Amicus Curiae Brief — Gunn v. Department of Agriculture

Supreme Court, U.S. '

sk & OD .

«) JAN 5 1993

No. 97-959 caren

In the

Supreme Court of the United States

October Term, 1997

A.

a

CHARLES GUNN,

Petitioner,

y

UNITED STATES DEPARTMENT OF AGRICULTURE AND

NATURAL RESOURCES CONSERVATION SERVICE,

Respondents.

A.

—

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

-™

vv

BRIEF AMICUS CURIAE

OF PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

sé.

A

ROBIN L. RIVETI

*M. REED HOPPER

*COUNSEL OF RECORD

Pacific Legal Foundation

2151 River Plaza Drive.

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Facsimile: (916) 920-3444

Attorneys for Amicus Curiae

Pacific Legal Foundation

|

QUESTION PRESENTED

BACKGROUND

The “Swampbuster” provision of the Food Security Act of

1985 provides, “[n]o person shall become ineligible ... for

program loans or payments ... [a]s the result of the production

of an agricultural commodity on ... [a] converted wetland if

the conversion of the wetland was commenced before

December 23, 1985.” 16 U.S.C. § 3822(b)(1 (A).

Under Section 3801(a)(6)( A), a “converted wetland” is a

wetland that is “manipulated ... for the purpose or to have the

effect of making the production of an agricultural commodity

possible.”

QUESTION

Is Chevron deference due an agency regulation imple-

menting a statute where the agency regulation conflicts with the

clear and unambiguous language of the statute and the

regulation redefines the regulatory program, such as in this case

where the agency held a person who commenced the farming of

a wetland on his property for agricultural commodities in 1906

was not eligible for farm program loans and payments because

the wetland had not lost a// its wetland characteristics, and

became a “converted wetland,” until 1992?

TABLE OF CONTENTS

Page

CURES EOE Pee on re ee. i

TABLE OF AUTHORITIES CITED................. Iv

IDENTITY AND INTEREST OF

PR I 8k 8 as 8a PS oe Se BOT ]

STATE Gees Ge BeeC CARE ... 2... ice cece: 2

SUMBGARY OF ARGSUBGENT ..........222.2000005. 4

SE 3 dts a oh pe ewe Oh awd es 6

I. THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO RESOLVE AN

IMPORTANT QUESTION OF LAW

RELATING TO THE GOVERNMENT’S

EXPANSIVE INTERPRETATION OF THE

“SWAMPBUSTER” PROVISION OF THE

FOOD SECURITY ACT OF 1985 .............. 6

A. Congress Has Directly Spoken to the

Precise Issue in This Case and the Intent of

I a en i Scan 7

B. The Agency Did Not Interpret an

Ambiguous Statute; Rather, It “Rewrote”

the Sentutory Seams ....... 2... 10

Il. THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI TO RECONCILE

INCONSISTENT APPLICATIONS OF THE

CHEVRON TEST AMONG THE CIRCUIT

ere ee eee 12

EE 65-0 oS oie eh ee Ce 16

iil

TABLE OF AUTHORITIES CITED

Page

Cases

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995) ........--. 2

Bennett v. Spear, 117 S. Ct. 1154 (1997). .......--.--. 2

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

Defense Council, 467 U.S. 837 (1984) .... 2,4-10,12-17

Douglas County, Oregon v. Babbitt,

Fn Tn 2

Gunn vy. U.S. Department of Agriculture,

118 F.3d 1233 (8th Cir. 1997)........... 4,8-10,13-15

Hernandez v. Reno, 91 F.3d 776 (Sth Cir. 1996) ..... 14-16

Morton v. Ruiz, 415 U.S. 199 (1974) ............... 9

National Mining Association v. Department of

Imterior, 105 F.3d 691 (D.C. Cir. 1997) ...... 12-13,16

Pacific Legal Foundation v. Andrus,

oS |S i 2

Steel Company v. Citizens for a Better

Environment, U.S. Supreme Court No. 96-643

ESS Sy ree ene 2

Statutes and Legislative Materials

RES Or 3

ee eee eee i,7

MIs ose eee eee 3

oe etn cligiicenke + nxinn te i,6-8

1V

Pape

Pets) MII kk ewig tc pes a a 2 ae 13

ie IIIS <4 starry a, <n era gre Sek ine eg oa as ae 13

H.R. Rep. No. 99-271, pt. 1, 99th Cong., Ist Sess.

