Supreme Court refuses to hear wetland case

A one-acre parcel in South Dakota was determined to be wetland despite its conversion to farmland.
Mateusz Perkowski

Capital Press

Published on January 9, 2017 4:40PM

Last changed on January 9, 2017 5:15PM


The U.S. Supreme Court will not review a farmer’s lawsuit challenging the USDA’s designation of a wetland on his property in South Dakota.

Farmer Arlen Foster had asked the nation’s highest court to reconsider a ruling by the 8th U.S. Circuit Court of Appeals, which found that USDA was allowed to declare a wetland on the property based on plants growing 33 miles away.

The Supreme Court’s refusal to hear the case is a disappointment for the Pacific Legal Foundation, a nonprofit law firm that represented Foster and believes USDA has too much leeway in declaring wetlands.

Though the Foster lawsuit has ended, the Pacific Legal Foundation is optimistic that “nonsensical” wetland rules will soon pose less of a burden for landowners, said James Burling, the group’s director of litigation.

“I’m hoping the Trump administration will be taking a bottom-to-top look at wetland regulation,” he said.

Properties can be disqualified from federal crop insurance and other agency programs if they are farmed despite being designated by USDA as wetlands, meaning they have wetland soils, hydrology and plants.

In the Foster case, a one-acre parcel was determined to have wetland hydrology and soils, but it lacked wetland plants due to conversion from its natural state.

The USDA compared the property to a similar site 33 miles away to determine that it contained wetland plants and thus qualified as a wetland.

The Fosters argued that this method unfairly denied them due process because USDA decided on the site without public input roughly a decade earlier, but a federal judge and the 8th Circuit held that the agency reasonably interpreted its regulations.

Pacific Legal Foundation wanted the Supreme Court to limit the deference with which federal courts treat agency interpretations of their own rules, said Burling.

When federal agencies interpret laws to create their regulations, the process is at least subject to notice-and-comment procedures that provide feedback, he said.

If those regulations can be freely interpreted without any checks, though, it creates the risk that agencies will write regulations ambiguously to maximize their flexibility, Burling said.



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