8th Circuit Affirms Dismissal of Farmer’s Wetland Certification Claims

Originally published in the October 2023 issue of Bench & Bar of Minnesota Environmental Law Update, Minnesota State Bar Association.

The Eighth Circuit Court of Appeals recently affirmed a South Dakota District Court’s grant of summary judgment that dismissed a farmer’s claims against the United States Department of Agricultural (USDA) and Natural Resources Conservation Service (NRCS). Foster v. United States Department of Agriculture, 68 F.4th 372 (2023). Foster, the farmer, sought to set aside NRCS wetland certification of his land and alleged violations of the Swampbuster Act, Congressional Review Act and the Administrative Procedure Act.

The Swampbuster Act permits the Secretary of Agriculture to “delineate, determine and certify all wetlands.” Relevant here, the act precludes farmers who convert wetlands or produce crops on converted wetlands from receiving certain farm-related benefits. Foster’s land was certified as a wetland in 2004. Foster requested review of the NRCS’s determination in 2011, and then again in 2017 and 2020. The NRCS recertified the land following the 2011 request, but did not conduct additional reviews in 2017 or 2020, reasoning that Foster did not provide new information the NRCS had not previously considered. Foster then commenced action in district court, arguing that the NRCS improperly refused to consider new information, and that his land was outside the scope of the Swampbuster Act.

The Eighth Circuit affirmed the district court’s dismissal of Foster’s claims. As it related to the Swampbuster Act claim, Foster argued that when a farmer requested review of prior wetland certifications, any such certifications were void until the NRCS issued a new certification. The court recognized that this interpretation of the Act would lead to farmers’ ability to “unilaterally nullify wetland certifications” by “filing vague and facially-meritless review requests.”

Foster next argued that the district court erred in finding the Congressional Review Act was not reviewable through litigation. The Eighth Circuit examined the language of the Congressional Review Act and affirmed the district court’s finding based on “broad and unambiguous” language of the Act that precludes “judicial review of all omissions under the [Congressional Review Act], including those of agencies such as the USDA,” and therefore Foster’s CRA claim could not be reviewed.

Finally, Foster argued the NRCS’s decisions to deny his 2017 and 2020 review requests were arbitrary and capricious, in violation of the Administrative Procedure Act. The Eighth Circuit affirmed the dismissal of this claim as well. Foster did not provide evidence that a natural event altered the wetland or that an error existed in the NRCS’s current wetland certification of his land. Nothing in the record indicated that the NRCS acted arbitrarily or capriciously in violation of the APA.