reprinted in 1985 U.S.C.C.A.N. 1103 .......... 8-9,11

Pub. L. No. 99-198, §§ 1201, 1221-1223,

OS Dk. 0356, Ts kee. 6 a A 3

Rules of Court

LANNE I SUR og ce ks coca b as eas acs l

IEE cia lek Skate ener a alec nts gua cao rai le l

Miscellaneous

Houston Ciwon... Sent. 30; 1990 fo8 foi v bec ec eens 7

Michael S. Naggy, 7he Definition of “Wetlands”

Under Section 404 of the Clean Water Act:

Past, Present, and Future, 3 U. Balt. J. Envtl.

Rs ee PE EE gag ec dee a Te ee hao x00 6-7

l

IDENTITY AND INTEREST

OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2, Pacific Legal

Foundation respectfully submits this brief amicus curiae in

support of the petition for writ of certiorari.’ Written consent

was granted by counsel for all parties and lodged with the Clerk

of this Court.

Pacific Legal Foundation (PLF) is the largest and most

experienced nonprofit public interest law foundation of its kind

in America. Founded in 1973, PLF provides a voice in the

courts for mainstream Americans who believe in limited

government, private property rights, individual freedoms, and

free enterprise. PLF litigates nationwide in state and federal

courts with the support of thousands of citizens from coast to

coast. PLF is headquartered in Sacramento, California, and has

offices in Stuart, Florida, Honolulu, Hawaii; Bellevue,

Washington; and a liaison office in Anchorage, Alaska.

In its fight to protect fundamental constitutional rights, PLF

becomes involved in cases that raise important public policy

considerations and that may create significant legal f= -:edents.

Amicus participation is approved by a voluntary { ard of

Trustees where PLF’s perspective will assist * « <vourt in

resolving the underlying legal issues. PLF supports a broad

view of the public interest and promotes balance and common

sense in the adoption, interpretation, and administration of laws

and regulations.

There is a growing trend among federal agencies to expand

their jurisdiction incrementally by adopting regulatory

' Pursuant to Supreme Court Rule 37.6, amicus curiae Pacific Legal

Foundation affirms that no counsel for any party in this case authored

this brief in whole or in part; and furthermore that no person or entity

has made a monetary contribution specifically for the preparation or

submission of this brief.

2

interpretations that go beyond the plain meaning and intent of

their authorizing statutes. Under the Clean Water Act, for

example, the Army Corps of Engineers asserted jurisdiction over

puddle-sized seasonal wetlands (as “navigable waters of the

United States”) long before the Act even mentioned wetlands. ‘

In this case, the United States Department of Agriculture is

extending its regulatory reach to include wetlands that have

been expressly exempted from certain farming limitations by the

“Swampbuster” provision of the Food Security Act of 1985.

Executive branch agencies must be limited to the scope of

authority delegated by Congress.

PLF has participated in numerous cases involving the

interpretation of federal environmental laws. For example, PLF

was a party of record in Pacific Legal Foundation v. Andrus,

657 F.2d 829 (6th Cir. 1981). PLF also participated as amicus

curiae in this Court in the Stee/ Company v. Citizens for a Better

Environment, U.S. Supreme Court No. 96-643 (pending);

Bennett v. Spear, 117 S. Ct. 1154 (1997); Douglas County,

Oregon v. Babbitt, 116 S. Ct. 698 (1996); Babbitt v. Sweet

Home Chapter of Communities for a Great Oregon, 515 U.S.

687 (1995): and Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984).

PLF’s public policy perspective and litigation experience in

support of rational environmental protection and economic

rights will provide a necessary viewpoint on the issues presented

in this case.

STATEMENT OF THE CASE

Charles Gunn owns 160 acres of land in Iowa. At one

time, this acreage was wetlands and not suitable for farming.

However, in 1906 the local drainage district installed a system

to drain all excess water from the land. Since then, Gunn and |

his predecessors-in-interest have farmed the land continuously.

7

3

Additions to the drainage system within the district allowed

water from neighboring farmland to drain across Gunn’s land

(when the system exceeded capacity) so that by 1947 parts of

Gunn’s land were sometimes too wet to farm but dry enough at

other times to farm. The district addressed this problem in 1992

by upgrading the system to again allow complete draining of

Gunn’s land.

