page.
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Page
Donner v. United States, 97 Fed, 999, 1007 (Eighth Circuit, 1996) 5
Pacific Mutual Insurance Co. v. Paslin, 111, S.Ct. 1032, 1040. ... 6
Hurtdo v. Califommia, 556 U.S. 528-530... 6... 26... eee eens 6
Twining v, New Jersey, 211 U.S. 78, 29 ee aay 6
Ake v. Oklahoma, 470 U.S. 68-87, 105 S.Ct. S| ee 7
Lansiter v. Dept. of Soc. Serv. of Durham Cty.,452 U.S.
18-25, 101 S.Ct. 2192-2139 . 0... eee eee ccc cece teens: 7
Mathews v. Eldridge, 424 U.S. 319-335, 96 S.Ct. 893-908 ....... 7
Doty v. United States, 24 CI.Ct. 615, tL. | ren 1]
Patterson v. Illinois, 487 U.S. 301 ......----- 2. eee eee eee 14
Lv. Uni t t of Agriculture,
Daniel Glickman, Sec. 181 Fed.Rep.3d 934
(Eighth Circuit, 1999). ..........-2.0-- eee rete eee: 1,16, 17, 18
Prokop v. Uni nt of Agriculture, et.al.,
91 F. Supp. 2d 1301 (D Neb 2000) .......-.-----e essere eee: ]
STATUTE AND RULES
Interim Final Rules, 180-V-FSAM, Third Ed., Amend 2, (1996)
7 CFR Part 12, Subpart 12.2 (a) (4) ..-.....2222-2 200 2
PME REES os. case 3
G0 a 3
CONS ee 5
Sas hed Sn tn
Vv
TABLE OF AU’. » -RITIES - Continued
Page
yg 2 5, 2, GRR eeneent gent re arrurrny gre ers. 7,10
Fe WOE ae ok econ ess ewe haces a were 9
yee, EG ay 7 1 eer re re 13
U.S.C.A. Const. Amend. 5; Food Security Act of 1985 §§ 1221-
1224, as amended.
MUSCA MMO... ois 3
WUSBCA COUIOEM.... sé coioes cere 3
Federal Rules of Civil Procedure
Se ND os rans 66k be eee ee 1]
Ps IONE oso boca nds Seco ee eee 11
SURE SPO «ki vidavredeeenes ieee 4.5
es CED 6 ek von oe ees ies ee eee 1
OTHER
United States Constitutional Amendment 5S ............. i, 1, 18
United States Constitutional Amendment 14 ............ i, 1,18
The Law Governing Lawyers, .
Volume 2, Chapters 6 to 8,§ 113(1) ................... i, 2, 14
1
PETITION FOR WRIT OF CERTIORARI
Robert J. Prokop, M.D., Petitioner respectfully petition for the
issuance of a writ of certiorari to review the judgment of the United
States Court of Appeals For the Eighth Circuit.
OPINIONS AND ORDER BELOW
The opinion of the United States Court of Appeals appears in
Appendix | to the petition and is unpublished.
The opinion of the United States District Court appears in
Appendix 3 and is reported at 91 F.Supp.2d 1301 (D Neb. 2000).
JURISDICTION
The date on which the United States Court of Appeals, Eighth
Circuit, decided this case was May 10, 2000. No petition for rehearing
was timely filed in this case. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1252(1)
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
: United States Constitutional Amendment 5
“No person...nor be deprived of life, liberty or property, without
due process of law...”
2. United States Constitutional Amendment 14, Section 1.
“All person born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States of the State wherein they reside...nor shall any State
deprive any person of life, liberty or property, without due
2
process of law, now deny to any person within its jurisdiction
the equal protection of the law.”
The Law Governing Lawyers, Column 2, Chapters 6 to 8, §
113(1).
“A lawyer may not knowingly communicate ex parte with a
judicial officer before whom a proceeding is pending
concerning the matter, except as authorized by law.”
527 CFR Part 12, Interim Final Rule, 180-V-FSAM. Third
Ed., Amend 2, Nov. 1996, Section Subpart A12.2(a) (4)
(Administrative Record (AR) ) Page 61:
Farmed Wetland is a wetland that prior to December 23, 1985,
was manipulated and used to produce an agriculture
commodity, and on December 23, 1985, did not support woody
vegetation and met the following hyrdologic criteria:
(i) Is inundated for 15 consecutive days or more during the
growing season, whichever is less, in most years (50 %
chance or more)
(ii) | Farmed-wetland pasture is wetland that was
manipulated and managed for pasture or hayland prior
to December 23, 1985, and on December 23, 1985, met
the following hydorlogic criteria.
(iii) | Inundated or ponded for 7 or more consecutive days
during the growing season in most years (50% chance
or more), or (ii) Saturated for 14 or more consecutive
days during the growing season in most years (50%
chance or more).
Food Security Act of 1985,
Whether livestock actually grazes in pasture is not
determinative of whether land should be considered pasture for
wetlands purposes.
10.
3
U.S.C.A. Cons. Amend. 5: Food Security Act of 1985 §§
3821-3826.
United States Department of Agriculture’s failure to notify
farmer, prior to his request for determination, as to whether his
land contained wetlands subject to Swampbuster restrictions
was not violation of due process.
U.S.C.A. Const. Amend. 5, Food Security Act of 1985 §§
1221-1223, as amended, 16 U.S.C.A. §§ 3821-3824, 7.C.F.R.
§ 11.8(c).
Exclusion of farmer’s witnesses, at hearing on characterization
of his land, for purpose of Swampbuster restrictions, was not
violation of due process, farmer refused to summarize
witnesses’ expected testimony, despite repeated notice of such
requirement, and in any event, he was permitted to supplement
administrative record with witnesses’ written statements.
7 CFR § 623.2 Interim Final Rule, 180-V-FSAM, Third Ed.,
Generally, continued maintenance of a manipulation affecting
a wetland is allowed to the extent that the manipulation existed
prior to the effective date of the act.
5 U.S.C. § 706(2) (A)
Review is limited to a determination of whether National
Appeals Division (NAD) Determination upholding the
classification of the sites in question as ‘farmed wetland
pasture’ was arbitrary, capricious or abuse of discretion or
otherwise not in accordance with the law.
7 CFR § 623.2 Interim Final Rule, 180-V-FSAM, Third
Ed. ,12.5 (b) (vii) (B) (AR at 309)
The land is determined by NRCS to be a wetland created by a
water delivery system, irrigation, irrigation system, or
application of water for irrigation.
4
11. | 18 NRCS Responsibilities F (AR at 98)
NRCS and FSA. Label on Certified Wetlands. (AW).
Artificial or irrigation-induced wetland.
STATEMENT OF THE CASE
The Petitioner sought judicial review of determination by the
United States Department of Agriculture that portions of his land were
“farmed wetland pasture’ subject to Swampbuster restrictions. The
Petitioner proceeded through all steps available to him in the United
States Department of Agriculture and the National Appeals Division of
the Department of Agriculture (U.S.D.A.) which was the requirement
before proceeding to the Federal Court system. All appeal avenues
were exhausted.
The Petitioner stated two causes of action:
That the decisions made by the U.S.D.A. were arbitrary,
and capricious; and that throughout the proceedings, the
Petitioner was denied due process. The District Court
held that these causes of action were not substantiated
by the Court’s findings.
I. WERE THERE VIOLATIONS OF CONSTITUTIONAL
AMENDMENTS 5 AND 14, § 1?
A. SUBSTANTIVE DUE PROCESS
1. Agency Determination of “Farmed Wetland Pasture.”
The exclusion of witnesses for the Plaintiff in this cause
of action did not allow important data and information to be
5
presented to the Hearing Officer and the quasi-judicial hearing.
Several factual errors could have been corrected. The
only presentation accepted by the Hearing Officer, Jack
Richardson, and that of the National Appeals Division and
Federal District Court was that of the Defendants. The criteria
for determination of farrxed wetland pasture is found in 7
C.F.R. § 12.31. With exclusion of testimony, the Plaintiff was
not able to adequately contest the conclusions drawn
prejudicially by the Defendants, who did not meet the criteria
set forth in 7 C.F.R. 12.31.
The Federal Court stated:
“Plaintiff has the burden of proving that the agency decision
was arbitrary, capricious, an abuse of discretion, or otherwise not
substantiated by law.” See Donner v. United States, 97 F3d. 999, 1002
(Eighth Circuit, 1996).”
The arbitrary, capricious standard is found at 5 U.S.C. § 706 (2)
(A).
The District Court further concluded that:
“To refute the substantial evidence submitted by
the agency, Plaintiff provided only his own observations
and the observations of others which did not speak
directly to the question of whether the agency’s
classification of the land is farmed wetland pasture was
proper._Plaintiff has the burden of proving that the
agency decision was arbitrary, capricious, or abuse of
discretion, or otherwise not in accordance with
law..Donner v. U.S. , Supra: 7 U.S.C. § 6997 (c) (4).
(The appellate shall have the burden of proving that the
adverse decision of the agency was erroneous.) He did
a ,
6
In a boxing match, handcuffing one of the participants gives an
undue advantage to the other participant. By not allowing witnesses
for the plaintiff, how could he meet the punch thrown by the U.S.D.A.
and the National Appeals Division.”
In a Supreme Court opinion written by Justice Blackmun in
Pacific Mutual Insurance Co. v, Haslin, 111, S.Ct. 1032, 1040: (refers
to Hurtado v, California, 556 U.S. 528-530.)
“Hurtado, then clarified the proper role of
history in a due process analysis: If the government
chooses to follow a historically approved procedure, it
is necessarily provided due process, but if it chooses to
depart from historical practice, it does not necessarily
deny due process...It merely suggested that due process
could be assessed in such cases by reference to ‘those
fundamental principles of liberty and justice’ which lie
at the base of all our civil and political institutions.”
“The concept of ‘fundamental justice’ thus
entered the due process lexion and was a description of
what due process entails in general, but also as a
description of what it entails when traditional
procedures are dispensed with. As the Court reiterated
in Twining v. New Jersey 211 U.S. 78, 29 S.Ct. 14,
‘consistently with the requirements of due process, no
change in ancient procedures can be made which
disregards those fundamental principles, to be
ascertained from time to time by judicial action, which
have relation in process of law and protect citizens in
his private right and guard against the arbitrary action
of the government.”
The government departed from due process by exclusion of
evidence, refusal of testimony of witnesses, and changing established
regulations previously approved by Congress establishing wetland
guidelines.
7
In this ruling ancient procedures in due process were altered
with impunity.
“In any Case, our due process opinions in recent
decades have indiscriminately applied balancing
analysis to determine fundamental fairness, without
regard to whether the procedure under challenge was
(1) a traditional one, and if so, (2) prohibited by the Bill
of Rights. See e.g. Ake v. Oklahoma, 470 U.S. 68-87,
105 S.Ct. 1053-1098,
Durham Cty. 452 U.S. 18-25, 101 S.Ct. 2153-2139;
Mathews v. Eldridge, 424 U.S. 319-335, 96 S.Ct. 893-
908.”
The ‘fundamental fairness’ doctrine established by Justice
Blackman in this opinion has been overturned by the District Court in
this cause of action. Handcuffing the Plaintiff without witnesses,
presentation of witnesses and changing established rules does not meet
the criteria of ‘fundamental fairness.’
The handcuffs were further tightened when the edited transcript
recordings from the initial National Appeals Division hearing were
furnished the court but the United States Attorney’s office failed to
furnish such transcripts to the Petitioner as noted in the record by a lack
of a filed certificate of service by the Respondents.
2. Notice of NAD Hearing and Exclusion of Witnesses.
At the beginning of the NAD hearing, the Hearing Officer
Stated that the hearing was being conducted under Title 7 of the Code
of Regulations 7 CFR. Part 11. This regulation states that the hearing
date must be given 14 days prior to the hearing.
The first notice sent out for a prehearing teleconference which
was scheduled for May 20, 1997 contained no request for witnesses or
what they were to testify about. This notice was mailed on May 8,
1997.
8
Since the Plaintiff was never afforded the transcript record of
the hearings, the statements asking what witnesses that the Plaintiff
was to present cannot be confirmed. Plaintiff did indicate the
minimum number of witnesses while the Defendants gave no
indication of any witness list they planned to testify.
When a listing of witnesses was requested by the National
Appeals Division (NAD), the Plaintiff complied. There was no request
at that time for the testimony that they would give, at the scheduled
June 23™ hearing.
The Court recognized no summaries were requested when the
opinion stated:
“There was no specific discussion of the need to
summarize the testimony of proposed witnesses, and if
only notice to the Plaintiff regarding required disclosure
in connection with witnesses he sought to call had been
the prehearing telephone conference, Plaintiff might
have had a valid due process claim. However, Plaintiff
received several later notices of the required pre-
hearing disclosure regarding proposed witnesses.”
The Court failed to state that no - prehearing telephone
conference had been furnished to the Petitioner. This fact is evidenced
by the lack of a certificate of service in the record confirming that such
evidence had been furnished to the Petitioner.
The Court recognized that no demands were made for
disclosure until after the requested witness list had been received;
changing the rules of the game in midstream. The Court failed to
recognize that the Defendants did not receive a similar request. This
action was prejudicially favoring the Farm Service Agency.
The witness list from the Plaintiff listed all possible individuals
that had knowledge and expertise concerning the controversial
wetlands determination. This involved six NRCS employees and
9
eleven individuals from the area as well as experts in what constitutes
the requirements for wetlands from an evidenciary standpoint. Since
there was a distance of 1 10 miles to Omaha forthe hearing, the number
that could attend was questionable at best. There was no request as the
Court noted, for testimony summary, yet the Court opinion states this
was the first notice of requested summary of expected testimony.
On June 4, 1997, Mark Bowen who represented the Department
of Agriculture as the Farm Service Agency Executive Director, wrote
a response to the Plaintiff with his list of witnesses without a summary
of what they were to testify about. Mr. Bowen was not the hearing
officer and had no authority to give a second notice of summary. He
represented the Defendants and was a party to the case, not a judiciary
representative. The Court again indicated this was a second notice on
behalf of the hearing officer. (AR 349).
The letter sent to Mr. Bowen indicated the witness list would
remain the same but that the stipulations requested would speed the
trial. No mention was made of refusal of witness summaries as the
Court noted in its opinion.
Regulations governing NAD hearings provide that during the
time between the filing of an appeal and the issuance of the final
determination by the NAD, “no officer or employee of the Division
shall engage in ex parte communications regarding the merits of the
appeal with any person having any interest in the appeal pending before
the Division, including any person in an advocacy or investigative
capacity. 7 C.F.R. § 11.7 (a) (1).
Mr. Bowen disregarded the rule with this letter and disregarded
judicial rules of procedure by contacting the Petitioner directly with
this correspondence.
The Plaintiff, in attempts to comply, then asked the Hearing
Officer and not the Defendants, what he desired. The Hearing
Officer’s pre-hearing notice had no mention
10
of summary testimony from witnesses to be presented even though the
Court again errored in determining that it had.
The originally scheduled June 23 hearing was unilaterally
canceled by the NAD with Plaintiff not receiving notification until
June 22. A letter revoking the waiver was immediately sent and the
NAD complied by resetting the hearing for July 1, giving the Plaintiff
forty-eight (48) hours notice. A listing of witnesses was sent to the
NAD of the individuals that could make the trip to Omaha, but no
mention of that was present in the opinion.
