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Foster v. Vilsack

United States District Court, D. South Dakota, Southern Division

October 31, 2014

TOM VILSACK, Secretary, United States Department of Agriculture, Defendant.


KAREN E. SCHREIER, District Judge.

Plaintiffs, Arlen and Cindy Foster, brought this suit under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06, against defendant, Tom Vilsack, Secretary of Agriculture, United States Department of Agriculture (USDA). Plaintiffs ask this court to set aside the USDA National Appeals Division's (AND) final order, which upheld the Natural Resources Conservation Service's (NRCS) determination that 0.8 acres of land of plaintiffs' property was a wetland. The parties have filed cross motions for summary judgment. For the following reasons, defendant's motion for summary judgment is granted, and plaintiffs' motion for summary judgment is denied.


The undisputed facts are:

Plaintiffs own and farm land within Miner County, South Dakota. Defendant, as Secretary of the USDA and acting through the NRCS, is given the authority by Congress to make and approve wetland determinations, delineations, and certifications. The parties contest whether a 0.8 acre portion of plaintiffs' land, known as "Site 1, " has properly been determined to be a wetland.

In November 2004, the NRCS made an initial determination that Site 1 (then referred to as "Site 18") was a wetland. In July 2008, plaintiffs filed a request for the agency to reconsider its determination. In 2009, the NRCS made a second determination that Site 1 was a wetland, but rescinded its determination on January 15, 2010.[1] On November 23, 2010, the NRCS returned to Site 1 in order to conduct field work. On June 23, 2011, the NRCS made its third determination that Site 1 was a wetland. A.R. 5-7.

Following the June 23, 2011, determination, plaintiffs appealed to the AND, an independent agency within the USDA. Pursuant to USDA statutes and regulations, plaintiffs bore the burden of proving the NRCS's determination "was erroneous by a preponderance of the evidence" in order to be successful on appeal. See 7 U.S.C. § 6997(c)(4); 7 C.F.R. § 11.8(e). On October 18, 2011, a hearing was held in Mitchell, South Dakota, where the parties were allowed to present exhibits, elicit witness testimony, and conduct cross-examination. On January 10, 2012, the hearing officer issued his decision, in which he determined the NRCS followed proper wetland determination procedures, that Site 1 was a wetland, and that plaintiffs had not met their burden of proving the NRCS's determination was erroneous. See A.R. 225-238.

On February 13, 2012, plaintiffs filed a request for the NAD director to review the hearing officer's decision. A.R. 244-252. On July 16, 2012, the deputy director issued his final review determination, upholding the hearing officer's decision. Finally, on May 31, 2013, plaintiffs filed this suit seeking relief from the deputy director's final determination. Docket 1. Pending before the court are motions for summary judgment from both parties regarding the NAD's final decision and order.


Generally, a motion for summary judgment may be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir. 2000). Although presented as motions for summary judgment, the parties are seeking this court's review of an agency's decision. Thus, the court must follow the standards set forth in the APA. See Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759, 763 (8th Cir. 2004); 5 U.S.C. § 706(2). Because agency decisions are reviewed, "the issue is not whether the material facts are disputed, but whether the agency properly dealt with the facts." Lodge Tower Condo. Ass'n v. Lodge Properties, Inc., 880 F.Supp. 1370, 1374 (D. Colo. 1995). Therefore, the function of this court is to determine, as a matter of law, whether the agency's decision is supported by the administrative record and is consistent with the APA standards of review. See, e.g., Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985); Troy Corp. v. Browner, 120 F.3d 277, 282 (D.C. Cir. 1997); Girling Heath Care, Inc. v. Shalala, 85 F.3d 211, 214 (5th Cir. 1996).

Pursuant to the standards of review provided in the APA, this court will set aside an agency's decision if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Sierra Club v. E.P.A., 252 F.3d 943, 947 (8th Cir. 2001) (quoting 5 U.S.C. § 706(2)(A)). As the Supreme Court has explained, agency action is "arbitrary or capricious" if

[T]he agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Additionally, this court "must also accept the agency's factual findings if they are supported by substantial evidence." Maverick Transp., LLC v. United States Dep't of Labor, Admin. Review Bd., 739 F.3d 1149, 1153 (8th Cir. 2014). "Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the [agency's] conclusion.'" Id. (quoting Steed v. Astrue, 524 F.3d 872, 874 (8th Cir. 2008)) (alteration in original).

Although this court's review of the facts before the agency is "searching and careful, " the "standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). If the agency's decision "is supportable on any rational basis, " it must be upheld. Voyageurs, 381 F.3d at 763 (citing Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178, 1184 (8th Cir. 2001)). "This is especially true when an agency is acting within its own sphere of expertise." Id. Thus, "[w]hen the resolution of the dispute involves primarily issues of fact and analysis of the relevant information requires a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies.'" Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir. 1999) (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377 (1989)).

Nonetheless, "[t]he agency must articulate a rational connection between the facts found and the choice made.'" Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). While this court cannot "supply a reasoned basis for the agency's action that the agency itself has not given, " it may "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Id. at 285-86 (internal citations omitted). This court's review is limited to the administrative record as it existed before the agency, rather than encompassing new evidence presented here for the first time. Camp v. Pitts, 411 U.S. 138, 142 (1973).