In 1985, Congress passed a provision to the Food Security

Act commonly known as “Swampbuster.” Pub. L. No. 99-198,

§§ 1201, 1221-1223, 99 Stat. 1354, 1504-08 (codified as

amended at 16 U.S.C. §§ 3801, 3821-3824). This provision

was intended to protect wetlands against conversion to

agricultural use but “grandfathered” use of wetlands where

conversion to agricultural production commenced before

December 23, 1985. “Swampbuster” did not make it illegal to

convert wetlands to agricultural use after 1985, but it did

provide that any agricultural production on a “converted

wetland” would cause the farmer to forfeit his eligibility for a

number of federal farm-assistance programs.

To participate in these programs, a farmer must certify his

eligibility to the Soil Conservation Service (SCS), now the

Natural Resources Conservation Service. SCS determines

whether the land for which the farmer seeks benefits contains

wetlands that have been converted for agricultural purposes.

Since Gunn’s land had been drained and farmed since 1906, he

sought certification in 1991 and was told by SCS that

approximately 20% of his land was not “converted wetlands”

under the Act but so-called “farmed wetlands.”* SCS also told

Gunn he could continue to use these “farmed wetlands” but that

he would lose his farm benefits if he improved the drainage

system. In consequence of the 1992 upgrade to the drainage

> “Farmed wetlands” is a wetland classification that does not appear in

“Swampbuster™ but is used by SCS to refer to wetlands that are

sometimes dry enough to farm.

4

system by the local drainage district, SCS classified 28.2 acres

of Gunn’s land as wetlands that had not been converted to

agricultural use until 1992, after the 1985 deadline.

Gunn filed suit in district court seeking, among other

things, declaratory judgment that he was entitled to farm this

land without losing benefits. In reliance on Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, 467 U.S. 837, the

district court ruled that the classification of Gunn’s land as post-

1985 “converted wetlands” was reasonable and denied Gunn’s

request for declaration. Gunn appealed to the Eighth Circuit

Court of Appeals claiming the government’s interpretation of

the terms “commenced” and “converted wetland” are

inconsistent with the “Swampbuster” statute. Although the

circuit court acknowledged that the words of the statute can

bear the meaning Gunn contends, the court held the SCS

interpretations were “sufficiently plausible to meet the Chevron

test.” Gunn v. U.S. Department of Agriculture, 118 F.3d 1233,

1238 (8th Cir. 1997).

sé.

_

SUMMARY OF ARGUMENT

Chevron deference does not lie where the intent of

Congress is clear from the words of the statute, but only where

a statute is silent or ambiguous. With respect to the definition

of “converted wetland” under “Swampbuster,” Congress was

neither silent nor ambiguous but precisely defined the term. A

wetland is converted when it is “manipulated ... for the purpose

or to have the effect of making the production of an agricultural

commodity possible.” Gunn’s land was manipulated by draining

in 1906 and has been farmed continuously ever since.

5

Under “Swampbuster,” farming “converted wetland” is

exempted from the Act’s restrictions if the conversion was

commenced before December 23, 1985. Gunn’s land met this

statutory definition. But, in contravention of the Act, the

agency “rewrote” the statutory scheme to add that the

manipulation must have been so ccmplete as to eliminate all

wetland characteristics of the land.

Federal agencies should not be allowed to rewrite their

legislative mandate. The agency’s interpretation conflicts with

the plain language of the statute and the legislative history and,

therefore, should not be upheld. Approximately 75% of wet-

lands remaining in the lower 48 states are found on private land,

primarily farmland. By one estimate, up to 60 million acres may

be characterized as “converted wetland.” Against this backdrop,

and over concerns for the plight of farmers, Congress passed the

Food Security Act of 1985 to provide “an economic climate in

which efficient American family farmers can survive.” The

balance Congress sought between wetland protection and

protection of small family farmers took the form of an exception

to “Swampbuster.” Congress expressly “grandfathered”

wetland areas farmed prior to the 1985 deadline. The executive

agency has no authority to reconsider this legislative policy

determination.

Additionally, in analogous situations, other circuit courts of

appeals have applied the Chevron test differently from the

Eighth Circuit in this case. This disparate treatment under the

law has significant ramifications for the economic competi-

tiveness of our Nation’s family farmers. This Court should

review the Eighth Circuit judgment, in light of Fifth and District

of Columbia Circuit decisions, to establish a consistent

application of Chevron.