“A change of hearing officer was made by the National Appeals
Division.”
When Ann Gilbert, acting Appeals Division Director, made the
first request in writing for a summary of what witnesses would say in
her June 18" letter even though the Court states in the opinion that it
was the fourth request, lowi izati
cover all witnesses.
“All witnesses have been involved with or have knowledge of
the area in question which is the basis of the hearing through either
private or governmental contact.”
A list of seven witnesses that could attend the hearing was
submitted to the National Appeals Division.”
The summary meets the request for information as requested by
the National Appeals Division.
The Defendants never did submit a summary of the testimony
that their prospective witnesses would give, even though requested.
The Notice of rescheduled hearing from the National Appeals
Division contained no guidelines concerning witnesses or their
testimony.
1]
The Code of Regulations (Title 7, 7 CFR, Part 11) states that
“all witnesses called by the Farm Service Agency must comply with the
same procedure that an Appellant must follow; namely that a statement
must be made concerning the testimony that will be submitted by those
witnesses.’ The Hearing Officer allowed testimony without
compliance. This is an example of changing rules to fit the
circumstances.
In Doty v. United States, 24 C1.Ct. 615, 631 (1991), the Claims
Court held that the Agricultural Stabilization and Conservation
Service’s (ASCS) Deputy Administrator for State and County
Operation failure to call a witness requested by the aggrieved program
participant at an administrative appeal hearing was an abuse of power.
The ASCS was the agency name before being changed to Farm Service
Agency (FSA).
The Court ignored this vital decision in this litigation.
The Court further disallowed depositions to gather evidence in
this cause of action even though the Federal Rules of Civil Procedure
(F.Civ.R.Proc.) states:
“Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness.”
Rule 26 states: (4) Trial Preparation:
“Experts. (A) A party may depose any person who has been
identified as an expert whose opinions may be presented at trial.”
Rule 26(b) (4) states such witnesses are to be deposed if the
plaintiff or defendant makes such a request. ~
This made preparation for any judicial action much more
difficult if not impossible. “The burden of proof” requested by the
Court is impossible without preparation.
12
The Court’s conclusion concerning due process with regard to
the above descriptions states:
“Plaintiff may not like the procedural rules governing appeal
hearings before the NAD, but the actions by the Hearing Officer
regarding Plaintiff s proposed witnesses did not violate due process.”
The question rises, does the NAD rules apply only to the
Appellant, as in this hearing; or do the hearing regulations apply
equally to the Farm Service Agency.
The facts clearly show, it not only violated due process, it
trampled all over the United States Constitutional Amendments
granting due process to every citizen and the right of a non-prejudicial
hearing.
3. Reliance on Allegedly False Statement.
Because of not allowing testimony before the Hearing Officer,
several witnesses submitted depositions to the Court. One such
deposition was submitted by Henry “Bud” Santin Jr. who farmed the
land for the Plaintiff.
State Wildlife Biologist Gerald Jamrog took out of context the
statement made (AR at 276-77 and 281), (AR at 25), when he
described the area as:
“The Southeast corner which contains a dry
creek channel which courses through the property, has
always been wet and difficult to farm ‘because of
standing water after drainage from Fred Whitney’s farm
which drains the Northern Section of land toward the
Loup River and enters Prokop’s property through a
large culvert under a gravel road.
in farming started about ten years ago. (Beaver Dam
explanation).
A number of beavers were killed and they
13
finally moved out about two years ago. The dry creek
bed which was on Robert Prokop’s southeastern comer,
contained vegetation, muck, crop residue such as stalks,
and grassy material. The cattails and other vegetation
on the bank started about ten years ago when the
beavers had dammed the canal on Frank Santin’s
property.” (Property adjacent to Plaintiffs) Frank
Santin did not allow Plaintiff to dredge out his canal
causing damming and artificial wetlands. 7 CFR §12.1
(b) (vil) (c)
The Court and all Hearing Officers jumped on ‘has always been
wet and difficult to farm’ but they leave out the explanation clause,
because of. Because of means due to the fact that.
Henry “Bud” Santin Jr., was on the list of witnesses to testify
but the Hearing Officer refused to hear his explanation.
Yet that same hearing officer, United States Department of
Agriculture employees, and the Courts are willing to take the
government’s interpretation of that statement without his explanation
of what his statement meant as he had written it. He further mentioned
in his deposition that proper drainage on the Frank Santin property
would alleviate the wet area and standing water.
The Federal Court drew the following conclusion:
“However it is equally plausible to conclude that has ‘always’
been wet but that the wetness was not a serious problem until
compounded by the beaver dam.”
The Court clearly adds to the interpretation of that statement by
making conclusions rather than factual determinations.
“In summary, Jasmer’s statement was not false. Reliance upon
this statement by the NAD Hearing Officer and Director did not
constitute a due process violation.”
4
The question arises, is it due process when a deposition is
taken, the witness is not allowed to testify? Are the governmental
agencies allowed to interpret testimony for the Court as they desire for
their advantage?
Why is the explanation clause conveniently left out of the
statement in order to substantiate a false determination of the intended
testimony of the witness?
This obviously is stomping on due process and equal protection
granted by the Constitution. Interpretation without factual
determination is not judicial procedure, even though the District Court
is this statement concurred in that opinion.
Il. WAS EX PARTE COMMUNICATION PRESENT?
The Law Governing Lawyers as adopted and promulgated by
The American Law Institute at Washington, D.C., may 12, 1998, Vol.
2, Chapters 6-8, 113, Improperly Influencing a Judicial Officer, (1) A
lawyer may not knowing communicate ex parte with a judicial officer
before whom a proceeding is pending concerning the matter, except as
authorized by law.
Ex parte communication with a judicial official before whom
a matter is pending violates the right of the opposing party to a fair
hearing and may constitute a violation of the due process rights of the
absent party. Ex parte communication also threatens to embarrass the
parties’ relationship with the judicial officer, requiring the officer to
improperly acquiesce in his decision making opinions.
In the Court dissenting opinion written by Justice Stevens in
Patterson v. Illinois, 487 U.S. at 301:
“The Court should not condone unethical forms of tnal
preparation by prosecutors or their investigators. In civil litigation it
is improper for lawyer to communicate with his or her advisory’s client
15
without either notice to opposing counsel or the permission of the
court. An attempt to obtain evidence for use at trial by going behind
the back of one’s adversary would be not only a serious breach of
professional ethics but also a manifestly unfair form of trial practice.”
Throughout the Court’s opinion in this cause of action, quotes
from transcript records (TR) are continually used as factual evidenciary
testimony for judiciary conclusions.
The question arises, who furnished the Court the TR’s without
properly notifying opposing counsel? Why were not those records
given to opposing counsel if they were to be used as evidenciary
material for the court? Why wasn’t a verbatim transcript made
available to the opposing counsel instead of inaudible tapes of the
hearing alone?
The Court did discuss the failure of the Hearing Officer to
provide partial transcripts concluding that Plaintiff has provided no
evidence to indicate he requested and was not provided with a copy of
the agency record.
As opposing counsel, it is disconcerting to find transcript record
quotes which have never been furnished to counsel, prior to a decision
being made and unable to review, cross examine and verify claims.
All materials presented the Court by the Plaintiff were delivered
to the United States Attorney’s office for opposing counsel, Sally R.
Johnson, with certificate of service, on record.
The U.S. Attorney has no record that they ever sent a transcript
record to the Plaintiff.
The U.S. Attorney’s office has been responsible for placing
those transcript recording documents in the Court’s hands on an ex
parte basis; thus gaining a judicial advantage in decisions rendered in
this case.
16
This is not only a violation of due process and ethical standards
as set forth by law, this reveals to what length an agency will go to
influence the Federal Courts without restraint.
This action is a clear violation by Sally R. Johnson, Assistant
U.S. Attorney and makes questionable any decisions made by. the
District Court.
I. | CONFLICTING OPINIONS IN THE EIGHTH CIRCUIT
COURT OF APPEALS.
Circuit Judges McMillian, Beam and Loken in the Barthel v.
: ) is found in Appendage 31.
The opinion was published after appeals were due in this matter.
The request denied by the U.S.D.A. was for manipulation of a
ditch fed by a culvert. Some quotations from the opinion are as
follows:
“This is not to say that the level of a ditch or
culvert cannot provide an accurate indication of the
water regime which previously existed...In the Barthels’
case, the USDA’s findings for the ditch and culvert
depths apparently conflict with the water regime that
existed prior to December 23, 1985. In such a conflict,
the government’s position is that the level of the ditch
should win, at the expense of the prior conditions of the
land. In short, the means are more important than the
ends. We disagree. The unambiguous focus of the
statute and implementing regulations is to maintain the
status quo of the manipulated wetlands-- not the
drainage ditch.”
“The burden is on the government to show that
the proposed maintenance, in this case clearing the
ditch so that the hay meadow is not underwater,
exceeds the scope and effect of the original
manipulation. (Cf. Downer, Supra at 1009.) However,
17
this does not give the agency the right to arbitrarily
define what the original scope and effect was. It is
arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law for the agency
to pick an original manipulation regardless of how it
affects the use of the land?
“The record shows that the ditch is continually silted-in by
natural conditions...and must be periodically cleaned out.”
M. Amold, R. Amold and Fagg, Circuit Judges, in this appeal,
with similar circumstances and the same initial call on maintenance of
a ditch and culvert, ruled in disagreement with the Barthel v. U.S. etal.
Supra, case.
The original cause of action required a Wetlands ruling; one
that was not sought by the Petitioner. The cause of action was for the
Same purpose when Petitioner submitted a request to clean out a
silted-in ditch resulting from a third parties action. The rationale in
the Barthel case was not used in this cause of action and appeal.
IV. IGNORING RULES ESTABLISHED BY CONGRESS.
Certain rules established by the FSA with Congressional
approval were ignored in this ruling. The rules and definitions state
that irrigation run off or irrigation ditches can not be declared
wetland. In this decision the Court approved changing the rules
involving irrigation procedures. These rules were established and
approved by FSA and Congress.
This was exemplified by the ruling found on Site B App. 6,
Footnote 4.
This violates due process, fundamental fairness, and is a abuse
of power.
18
REASON FOR GRANTING THE WRIT
The request for a writ of certiorari should be granted for the
following reasons:
1) A review of the violations of due process and equal protection
clauses of the Constitutional Amendments 5 and 14 which
were ignored by the Federal District Court and Court of
Appeals in their decisions should be accomplished to set
standards for future actions involving these principles when
agencies of the United States Government are involved.
2) Ex Parte communication by the Department of Justice through
the United States Attorney’s office with the United States
District Judge where material was shared without proper
notification of opposing counsel must be addressed to prevent
future governmental misconduct.
3) Rulings in the Bartel v. U.S. and this cause of action have not
been consistent and need to be addressed by the Supreme
Court for remedy as to what is the regulations and statutory
provision interpretations, for the lower Courts to follow.
These two opposing decisions were handed down in the same
Court of Appeals.
Definitions of what is meant by statutory terms such as
haylands and pasture need to be consistent with actual meanings of the
word. Clarification of opinions and word usage are essential for
proper communication between Congressional, Judiciary, and
-Executive branches as well as the citizenry of the United States.
As noted by United States Court of Appeals Judge Alex
Kozinski in the Wall Street Journal regarding comments made on
summation of entitlement to privacy on use to Court computers
sending E-mail or Internet access, he stated: “ Hell hath no fury a
bureaucrat un-turfed.”
19
This statement is applicable to this cause of action and request.
CONCLUSION
The Petitioner prays that the Supreme Court will review,
_ reverse and remand the opinions set forth by the Eighth Circuit Court
of Appeals and the United States District Court for the State of
Nebraska in the above cause of action.
DATED: August 8, 2001.
Respectfully Submitted
ROBERT J. PROKOP, M.D.,
Petitioner
BY:
Robert J. Prokop M.D. Pro Se
320 Hickory Street, P.O. Box 14
Wilber, Nebraska 68465-0014
(402) 821-2697
CONTENTS OF APPENDIX
Decision of the United States Court of Appeals
Eighth Circuit in Prokop v. USDA, United States of
ead it b the United §
Decision of the District Court for the State
ved ater in Prokop v. United States of America,
Decision of the District Court of Appeals
Eight Circuit in Barthel v, United States
] “Ana gee
Director Review Determination Log No. 970073 1 W ....
Determination of Appellant's Request for
Director's Review 97000731 W ..........-.-2----05-
Appeal Determination NAD Log No. 97000731W ......
Deposition of Henry "Bud' Santin Jr...............---
Notice of Response to Appellant's Request
for Witness Appearance NAD Log No. 97000731W .....
Letter dated April 10, 1997, from Bruce J. Coffey,
County Executive Director, Nance County FOA Office ...
. App. 57
App. |
APPENDIX
United States Court of Appeals
FOR THE EIGHT CIRCUIT
No. 00-2232NE
Robert J. Prokop, M.D., ° 4970V3395
. FILED
Appellant, ° U.S. DISTRICT COURT
° DISTRICT OF NEBRASKA
Vv ° OIMAY10 AM11:26
° GARY D. MCFARLAND
CLERK
USDA, United States of America, | * On Appeal from the United
acting by and through the United * States District Court
States Department of Agriculture and * for the District of
Farm Service Agency, * Nebraska.
*
Appellee. * [Not To Be Published]
Submitted: April 30, 2001
Filed: May 10, 2001
Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD,
and FAGG, Circuit Judges.
—OOeeeeeeereooeoeororeee
App. 2
PER CURIAM.
Robert Prokop appeals from the District Court’s' decision
affirming the United States Department of Agriculture’s classification
of his property as “farmed wetland pasture.” For the reasons explained
in the District Court’s thorough opinion, we conclude substantial
evidence in the record supports the agency’s finding that the property
met the criteria for farmed wetland pasture. The agency’s decision was
not arbitrary or capricious. See 7 C.F.R. § 12.2(a) (2001) (definition
of farmed wetland pasture); Downer v. United States, 97 F.3d 999,
1002 (8* Cir. 1996) (per curiam) (court looks to whether agency
considered all factors Congress intended it to consider, whether agency
considered factors Congress did not intend it to consider, and whether
there is lack of rational connection between facts found and decision
made). We have considered Prokop’s due process arguments and
conclude that they fail, also for the reasons laid out in the District
Court’s opinion.
Accordingly, we affirm. See 8" Cir. R. 47B.
A true copy. |
Attest:
CLERK, U.S. COURT OF APPEALS,
EIGHTH CIRCUIT.
lThe Honorable Richard G. Kopf, Chief Judge, United States Court for
the District of Nebraska.
\
App. 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT J. PROKOP, M.D., )
) 4:97CV3395
Plaintiff, )
VS. ) MEMORANDUM
) AND ORDER
UNITED STATES OF AMERICA, )
acting by and through the ) FILED
UNITED STATES DEPARTMENT ) U.S. DISTRICT COURT
OF AGRICULTURE and FARM ) DISTRICT OF NEBRASKA
SERVICE AGENCY, ) OOMAR29 AM 8:27
) GARY D. MCFARLAND
Defendant. _) CLERK
This is an action for judicial review of a final agency
determination of the National Appeals Division (NAD) of the United
States Department of Agriculture (USDA) concerning the classification
of certain farm property owned by Plaintiff as “farmed wetland
pasture.” By previous order of this court (filing 77), this action is being
resolved as if cross-motions for summary judgment had been filed.’
