Foster et al v. The United States Department of Agriculture et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ARLEN FOSTER,
Plaintiff,
vs.
THE UNITED STATES DEPARTMENT OF
AGRICULTURE, TOM YILSACK, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF
THE UNITED STATES DEPARTMENT OF
AGRICULTURE; THE NATURAL
RESOURCES CONSERVATION SERVICE,
TERRY COSBY, IN HIS OFFICIAL
CAPACITY AS ACTING CHIEF OF THE
NATURAL RESOURCES CONSERVATION
SERVICE; AND TONY SUSERI, IN HIS
OFFICIAL CAPACITY AS ACTING SOUTH
DAKOTA STATE CONSERVATIONIST;
Defendants.
4:21-CV-04081-RAL
OPINION AND ORDER GRANTING
DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
Arlen Foster ("Foster") owns a piece offarmland that was certified as a "wetland" in 2011
pursuant to the Swampbuster Act, 16 U.S.C. §§ 3801,3821—3824. Foster brought this complaint
against the United States Department of Agriculture ("USDA"), the Natural Resources
Conservation Service ("NRCS"), and their named representatives (collectively "Defendants")
seeking to set aside the 2011 wetland certification based on various legal theories including an
Administrative Procedure Act("APA")claim that Defendants' refusal to review the 2011 wetland
certification was arbitrary and capricious. The parties filed cross-motions for summary judgment.
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For the reasons discussed, Defendants' motion for summary judgment is granted, and Plaintiffs
motion for summary judgment is denied.
I. Facts and Procedural History
A. The Swampbuster Act
The Swampbuster Act, 16 U.S.C. §§ 3801,3821-3824, refers to the wetland conservation
provisions ofthe Food Security Act of 1985. See Barthel v. U.S. Dep't of Agnc., 181F.3d934,
936 (8th Cir. 1999). The purpose of the Swampbuster Act is "to combat the disappearance of
wetlands through their conversion into crop lands." B & D Land & Livestock Co. v. Schafer, 584
F. Supp. 2d 1182, 1190 (N.D. Iowa 2008)(citation omitted); see also Barthel, 181 F.3d at 937
("The[Swampbuster] Act's proclaimed purpose is to preserve wetlands, or,if wetlands are altered,
to preserve the conditions as altered."). As an enforcement mechanism,the Swampbuster Act sets
forth that persons who convert certified wetlands to crop lands are disqualified from receiving
federal farm benefits. 16 U.S.C. § 3821; Schafer, 584 F. Supp. 2d at 1190.
16 U.S.C. § 3822(a)(4) concerns the "Duration of Certification" and states that once an
area is certified as a "wetland" under the Swampbuster Act, that certification remains valid and
enforceable "as long as the area is devoted to an agricultural use or until such time as the person
affected by the certification requests review of the certification by the Secretary." 16 U.S.C. §
3822(a)(4). In 1996, the Code of Federal Regulations imposed criteria on when a party could
request review of a wetland certification, stating that a "wetland" certification "will remain valid
and in effect until such time as the person affected by the certification requests review of the
certification by NRCS. A person may request review ofa certification only ifa natural event alters
the topography or hydrology ofthe subjectland to the extent that thefinal certification is no longer
a reliable indication ofsite conditions, or ifNRCS concurs with an affected person that an error
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exists in the current wetland determination.'" 1 C.F.R. § 12.30(c)(6)(emphasis added). Therefore,
pursuant to 7 C.F.R. § 12.30(c)(6), a wetland certification is binding and enforceable if and until a
person affected by the certification requests review ofthat certification and natural changes to the
wetland make the certification unreliable, or until such a person requests review and NRCS agrees
that the wetland certification is erroneous.