6

ARGUMENT

THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO RESOLVE AN

IMPORTANT QUESTION OF LAW RELATING

TO THE GOVERNMENT’S EXPANSIVE

INTERPRETATION OF THE “SWAMPBUSTER”

PROVISION OF THE FOOD SECURITY ACT OF 1985

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

Council, 467 U.S. 837, this Court set forth a standard for court

review of an agency’s construction of a statute it administers.

First, is the question whether Congress has directly spoken to

the precise question at issue. “If the intent of Congress is clear,

that is the end of the matter, for the court, as well as the agency,

must give effect to the unambiguously expressed intent of

Congress.” /d. at 842-43. And second, “if the statute is silent

or ambiguous with respect to the specific issue, the question for

the court is whether the agency’s answer is based on a

permissible construction of the statute.” /d. at 843.

The issue in this case is whether Gunn commenced the

conversion of wetlands on his property before December 23,

1985. Congress spoke precisely to that question in

“Swampbuster” and stated it intended to “grandfather” farming

operations in wetlands, like Gunn’s, that had begun before the

statutory deadline. 16 U.S.C. § 3822(b)(1)(A). But the court

below allowed the government to sidestep the intent of

Congress, and the judicial standard this Court established in

Chevron, by endorsing the agency’s redefinition of the statutory

scheme for “converted wetlands.” The Eighth Circuit judgment

guts the protections “Swampbuster” provides our Nation’s

farmers—who are already pressed by mounting environmental

regulatory demands—and undermines national agricultural

production. Of the roughly 100 million acres of wetlands

remaining in the lower 48 states, about 75% of these areas are

located on private, primarily agricultural land. Michael S.

7

Naggy, 7he Definition of “Wetlands” Under Section 404 of the

Clean Water Act: Past, Present, and Future, 3 U. Balt. J.

Envtl. L. 92, 101 (1993). By one estimate, up to 60 million

acres may be characterized as “converted wetland.” See

Houston Chron., Sept. 30, 1990, at 2A.

A. Congress Has Directly Spoken to the Precise Issue

in This Case and the Intent of Congress Is Clear

In Chevron, this Court looked both to the statutory

language and the legislative history to determine whether

Congress addressed the issue before the Court. The statutory

language in this case is clear and unambiguous.

Under Section 3822(b) 1 (A) of Title 16, “[n]o person shall

become ineligible ... for program loans or payments ... [a]s the

result of the production of an agricultural commodity on ... [a]

converted wetland if the conversion of the wetland

was commenced before December 23, 1985.”

Section 3801(a)(6)(A) provides:

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

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.

In 1906, Gunn’s land was drained or otherwise manipulated

both for the purpose and with the effect of making the

8

production of agricultural commodities possible. This

production has continued ever since. This is a matter of record

which the lower court does not dispute. The Eighth Circuit

even begrudgingly admits that a plain reading of the statutory

language supports Gunn’s claim that his property is “converted

wetland” under the Act. Gunn, 118 F.3d at 1238. However, in

putative reliance on Chevron, the court upholds the agency’s

view that “[i]f significant wetland characteristics remain, the

land remains wetland and cannot be converted wetland.” But

this view is not supported by the statutory language. Indeed, it

conflicts with the statutory language.

The definition of “converted wetland” is expressly

conditioned on the manipulation of the wetland for agricultural

production. It does not require or imply that the manipulation

must be so complete that all wetland characteristics disappear.

To the contrary, the definition specifically includes “any

activity that results in impairing or reducing the flow,

circulation, or reach of water” on the wetland. This language

contemplates a partial conversion of wetland features, not a

total elimination of wetland characteristics. This conclusion is

made clearer by two other references.

First, the Act only requires that the conversion of the

wetland “was commenced before December 23, 1985.”

16 U.S.C. § 3822(b)(1)(A) (emphasis added). The term

“commenced” is not ambiguous. It is commonly understood to

mean begin or start. It is not a term in need of definition and

Congress offered none. And second, the legislative history

demonstrates congressional intent to “grandfather” prior farmed

wetland:

Mr. Daschle offered an amendment, to deny

Federal farm program benefits to persons planting

agricultural commodities on converted wetlands for

harvest .... Mr. Daschle noted that while the sodbuster

provisions [prohibiting farming on highly erodible

a ee

9

lands} would be retroactive, the swampbuster

amendment would only be concerned with conversion

of wetlands as of the date of enactment ....