'The parties were directed to submit proposed findings of fact indexed to the
record and conclusions of law. Plaintiff, who appears pro se, did not. He instead
submitted a “Pre-Trial Brief.” Defendant submitted proposed findings of fact and
conclusions of law together with a brief. In response, Plaintiff submitted another brief.
Plaintiff's submissions do not focus on the key issue: Was the final agency decision
arbitrary, capricious, or an abuse of discretion? This court has parsed through
Plaintiff s submissions to ascertain why Plaintiff believes the final agency action should
be overturned on review. This memorandum and order addresses only those
arguments of Plaintiff which merit discussion.
App. 4
I. BACKGROUND
Plaintiff Robert Prokop owns farm land located in Nance
County, Nebraska, which is know as Farm No. 1347, tract 820, in the
Records of the Nance County Committee of the Farm Service Agency
(Administrative Record at 7.) Plaintiff has participated in farm
programs conducted by the USDA in connection with his operation of
Farm No. 1347 (AR. at 236). By letter dated August 6, 1995, Plaintiff
informed the USDA Agricultural Stabilization and Conservation
Service (now known as the Farm Service Agency),’ of his intention to
2Subsequent references to the Administrative Record will be cited as “AR.”
The record before the court also includes a transcript of the hearing before the NAD,
cited as“TR.,” and a transcript of a prehearing telephone conference call held May 20,
1997, cited as “Prehearing TR.” The Administrative Record and transcripts are part
of Filing 28. The Administrative Record contains copies of the original exhibits from
the NAD hearing are invalid or inadmissable because global positioning technology
was not used to produce them is without merit. The exhibits and maps are clear
enough to support the agency’s final determination. They do not have to be perfect.
Many of the documents in the administrative record use only acronyms or
abbreviations for the many agencies and statutes involved in this determination. For
clarity, I identify all of the acronyms and abbreviations in this footnote.
ASCS The United States Department of Agriculture Agricultural
Stabilization and Conservation Service, a predecessor agency to the
Farm Service Agency
FSA The Farm Service Agency, successor to the United States
Department of Agriculture Agricultural Stabilization and
Conservation Service
COC See Nance County Committee
NAD The National Appeals Division of the United Sates Department of
Agriculture
|
App. 5
clean out a canal located on property abutting Farm No. 1347 in order
to improve drainage in certain areas of farm No. 1347 (A.R. at 145).
This was a cautionary step to protect Plaintiff s continued eligibility for
USDA farm program benefits. See, e.g. 7 C.F.R. §§ 12.7, 12.4(h). The
Food Security Act, 16 U.S.C. §§ 3821-3824, (commonly known as
Swampbuster) and its implementing regulations provide that farmers
who “convert” a wetland after December 23 1985, through
manipulations which affect wetlands in a prohibited manner, forfeit
their eligibility to receive USDA program payments and loans. See,
e.g., 7 C.F.R. §12.4. Generally, continued maintenance of a
manipulation affecting a wetland is allowed to the extent that the
manipulation existed prior to the effective date of the act. 7 C.F.R.
Upon receipt of Plaintiff's August 6, 1995 letter, the USDA
made a determination as to whether cleaning out the canal would affect
wetlands in a manner which would violate Swampbuster and thereby
| affect Plaintiff's eligibility to participate in USDA farm programs. By
November 7, 1995 letter from William Gilg, Resource Conservationist
in the Fullerton Field Office of the NRCS, the USDA notified Plaintiff
that two areas located on Farm No. 1347, consisting of a total of eight
Nance County
Committee The Nance County Committee of the Farm Service Agency,
referred to in some documents as COC, or Nance County CFSA
(Consodidated Service, successor agency to the Soil conservation
Service
NRCS The United States Department of Agriculture Natural Resources
Conservation Service, successor agency to the Soil Conservation
Service
SCS The Soil Conservation Service, predecessor agency to the Natural
Resources Conservation Service
Swampbuster = The Food Security Act, 16 U.S.C. §§ 3821-3824
USDA United States Department of Agriculture
App. 6
acres,“ were considered “farmed wetland” subject to Swampbuster
restrictions, but that Plaintiff was free to clean out the canal because
the proposed action was considered allowable maintenance which
would not affect his eligibility for USDA farm programs (AR. At 136-
38). The letter advised Plaintiff that he could request a reconsideration
by making a request to the NRCS within 15 days.
By letter dated November 8, 1995, Plaintiff objected to the
farmed wetland classification, asserting that he sought not a
reconsideration but a ruling that the land was wetland followed by
appropriate notice to Plaintiff and an opportunity for Plaintiff to appeal
the wetland ruling (A.R. at 206).° Plaintiff's November 8, 1995 letter
4Various parts of the Administrative Record, including the Weland Inventory
Map (A.R. at 197 and filing 46) and the filed visit reports (A.R. at 221-27) refer to
“Site A” and “Site B.” Site A consists of 3.1 acres in the southeast corner of Farm No.
1347. Site B consists of 4.9 acres located in an area on-the east side of Farm No.
1347, roughly halfway between the north and south boundaries of the farm. The
Administrative Record contains documents which specifically define the areas in
question as three parcels of land in Farm No. 1347, Tract 820, Fields 1,2, and 3. (See,
eg. AR. at 4, 7, 183.) The parcels collectively referred to as Site B including
contiguous parts of Field } and Field 2 consisting of a total of 4.9 acres. (See, ¢.2..
AR at 197, 221-27) For simplicity, 1 will refer to Site A and Site B.
SThis is one indication of Plaintiff's misunderstanding of the process set in
motion by his request to clean out the canal. He did not acknowledge that the
November 7 letter constituted a notice of a determination that the land in question was
“wetland” and was wetland subject to Swampbuster restrictions (at this point, the
agency took the position that the land was “farmed wetland”), nor that the
“reconsideration” referred to in the November 7 letter was the opportunity to appeal
the determination that the land in question was wetland subject to Swampbuster
restrictions.
This misunderstanding is compounded in two ways: Plaintiff denies the
validity of the process by which land is determined to be wetland subject to
Swampbuster restrictions and Plaintiff considers the term “wetland” to be synonymous
with the legal conclusion that the land is “wetland subject to Swampbuster
restrictions.” These misunderstandings are addressed infra under the “Substantive Due
Process” heading.
App. 7
was treated as a request for reconsideration. Two NRCS employees
(Al Mittan and James Huntwork) met with Plaintiff and conducted an
on-site investigation on December 1, 1995 (A.R. at201). This was the
first of two field visits that were made to Plaintiff's farm during the
review process. Upon reconsideration, the Ord field office of the
NRCS notified Plaintiff on January 23, 1996 of the agency’s
determination that Sites A and B would be classified as “farmed
wetland pasture” rather than “farmed wetland” (A.R. at 201). This was
the first of five agency reviews of the wetland determination.
Plaintiff appealed the determination that the two identified
areas in Farm No. 1347 were farmed wetland pasture by a February 18,
1996 letter to Stephen H. Chick, the State Conservationist of the NRCS
(A.R. at 199). In response to this appeal, on May 1, 1996, NRCS
employees Gerald Jasmer, Lyle Rasmusen, and Richard Torpin
conducted a field visit to the land in question (A.R. at 192). This was
the second field visit to the site. By letter dated May 30, 1996, the
State Conservationist of the NRCS made a final technical
determination that the land in question was “farmed weland pasture”
(A.R. at 128-29). This was the second agency review of the wetland
determination.
Next, Plaintiff appealed the decision of the NRCS State
Conservationist to the FSA Nance County Committee (A.R. at 191).
After conducting a hearing on Plaintiff's appeal, the FSA Nance
County Committee upheld the classification as farmed wetland pasture
(A.R. at 104-111). This was the third agency review of the wetland
determination. At the hearing, the Nance County Committee was
advised that its review was limited to determining whether there was
an error in the State Conservationist’s determination (A.R. at 108) and
found no error in that determination (A.R. at 104). Plaintiff was
advised of these findings by April 10, 1997 letter signed by Bruce
Coffey, the executive director of the FSA Nance County Office (A.R.
at 104-06).
App. 8
On April 22, 1997, Plaintiff appealed the FSA Nance County
Committee’s decision to the USDA’s National Appeals Division
(NAD) (A.R. at 375). A prehearing conference was held by Hearing
Officer Paul Handley of NAD on May 20, 1997 (Prehearing T.at i).
Based on the understanding that the hearing would be held June 23,
1997 (see A.R. at 337), on May 27, 1997, Plaintiff waived the
requirement that the hearing be held within 45 days of April22, 1997
(the date he filed his administrative appeal) (A.R. at 363). The hearing
was scheduled for June 23, 1997 (A.R. at 351-54), and was postponed
because of a dispute over whether all witnesses Plaintiff sought to call
at the hearing would be made available in light of Plaintiff s refusal to
submit a summary of the testimony he sought from these witnesses
(A.R. at 339-40). On June 24, 1997, upon notice that the June 23
hearing date had been postponed, Plaintiff sent a letter withdrawing his
previous waiver and demanding that the hearing be held not later than
July 7, 1997 (A.R. at 337). The NAD received this letter on June 25,
1997. On June 26, 1997, in response to Plaintiff's demand, NAD
scheduled the hearing for July 1, 1997 (A.R. at 332) and reassigned the
hearing to Hearing Officer Jack Richardson (A.R. at 331), as Hearing
Officer Handley’s schedule would not permit him to conduct the
hearing by July 7 (A.R. at 7).
At the July 1, 1997 hearing, the Hearing Officer gave both
parties additional time to supplement the record. They did so. After
the hearing and the supplementation of the hearing record by the
parties, on July 22, 1997, Hearing Officer Richardson issued a written
opinion upholding the classification of the two areas in dispute as
“farmed wetland pasture” (A.R. at 30-36). This was the fourth agency
review of the wetland determination. Plaintiff requested review of this
decision by the Director of NAD. On September 22, 1997, the NAD
Director issued his “Director Review Determination” which upheld the
classification as “farmed wetland pasture” (A.R. 4-6). The NAD
Director’s determination is the final administrative decision in this
matter (and the fifth agency review of the wetland determination).
Plaintiff then filed this appeal of the final agency determination
upholding the “farmed wetland pasture” determination.
App. 9
The Swampbuster statutes and regulations were amended in
1996,° and the 1996 amendments laws applied to the agency action
regarding Plaintiff s property. The interim proposed regulations, which
were ultimately those adopted, were those used by the agency. See
A.R. at 41-90, TR. at 16-17.
II. DISCUSSION
A. STANDARD OF REVIEW
The agency’s factual finding that certain farm property owned
by Plaintiff is farmed wetland pasture is a classic example of a factual
dispute implicating substantial agency expertise. Downer v. United
States, 97 F.3d 999, 1002 (8 Cir. 1996) (questions regarding agency
determinations that farmer’s land was converted wetland rather than
artificial wetland and that wetland conversion did not commence prior
to effective date of Swampbuster were “classic examples of factual
disputes implicating substantial agency expertise.”) Accordingly,
review is limited to a determination of whether the NAD Director’s
determination upholding the classification of the sites in question as
“farmed wetland pasture” was ““‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” Id. (Quoting 5
U.S.C. § 706(2)(A)). The narrow review includes a de novo review of
the administrative record “to determine ‘whether the decision was
based on a consideration of relevant factors and whether there has been
°One-_of the proposed 1996 amendments to Swampbuster would have
provided an exception for wetlands under one acre. This proposal was never enacted
into law. = ws oh McBeth, . Matends Comeneton set Solent Semen
, 21 Harv. Envt’ L. oo
201,241 n.256, 250-53 (1997). At various stages during the determination and review
process affecting Plaintiff, Plaintiff asserted that there was an “under one acre”
exception applicable to the wetlands on Sites Aand B. Agency employees sought this
exception in the statutes, but understandably did not find it since the proposal did not
become law. Plaintiff s continued belief in this nonexistent exception likely contributed
to mistrust of the agency and continued confusion by Plaintiff.
App. 10
a clear error of judgment.” Id. (Quoting Marsh _v. Oregon Natural
Resources Council, 490 U.S. 360, 378 (1989)). The nature of this
review 1s Clear:
To perform this review the court looks to
whether the agency considered those factors Congress
intended it to consider, whether the agency failed
entirely to consider an important aspect of the problem,
whether the agency decision runs counter to the
evidence before it, or whether there is such a lack of a
rational connection between the facts found and the
decision made that the disputed decision cannot “be
ascribed to a difference in view or in the product of
agency expertise.” ’ ;
463 U.S. 29, 43 (1983).
If the agency itself has not provided a reasoned basis for |
its action, the court may not supply one. Id.
Nonetheless, the reviewing court may not
substitute its judgment for that of the agency and must
give substantial deference to agency determinations. Id.
This deference is particularly appropriate when the
agency’s determination in issue concerns a subject
within the agency’s own area of expertise. Marsh, 490
US. at 377-78. An agency making fact-based
determinations in its own field of expertise, particularly
where those determinations are wrapped up with
scientific judgments, must be permitted “to rely on the
reasonable opinions of its own qualified experts even if,
as an original matter, a court might find contrary views
more persuasive.” Id. At 378.
Downer, 97 F.3d at 1002.
App. 11
B. SUBSTANTIVE DUE PROCESS
1. Agency Determination of “Farmed Wetland Pasture”
7 CFR § 623.2 Interim Final Rule, 180-V-FSAM, Third Ed.,
At the NAD hearing, both parties agreed that Site A and Site B
were wetlands. They disagreed as to whether they were wetlands
subject to Swampbuster restrictions. Plaintiff asserted that Site A
should be considered an “artificial wetland” because it resulted from
the activities of beavers in the canal on the east side of Plaintiff's
property, and Site B should be considered an “artificial wetland”
because it was created by irrigation runoff after he began irrigating the
farm in the 1970's. (T.R. at 24-25, 33.) “Artificial wetlands” are not
subject to Swampbuster restrictions. The agency asserted that the sites
were “farmed wetland pasture” (and farmed wetland pasture is subject
to Swampbuster restrictions). The final agency determinations that the
sites are farmed wetland pasture.
The regulations define” farmed wetland pasture” as
wetland that was manipulated and managed for pasture or
hayiand prior to to December 23, 1985, and on December 23,
1985, met the following hydrologic criteria:
(i) Inundated or ponded for 7 or more consecutive days
during the growing season in most years (50 percent chance or
more), or
(ii) Saturated for 14 or more consecutive days during
the growing season in most years (50 percent chance or more)
7C.R.R. § 12.2(a). Thus, to be “farmed wetland pasture,” land must
(1) be wetland, (2) have been manipulated and managed for pasture or
hayland prior to the effective date of Swampbuster, and (3) on the
effective date of Swampbuster (December 23, 1985) have met
specified hydrologic criteria. There is substantial evidence in the
record to support the final agency determination that Sites A and B are
“farmed wetland pasture.”