B. 2011 Wetland Certification of Foster's Land
This case concerns .8 acres of land ("the site") in Miner County, South Dakota, which is
covered by approximately 8.5 inches of water at points during the year. Doc. 1 at 4, 7; Doc. 35 at
2-3; Doc.38 at 5-6. Foster's grandfather purchased land containing the site in 1900. Doc. 1 at 5;
Doc.35 at 2. Around 1936,Foster's father planted a tree belt on the south side ofthe site to prevent
soil erosion. Doc. 1 at 5-6; Doc. 35 at 2; Doc. 38 at 4. Snow accumulated around the tree belt in
the winter and melted in the spring, creating an 8.5 inch puddle or shallow pond on the site. Doc.
1 at 7; Doc. 35 at 2; Doc. 36 at 3; Doc. 38 at 4. Foster now owns the site and surrounding land,
which he farms. Doc. 1 at 3,7-9; Doc. 35 at 2-3; Doc. 38 at 6. In approximately half ofthe crop
years, the water on the site will dry out in time to farm the site and the surrounding area. Doc. 1
at 8; Doc. 35 at 3; Doc. 36 at 3. In the other years, the site does not dry out, and the land
surrounding it cannot be farmed without draining the site. Doc. 1 at 8; Doc. 35 at 3; Doc. 36 at 3.
In 2004, the Natural Resources Conservation Service (NRCS) and the United States
Department of Agriculture (USDA) reviewed the site and certified it as a "wetland" under 16
U.S.C. § 3822 ofthe Swampbuster Act. Doc. 1 at 2; Doc. 35 at 4. Due to the certification, Foster
cannot drain the site to farm it and the surrounding land without losing the federal farm benefits
on which he relies for his farming operation. Doc. 35 at 3.
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In 2008, Foster requested an administrative review ofthe wetland certification. Doc. 1 at
15; Doc. 35 at 4; Doc. 38 at 6. After several years of review, in June 2011, NRCS recertified the
site as a wetland. Doc. 1 at 16; Doc. 35 at 4; Doc, 38 at 6. Foster administratively appealed that
certification to the USDA, but the USDA upheld the certification. Doc. 1 at 16; Doc. 35 at 4.
Foster then brought an action in federal district court under the Administrative Procedure Act
(APA)arguing that the certification was arbitrary and capricious. Doc. 1 at 16; Doc.22 at 2. Doc.
36 at 4; Doc. 38 at 7. The district court affirmed NRCS's decision to certify the site as a wetland.
Foster v. Vilsack. No. CIV. 13-4060-KES, 2014 WL 5512905 (D.S.D. Oct. 31, 2014); Doc. 1 at
16; Doc.22 at 2; Doc. 36 at 4; Doc. 38 at 7. Foster appealed to the United States Court of Appeals
for the Eighth Circuit, which affirmed the district court in 2016. Foster v. Vilsack, 820 F.3d 330
(Sth Cir. 2016); Doc. 1 at 16; Doc. 22 at 2. Doc. 36 at 4; Doc. 38 at 7.
In June 2017, Foster submitted another request to NRCS to review the 2011 wetland
certification. Doc. 1 at 16; Doc. 36 at 4; Doc. 38 at 8. Consistent with 7 C.F.R. § 12.30(c)(6),
NRCS responded that Foster needed to submit new information showing that the topography or-
hydrology ofthe site had changed so that the 2011 certification was no longer reliable, otherwise
it would not review the certification. Doc. 1 at 16; Doc. 22 at 9; Doc. 24-1 at 9; Doc. 36 at 4—5.
In April 2020, Foster submitted another request to review the 2011 certification. Doc. 1 at
16; Doc. 38 at 8. In that request, Foster did not claim there had been a change to the topography
orhydrologyofthe site as required by 7 C.F.R. § 12.30(c)(6). Doc.24 at 5. However,he submitted
an engineering report analyzing the volume ofsnow accumulation under the tree belt and providing
an opinion that the site was an artificial wetland. Doc. 1 at 16-1; Doc. 24-1 at 22-35; Doc. 35 at
5; Doc. 38 at 8-9.
