A husband and wife farming land in South Dakota that has been in their family for more than a century are suing the U.S. Department of Agriculture after the federal agency determined their land contained wetlands – by looking at another parcel 33 miles away.
The feds could choose to penalize Arlen and Cindy Foster by depriving them of the ability to participate in vital federal programs such as crop insurance.
The Miner County, South Dakota, couple is represented by the Pacific Legal Foundation, which has handled some of the highest-profile land-uses cases recently.
The complaint challenges the feds’ determination that 0.8 acres of the Fosters’ farm is “wetlands.” The government came to the conclusion after reviewing another parcel of land 33 miles away and finding it is similar.
Pacific Legal explained Arlen Foster’s family has been farming the property in Miner County for three generations, since his grandfather bought it in 1900. He and his wife, Cindy, grow corn, soybeans, hay and raise cattle. They hope that their grandchildren will have the opportunity to follow in their footsteps.
But the National Resources Conservation Service accused them of violating the Food Security Act of 1985 by farming 0.8 acres of federally protected wetlands on their property.
“The bureaucrats made this bogus wetland determination against the Fosters using a method that they rigged to produce the desired result of determining that the Fosters’ property is a federally protected wetland,” said Tony Francois, a PLF senior staff attorney.
“The regulators had to determine whether the farmland in question could have supported wetlands vegetation in its pre-farmed state. For an informed conclusion, they could have carefully analyzed the Fosters’ farmland itself, or used a nearby comparison site that shares relevant environmental characteristics. Instead, they chose, for comparison, a site more than 30 miles away where they already knew that wetlands vegetation could be found.
“In other words, they gamed the outcome by choosing a control site that gave them the answer they wanted,” he said.
“The Fosters are not the only victims of this fixed scheme,” Francois continued. “The comparison site, which was employed in a lazy and arbitrary way to label their property as wetlands, is used for the same purpose throughout much of eastern South Dakota. This comparison site was preselected 16 years ago with the knowledge that it supports wetland plants. Now federal officials use it anytime they are investigating a possible wetland with similar soils and disturbed vegetation, anywhere in the surrounding 10,835 square miles.”
The petition comes to the Supreme Court after a decision from the 8th U.S. Circuit Court of Appeals that “showed too much deference” to the bureaucracy, the legal team explained.
PLF contends the federal government violated due process and its own rules by using a preselected comparison site a considerable distance away that was already determined to have wetlands.
“When an agency’s decisions have real-world consequences for the public and for individual property owners, unelected bureaucracies cannot be allowed to be their own judges and juries,” said Francois. “In this case, we are trying to promote standards of fairness and credibility in environmental policy, and also to establish that courts have an active role in enforcing those standards.”
The petition cites the Fifth Amendment, that “no person shall be deprived of life, liberty, or property, without due process of law.”
At issue is “a shallow depression, to which the snow melt from the tree belt drains as the weather warms” on the farm.
That depression, the case notes, was created “ten millennia ago, the most recent glacial period” when “the ice sheets receded [and] they exposed large parts of what is now the American Upper Midwest to the sun for the first time in 100,000 years.”
The land has “innumerable small depressions that regularly hold snow melt until they dry out as warmer weather arrives in the spring,” the filing explains.
But while the regulations call for a comparison to adjacent land in the local area, the government instead cited the vegetation at a location 33 miles away in the next county to prove the farm land was a “wetlands,” the petition said.