App. 12
Plaintiff stipulated that the land was “wetland” at the
administrative hearing (T.R. at 22-24, 32-33). In addition, the on-site
inspection data (A.R. at 173, 271-27, 232, 257-58) supports the wetland
finding, as do the photos, soil maps, soil surveys, and soil lists in the
record(A.R. at 209-20). Site A has always been a natural drainage way
which carried precipitation and snow melt from land south of
Plaintiff's property across the corner of Plaintiff's farm onto land
directly east of Farm No. 1427, and into the Loup River, which runs
from west to east north of Farm No. 1347. (A.R. at 267, 269, 276.)
Soil mapping commenced in 1955 and a 1960 soil survey indicate that
the soil on Site A and Site B is hydric (A.R. at 209, 215). The NAD
hearing included credible testimony from NRCS employees with
personal knowledge that both Site A and Site B are naturally occurring
wetlands which existed well before drainage on either site was
manipulated by human activity (T.R. At 90-105). Plaintiff
acknowledged at the NAD hearing that both sites were wet in times of
precipitation (T.R. at 33-36, 72). Plaintiff presented affidavits from his
witnesses which stated that, prior to 1985, water flowed through Site
A when it rained or during snowmelt (A.R. at 267, 269), and that the
property had always been difficult to farm due to wetness ( A.R. at
276). Thus the first part of the definition of “farmed wetand pasture”
is met.
There is no question that Sites A and B had been manipulated
prior to December 23, 1985 (the effective date of Swampbuster)
through the construction canal and the 1972 land leveling activities
described in the record. Whether or not livestock actually graze in a
pasture is not determinative of whether land should be considered
pasture for Swampbuster purposes. Plaintiff himself referred to the
land in question as pasture in a letter Farm Service Agency dated
February 25, 1983 (A.R. at 243). Neither site had been cropped for
over five years except for a small stand of alfalfa ( a form of hay) (A.R.
at 236-42.’
"plaintiff's briefs assert that the land was not cropped because he had been
told to use this as set-aside land, and that he was unable to prove this because he was
App. 13
The property was fenced, an indication of pasture. The NRCS officials
reasonably concluded that the property was pasture based on Plaintiff's
use of the property and their visual inspection. This satisfies the
second part of definition: The land was pasture manipeiened prior to
the effective date of Swampbuster.
To be “farmed wetland pasture, Sites A and B must have met
specified hydrologic criteria on December 23, 1985. On that date, the
sites must have been either inundated or ponded for 7 or more
consecutive days during the growing season in most years or saturated
for 14 or more consecutive days during the growing season in most
years. The agency established that these hydrologic criteria were met.
The agency relied upon a soil map of an area including Plaintiff's land
which was completed as a part of a soil mapping project begun in 1955
( the mapping was completed by the SCS, the predecessor agency to the
NRCS). (A.R. at 209 ( and filing 46), R.R. at 92.) The agency also
relied upon a 1960 soil survey (A.R. at 210-20). Both the 1955 soil map
and 1960 soil survey indicate that Sites A and B met the hydrologic
criteria. The soil on Site A was classified as “Cs” (Cass Fine Sandy
Loam), which is a classification for soils with a water table of 0-1 foot
and having hydric soils present which meet saturation criteria(A.R. 209,
215). The soil on Site B was classified as soil type “Le” (Leshara Silt
Loam), which is also a classification for soils with a water table created
on the basis of soil surveys showed an intermittent stream in the areas
making up both sites (T.R. at 209 (and filing 46)). The soil maps, soil
surveys, soil lists, aerial photography and on-site inspection data
indicated the presence of hydric soils which meet the saturation
requirement. The agency’s reliance on the soil maps and surveys to
identify hydric soils is authorized by the regulations. 7 C.F.R. §12.31.
prevented from presenting live testimony of witnesses. As explained later in this
Opinion, Plaintiff was prevented from presenting live testimony because he refused to
comply with applicable procedural rules, and could have supplemented the record with
evidence as to why the land had not been cropped, but chose not to.
App. 14
The technical data the agency relied upon to establish the third part of
the “farmed wetland pasture” definition is within an area of substantial
agency expertise, and the agency’s determination is entitled to
substantial deference. Downer, 97 F.3d at 1002.
To refute the substantial evidence submitted by the agency,
Plaintiff provided only his own observations and the observations of
others which did “not speak directly to the question of whether the
agency’s classification of the land as farmed wetland pasture was
proper. Plaintiff has the burden of proving that the agency decision was
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. See Downer, 97 F.3d 999; 7U.S.C. § 6997(c\(4)
(“The appellant shall have the burden of proving that the adverse
decision of the agency was erroneous.”). He did not meet it. The
administrative record, as a whole, contains substantial evidence to
support the agency’s determination, and as in Downer, there 1S
no evidence that the agency considered any factors
Congress did not intend it to consider in making its
determination, nor is there any indication that the agency
failed to consider an important aspect of the wetlands
determination problem. The- agency’s technical
determination is squarely within its field of expertise and
was made in reliance on its own qualified experts’
examination of the sites and other relevant data. The
decision was rational and does not run counter to the
evidence. .. . Thus, the dispute is within the realm of
agency expertise, and not the result of arbitrary and
capricious decision-making.
Id. At 1003-04.
In making its determination, the NAD observed that “FSA
acknowledges the area has peculiarities which exist concerning the
development of the wetlands [referring to improper maintenance of the
canal on property adjacent to Plaintiff's property and the beaver
App. 15
activity],” and made this statement: “[I]f drainages are cleaned out and
the areas became drier, a request for a new determination could be
made.” (A.R. at 7.) This is a clear indication that the agency did not fail
to consider any important aspect of the wetlands determination on Site
A and B.
2. Artificial Wetland
Plaintiff contends that the sites in question are artificial wetland,
asserting that his neighbor’s construction of a canal in 1985 near Site A,
resulting in beaver dam problems, and the 1972 field grading performed
near Site B, created the wetland. Artificial wetlands may be
manipulated without creating a conversion affecting eligibility for farm
program funds. 7C.F.R.§ 12.5. However, the regulations define
“artificial wetland” as “an area that was formerly non-wetland, but now
meets wetland criteria due to human activities... .” 7 C.F.R. §
12.2(a)(emphasis added). The 1960 soil survey showed the existence of
hydric soils in both of the disputed areas and an intermittent stream in
both areas. Evidence submitted by Plaintiff from a person who has
custom farmed Plaintiff’ s Nance County farm for 20 years indicates that
the area was always wet and difficult to farm, though it became wetter
and harder to farm after the canal was constructed in 1985. See text
accompanying note 14, infra. Although the beavers and the canal made
the area wetter, evidence in the record (fact that Site A was a natural
drainage way, hydric soils and the intermittent stream) indicates that the
area was “wetland” before the beavers and the canal.®
Plaintiff seeks to prove that the wetlands are “artificial wetland”
and thus exempt from Swampbuster restrictions. He has the burden of
proving that the artificial wetland exemption applies. Downer, 97 F.3d
“In addition, the NRCS manuals interpreting the controlling regulations
specifically state that beaver activity cannot create an artificial wetland (A.R. at 259-60).
App. 16
at 1005 (Farmer who asserted that he had not converted wetlands ina
manner that violated Swampbuster because the land was “artificial
wetland” had the burden of proving the land was “artificial wetland”
(citing 7 C.F.R. § 12.5(b)(9), now codified at 7 C.F.R. § 12.5(b)(7))
(“The burden rests with [Plaintiff] not only to establish facts warranting
the exemption before the agency, but also to demonstrate to this court
where in the record such facts may be found.” Id.) Plaintiff asserts that
the agency finding that the land had always been wetland is wrong based
upon this own observations and affidavits of his neighbors, none of
which directly address the question of whether the land was wetland
prior to the effective date of Swampbuster. Plaintiff has not carried his
burden of proof that the wetland is “artificial wetland.”
If the agency had the burden of proving that the two sites were
not “artificial wetland” (which it does not), the agency had met the
burden. The technical data relied upon by the agency in determining
that the land was “farmed wetland pasture” in fact establishes that the
land in question was “wetland” prior to the canal, beaver activity and
leveling. In Downer, one judge dissented from the majority’s finding
that the farmer had the burden of proving that the land was “artificial
wetland,” finding that the agency had the burden of proving that the land
was not artificial wetland. In noting that there was no evidence in
Downer that the agency had made any findings as to whether the
wetland was an artificial wetland, this dissenting judge pointed out the
type of evidence that could have supported an expert determination that
the wetlands were not artificial (if it had been in the record) — evidence
as to soil type or aerial photographs. Downer record lacked this
technical data upon which agency experts could have made findings
regarding artificial wetland, the record before me regarding the wetlands
determination on Plaintiff's land clearly includes the appropriate
technical data to support the agency’s determination.
C. DUE PROCESS
1. Notice
App. 17
Of NAD Hearing
By letter dated June 24, 1997, Plaintiff demanded that the
hearing before the NAD be held not later than July 7, 1997. The NAD
received this letter on June 25, and responded to it on June 26 by
rescheduling the hearing to July 1, 1997. Plaintiff got what he asked
for-a quick hearing.” There were only 12 calendar days between the
NAD’s receipt of Plaintiff's demand (June 25) and the date by which
Plaintiff demanded the hearing take place (July 7). Of these 12 days,
four days were weekends and one week day was the Fourth of July
holiday. The NAD made a reasonable response to Plaintiff's withdrawal
of his earlier waiver and his eleventh-hour demand that a hearing be
held no later than July 7. Since Plaintiff requested a hearing that could
not possibly have been preceded by 14 days notice even if the NAD had
instantly rescheduled it, and the NAD rescheduled the hearing in
response to Plaintiff's demand, Plaintiff cannot now complain that he
received inadequate notice of the hearing.
That Wetland Determination Had Been Made
Plaintiff s response brief asserts that “[t]he Farm Service Agency
never gave the Appellant notification as required by statute, that his
farm contained wetland. A determination was made in 1987 from aerial
photographs and sent out in some counties but never in Nance County.
*Plaintiff objected to the July 1 hearing date, asserting that he had a previous
commitment on that date and was available for a hearing only on July 3 or July 7. (AR.
at 319.) Yet Plaintiff did appear at the July | hearing and has made no showing that he
was prejudiced by the short notice of the hearing date. At the hearing, Plaintiff was
asked if he felt he had been able to present the information he needed to give to the
hearing officer, and Plaintiff stated that he thought the hearing officer had been very fair
and had done a good job in handling the hearing. (T.R. at 140, 147.)
App. 18
The notification given was done by forcing the Appellant to request that
opinion.” (P.’s Sept. 14, 1999 Br. (Rev. Copy) at 8.) Nonetheless,
Plaintiff did request a wetland determination for Farm No. 1347, Tract
820, on Form NRCS-CPA-38 “Request for Certified Wetland
Determination/Delineation” (AR. At 186.) The form stated that the
reason for the request for determination was Plaintiff's intention to
perform drainage maintenance on land that had been leveled in 1972
and 1978. A wetland determination was made in response to the
request, and Plaintiff was notified of this determination by November
7, 1995 letter from William Gilg, Resource Conservationist in the
Fullerton Field Office of the NRCS (A.R. at 136-38.) This letter began
the long chain of reconsiderations and appeals resulting in the final
agency decision now before the court. Plaintiff has cited no authority for
the proposition that a wetland notification was required prior to his
request for the determination. Due process requires notice before
adverse action is taken, so that affected persons have an opportunity to
be heard before the action is taken. Plaintiff had prior notice and
several opportunities to be heard. Plaintiff has not established a due
process violation in connection with the wetlands notification.
“piaintiff may be confused by a 1990 change regarding wetlands
determinations. Prior to 1990, the USDA’s policy was to undertake a wetland
inventory and notify the affected producers of the wetlands. In Nance County, the
inventory was completed, and was transferred to the ASCS’s maps. Before notification
to producers of the wetlands determinations had gone out, 1990 amendments to
Swampbuster were enacted, and the agency was advised not to send any notices of
agency-initiated wetlands determinations to producers. (TR at 136:7-24.) After the
amendments, rather than initiating a blanket inventory of all farm property in a county
to determine the presence of wetlands, the NRCS now makes a determination as to
whether wetlands subject to Swampbuster restrictions are present only upon written
requet of the producer. (See A.R. at 97, 99 (extracts from 1996 and 1995 National
Resources Conservation Service, USDA, National Food Security Act manuals).)
Plaintiff may be arguing that any determination by the NRCS prior to 1990 as to
whether wetlands were present on Sites A and B is invalid because he did not receive
notice or an opportunity to appeal. This ignores the fact that the agency-initiated
process of determining whether wetlands were present on Plaintiff's land was not
completed prior to 1990, and no adverse action was taken with respect to any such
partially-completed, agency-initiated determination.
App. 19
2. Exclusion of Witnesses
Plaintiff asserts that he was unreasonably prevented from
presenting witnesses at the NAD hearing in a manner that violated due
process. This contention is without merit. The NAD hearing was held
pursuant to the regulations establishing rules of procedure for NAD
hearings (7 C.F.R. part 11). There is no prehearing discovery, though
the Hearing Officer establishes a reasonable deadline by which the
appellant and the agency must submit specified documents. Both the
appellant and the agency are required to submit “[a[ list of anticipated
witnesses and brief descriptions of the evidence such witnesses will
offer.” 7 C.F.R. § 11.8(cX2). The regulation governing conduct of the
hearing provides that “[t]he Hearing Officer may confine the
presentation of facts and evidence to pertinent matters and exclude
irrelevant, immaterial, or unduly repetitious evidence, information, or
questions,” and that “[w]hen appropriate, agency witnesses requested by
the appellant will be made availabie at the hearing.” Id. § 11.8(c)(5)ii).
Plaintiff refused to comply with these provisions after being notified of
them several times. As a consequence, Plaintiff was not permitted to
call witnesses to present live testimony before the NAD Hearing
Officer, though he was permitted to supplement the record of the NAD
hearing with notarized written statements of several people he had
proposed to call as witnesses.
During a May 20, 1997 prehearing telephone conference, there
was an extensive discussion of witnesses to be called by the parties.
Plaintiff identified only four potential witnesses, all current or former
agency employees (Willits, Lassek, Barnes and Gilg). The discussion
of identification of potential witnesses took place in the context of the
need for the agency to determine whether it objected to the particular
agency witnesses Plaintiff sought to call (Prehearing T. at 7, 16-28, 31).
App. 20
There was no specific discussion of the need to summarize the
testimony of proposed witnesses, and if the only notice to Plaintiff
regarding required disclosure in connection with witnesses he sought to
call had been the prehearing telephone conference, Plaintiff might have
a valid due process claim. However, Plaintiff received several later
notices of the required prehearing disclosure regarding proposed
witnesses.
The notice of hearing mailed May 21, 1997 specifically directed
plaintiff to provide a summary of the witnesses he wished to call (A.R.
at 351-354) This is the first clear notice to Plaintiff of the witness
restrictions. In response, Plaintiff submitted a letter dated may 22, 1997
listing eight current or former agency employees he sought to call as
witnesses and nine other proposed witnesses (A.R. at 350). There was
no summary of the expected testimony of these seventeen proposed
witnesses.