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DekeHobbick,an assistant state conservationist atNRCS,considered Foster's 2020 review
request and the engineering report. Doc. 24 at 3—5. He concluded that the information presented
in the report, concerning whether the site was an "artificial wetland," was previously considered
and rejected by NRCS when reaching the 2011 wetland certification. Doc. 22 at 9; Doc. 24 at 4;
Doc. 35 at 6. Hobbick also concluded Foster had not alleged or shown that there was any change
in the topography or hydrology of the site, as required by 7 C.F.R. § 12.30(c)(6), which would
qualify the 2011 wetland certification for review. Doc. 24 at 5. Hobbick submitted an affidavit
explaining that:
In reviewing the Fosters' 2020 request for review of the agency's final certified
wetland determination,I reviewed the original information submitted by the Fosters
in 2019 and the supplemental information received in 2020. Their request asserted
that the area in question should be considered an artificial wetland, as defined in 7
C.F.R. § 12.2 . ... I reviewed the information and data that underlies the 2011
final wetland certification and observed that NRCS previously considered, on
multiple occasions, whether or not a nearby shelter belt was causing an artificial
wetland. I also observed that the information submitted with the 2020 request
included newly created data in the engineer's report and conclusions based on that
data; however, the data and conclusions appeared to be based upon the same
artificial wetland argument that the agency had considered and rejected in
connection with the 2011 determination and subsequent administrative and judicial
review. The 2020 request also did not assert that there had been a natural change
in the topography or hydrology ofthe area in question. As a result of my review
of the 2020 request and NRCS records, I recommended that the State
Conservationist respond to the request by stating that NRCS was unable to
determine whether any of the conditions identified in 7 C.F.R. § 12.30(c)(6)
governing requests for review ofa final certified wetland determination applied...
. [Foster has]notprovided anyfurther information that wouldpermit review under
the conditions setsforth in 7 C.F.R.§12.30(c)(6).
Doc.24 at 4—5(emphasis added). Consistent with Hobbick's conclusions,NRCS rejected Foster's
request to review the 2011 wetland certification. Doc. 1 at 17; Doc. 35 at 6; Doc. 38 at 9.
In May 2021, Foster filed this complaint^ raising five counts:
^ The initial plaintiffs in this case were Arlen Foster and his wife Cindy Foster. Doc. 1. Cindy
Foster has since passed away and was dismissed fi:om this action. Doc. 33; Doc.40; Doc. 44.
5
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1) Constitutionality of the Swampbuster Act;
2) Whether 7 C.F.R. § 12.30(c)(6) contravenes the Congressional Review Act("CRA"),5
U.S.C. § 801;
3) Whether 7 C.F.R. § 12.30(c)(6) violates the Swampbuster Act and the due process
clause;
4) Whether Defendants' denials of Foster's 2017 and 2020 requests for review were
arbitrary and capricious under the APA;
5)Claim that the 2011 wetland certification is no longer in effect.
Doc. 1 at 19-27. Defendants filed a motion to dismiss for lack ofjurisdiction, failure to state a
claim, judgment on the pleading, or alternatively for summary judgment, Doc. 21, and Foster
responded with a cross-motion for summary judgment, Doc. 34. Foster also filed a motion to
supplement the administrative record with three letters pertaining to the review process leading up
to the 2011 wetland certification. Doc. 41; Doc. 42 at 1.