A. Agency Action

This case is before the court pursuant to the APA. Because there appears to be disagreement on which agency action-that of the NRCS or that of the NAD-is subject to review, clarification is warranted. See, e.g., Docket 19 at 16 (arguing the NRCS's use of the Tetonka reference site was arbitrary and capricious); Docket 23 at 9 (describing this appeal as concerning the NAD deputy director's determination).

Following the NRCS's determination that Site 1 was a wetland, plaintiffs properly filed an appeal to the NAD. See, e.g., 7 C.F.R §§ 12.6(c)(9); 614.1. Although the NAD and NRCS are both within the USDA, the NAD is an agency "independent from all other agencies and offices of the [USDA], including [USDA] officials at the state and local level." 7 C.F.R § 11.2(a). Initially, appeals before the NAD are assigned to a hearing officer who issues an appeal determination. See 7 U.S.C § 6997(d). Either party may then appeal to the NAD director for a review of the hearing officer's decision. 7 U.S.C. § 6998. Thus, "[t]he hearing officer's decision on the merits could then be appealed to the NAD Director, and the Director's decision on the merits then would become a final agency action subject to judicial review in accordance with the Administrative Procedure Act." Bartlett v. United States Dep't of Agric., 716 F.3d 464, 474 (8th Cir. 2013);[2] see also Lane v. United States Dep't of Agric., 120 F.3d 106, 109 (8th Cir. 1997) (detailing NAD hearing and appeal process).

Therefore, it is the "final determination of the [NAD], " rather than the determination of the NRCS, which "shall be reviewable... in accordance with" the APA. See 7 U.S.C. § 6999; see also Bartlett, 716 F.3d at 470. Because it is the NAD's final determination that is being reviewed, the question is not whether, for example, the NRCS itself acted arbitrarily or capriciously with respect to its wetland determination procedures. Rather, the inquiry is whether the NAD acted arbitrarily or capriciously by concluding that the NRCS followed proper wetland determination procedures when it found that Site 1 was a wetland and that plaintiffs had not met their burden of proving the NRCS's determination was erroneous. See, e.g., Dawson Farms v. Risk Mgmt. Agency, 698 F.3d 1079, 1083 (8th Cir. 2012) (subjecting the NAD deputy director's decision to the arbitrary or capricious standard); Clason v. Johanns, 438 F.3d 868, 870-71 (8th Cir. 2006) (determining whether the NAD's conclusion was arbitrary or capricious); Von Eye v. United States, 92 F.3d 681, 685 (8th Cir. 1996) (explaining the court "must uphold the [NAD's] decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'") (quoting 5 U.S.C. § 706(2)(A)).[3] Although only the NAD's final decision is being reviewed, the court will nonetheless construe the parties' arguments aimed at the NRCS's procedures as if they were directed toward the NAD's decision.

B. Wetland Determination

As part of the Food Security Act of 1985, Congress enacted what are commonly referred to as "Swampbuster" provisions "[i]n order to combat the disappearance of wetlands through their conversion into crop lands[.]" Gunn v. United States Dep't of Agric., 118 F.3d 1233, 1235 (8th Cir. 1997) (citing 16 U.S.C. §§ 3801, 3821-24); see also Barthel v. United States Dep't of Agric., 181 F.3d 934, 935 (8th Cir. 1999). Originally, Swampbuster made anyone "produc[ing] an agricultural commodity on converted wetland" ineligible for certain USDA benefits. See 16 U.S.C. § 3821(a)-(b). Beginning in 1990, however, Congress expanded the reach of Swampbuster to affect individuals whose conversion of wetlands made "the production of an agricultural commodity possible[.]" § 3821(d). Although Swampbuster did not make the conversion of wetlands for agricultural purposes illegal, 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." Gunn, 118 F.3d at 1235.

Under Swampbuster, the USDA is directed to determine, delineate, and certify wetlands on farmland. 16 U.S.C. § 3822(a)(1). The NRCS, an agency within the USDA, is specifically charged with making the technical wetland determinations, delineations, and certifications. 16 U.S.C. § 3822(j); 7 C.F.R § 12.30(a)(3). In order for a parcel of land to be declared a wetland, three criteria must be present: (1) the land has a predominance of hydric soils; (2) the land has sufficient wetland "hydrology;"[4] and (3) under normal circumstances, the land supports a prevalence of hydrophytic vegetation. 16 U.S.C. § 3801(a)(27); 7 C.F.R. § 12.2(a).

To assist the NRCS in making wetland determinations, the agency was directed to "[d]evelop and utilize off-site and on-site wetland identification procedures[.]" 7 C.F.R. § 12.30(a)(4). To this end, the NRCS relies on several technical manuals and publications that describe the scientific procedures NRCS employees must follow when making a wetland determination. The manuals relevant to this discussion are:

1. National Food Security Act Manual (NFSAM); Part 527, Wetland Identification Procedures (Dec. 2010) (A.R. 452-473)
2. NFSAM; Part 514, Wetland Determination & Labels (2010) (A.R. 907-928)
3. 1987 U.S. Army Corps of Engineers Wetland Delineation Manual (COE Manual), Parts I & IV ...

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