... Mr. Daschle and Mr. Lewis discussed the

question of cropland that has been flooded and later

reclaimed. Mr. Daschle stressed that the amendment

would not affect the use of this land because if

production was underway at any time in the past, the

land would be grandfathered.

H.R. Rep. No. 99-271, pt. 1, at 416, 419, 99th Cong., Ist Sess.

(1985), reprinted in 1985 US.C.C.A.N. 1103, 1520-23

(emphasis added).

It should be clear that Congress spoke to the precise issue

of when “Swampbuster” applies and that Congress intended if

agricultural “production was underway at any time in the past

[before December 23, 1985], the land would be grandfathered.”

Gunn’s land was drained in 1906 and has been farmed ever

since. As the Eighth Circuit correctly noted, but misunderstood:

“Under the statute, conversion occurs when wetland is

manipulated with a certain effect. The [agency] regulation

simply underscores that it is the initial manipulation, not some

subsequent applications of it, that is to be considered for this

purpose.” Gunn, 118 F.3d at 1239 n.3. Under this standard,

Gunn’s land qualifies as “converted wetland.” The agency’s

contrary construction is due no deference under Chevron.

Unlike in the Clean Air Act under review by this Court in

Chevron, Congress left no gap in “Swampbuster” for the agency

to fill. See Morton v. Ruiz, 415 U.S. 199, 231 (1974). “Ifthe

intent of Congress is clear, that is the end of the matter.”

Chevron, 467 U.S. at 855.

10

B. The Agency Did Not Interpret an Ambiguous

Statute; Rather, It “Rewrote” the Statutory Scheme

The Eighth Circuit went awry in this case when it gave

Chevron deference to the agency’s view that if the drainage or |

other manipulation has been sufficient to make crops producible, :

as is the case here, but the land retains wetland characteristics,

the land is best described as “farmed wetland,” as opposed to

“converted wetland.” Gunn, 118 F.3d at 1238. According to

the agency, “farmed wetlands” can be farmed without loss of

benefits only so long as the previously accomplished drainage or

manipulation is not significantly improved. /d. But this is not

a simple interpretation of the statutory language, it is an

excursion and incursion into the legislative realm that amounts

to nothing less than a redefinition of the statutory scheme. The

agency simply did not like the all-or-nothing language of

“Swampbuster,” which “grandfathers” all wetlands put into

agricultural production before December 23, 1985, so the

agency “rewrote” the statute to further restrict land use.

“Farmed wetlands” is a term that does not appear in the

Statute. Rather, it is a term adopted by the agency’s regulations.

Id. Notwithstanding the lack of statutory authority for the

agency’s reclassification of wetlands under “Swampbuster,” the

Eighth Circuit erroneously concluded that this new wetland

classification somehow “accords with the general purpose of the

statute—to preserve those wetland characteristics still in

existence in 1985.” /d. But this misses the point. Chevron

does not give license to the agency to set aside a specific

statutory scheme defined by Congress in favor of the agency’s

view of the statutory purpose.

Moreover, the court cites no authority for its limited

characterization of the purpose of the statute. Indeed, the

statute expressly excepts wetlands put into agricultural

production before enactment of the statute, demonstrating a

clear economic purpose to the “grandfather” clause of the

“Swampbuster” provision. In addition, the Food Security Act

ke maa

1]

of 1985 derived from a large and complex omnibus bill that was

based on a congressional desire to bolster a failing agricultural

economy:

The purpose of this bill is simple. It is to provide, as

far as it can be done in legislation of this kind, the

basis for an economic climate in which efficient

American family farmers can survive the grim squeeze

that has already driven too many of them to or close to

the brink of ruin.

H.R. Rep. No. 99-271, pt. 1, at 8, 99th Cong., Ist Sess. (1985),

reprinted in 1985 U.S.C.C.A.N. 1103, 1520-23 (emphasis

added).

The drafters felt the need for this bill was obvious to all

who had followed recent developments. /d. They noted that

even if Congress were willing to let important segments of

agriculture collapse, Congress could not afford to do so because

of the dangers this would pose to the entire national economy.

Id.