II. Legal Standards
Defendants bring their motion to dismiss for lack of subject matterjurisdiction under Rule
12(b)(1) ofthe Federal Rules of Civil Procedure. Doc.22 at 10-11. On a motion to dismiss under
Rule 12(b)(1), the standard of review depends on whether the defendant is making a facial attack
or factual attack on subject matter jurisdiction. Stallev v. Cath. Health Initiatives, 509 F.3d 517,
520-21 (8th Cir. 2007). When a defendant makes a facial attack to challenge whether the facts
alleged in the complaint establish subject matter jurisdiction under Rule 12(b)(1), the plaintiff is
afforded similar safeguards as in a Rule 12(b)(6) motion. See Osbom v. United States. 918 F.2d
724,729 n.6 (8th Cir. 1990). Namely,the Court must "accept as true all factual allegations in the
complaint, giving no effect to conclusory allegations oflaw," and determine whether the plaintiffs
alleged facts "affirmatively and plausibly suggest" that jurisdiction exists. Stallev, 509 F.3d at
521. A court's review then is limited to the face of the pleadings. Branson Label. Inc. v. Citv of
Branson. 793 F.3d 910, 914(8th Cir. 2015).
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On the other hand, when a defendant attacks the factual basis for subject matterjurisdiction,
a court can consider matters outside the pleadings,"and the non-moving party does not have the
benefit of 12(b)(6) safeguards." Osbom. 918 F.2d at 729 n.6.'"A factual attack occurs when the
defendant challenges the veracity ofthe facts imderpinning subject matter jurisdiction." Davis v.
Anthonv. Inc.. 886 F.3d 674, 679 (8th Cir. 2018)(cleaned up and citation omitted). In that case,
"no presumptive truthfulness attaches to the plaintiffs allegations," and a "court is free to weigh
the evidence and satisfy itself as to the existence ofits power to hear the case." Osbom,918 F.2d
at 730 (citation omitted). Defendants consider their motion to dismiss for lack ofjurisdiction to
be a factual attack under which this Court may consider matters outside ofthe pleadings. Doc.
22 at 10-11.
A judgment on the pleadings is reviewed under "the same standard used to address
a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6)." demons v.
Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009)(cleaned up and citation omitted). Under this
standard, "well-pleaded facts, not legal theories or conclusions, determine the adequacy of the
complaint. ... The facts alleged in the complaint must be enough to raise a right to relief above
the speculative level." Id (cleaned up and citations omitted).
Under Rule 56(a) ofthe Federal Rules of Civil Procedure,summaryjudgment is proper "if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter oflaw." Fed. R. Civ. P. Sdlak see also Celotex Corp. v. Catrett, 477 U.S.
317, 322(1986). A party opposing a properly supported motion for summary judgment"may not
rest upon mere allegations or denials" in his pleadings but "must set forth specific facts showing
that there is a genuine issue for trial." Gacek v. Owens & Minor Distrib.. Inc.. 666 F.3d 1142,
1145 (8th Cir. 2012). To establish that a material fact is genuinely disputed, the party opposing
7
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summary judgment must "cit[e] to particular parts of materials in the record" that establish a
genuine dispute or "show[] that the materials cited do not establish the absence ... of a genuine
dispute " Fed. R. Civ. P. 56(c)(1)(A),(B). In ruling on a motion for summary judgment,the
facts and inferences fairly drawn from those facts are "viewed in the light most favorable to the
party opposing the"motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986)(cleaned up and citation omitted).
"There is authority for the proposition that a summary judgment motion should be denied
whenever its proponent does not meet his initial burden" under Fed. R. Civ. P. 56(a). Handeen v.
Lemaire. 112 F.3d 1339, 1347 (8th Cir. 1997). But the United States Court of Appeals for the
Eighth Circuit has made clear that there is "no reason to prevent a district court from granting
summaryjudgment ifthe unchallenged facts cannot, as it turns out,sustain a viable cause ofaction.
In these situations, we agree with our counterparts on the Fifth Circuit that the submission should
be evaluated similarly to a 12(b)(6) motion to dismiss Where a motion for summary judgment
is based solely on the pleadings and makes no meaningful reference to affidavits, depositions, or
interrogatories, it makes no difference whether the motion is evaluated under Rule 56 or Rule
12(b)(6) because both standards reduce to the same question." Id (cleaned up and citations
omitted); see also Ashe v. Corlev. 992 F.2d 540, 544 (5th Cir. 1993). "Therefore, a court
should grant [a] motion [for summary judgmentQ and dismiss [an] action 'only if it is clear that
no relief could be granted under any set of facts that could be proved consistent with the
allegations.'" Handeen. 112 F.3d at 1347 (quoting Hishon v. King & Snalding, 467 U.S. 69, 73
(1984)).