Plaintiff's May 22 letter was sent to Mark Bowen, the State
Executive Director of the FSA, who notified Plaintiff by June 4, 1997
letter that the agency did not think seventeen witnesses were necessary,
and noted that at the prehearing conference Plaintiff had identified a
total of four potential witnesses (A.R. at 349).'' This letter from Bowen
noted that the State NRCS office had identified four agency employees
who would be witnesses for the agency (Rasmussen, Jasmer, Gilg and
Huntwork) and that the agency would not object if the agency’s
witnesses also testified for Plaintiff.'? Bowen’s letter also contained the
"This iS significant because the Hearing Officer who conducted the prehearing
conference would not have been too concerned about hearing repetitive testimony if
Plaintiff called only four witnesses. There is a much greater likelihood that the
testimony of proposed witnesses would be repetitive if there are seventeen witness than
four witnesses.
'2Three of the agency employees listed by the agency as witnesses for the
agency were also identified by Plaintiff as potential witnesses for Plaintiff (Rasmussen,
Jasmer, and Gilg) in Plaintiff s May 22 letter.
App. 21
statement that any witnesses called, whether or not agency employees,
would have to have knowledge of information that was not available
from other sources. This is the second clear notice to Plaintiff of the
witness restrictions.
Plaintiff sent a letter dated June 7, 1997 to Hearing Officer
Handley asking Handly to “please indicate to me what you wish for
documentation” (A.R. at 347), despite the fact that he ahd been clearly
directed, at least twice, to submit a summary of the expected testimony
of his proposed witnesses. Hearing Officer Handley responded to
Plaintiff's query by June 13, 1997 letter ( A.R. at 345-46). Handley’s
letter advised Plaintiff to review the Notice of Hearing, as it listed the
reuired documentation (and the Notice of Hearing clearly called for a
summary of the testimony of proposed witnesses). Handley’s letter also
made it clear that Plaintiff could not call any person as a witness unless
that proposed witness possessed information that was pertinent and
necessary, and could not be obtained except through the testimony of
the proposed witness. The letter also stated that the Hearing Officer
could exclude from the record evidence that was irrelevant, immaterial,
or unduly repetitious. This was the third clear notice to Plaintiff of the
witness restrictions.
On June 14 and 15, Plaintiff sent letters to Bowen and Handley
flatly stating that he would not change his witness list or summarize the
expected testimony of his proposed witnesses (A.R. at 343, 342). Ina
June 18 letter to Hearing Officer Handley Plaintiff stated that if all
agency witnesses he had previously requested were not present at the
hearing (then scheduled to be June 23, 1997) he would request that the
hearing be recessed (A.R. at 341).
Ann Gilbert, the Acting Assistant Director of NAD, then sent
Plaintiff a letter dated June 18, 1997-the fourth clear notice to Plaintiff
of the witness restrictions (A.R. at 339-40). Gilbert’s letter recited that
Plaintiff had been provided a copy of the NAD regulations and
summarized the regulations regarding witnesses, particularly 7 C.F.R.
App. 22
§§ 11.8(c(5). The letter explained that the Hearing Officer could not
determine whether witnesses should be required to appear without a
brief description of the evidence Plaintiff's proposed witnesses would
offer, and that the hearing then scheduled for June 23, 1997 was
postponed “until the witness information is provided to the Hearing
Officer.” (Id.)
Plaintiff responded with a letter to Gilbert and Handley, again
refusing to specify the expected testimony of proposed witnesses,
making the blanket statement that “all witnesses have been involved
with or have knowledge of the area in question which is the basis of this
hearing through either private or governmental contact,” and asserting
that the witnesses would be objective and uncoached (A.R. at 336).
This did not solve the Hearing Officer's problem-—the Hearing Officer
had an obligation to exclude irrelevant, immaterial, or unduly
repetitious evidence, and to require agency employees to be made
available to Plaintiff as witnesses at the hearing only if appropriate. See
7 CER. § 11.8(cX5Xii). The Hearing Officer could not make the
necessary determinations without a summary of the expected testimony
to be elicited from Plaintiff's seventeen proposed witnesses.
Plaintiff had abundant notice of the witness restrictions and
chose not to submit a summary of the expected testimony of his
proposed witnesses. As a consequence, he was not permitted to call his
witnesses to testify at the hearing. However, he was permitted to call as
his own witness three of the four agency witnesses. The Hearing
Officer’s decision not to allow Plaintiff to call other witnesses was not
a due process violation, particularly in light of the fact that Plaintiff was
permitted to supplement the violation, particularly in light of the fact
that Plaintiff was permitted to supplement the record after the hearing,
and chose to submit verified written statements of only some of the
persons he had identified as his seventeen proposed witnesses (Fred
Whitney, “Bud” Santin, Frank Santin, Jr., John Santin, and Dale Lesiak)
(A.R. at 267-84). If Plaintiff wanted testimony of his other proposed
witnesses to be part of the record, he could have supplemented the
record with notarized written statements from those witnesses. He
App. 23
chose not to. Plaintiff has made no showing that alleged irregularities
in the hearing prejudiced him, and in fact stated at the hearing that he
thought the hearing had been fair.’’ Plaintiff may not like the procedural
rules governing appeal hearings before the NAD, but the actions by the
Hearing Officer regarding Plaintiff s proposed witnesses did not violate
due process.
3. Hearing Before NAD
Plaintiff has alleged several improprieties in the hearing
before NAD. I will briefly address those allegations to explain my
finding that Plaintiff has not proven any_improprieties, and that there
were no due process violation in the conduct of the hearing.
Reliance on Allegedly False Statement
A July 11, 1997 letter from Gerald Jasmer (state wildlife
biologist with the NRCS) to Darlene Wyrick of FSA was submitted by
the agency to supplemrent the record of the NAD hearing (A.R. at 25).
Plaintiff asserts that a sentence in Jasmer’s letter'* mischaracterized the
written statement of “Bud” Santin (submitted by Plaintiff to supplement
the record (A.R. at 276-77 and 281), and asserts that since the NAD
wrongly refused to allow Mr. Santin to testify, “Mr. Jasmer’s statement
could not be identified as a blatant lie. . . .” (P.’s Sept. 14, 1999 Br.
(Rev. Copy) at 12.) I have already explained that the NAD Hearing
"At the end of the hearing, Plaintiff was asked by the Hearing officer if he felt
he had been able to present the information he needed to give. In response, Plaintiff
stated “Yes, in fact | think you’ ve been very fair in this hearing.” (TR. At 140:14-15.)
As the hearing was closing, Plaintiff was asked if he had other questions and he stated
in response: “Just I want to say one thing. I think you did a very good job in handling
the hearing.” (TR. At 147:4-5)
'**Mir. Prokop’s assertion that the area was ‘formerly non-wetland’ is not
correct according to our information and was even born [sic] out in one of the witness
letters that the area was ‘always wet.” (A.R. at 25)
App. 24
Officer’s decision not to allow Plaintiff's proposed witnesses to testify
did not violate due process. That leaves Plaintiff's allegation that
Jasmer’s statement was false, and that reliance by the NAD Hearing
Officer and NAD Director on this false statement violated due process.
“Bud” Santin’s written statement provides as follows:
I have custom farmed Robert Prokop’s 130 acres
on which the Wetlands Determination has been made.
[sic] for 20 years. The Southeast corner which contains
a dry creek channel which courses through the property,
because of
standing water after drainage from Fred Whitney’s farm
which drains the Northern Sections of land toward to
[sic] Loup River and enters Prokop’s property through a
large culvert under the gravel road. The serious
difficulty in farming this area started about ten years
ago.
_. . [discussion of the beaver dam in the canal
and resulting problems]
___ The cattails and other vegetation on the bank
started about ten years ago when the beavers had
dammed the canal on Frank Santin’s property. . . .
Since Robert Prokop dredged out the nver creek
channel, the wetness problem that was present in the
farming operation has markedly decreased .. .
With adequate drainage, there would be no water
standing in the dry creek bed and the wet saturated soil
that has been a problem in the immediate area of the dry
creek bed would be dried up allowing easier farming
processes and operation.
App. 25
(A.R. at 267-77) (emphasis added). Plaintiff asserts that the “always
wet and difficult to farm” statement is totally qualified by the statement
that “[t]he serious difficulty in farming this area started abut ten years
ago.” In other words, Plaintiff asserts that the two highlighted phrases
mean that the area became wet and difficult to farm only 10 years ago,
when the beaver activity started. However, it is equally plausible to
conclude that in fact the area has “always” been wet, but that the
wetness was not a serious problem until compounded by the beaver
activity. Other parts of the record support the latter interpretation-that
used by Jasmer in his letter. See, e.g., A.R. at 267, 269, 276 (Site A is
natural drainage way carrying precipitation and snow melt), 209, 215
(Site A and Site B both have hydric soil); TR. at 91-93 (intermittent
stream and natural wetland have existed on Site B since at least the
1960's). In summary, Jasmer’s statement was not false. Reliance upon
this statement by the NAD Hearing Officer and Director did not
constitute a due process violation.
Alleged improper influence by State FSA Director
Plaintiff asserts that Bowen, the State FSA Director, improperly
influenced appeals of the wetlands determination. This assertion is
apparently connected to Plaintiff's misunderstanding of the process used
by the Hearing Officer to determine whether proposed witnesses at the
hearing have relevant information not available from other sources that
is not unduly repetitious, and whether it is appropriate for agency
employees to be made available to Plaintiff as witnesses at the hearing.
The assertion that Bowen improperly influenced appeals of the wetlands
determination is without merit.
In response to the notice of the NAD hearing mailed May 21,
1997 (A.R. at 351-54) Plaintiff submitted a letter dated May 22, 1997
listing a total of seventeen witnesses he proposed to call (A.R. at 350),
despite the fact that in a prehearing telephone conference call he had
identified only four potential witnesses. Plaintiffs May 22 letter did not
summarize the expected testimony of these seventeen proposed
App. 26
witnesses. Plaintiff's letter was sent to mark Bowen, the State
Executive Director of the FSA. Bowen notified Plaintiff by June 4,
1997 letter that the agency did not think seventeen witnesses were
necessary (AR. At 349). Bowen’s letter to Plaintiff noted that the state
NRCS office had identified four agency employees who would be
witnesses for the agency (Rasmussen, Jasmer, Gilg, and Huntwork) and
that the agency would not object if its witnesses also testified for
Plaintiff. (Plaintiff s May 22 letter listed eight current or former agency
employees as potential witnesses, including Rasmussen, Jasmer, and
Gilg.)
Regulations governing NAD hearings provide that during the
time between the filing of an appeal and the issuance of a final
determination by the NAD, no “officer or employee of the Division
{shall] engage in ex parte communication regarding the merits of the
appeal with any person having any interest in the appeal pending before
the Division, including any person in an advocacy or investigative
capacity.” 7 C.F.R. § 11.7(aX(1). The regulations further provide that
this prohibition does not apply to “[d]iscussions of procedural matters
related to an appeal.” Id § 11.7(aX1\XI). This ban on ex parte
communication does not apply to the NAD’s determination to give
Bowen a copy of Plaintiff's May 22 letter listing potential witnesses, as
discussion of witnesses under these circumstances was a discussion of
procedural matters related to an appeal. This is particularly true in light
of the fact that the Hearing Officer of the NAD may issue a subpoena
for a witness only if the party proposing to call the witness
has established that either a representative of the
Department or a private individual possesses
information that is pertinent and necessary for disclosure
of all relevant facts which could impact the final
determination, that the information cannot be obtained
except through testimony of the person, and that the
testimony cannot be obtained absent issuance of a
subpoena.
App. 27
7 C.F.R. §m11.8(aX2\iii/B). Furthermore, whether or not the
testimony can be obtained without a subpoena, “the Hearing Officer
may confine the presentation of facts and evidence to pertinent matters
and exclude irrelevant, immaterial, or unduly repetitious evidence,
information, or questions. . . When appropriate, agency witnesses
requested by the appellant will be made available at the hearing.” Id. §
11.8(c(4(11). The decision to exclude Plaintiff's proposed witnesses
was made by the Hearing Officer, albeit after input from Bowen.
Hearing Officer’s Failure to Provide Pretrial Transcript
Plaintiff asserts that “[i]n a portion of the manuel [sic] not
included in the Administrative Record, there is a provision that the
Hearing Officer will provide the Plaintiff/Appellant a pre-trial transcript
before continuing his determination.” P.’s Pretrial Br. At 10. Plaintiff
does not provide a copy of or a specific citation to this alleged
requirement, and the proceeding before the NAD Hearing Officer is an
appeal of an agency decision and not a trial, so it is difficult to
determine what Plaintiff refers to. The regulations do provide that
“[t]he Director, the Hearing Officer, and the appellant shall have access
to the agency record of any adverse decision appealed to the Division
for a hearing. Upon request, the agency shall provide the appellant a
copy of the agency record.” 7 C.F.R. § 11.8(a1 emphasis added).
However, Plaintiff has provided no evidence to indicate that he
requested and was not provided a copy of the agency record.
Field Visits Were Shams Because Agency Employees Did Not Carry
Agency Manual, Rules and Regulations With Them on Visit
Plaintiff asserts that all investigative teams on field visit must
Carry the agency manuals, rules and regulations with them on the field
visit. He alleges that the agency employees making field visits to his
farm did not carry this material with them, and the fact that they did not
indicates that the field visits were shams, intended to provide
documentation of the agency’s predetermined conclusion that the sites
App. 28
in question were. wetland. Plaintiff cites no law in support this
assertion, and it is without merit.
Incompleteness of Agency record
Plaintiff asserts that the agency record is incomplete, arguing
that several necessary letters and other information he deems material
are not in the record. Plaintiff mischaracterizes the nature of this
judicial review of the final agency decision. This court’s sole task is to
determine whether the existing record supports the determination of the
agency. If it does, then it is irrelevant that Plaintiff wishes that
additional data was in the record. If Plaintiff considered the NAD
D. DAMAGES
Plaintiff's Pre-Trial Brief continues to assert his request for an
award of consequential damages resulting from the agency’s action.
Jurisdiction in this case is based on 28 U.S.C. § 1346 and the
Administrative Procedures Act, 5 U.S.C. §§ 701, et seq. (Filing 1,
Complaint 3). However, this court is without jurisdiction to award
damages in this case.
Absent a waiver of sovereign immunity, this court is without
jurisdiction to award monetary relief against the United States.
955 F.2d 571, 576 (8" Cr. 1992), cert, denied, 506
U.S. 819 (1992). See also United States v. Mitchell, 463 U.S. 206, 212
(1983). There is no waiver of sovereign immunity in 28 U.S.C. § 1346
702 expressly limits review under the Administrative Procedures Act to
actions “seeking relief other than money damages.”
A party may obtain monetary relief under the APA only where
,
;
y
|
4
App. 29
the judgment represents benefits or payments withheld as part of the
agency determination, rather than consequential damages resulting from
the agency action. Bowen v. Massachusetts, U.S. 879, 893 (1988)
(federal agency administered medicaid grant program and state sought
payment by federal agency of grant moneys it had been deprived of
rather than monetary compensation for a wrong suffered: money
damages limitation in § 702 did not bar the state’s suit because the state
sought declaratory and injunctive relief and the monetary aspects of the
relief sought were not “money damages” within the meaning of § 702).
aryle ep’ an Ré Department of Hez
and Human Serv., 763 F.2d 1441, 1446 (D.C. Cir. 1985), Esch v.