It was clear to these drafters that what Congress did about

new farm policy must be based on the understanding that

agriculture is our Nation’s largest and most basic industry. /d.

at 1111-12. They believed America’s farmers have given our

people the world’s best diet at costs which—in comparison to

the average consumer’s earnings—really constitute a farmer

subsidy to the general public. /d. at 1112. They also believed

that one of the chief reasons this country has been able to grow

and make progress in many areas has been the increasing

efficiency of its farmers and the other segments of agriculture.

Id. “When agriculture is depressed, the farmer and his family

suffer—but they do not suffer alone.” Jd. They noted with

great concern the distress in the agricultural supply industries,

and in businesses on hundreds of main streets around the

Nation. /d. And in the long run, the drafters conclude, a

12

depressed and demoralized agriculture would be very bad

economic news for the entire Nation. /d.

This legislative history demonstrates that the primary

purpose of the Food Security Act of 1985 was, as the name of |

the Act implies, to protect the Nation’s efficient supply of food |

by providing security to our family farmers. Congress chose to |

balance this effort with a conservation ethic that protects |

wetlands, but not at the expense of prior farming practices.

Congress made a policy decision to “grandfather” prior

“converted wetlands” and established a clear and unambiguous

definition of this term—a definition that would be easy to meet

and which would allow average farming families to anticipate

the effects of their farming practices on farm program benefits.

But the agency has supplanted Congress’ public policy decision.

Rather than accord with the general purpose of the statute, the

agency’s “farmed wetland” classification undermines that

purpose.

When federal agencies can “rewrite” their legislative

mandate and change the expectations of the regulated farming

community at will, this causes unnecessary distrust of the

government and demoralizes the industry. We all lose when that

happens. This Court should not allow the government to rely

on Chevron to circumvent the will of Congress to protect and

promote efficient farm production for the agency’s perceived

“larger goal” of wetland protection.

THIS COURT SHOULD GRANT THE WRIT OF

CERTIORARI TO RECONCILE INCONSISTENT

APPLICATIONS OF THE CHEVRON TEST AMONG

THE CIRCUIT COURTS OF APPEALS

In analogous circumstances, other courts of appeals have

applied Chevron differently from the Eighth Circuit in this case.

In National Mining Association v. Department of Interior,

105 F.3d 691 (D.C. Cir. 1997), the District of Columbia Circuit

ee

13

had to consider regulatory implementation of the Surface

Mining Control and Reclamation Act (SMCRA), 30 U.S.C.

§ 1201, ef seq.

In 1977, Congress enacted SMCRA “to establish a

nationwide program to protect society and the environment

from the adverse effects of surface coal mining operations.”

National Mining Association, 105 F.3d at 693. The Office of

Surface Mining Reclamation and Enforcement (OSM)

administers and enforces SMCRA. Under SMCRA, no person

may engage in surface coal mining without a permit. At issue

was OSM’s interpretation of the Act’s ownership and control

provision.

Section 510(c) of SMCRA is as clear as “Swampbuster”

and states that when “any surface coal mining operation owned

or controlled by the applicant” is currently in violation of

SMCRA, the permit shall not be issued. However, just as in

Gunn--the present case, the agency expanded the statutory

limitation by adding a new regulatory category. OSM adopted

a rule that the permit shall not issue if an operation owned or

controlled “by either the applicant or by any person who owns

and controls the applicant’ is currently in violation of SMCRA.

National Mining Association, 105 F.3d at 694. This broadening

of the Act to cover the owners of applicants in addition to the

applicants themselves is no more expansive than the agency’s

rule in Gunn. In Gunn, the agency adopted a rule that wetlands

are “converted wetlands” not when they are manipulated for

agricultural production, as “Swampbuster” explicitly states, but

rather when they are manipulated to eliminate permanently all

wetland characteristics.

However, contrary to the deference shown the government

in Gunn, the D.C. Circuit in National Mining Association

applied the first step of Chevron to strike down this construction

of the statute. The court held that the statutory language was

unmistakably clear and that “OSM is attempting to use section

14

510(c) to regulate those not covered by that section.” /d.

at 694-95. The same could be said for the agency’s attempt in

Gunn. The agency is trying to regulate “farmed wetlands” that

are not covered by the “Swampbuster” provision.

Additionally, unlike the court in Gunn, the D.C. Circuit was |

not deterred from applying Chevron to void the agency

regulation even though the general purpose of SMCRA was to

protect the environment. Gunn, it seems, would have fared

differently in the D.C. Circuit where the court’s application of

Chevron accords more with this Court’s holding in that case.