III. Discussion
A. Constitutionality of the Swampbuster Act
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Foster's first claim is that the Swampbuster Act violates the Commerce Clause and the
Tenth Amendment Doc. 1 at 19-22; Doc. 39 at 16-19. He argues that wetlands are neither an
instrument ofcommerce nor have a substantial effect on interstate commerce,so the Swampbuster
Act is outside of Congress's plenary power. Doc. 1 at 20; Doc. 36 at 35-41. Foster also claims
that the Swampbuster Act violates the Tenth Amendment by usurping a state's police power over
local land use. Doc. 1 at 21. Alternatively, he claims that the Swampbuster Act is outside of
Congress's Article I § 8 spending power. Doc. 36 at 41^3. Defendants argue that Foster's
constitutional claims are barred by the six-year statute of limitations set forth in 28 U.S.C. §
2401(a). Doc. 22 at 13-14; Doc. 37 at 3-6.
"Section 2401(a) of28 U.S.C. is a general statute of limitations for suits against the
government, which provides that 'every civil action commenced against the United States shall be
barred unless the complaint is filed within six years after the right of action first accrues.'" Izaak
Walton League of Am.. Inc. v. Kimbell. 558 F.3d 751, 759 (8th Cir. 2009)(quoting 28 U.S.C. §
2401(a)). "A claim against the United States first accrues on the date when all the events have
occurred which fix the liability of the Government and entitle the claimant to institute an action."
Id.(cleaned up and citation omitted).
Defendants argue that Foster's claim accrued no later than 2012, when the USDA upheld^
the 2011 wetland certification on administrative appeal. Doc. 37 at 2-4. Foster responds with two
arguments. First, he claims that a statute oflimitations defense is nonjurisdictional, and therefore
Defendants waived this defense by failing to raise it in their answer. Doc. 39 at 17;^Day v.
McDononfJh, 547 U.S. 198, 199 (2006) (stating that "[a] statute of limitations defense is not
jurisdictional"). Second, Foster argues that his cause of action accrued in 2020 when Defendants
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denied his petition to review the 2011 wetland certification, and therefore 28 U.S.C. § 2401(a)
does not bar his claim. Doc. 36 at 37; Doc, 39 at 19—20.
. "Generally, a motion to dismiss may be granted when a claim is barred under a statute of
limitations. ... In order for a party to avail itself ofthis defense, the party must specifically plead
the defense in its answer. However, while this failure would normally result in the waiver of a
limitations defense,... we recognize that when it appears from the face ofthe complaint itselfthat
the limitation period has run, a limitations defense may properly be asserted through a Rule
12(b)(6) motion to dismiss." Vamer v. Peterson Farms. 371 F.3d 1011, 1016 (8th Cir. 2004)
(cleaned up and citations omitted); see also Wvcoff v. Menke. 773 F.2d 983, 984—85 (8th Cir.
1985). Here, the site was first certified as a wetland under the Swampbuster Act almost two
decades ago in 2004. Doc. 1 at 2; Doc.35 at 4. Therefore,it is clear from the face ofthe complaint
that the statute of limitations period has run, and this Court may properly consider Defendants'
statute oflimitations defense as pled in their motion to dismiss.
