U.S. Supreme Court Could Hear USDA Wetlands Determination Appeal

DTN writer Todd Neeley reported yesterday that, “The U.S. Supreme Court on Jan. 6 may decide whether it will hear a legal challenge to USDA’s wetlands determination system filed by a South Dakota farmer last fall.

“Miner County, South Dakota, farmer Arlen Foster petitioned the high court to consider whether a USDA procedure to determine wetlands on his 0.8 acre of land in the Prairie Pothole region is ‘arbitrary and capricious.’

“Last week, Foster’s petition was distributed for review by the court at its Jan. 6 conference. Every year, the court holds multiple conferences to look at filed petitions. Typically, the court doesn’t discuss every petition during those conferences. Those cases not discussed are considered to be denied.”

Mr. Neeley noted that, “Foster, who is represented by the Pacific Legal Foundation, told DTN in September that winter dumps piles of snow nearly every year along a tree belt near a 0.8-acre tract of land on his farm in the southeastern part of the state. Spring melt drains onto his field, often making it impossible to farm.

As a result, the 0.8 acre tract was declared a wetland based on a USDA process Foster asked the court to review. That process uses so-called reference sites when a tract of land being reviewed has been farmed, making it difficult to determine the presence of wetlands.

“This month, USDA and attorneys for Foster filed briefs with the court on whether it should hear the case.”

The DTN article explained that, “In the brief filed with the Supreme Court, USDA said it followed procedure in selecting the reference site when examining Foster’s land…[T]he Natural Resources Conservation Service, or NRCS, has faced a backlog of requests for wetlands determinations. As a result, many landowners have been left waiting for years.

“In Foster’s situation, he said NRCS instead used a comparison site to make a determination. This deprives him of his rights, he contends in his appeal. Such comparisons are allowed by NRCSĀ procedures.”

More background on the case can be found here.

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