Arlen Foster v. U.S. Dept. of Agriculture, No. 22-2729 (8th Cir. 2023)
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The Swampbuster Act and United States Department of Agriculture (“USDA”) regulations work together to provide farmers with the right to request reviews of wetland certifications. The Swampbuster Act’s review provision (“Swampbuster Review Provision”) provides that a prior wetland certification “shall remain valid and in effect . . . until such time as the person affected by the certification requests review of the certification by the Secretary.” In turn, a regulation (“Review Regulation”) provides procedural requirements a farmer must follow to make an effective review request.
Appellant filed an action alleging that: (1) the Review Regulation contravenes the Swampbuster Review Provision; (2) the Review Regulation was never submitted to Congress or the Comptroller General as required by the Congressional Review Act (“CRA”); and (3) the NRCS’s decisions to refuse to consider Appellants 2017 and 2020 review requests violated the Administrative Procedure Act (“APA”). The district court granted summary judgment in favor of Appellees.
The Eighth Circuit affirmed. The court held that the Review Regulation imposes reasonable procedural requirements a farmer must follow to make an effective review request and thereby delimit a prior wetland certification. Because the Swampbuster Review Provision is silent as to the nature of an effective review request, the Review Regulation does not conflict with the Swampbuster Review Provision. Further, the court wrote that the CRA’s judicial review provision precludes review of Appellant’s CRA claim. Finally, the court held that the NRCS’s decisions to refuse to consider Appellant’s review requests were not arbitrary and capricious because Appellant failed to comply with the Review Regulation.
Court Description: [Erickson, Author, with Benton and Kobes, Circuit Judges] Civil case - Wetlands regulation. For the court's prior opinion affirming the agency's determination that a portion of defendant's farmland was a covered wetland, see Foster v. Vilsack, 820 F.3d 330 (8th Cir. 2016); plaintiff brought this action challenging the agency's Review Regulation after the agency rejected his requests for reclassification of the property. Held: The Review Regulation does not unlawfully conflict with the Swampbuster Review Provision - see 16 U.S.C. Sec. 3822(a)(4); the district court did not err in concluding the Congressional Review Act's judicial review provision precluded review of plaintiff's claim under the Act because the Act forbids judicial review of all omissions under the Act, and here plaintiff's claim is based on the USDA's alleged omission in failing to submit the Review Regulation to Congress and the Comptroller General; assuming plaintiff's APA claims are not barred for failure to exhaust, they fail on the merits because the agency's decisions to refuse to consider plaintiff's 2017 and 2020 review requests were neither arbitrary nor capricious.
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