Yeutter, 876 F.2d 976, 981 (D.C. Cir. 1989).
In this case, the agency determination did not result in the
withholding of any program payments due to Plaintiff. This case began
when Plaintiff sought permission to clean out a canal on property
abutting Plaintiff's farm, and the agency granted Plaintiff permission to
clean out the canal. This court is without jurisdiction to award
consequential money damages in this action.
Ill. CONCLUSION
The case before’ this court is the sixth review of the
determination that Sites A and B are wetlands subject to Swampbuster
restrictions. In the course of this review and appeal process, there were
two separate field visits by agency employees (with different agency
employees on each visit). Plaintiff has exhausted all administrative
remedies by appealing the determination through all agency channels.
He has received the full measure of due process to which he was entitled
and has been granted permission to take the action affecting his property
which he sought to take—he has received permission to clean out the
canal on his neighbor’s property despite the fact that this action would
affect the “farmed wetland pasture” identified on Plaintiff's land. The
agency has even invited Plaintiff to request another determination if
Sites A and B dry up significantly after regular maintenance of the
App. 30
canal. I find that there has been no abuse of discretion by the NAD
director in upholding the determination that Sites A and B are farmed
wetland pasture within the meaning of 16 U.S.C. §§ 3821-23.
IT IS ORDERED that the determination that the land is farmed
wetland pasture is affirmed. Judgment for Defendant will be entered by
separate order.
DATED this 29" day of March, 2000.
BY THE COURT:
“s/ Richard G. Kopf”
Richard G. Kopf
United States District Judge
q
4G
q
£
App. 31
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 98-2754
Filed - 4:96cv 3034
U.S. District Court
Keith Barthel; Dorothy Barthel, * District of Nebraska
° 99June21am8:52
Appellants, * — Gary D. McFarland, Clerk
* Appeal from the United States
V. * District Court for the District of
* Nebraska
*
United States Department of °
Agriculture, Daniel Glickman, °
Secretary, .
ey
Appellee. a
Submitted:January 21, 1999
Filed: June 18, 1999
Before McMILLIAN, BEAM, and LOKEN, Circuit J udges.
BEAM, Circuit Judge.
Keith and Dorothy Barthel (the Barthels) appeal the district court's
decision upholding the United States Department of Agriculture's
App. 32
(USDA) limitation on the dredging of a drainage ditch..
' The limitation leaves the Barthels' hay meadow flooded. We reverse
and remand
1. BACKGROUND
In 1916, the South Fork of the Elkhorn river was straightened to
improve drainage. The straightened portion, referred to as "the ditch,"
allowed certain land to be used for hay and pasture. The ditch was
dredged in 1951 to clean out obstructions and silting which had
occurred through the passage of time and caused water to backup. In
1957, the Barthels purchased their 450-acre hay meadow. The meadow
is drained by the ditch which runs along the south side of the Barthels'
property. The ditch also runs on adjacent property owned by Gene and
Erna Liermann. The Liermanns' land is directly downstream from the
Barthels' tract.
The Barthels, together with a neighbor, dredged the ditch again
in 1983. The Liermanns gave permission for this work to be done to the
portion of the ditch on their land as well. The following year the county
replaced a culvert under a county road where it crosses over the ditch.
Road department workers testified that sometime in 1986, the culvert
was lowered by approximately eighteen inches. In the interim period,
on December 23, 1985, the Food Security Act (the Act) became
effective. The Act contains federal Swampbuster provisions aimed at
preserving wetlands. See Gunn v. USDA,, | 18 F.3d 1233, 1235 (8th
Cir. 1997), cert. denied, 118 S. Ct. 1042 (1998).
By 1987, the ditch had again become obstructed with debris and
clutter, allegedly caused by the Liermanns' cattle crossing the ditch. The
Barthels sought to dredge the ditch on the Liermanns' property or in the
alternative have the Liermanns clean that portion pursuant to their state
App. 33
law obligations. This time the Liermanns refused, and eventually the
Barthels filed suit in Nebraska state court. A mandatory injunction was
issued requiring the Liermanns to clean out the portion of the ditch on
their property "so that water will flow." Admin. R. at 327 (state court
injunction).
' The Barthels also filed a motion asking that we consider certain color
photographs. We ordered the motion taken with the case, and now deny the request.
The administrative record contains several adequate representations and other
\ supporting photographs.
Because cleaning and maintenance of the ditch impacted a potential
wetland area, the USDA,’ the agency responsible for enforcement of the
Swampbuster provisions, became involved. Initially, the USDA
determined that the cleaning and maintenance required by the state
court did not violate any Swampbuster provisions However, after the
Liermanns appealed, the USDA reversed course. Based upon reliable
evidence that the culvert was lowered eighteen inches in 1986, the
USDA determined the grade and depth of the ditch required under the
Swampbuster provisions and implementing regulations, and refused to
allow dredging that exceeded eighteen inches above the bottom of the
downstream culvert. At that level and grade, the Barthels' hay meadow
is flooded.
Following exhaustion of administrative appeals, the Barthels
brought suit in federal district court. The district court affirmed the
USDA's decision, and the Barthels appeal. The Barthels argue that the
agency interpretation of the federal statute is incorrect. They contend
that although they were able to produce hay, and pasture their milk cows
on the land before December 23, 1985, the agency's determination has
left their land completely and permanently underwater.°
ll. DISCUSSION
"In order to combat the disappearance of wetlands through their
conversion into crop lands, Congress passed a law known commonly as
App. 34
'Swampbuster.” Gunn, 118 F.3d at 1235 (citing Food Security Act of
1985 §§ 110 1, 1221-23, 16 U.S.C. §§ 3801, 3821-24). The law denies
eligibility for several federal farm-assistance programs if
>This function is delegated to the Soil Conservation Service (SCS) which has been
replaced by the National Resource Conservation Service (NRCS). 7U.S.C. § 6962. For
simplicity, the SCS or NRCS will be referred to as "the agency” or the USDA.
’The Barthels also question several procedural deficiencies. In light of our conclusion,
we need not address these issues.
wetlands are converted to agricultural use. See National Wildlife Fed'n
v. Agricultural Stabilization and Conservation Serv., 955 F.2d 1 199,
1200 (8th Cir. 1992). In addition, the law provides for exemptions,
namely wetlands that were converted before December 23, 1985-the
effective date of the law.’ See Gunn, 118 F.3d at 123 5. Land meeting
this exemption can be maintained as it was prior to the effective date of
the Act without loss of federal benefits. Neither the Barthels nor the
USDA dispute that the land in question here, a 450-acre hay meadow,
was altered by the ditch and drained prior to the effective date of the
Act. See Barthel v. Glickman, No. 4: 96CV3034, mem. op. at 7 (D.
Neb. May 1, 1998). The only dispute is the extent to which the land
was altered and can now be maintained. The Barthels contend that the
land was previously used for hay production and pasture and should be
maintained at the level of prior use. The USDA argues that the current
level of the ditch should be maintained, whatever the effect upon the
property.
‘The statute provides in pertinent part:
(6A) The term ‘converted wetland’ means wetland that has been drained,
dredged, filled, leveled, or otherwise manipulated (including any activity that
results in impairing or reducing the flow, circulation, or reach of water) for the
purpose or to have the effect of making the production of an agricultural
a
be
“
rg
3
a
+
App. 35
commodity possible if-
(i) such production would not have been possible but for such
action; and
(ii) before such action-
(I) - such land was wetland; and
(Il) such land was neither highly erodible land
nor highly erodible cropland.
(B) Wetland shall not be considered converted wetland if production of an agricultural
commodity on such land during a crop year-
(i) is possible as a result of a natural condition, such as
drought; and
(ii) is not assisted by an action of the producer that destroys
natural wetland characteristics.
16 U.S.C. § 3801.
(a) Production on converted wetland
Except as provided in this subchapter and notwithstanding any other provision of law,
any person who in any crop year produces an agricultural commodity on converted
wetlands as determined by the
The regulations implementing the Swampbuster provisions
classify the Barthels' land as "other wetland area” because it is
seasonally flooded or ponded but was "manipulated prior to
December 23, 1985." 7 C.F.R. § 12-32(a)(3) (1992). "Persons may
continue to farm such wetlands ... as they did prior to December 23,
1985. However, no action can be taken to increase effects on the
water regime beyond that which existed on such lands" on or before
that date. Id. § 12.33(a) (1 992) (emphasis added).
As noted, the Barthels had manipulated the water regime on
their land before the effective date of the Act by improving drainage.
The record provides uncontroverted examples of this. When the time
came to clean the drainage ditch, the USDA denied permission despite
a state mandatory injunction. The agency denied permission based
upon the National Food Security Act Manual (the Manual), which
more specifically defines the technical application of the Swampbuster
provisions. See id. § 12.6(c).
App. 36
The Manual classifies the Barthels'land as "farmed wetland
pasture or hayland.” See NFSAM § 514.23.° For farmed wetlands the
Manual provides that the land can be used as it was before December
23, 1985, including "managed for pasture or hayland and the drainage
or other hydrologic manipulations can be maintained, but not
improved." Id. § 514.23(d). The Manual goes on to state that a
Secretary, shall be-
(1) _ in violation of this section, and
(2) ineligible for loans or payments in an amount determined
by the Secretary to be proportionate to the severity
of the violation
Id. § 3821 (a).
*The law provides that:
(b) Exemptions
No person shall become ineligible under section 3821 of this title for program
loans or payments under the following circumstances:
(A) A converted wetland if the conversion of the wetland
was commenced before December 23, 1985.
Id. § 3822(b).
hydrologic manipulation can be maintained to the same "scope and
effect" as before December 23, 1985. Id § 515.10(a). The Manual
concludes that the agency "will determine the scope and effect of
original manipulation on all farmed wetlands.” Id. § 515.1 1 (b).
To determine the original scope and effect of the manipulation,
the USDA focused solely on the depth of the ditch that drains the hay
meadow. In essence, the USDA interprets the manipulation to be the
ditch. This led all involved to drudge through the mud of determining
its precise depth. The agency argues, with supporting evidence, that the
level of the culvert on or before December 23, 1985, was eighteen
inches higher than its current level and as a result the ditch can only be
maintained at that level. Unfortunately, this results in flooding on the
Barthels' land. The Barthels challenge the agency's interpretation of the
Swampbuster provisions and argue that maintenance of the
es eee
App. 37
manipulation should allow them to use the land as they did pnor to the
passage of the Act.
"We must uphold the [agency's] decision unless it is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law." Von Eye v. United States, 92 F.3d 681, 685 (8th Cir. 1996)
(quoting 5 U.S.C. § 706(2)A)). -, Yet, an "overreaching and erroneous
interpretation of the statute" cannot be in "accordance with law."
Downer v. United States, 97 F.3d 999, 1010 (8th Cir. 1996) (Beam, J.,
concurring and dissenting). Certainly there is no worse statute than one
misunderstood by those who interpret it. We conclude that the agency's
interpretation misses the clear focus of the Swampbuster provisions and
the implementing regulations.
The Act's proclaimed purpose is to preserve wetlands, or, if wetlands are
altered, to preserve the conditions as altered. The Act says nothing
about preserving the precise depth of drainage ditches or culverts. The
government emphasizes that "[w]etlands are a priceless resource whose
contributions have long gone unrecognized.”
*The Manual provides that "[flarmed wetland pasture or hayland (FWP) are
wetlands that: were manipulated and used for pasture or hayland prior to December 23
1985, still meet wetland criteria, and are not abandoned.” NFSAM § 514.23(a).
Appellee's Brief at 12 (quoting H.R. Rep. No. 99-271, pt. 1, at 87 (I
985), reprinted in 1985 U.S.C.C.A.N. 1103, 1 190). However, a drainage
ditch is not the envisioned protected area. The agency's implementing
regulations also focus on the wetlands. Under the regulations, farming
of a wetland should be maintained at the level that was achieved prior
to the Act. The "water regime” is maintained, not necessarily the ditch
and culvert levels. See, e.g. Gunn, 118 F.3d at 1235 (focusing on the
notion that a person cannot "improve the land's drainage"). As further
evidence of this point, the current regulation on “use of wetland and
converted wetland” provides that changes in the watershed due to
App. 38
human activity which increases the water regime on a person's land, can
result in a person being allowed "to adjust the existing drainage system
_ to accommodate the increased water regime.” 7 C.F.R. § 12.33(a).
This is not to say that the level of a ditch or culvert cannot provide
an accurate indication of the water regime which previously existed. In
fact, the Manual states that "any other available information relating to
systems installed before 12/23/85" can be applicable in determining the
“original scope and effect" of a wetland manipulation. NFSAM § 515.1
1 (e). In the Barthels' case, the USDA's findings for the ditch and
culvert depths apparently conflict with the water regime that existed
prior to December 23, 1985. In such a conflict, the government's
position is that the level of the ditch should win, at the expense of the
prior conditions of the land. In short, the means are more important
than the ends. We disagree. The unambiguous focus of the statute and
implementing regulations is to maintain the status quo of the
manipulated wetlands-not the drainage ditch. And a technical
determination that establishes the level of a culvert in a ditch, but which
produces a result contrary to the previous status quo of the wetlands
cannot stand.’ The statute and regulations mandate that the Barthels
should be able to have the water and farming regime they had before
December 23, 1985.
7An expert should calculate the dredging necessary to allow the Barthels to
have the same use of their land as they did previously. This does not mean that the
Barthels get the same use of their land no matter the circumstances. For example, if
there is high water from unusual amounts of rain, the Barthels cannot automatically dig
the ditch deeper. They cannot exceed the original “scope and effect.” Illustrative of this
point is Keith Barthel's testimony that “traditionally in the spring the ditch would
The burden is on the government to show that the proposed
maintenance, in this case cleaning the ditch so that the hay meadow is
not underwater, exceeds the scope and effect of the original
manipulation. Cf. Downer, 97 F.3d at 1009 (Beam, J., concurring and
dissenting) (stating that it is the burden of the agency to-prove
ineligibility for benefits). However, this does not give the agency the
right to arbitrarily define what the original scope and effect was. Is it
arbitrary, capricious, an abuse of discretion, or otherwise not in
App. 39
accordance with law for the agency to pick an original manipulation
regardless of how it affects the use of the land?
We are presented with a factual setting that is cyclical. The
record shows that the ditch is continually silted-in by natural conditions
and animal traffic and must be periodically cleaned out. If we accept
the government s argument, the USDA could select a level for the
original manipulation, either intentionally or unintentionally, which 1s
at the end of the natural cycle-just before the periodic clean-up. This
would essentially redefine the cycle. Thus, in the government's view,
if partial flooding occurred just before the clean-up, the flood level
would be the best the Barthels could expect for use of their land. An
ipse dixit determination like this would drastically reduce the use of the
land and even leave it underwater-reviving a wetland. Cf, Von Eye, 92
F.3d at 685 (concluding that the agency did not arbitrarily deny an
exemption to the Swampbuster provisions and even allowed "the
advantages of an exemption longer than strictly provided for by the
statute and regulations"). This interpretation conflicts with the Act
considered as a whole.
be frozen for a time and that 100 to 150 acres would flood until the ditch thawed. He
also testified that the reed canary grass could survive this 3- to 4-week flood condition
and, by June, could provide sufficient palatable food to feed all his cattle.” Barthel v.