But the D.C. Circuit is not the only Circuit that takes a different

view of Chevron.

In Hernandez v. Reno, 91 F.3d 776 (Sth Cir. 1996), the

plaintiff challenged the Immigration and Naturalization Service

(INS) regulations implementing the Family Unity Provision of

the Immigration Act of 1990. The Family Unity Provision of the

Act provides that an alien who is an eligible immigrant as of

May 5, 1988, among other things, shall be granted authorization

to work in the United States. However, the INS regulations

require that an alien seeking Family Unity status as the spouse

or child of a legalized alien must be such not only on May 5,

1988, but continuously thereafter until permanent residency is

granted.

This INS interpretation of the Immigration Act

is remarkably similar to the SCS interpretation of “Swamp-

buster.” Under “Swampbuster,” “[n]o person shall become

ineligible ... for program loans or payments ... [a]s the result of

the production of an agricultural commodity on ... [a] converted

wetland if the conversion of the wetland was commenced before

December 23, 1985.” However, the agency interprets this

provision to mean that the farmer not only must have

commenced the conversion before December 23, 1985, but also

must have “actively pursued” the particular conversion until the

15

conversion is complete, that is until the wetiand no longer

demonstrates any wetland characteristics. Gunn, 118 F.3d

at 1237.

The INS interpretation in Hernandez was initially upheld by

the district court which relied on Chevron and ruled that the

INS regulation interpreting the Family Unity Provision requiring

the alien to maintain the same relationship throughout the

pendency of his petition was a permissible construction of the

statute. But the Fifth Circuit overruled the district court

decision:

Chevron deference does not lie where the intent

of Congress is clear from the words of the statute, but

rather where a statute is “silent or ambiguous with

respect to the specific issue ....” The statute requires

that Hernandez be the spouse or unmarried child of a

legalized alien on May 5, 1988. It requires no more.

The INS regulation adding a requirement that the alien

continuously maintain that same relationship is in

conflict with the plain language of the statute. Our

duty is to give effect to the clear, unambiguous intent

of Congress. Whether Hernandez marries after

May 5, 1988 is irrelevant to the inquiry under the

Family Unity Provision of the Immigration Act of

1990.

Id. at 780-81.

Similarly, the Eighth Circuit in Gunn ruled that the

agency’s interpretation of the “Swampbuster” provision was

“sufficiently plausible to meet the Chevron test.” Gunn,

118 F.3d at 1238. However, the intent of Congress in

“Swampbuster” is clear from the words of the statute. The

statute is not silent or ambiguous with respect to what

constitutes a “converted wetland.” The statute requires that

Gunn manipulate a wetland for the purpose or with the effect of

16

making the production of an agricultural commodity possible

before December 23, 1985, which has happened on Gunn’s land

since 1906. The statute requires no more. The agency

regulation requiring Gunn to “actively pursue” the complete

conversion of his land and reclassifying his “converted wetland”

as a so-called “farmed wetland” is in conflict with the plain

language of the statute. The duty of the Court is to give effect

to the clear, unambiguous intent of Congress. Whether Gunn

manipulated his land after December 23, 1985, is irrelevant to

the inquiry under the “Swampbuster” provision of the Food

Security Act of 1985.

The type of disparate treatment under the law demonstrated

by these cases has significant ramifications for the economic

competitiveness of our Nation’s family farmers. This Court

should review the Eighth Circuit decision in light of National

Mining Association and Hernandez to establish a consistent

application of Chevron.

,%

7

CONCLUSION

The Eighth Circuit’s judgment conflicts with the plain

language of the “Swampbuster” provision of the Food Security

Act of 1985. It guts the public policy decision of Congress to

“grandfather” prior farming of wetlands to bolster small family

farms. It also distorts the intent of Chevron, which requires

agencies to defer to the unambiguous intent of Congress as

expressed in a statute. Federal agencies should not be allowed

17

to co-opt the legislative function by “rewriting” the statutory

scheme to achieve their own ends. For these reasons, and to

address conflicting applications of Chevron among the circuits,

this Court should grant the petition for writ of certiorari.

DATED: January, 1998.

Respectfully submitted,

ROBIN L. RIVETT

*M. REED HopPER

*COUNSEL OF RECORD

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Facsimile: (916) 920-3444

Attorneys for Amicus Curiae

Pacific Legal Foundation