Liermann, 509 N.W.2d 660, 663 (Neb. Ct. App. 1993).
"It was the Liermanns’ “belief that the dredging of the ditch in 1983 made the
ditch deeper than it originally had been.” Barthel, 509 N.W.2d at 663. At oral
argument, counsel for the government did concede that the Barthels are entitled to the
best drainage of their land, on or before December 23, 1985, that they can prove with
reliable evidence.
Ill. CONCLUSION
Under the federal Swampbuster provisions and the
implementing regulations, the Barthels are entitled to farm their land as
App. 40
they did on or before December 23,1985, so long as the previously
accomplished drainage or manipulation is not significantly improved
upon, so that wetland characteristics are further degraded in a
significant way.” Gunn, 118 F.3d at 1238 (emphasis added). We
therefore reverse and remand this matter to the district court with
instructions that the case be remanded to the agency for a hearing and
determination of the wetland characteristics and associated use of the
Barthels' 450-acre hay meadow, prior to December 23, 1985, and the
necessary dredging and cleaning of the ditch to accomplish that water
and fanning regime.
A true copy.
Attest: ,
CLERK, U.S. COURT OF APPEALS,
EIGHTH CIRCUIT.
App. 41
UNITED STATES DEPARTMENT OF AGRICULTURE
NATIONAL APPEALS DIVISION
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20250
DIRECTOR REVIEW DETERMINATION
In the matter of )
)
Robert Prokop NAD ) Log No. 9700073 1 W
and )
Farm Service Agency )
STATEMENT OF THE CASE
This is a review of a National Appeals Division (NAD) Hearing
Officer determination issued July 22, 1997, that upheld the Farm
Service Agency (Agency) designation of 8.0 acres of Farm Serial
Number (FSN) 1347, Tract 820, Fields 1, 2, and 3 as Farmed
Wetland.
The Hearing Officer determined that the Agency decision was not
erroneous.
The Appellant submitted a written request for review on August 7,
1997.
Upon consideration of the case record, the request for review, the
laws applicable to the matter at issue, and applicable regulations as
defined at 7 U.S.C. 6998(c), the following determinations are made.
App. 42
EVIDENCE
The Hearing Officer's findings of fact (FOF) are supported by
substantial evidence as follows:
1.
i)
4.
Soil mapping was conducted by the Soil Conservation Service
(SCS) in 1955, covering an area which included the Appellant's
FSN 1347. In 1960 a soil survey was issued by the SCS, all of
the land areas in dispute in fields 1, 2, and 3 are shown on that
soil map to be soil type Cs. Soil type Cs is identified as Cass
Fine Sand Loam, having soils with a water table of 0-1 foot and
having hydric soils as inclusions within it. (FOF 2.)
The Appellant began irrigating the land north of field 2 in 1972.
Over the next year or two, the Appellant graded that land so it
sloped consistently from north to south and drained into field 2
and part of field 1. The natural drainage in field 2 was then
enhanced to remove water from the area. (FOF 3.)
Prior to 1985, the areas in dispute were wet and difficult to farm.
In 1995, Frank Santin, who owns property adjacent to the
Appellant, constructed a canal on his property. The canal altered
the naturally occurring watershed which flowed from the
Appellant's property through Mr. Santin's property. After the
canal was constructed, beaver inhabited the canal and dammed it
up, causing water to back up into field 3 of the Appellant's fan-n.
Over the next several years, the darn was tom out at least three
times, only to be reconstructed. In 1995 the dam was removed.
(FOFs 4 and 5.)
On August 6, 1995, the Appellant informed the Agency that he was
going to clean out a portion of the ditch which is in field 3. The
Appellant was notified on November 7, 1995, that the work he wanted
to do was in a wetland. (FOF 6.)
7 RA eA PILED ILE EEN NOLEN EW GS SINE HENS o e ” a
App. 43
CONCLUSIONS
The Hearing Officer's determination is consistent with the laws and
regulations of the Agency and the generally applicable
interpretation of such laws and regulations as follows:
1.
The controlling regulations in this matter are cited at 7 CFR Part
§ 12. Regulations at 7 CFR 12.2 (4) define the characteristics
of a fanned wetland pasture as wetland that was manipulated
and managed for pasture or hayland prior to December 23, 1985,
and on December 23, 1985, met the hydrologic criteria for being
a wetland. This regulation also defines an artificial wetland as
being an area that was formerly non-wetland, but now meets
wetland criteria due to human activities, such as, a wetland that
is temporarily or incidentally created as a result of adjacent
development activity. The Appellant and Agency agree that the
land in dispute currently meets the criteria for being a wetland,
but disagree on how the land came to be wetland. The Agency
has taken the position that land is a naturally occurring farmed
wetland pasture, while the Appellant contends that the land is an
artificial wetland. The soil maps issued in 1960 show that the
land was wetland in 1960. The land became a serious wetland
problem about ten years ago, but that it was difficult to farm due
to standing water prior to that time. Substantial evidence of
record supports the Hearing Officer's determination that the 8.0
acres in question are fanned wetland pastures.
The Hearing Officer conducted an evidentiary hearing in
accordance with 7 U.S.C. §6997.
The statute, at 7 U.S.C.§ 6997(c)(4), provides, "The appellant
shall bear the burden of proving that the adverse decision of the
agency was erroneous." The Appellant failed to prove by a
preponderance of the evidence that the Agency's decision to
App. 44
designate 8.0 acres of Tract 820 as fanned wetland was erroneous.
DETERMINATION
1. The Hearing Officer's determination is upheld.
2. This concludes the administrative appeal of this case
NORMAN G. COOPER, Director Date
App. 45
UNITED STATES DEPARTMENT OF AGRICULTURE
NATIONAL APPEALS DIVISION
In the matter of )
)
ROBERT J. PROKOP ) CASE No. 97000731 W
AND )
FARM SERVICE AGENCY )
DETERMINATION OF APPELLANT'S REQUEST FOR
DIRECTOR'S REVIEW
A request for a Director's review has been received in the above
entitled matter. The review was requested by the Appellant, and is
subject to a determination of completeness pursuant to Title 7 of the
Code of Federal Regulations (7 CFR) Part I 1.9(a). The following facts,
conclusions and determinations are made:
FACTS:
Zz A Hearing Officer from the National Appeals Division
(Division) issued a determination on July 22, 1997.
2. A copy of that determination was mailed postage paid to the
Appellant on the date of issue.
3. The Appellant submitted a written request for review on
August 1, 1997. The request for review was postmarked,
August 1, 1997.
- The Appellant did not personally sign the request for a review
of the Hearing Officer's decision, by the Director of the
App. 46
National Appeals Division.
CONCLUSIONS:
1. 7 CFR Part 1 1.9(a) establishes that a review of the
determination of a Hearing Officer must be personally signed by
the Appellant, contain specific reasons as to why the
determination is wrong, and a copy of the request for review
must be provided to the Agency at the same time it is submitted
to the National Appeals Division.
i)
The Appellant failed to personally sign a review request of the
Hearing Officer's determination by the Director of the National
Appeals Division.
DETERMINATION:
1. The Appellant's request for review of the Hearing Officer's
determination by the Director of the Division is denied pending
receipt of a timely signed review request, which must be
postmarked within thirty (30) days of when the Appellant
received the determination from the Hearing Officer.
2. This is a final decision and is not appealable.
Dated this 5th day of August, 1997.
MARK S. ALCORN
Acting Assistant Director
National Appeals Division
Copies of this Determination mailed postage paid to:
ee
App. 47
DIRECTOR, NAD
APPELLANT:
Robert J. Prokop
P.O. Box 14
Wilber, NE 68465-0014
AGENCY STATE OFFICE:
Farm Service Agency, NE, Attn.: Appeals Coordinator
AGENCY DECISION MAKER/REPRESENTATIVE:
Farm Service Agency
P.O. Box 57975
Lincoln, NE 68505-7975
App. 48
UNITED STATES DEPARTMENT OF AGRICULTURE
NATIONAL APPEALS DIVISION
In the matter of |
Robert Prokop
and
Farm Service Agency
NAD Log No. 9700073 1W
New eee ee ee”
APPEAL DETERMINATION
On May 20, 1997, the above-entitled matter was subject to a preheating
teleconference. Attending the teleconference were Paul R. Handley,
Jr. of the National Appeals Division (Division), appellant Robert
Prokop, and Darlene Wyrick, who represented the decision maker. On
May 27, 1997, the appellant waived his right to have his hearing
conducted within 45 days of the time the request was received by the
National Appeals Division. On June 24, 1997, the appellant notified
the Division he was withdrawing his waiver and demanded that his
heating be held no later than July 7, 1997. Because Hearing Officer
Handley's schedule would not allow him to conduct the hearing within
that time frame, the case was reassigned to a new Hearing Officer. On
July 1, 1997, the above-entitled matter was subject to an appeal hearing
in Omaha, Nebraska. Attending the appeal hearing were Jack L-
Richardson, Hearing Officer of the Division; appellant Robert Prokop,
witnesses G. James Huntwork, William R. Gilg, Gerald E. Jasmer, and
Lyle D. Rasmussen, all of the Natural Resource Conservation Service
(NRCS); and Darlene Wyrick, who represented the decision maker for
Farm Service Agency (FSA). The NRCS is an agency previously
known as the Soil Conservation Service (SCS). The Hearing Officer
has been assigned this appeal in accordance with the provisions of Title
7 of the Code of Federal Regulations (7 CFR ) 11.8.
i
5
Hf
‘
i a Na i a tt he ee i ek al oa cig hnin cihingl te eae
App. 49
The matter on appeal concerns the FSA decision that portions of Farm
Serial Number (FSN) 1347, Tract 820, located in Fields 1, 2, and 3,
contain approximately 8 acres of wetlands This decision was given to
the appellant in a notice dated April 10, 1997, and signed by Bruce C.
Coffey, County Executive Director for the Nance County FSA office.
The reasons given to the appellant for this decision are that the decision
was made in accordance with the guidelines in the FSA office and the
NRCS office at the time the decision was made. It is FSA's position
that the decision is supported by the documentation completed by
NRCS personnel on Form SCSCPA-36, "Wetland Documentation
Record’, and Form SCS-CPA-026, ‘Highly Erodible and Wetland
Conservation Determination’. FSA further asserts that the areas in
question were wetlands pricr to 1972, when the grading was changed
on the land north of field 2, and later when beavers dammed up a canal,
increasing the water in field 3. FSA acknowledges the area has
peculiarities which exist concerning the development of the wetlands,
but asserts that they are, and have been, wetlands. FSA further asserts
that, if drainages are cleaned out and the areas became drier, a request
for a new determination could be made.
It is the appellant's position that the areas in question are artificial
wetlands. The appellant asserts that, prior to 1974, when fields were
graded to change the drainage, the area around fields | and 2 were not
wetlands. The appellant further asserts that the area in field 3 was not
a wetlands until a canal was installed by- an adjacent neighbor, beavers
dammed up that canal, and the water backed onto the appellant's
property, creating a wetlands It is the appellant's position that all the
property identified as wetlands on his property are actually artificial
wetlands, not naturally occurring wetlands.
During the hearing the NRCS clarified that there is a distinct difference
between a farmed wetland pasture (FWP) or other naturally occurring
weOands, and an artificial wetland (AM, in that artificial wetlands are
not subject to regulation by NRCS in accordance with the National
App. 50
Food Securities Act. Consequently, a farmer does not lose his
eligibility for USDA programs due to the manipulation of an artificial
wetland without the consent of the government. The agency and the
appellant stipulated that the areas in question in fields 1, 2, and 3 do
currently meet the criteria for being wetlands, and that the issue in
dispute is whether the wetlands in all three areas are naturally
occurring farmed-wetland pastures or artificial wetlands.
During the hearing the agency objected to six of the appellant's exhibits
which were identified as "Depositions', because the appellant had not
furnished them to the agency in advance of the hearing as required,
because the documents do not contain certifications to the truthfulness
of the information presented. and because the signatures on the
documents were not notarized. The agency was furnished with the
documents prior to the hearing so it had time to prepare for the hearing.
The agency and the appellant did testify about the contents of those
documents, and the record remained open after the hearing to give the
appellant until July 8, 1997, to furnish the necessary certifications and
notarizations. The agency then had until July 15, 1997, to respond in
writing to the appellant's documentation. Also, the agency failed to
include a copy of a portion of handbook 180-V-NFSAM, in their
exhibits. The agency was given until July 8, 1997 to submit that
portion of the handbook, and the appellant had until July 15, 1997 to
make any appropriate written -response. The written responses from
both parties were submitted in a timely manner. On July, 16, 1997, the
hearing record was dosed.
For the record, the appellant objected to the appeal hearing being
conducted without giving the appellant 14 days notice of the hearing.
The objection was denied because it was the appellant's demand, issued
on June 24, 1997, that the hearing be held no later than July 7,1997,
which caused the short notice. It took the Division until June 27, 1997,
to receive the request and reassign the hearing to a new Hearing
Officer. There were only ten days between that date and July 7, 1997,
and those ten days included two weekends and the 4h of July holiday.
App. 51
It was physically impossible to have given 14 days notice and still have
held the hearing by July 7, 1997. Hearing Officer Handley did not have
an opening in calendar which would have allowed him to conduct the
hearing by July 7, 1997, thereby requiring the hearing to be reassigned
to Hearing Officer Richardson. The only date Hearing Officer
Richardson had available to conduct the hearing was July 1, 1997, so
the hearing was conducted on that date. The appellant also objected to
the hearing be reassigned to another Hearing Officer, stating that the
hearing could not be reassigned without his consent, and that he had
not given his consent. That objection was denied for two reasons.
First, the appellant presented no documentation to show that the
consent of any party to the hearing is necessary before a hearing can be
reassigned, and second, it was the appellant's demand which caused to
necessity to reassign the hearing.
Based upon the appeal record and upon all applicable laws and
regulations, the Hearing Officer makes the following findings of fact,
conclusions and determination:
FINDINGS OF FACT
l. The appellant owns farm No. 1347, tract 820, fields 1, 2, and 3
_ Approximately eight (8) acres of the appellant's land presently
meets the criteria for being a wetlands (Agency exhibit DD,
appellant exhibit 7, Agency and appellant's testimony, tape |,
side 1)
Starting in 1955, soil mapping was conducted by the Soil
Conservation Service, covering an area which includes the
appellant's farm. In 1960, a soil survey was issued by the Soil
Conservation Service. AD of the land areas in dispute in fields
1, 2, and 3 are shown on that soils map to be soil type Cs. Soil
type Cs is identified as Cass Fine Sandy Loam, having soils with
a water table of 0-1 foot and having hydric soils as inclusions
App. 52
within R. (Agency exhibit DD - soils map with attached Hydric
Soil Interpretations, J. Jasmer testimony, tape 2, side 1)
In 1972, the appellant started irrigating the land north of field 2.
Over the next year or two, the appellant graded that land so A
sloped consistently from north to south and drained into field 2
and part of field 1. The natural drainage in field 2 was then
enhanced to remove field 3 water from the area. (Appellant's
testimony, tape 2, side 2)
Prior to 1985,-the-areas in dispute were wet and difficult to
farm. (Appellant's exhibit 7 Henry Santin deposition, agency
exhibit DD - soils map)
In 1985, Frank Santin, who owns property adjacent to the
appellant, constructed a canal his property. That canal altered
the naturally occurring watershed which flowed from appellant's
property through Mr. Santin's property. After the canal was
constructed, beaver inhabited the canal and dammed it up,
causing water to back up onto field 3 of appellant's farm. Over
the next several years, the dam was tom out at least three times,
only to be replaced by the beaver. In..1995, the beaver were
destroyed, and the dam removed. (Agency and appellant
testimony in numerous places, appellant's exhibits 2,3,5,6,7)
On August 6, 1995, the appellant informed FSA he was going to
clean out a portion of the ditch which is in field 3. On
September 20, 1995, NRCS signed off on the appellant's form
AD-1026, "Highly Erodible Land Conservation (HEL) and
Wetland Conservation (WC) Certification’. On November 7,
1995, NRCS completed Form SCS-CPA-026, "Highly Erodible
Land and Wetland Conservation Determination’. On November
7. 1995, NRCS notified the appellant that the work he wanted
to do was in a wetlands (Appellant testimony, agency exhibit X,
Z, DD)
App. 53
ANALYSIS
7 CFR 12 is the regulation dealing with wetlands. The agency
determined that there now, and for years have been, farmed
wetland pastures totaling approximately 8 acre,, the appellant's
farm. The appellant agreed during the hearing that the land in
question presently meets the criteria for being a wetlands but he
asserts that the land was not wet before two activities occurred
in 1972 and 1985, which caused the lands to become wet. The
two parties also agreed during the hearing that there is a distinct
difference between farmed wetland pastures and artificial
wetlands.
The decision at issue was defined during the hearing to be
whether the land in question is a farmed wetland pasture or is an
artificial wetlands There is no question but that the 1972
grading of field 1 and the canal constructed by his neighbor in
1985, caused the areas in dispute to become wetter than they
had been prior to those activities. The sole issue to determined
by the Hearing Officer is whether the land in dispute was
already a wetland prior to those activities, as the agency asserts,
or whether the areas were not wetlands prior to those activities,
as the appellant asserts.
The documentation and testimony presented by both the agency
and the appellant support the agency’s position.. First, the
agency presented a soil survey, issued in 1960, which shows the
presence of hydric soils in the disputed areas at that time.
(Agency exhibit DD) Second, the deposition of Henry ‘Bud’
Santin, Jr., shows that the area in dispute ‘has always been wet
and difficult to farm because of standing water...” The same
deposition goes on to say that the 'serious difficulty in farming
this area started alsout ten years ago’. (Appellant's exhibit 7).
App. 54
This clearly shows that a wetland area, which had been
somewhat of a problem, became a serious problem after the
construction of a canal on the neighbors property about ten
years ago. The canal was constructed in 1985, about 12 years
prior the time the deposition was made. It is not reasonable to
assume that the land which was wetland in 1960 somehow
became dry, only to again become wet due to the activities
described by the appellant. The reasonable and logical
explanation is that the wells became more wet after those
activities occurred.
The appellant stresses that the dams built by beaver in a
manmade canal should be considered an artificial source of the
wetlands because the beaver were drawn there by the manmade
structure. The Hearing Officer makes no evaluation of that
position because it is simply not relevant. The agency has
shown that the area was already a wetland prior to the
construction of that canal.
CONCLUSIONS
CFR § 12.2 defines a farmed wetland pasture as wetland that was
manipulated and manage for pasture or hayland prior to Der-
ember 23, 1985, and on December 23, 1985, met the hydrologic
criteria for being a wetlands § 12.2 also defines an artificial
wetland as being an area that was formerly non-wetland, but now
meets wetland criteria due to human activities, such as, among
other things, a wetland that is temporarily or incidentally created
as a result of an adjacent development activity.
In this case the appellant and agency agree that the land in dispute
currently meets the criteria for being a wetlands but disagree on
how the land came to be wetlands The agency has taken the
position that the land is a naturally occurring farmed wetland
pasture, while the appellant's position is that the land is an
App. 55
artificial wetlands The soils map issued in 1960 shows that the
land in question contained hydric soils at that time. This shows
that the lands in question were wetlands in 1960. The man who
has custom farmed the land for many years confirms that land
became a serious wetland problem about ten years ago, but that
it was difficult to farm due to standing water prior to that time.
The agency's decision, that the 8 acres in question are farmed
wetland pastures, is supported by the regulations and the facts.
(FOF 1,2,3,4,5,6)
CFR 11. §11.8(e) requires that the appellant bear the burden of
proving that the adverse decision of the agency is erroneous and
should be reversed. The appellant has not met that burden of
showing that FSA's decision, that the 8 acres in question are
farmed wetland pastures, is in error.
IT IS HEREBY DETERMINED:
The decision by the agency, that a acres located in farm No. 1347,
tract 820, fields 1. 2, and 3, are farmed wetland pastures, is upheld.
The appellant and agency may each obtain a copy of the audio
tapes made of the proceedings of this hearing at no cost. The
appellant and the agency may obtain the copies of the audio tapes
by requesting them in writing from the National Appeals Division
Assistant Director at the address below:
‘Western Assistant Director
National Appeals Division
755 Parfet, Suite 494
Lakewood, CO 80215-5506
The appellant may request a review of this decision in accordance
with the attached "Notice of Right to Request Review and Request
App. 56
for Review’.
Dated this 22™ day of July, 1997.
”
“ : n
JACK L. RICHARDSON
Hearing Officer
National Appeals Division
Attachments: "Notice of Right to Request Review”
App. 57
UNITED STATES DEPARTMENT OF AGRICULTURE
NATIONAL APPEALS DIVISION
In the matter of
ROBERT J. PROKOP AND NAD LOG No. 9700073 1W
FARM SERVICE AGENCY APPELLANT
EXHIBIT: _7_
DEPOSITION OF HENRY "BUD" SANTIN JR.
This statement, given on behalf of the above-entitled case, is given on
the 16th day of June, 1997 in the rural Palmer, Nebraska area
regarding testimony concerning the Farm Service Agency Wetlands
Determination with regard to Robert J. Prokop M.D.
I have custom farmed Robert Prokop's 130 acres on which the
Wetlands Determination has been made. for 20 years. The Southeast —
corer which contains a dry creek channel which courses through the
property, has always been wet and difficult to farm because of standing
water after drainage from Fred Whitney's farm which drains the
Northern Sections of land toward to Loup River and enters Prokop's
property through a large culvert under the gravel road. The serious
difficulty in farming this area started about ten years ago.
At that time, beavers moved into a canal that was constructed before
] started farming the property and built several dams. These dams
backed up water into the dry creek bed and became serious enough to
flood out crop land. These problems usually began after high rainfall
but the creek became active in the spring when snow melted. The
beavers had made dens into the side of the canal under Prokop's land
App. 58
and when heavy machinery was in the area, it occasionally would
buckle the ground and make farming extremely difficult.
A number of the beavers were killed and they finally moved out about
two years ago. The dry creek bed which was on Robert Prokop's
southeastern comer, contained vegetation, muck, crop residue such as
stalks, and grassy material. The cattails and other vegetation on the
bank started about ten years ago when the beavers had dammed the
canal on Frank Santin's property. Frank Santin had also had the dams
removed several times from the canal but the beavers would move
back in and were only stopped when they were killed.
Since Robert Prokop dredged out the river creek channel, the wetness
problem that was present in the farming operation has markedly
decreased. Water still stands in the creek bed because at the fence line,
Frank Santin, who owns the adjacent property, has not removed the silt
and vegetation that blocks the creek bed and channel to his canal.
This in turn continues to place water in the dredged out dry creek bed
on Prokop's Southeast corner.
With adequate drainage, there would be no water standing in the dry
creek bed and the wet saturated soil that has been a problem in the
immediate area of the dry creek bed would be dried up allowing easier
farming processes and operation.
‘ “ 79 : ”
i
HENRY “BUD” SANTIN JR.
RFD #2, Box 143
Palmer, Nebraska 68864
DATED June 16", 1997.
App. 59
UNITED STATES DEPARTMENT OF AGRICULTURE
NATIONAL APPEALS DIVISION
In the matter of )
)
ROBERT PROKOP ) NAD Log No. 97000731W
)
and )
- )
FARM SERVICE AGENCY )
NOTICE OF RESPONSE TO APPELLANT'S REQUEST FOR
WITNESS APPEARANCE
The Appellant has requested the presence of Agency employees to
serve as witnesses during the upcoming hearing. Upon reviewing all
available information, the following Determinations have been made:
1. On May 22, 1997, the Appellant requested the presence of seven
current and one retired Agency employee at the administrative
appeal hearing.
2. On June 18,1997, the Western Regional Office of the National
Appeals Division (Division) notified the Appellant that he must
submit specific information to the Hearing Officer about the
requested witnesses before a determination would be made as to
the necessity of their presence,
3. On June 26, 1997, the appeal was reassigned from Hearing
Officer Paul Handley to Hearing Officer Jack Richardson. The
appeal hearing is scheduled for July 1, 1997, in Omaha, Nebraska.
App. 60
The Appellant has not presented information which would
explain what specific information the requested witnesses would
provide, why that information would be relevant to the adverse
decision, or why that information cannot be presented by
witnesses of the agency who will attend the hearing. The
Appellant's request for the presence of the additional witnesses
is denied.
The Appellant has also furnished “depositions” for Fred
Whitney, Frank Santin, Jr., Eugene Lassek, Dale Lesiak, John
Santin, and Henry "Bud" Santin, Jr. The documents do not
contain a statement which affirms the accuracy of the
information being presented, and none of the signatures are
notarized so the identities of the authors are confirmed.
If the aforementioned persons are not going to be present at the
hearing as witnesses, the documents should be formalized to
confirm the accuracy and identity of the witness. If those
persons will be présent at the hearing, no formalization of the
depositions is necessary.
Dated this 26" day of June, 1997.
“sv/ANN S/ GILBERT”
ANN S. GILBERT
Acting Assistant Director
National Appeals Division f
Copies of this Notice mailed postage paid to:
APPELLANT
Robert Prokop
P.O. Box 14
Wilber, NE 68465-0014
App. 61
AGENCY STATE OFFICE
Nebraska State FSA Office - Attn: Appeals Coordinator
AGENCY REPRESENTATIVE
Darlene Wyrick
Farm Service Agency
P.O. Box 57975
Lincoln, NE 68505-7975
NAD Hearing Officer - Jack Richardson
App. 62
UNITED STATES FARM NANCE COUNTY FSA OFFICE
DEPARTMENT SERVICE P.O. BOX 488
OF AGRICULTURE AGENCY FULLERTON NE 68638
April 10, 1997
ROBERT PROKOP
PO BOX 14
WILBER NE 68465-0014
Dear Robert:
After careful consideration, the County Committee (COC) was unable
to take favorable action on your request to have the wetland call on Farm #
1347 tract 820 Field #3 determined in error. The specific reasons for the
COC,s action are as follows:
No determination could be made by the COC that the Farmed wetland
Pasture call was incorrectly made by the State conservationist. The
COC does acknowledge that you state no wetland exists based on the
fact proper drainage has not occurred on the drainage canal to the
North of Field #3. You state that the improper maintenance of the
drainage canal over many years has backed up the water onto the area
designated as Field #3. You, also state that the new wetland rules have
several references to the handling of artificially created wetlands.
Furthermore you note the beaver dams on the drainage canal have also
contributed to the development of hydrophytic vegetation aud hydric
soil which bas occurred on the area. Lastly, you contend you were
required to be officially notified of wetland existence according to the
1905 law. Thus, you state since you received no notification, you can
not be told now that a wetland does exist. You are worried that once
a “wetland always a wetlands”, will be the common procedure
followed by government agencies.
App. 63
COC Decision:
The COC does admit that the area has peculiarities which do
exist concerning the development of a wetlands However, based
on the guidelines currently in the FSA office and the NRCS
office the wetland determination is not determined to be in
error. The NRCS has documented the reasons for the call on
Form SCS-CPA-36 and the Nebraska State Conservationist has
reviewed this determination as stated in the letter to you dated
May 30, 1996. The COC also, notes the letter does State that if
the area North of Field #3 had the drain cleaned out and
designated Field #3 became drier, a request for a new
determination could be made. Thus, based on the current office
guidelines and the documentation completed by the NRCS
personnel (SCS-CPA-36 Wetland Documentation Record and
SCS-CPA-026 Highly Erodible and Wetland Conservation
Determination), the COC can find no reason to state an error
occurred in the wetland determination. This decision is basted
on Handbook 6-CP (Rev. 2) paragraphs 18, 200, 403. and 5 10.
If you believe this decision or the facts used in this case are in error,
you may pursue any or all of the following options .
Reconsideration
If you have questions concerning this decision Or the facts used in
making it and desire further explanation, you may write the Nance
County FSA Office at Box 488, Fullerton, NE 68638, to request
reconsideration by the COC. This written request must be received in
the County office no later than 30 days from the date of this letter.
You must present any now information, evidence and/or Possible alternatives
along with your request. You may also bring a representative or legal counsel
with you to any meetings that may result from your request for
reconsideration. You may skip this step in the informal process and select one
App. 64
of the following options. If you do, you will automatically waive your right
to reconsideration.
Mediation
You have he right to request mediation of the issues in this decision.
Informal mediation may enable us to narrow and resolve these issues
by agreement. If you request mediation, FSA will assist you in
deciding whether mediate our decision, you may contact the Nebraska
Farm Mediation Service at 1-800-446-4071. If you decide to mediate,
your must request mediation within 18 calendar days of the date of this
letter. Send your request to the Nance County FSA Office at box 488,
Fullerton. NE 68638. Each party to a mediation will pay a $20.00 per
hour fee. If mediation does not result in resolution of these issues, you
have the right to continue with a request for an appeal hearing as set
forth below. When mediation is concluded you will be notified of the
result and the number of days remaining to request an appeal, if
applicable. Mediation does not take the place of, or limit your rights
to, an appeal to the State Committee and/or the National Appeals
Division (NAD). You may skip mediation and request an appeal
hearing. However, in doing so, you will automatically waive your
rights to mediation and reconsideration.
Request an Appeal
You may request an appeal hearing rather than reconsideration or
mediation. Your appeal options are normally the Nebraska State PSA
Committee and/or the National Appeals Division (NAD) However,
since no program benefits are affected by this decision, no appeal is
necessary to the State Committee. Therefore, you have the following
appeal option.
Appeal to NAD
You may request an appeal hearing by NAD rather than or in lieu of
App. 65
reconsideration or mediation. | Your request should be sent to:
National Appeals Division, Western Regional Office, 755 Parafet
Street, Suite 494, Lakewood, Colorado 80215-5506. The written
request must be postmarked no later than 30 days after the date of this
letter.
Please remember timely requests for a reconsideration to the County
Committee, a request for mediation, or an appeal to NAD are required
to ensure this current decision does not become the final decision and
no further consideration on the matter can be given.
Please contact this office immediately if you have any questions.
Sincerely,
“ &]
Bruce J. Coffey
County Executive Director
Nance County FOA Office i
CC: William Gilg, Nance County NRCS Office
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.