Further, Foster's claim that his cause of action challenging the constitutionality of the
Swampbuster Act accrued in 2020 ignores the lengthy factual and procedural history of this most
recent case. Foster would have become aware, or with due diligence should have become aware,
of any alleged unconstitutionality ofthe Swampbuster Act no later than when the site was initially
certified as a wetland under the Swampbuster Act in 2004, and certainly no later than 2013 when
he brought an action in federal district court challenging the 2011 certification based on the
Swampbuster Act. Foster. No. CFV. 13-4060-KES,2014 WL 5512905,at *1. Foster did not bring
his claim that the Swampbuster Act is unconstitutional until over six years later in May 2021.
Therefore, Foster's constitutional claims appear barred by 28 U.S.C. § 2401(a). See Burt Lake
Band of Ottawa & Chinnewa Indians v. Zinke, 304 F. Supp. 3d 70,74-75(D.D.C. 2018)(holding
10
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that § 2401(a) applies to constitutional claims and, as "a jurisdictional condition attached to the
government's waiver of sovereign immunity .. must be strictly construed").
Even if Foster's constitutional claims were not barred, courts have affmned that the
Swampbuster Act is within Congress's Article I § 8 spending power. "The Constitution
empowers Congress to lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United States." South Dakota v.
Dole, 483 U.S. 203,206 (1987)(citation omitted). "Incident to this power. Congress may attach
conditions on the receipt offederal funds, and has repeatedly employed the power to
further broad policy objectives by conditioning receipt offederal moneys upon compliance by the
recipient with federal statutory and administrative directives." Id (cleaned up and citation
omitted). Congress's spending power is limited in that "the exercise ofthe spending power must
be in pursuit ofthe general welfare In considering whether a particular expenditure is intended
to serve general public purposes, courts should defer substantially to the judgment
of Congress." Id.(cleaned up and citations omitted). In United States v. Dierckman, the United
States Court of Appeals for the Seventh Circuit explained that the Food Security Act—and the
provisions of the Swampbuster Act in particular— were enacted under the spending power and
rejected an argument that the Food Security Act violated the Commerce Clause, stating: "the
argument falters because it assumes that the [Food Security Act] is a creature of
the Commerce Clause. The [Food Security Act] is not an exercise of direct regulatory power;
instead, the [Food Security Act] conditions the receipt ofUSDA farm benefits on the preservation
of wetlands. This is indirect regulation invoking the spending power and is not limited by the
enumeration ofCongressional powers in Article I, section 8 ofthe Constitution.^'' 201 F.3d 915,
922(7th Cir. 2000)(emphasis added)(citing Dole. 483 U.S. at 207).
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Additionally, the Swampbuster Act does not violate the Tenth Amendment, which states:
"[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the -
States, are reserved to the States respectively, or to the people." U.S. Const, amend. X. Under
the Tenth Amendment,"[n]o matter how powerful the federal interest involved, the Constitution
simply does not give Congress the authority to require the States to regulate. The Constitution
instead gives Congress the authority to regulate matters directly and to pre-empt contrary state
regulation." New York v. United States. 505 U.S. 144, 178 (1992). "The Tenth Amendment...
has been consistently construed as not depriving the national government of authority to resort to
all means for the exercise of a granted power which are appropriate and plainly adapted to the
permitted end." F.E.R.C. v. Mississippi, 456 U.S. 742, 766 (1982) (cleaned up and citation
omitted'): see also Hodel v. Virginia Surface Mining & Reclamation Ass'n. Inc.,452 U.S. 264,286
(1981)("Congressional power over areas of private endeavor, even when its exercise may pre
empt express state-law determinations contrary to the result that has commended itself to the
collective wisdom of Congress,has been held to be limited only by the requirement that the means
chosen by Congress must be reasonably adapted to the end permitted by the Constitution."(cleaned
up and citation omitted)). Here,the Swampbuster Act is within Congress's Article I § 8 spending
power and does not infringe upon state sovereignty by requiring states to implement a federal
program^ statute, or regulation. See F.E.R.C., 456 U.S. at 765-66 (rejecting a Tenth Amendment
challenge to a federal statute when the statute did not "directly compel[]" a state to enact a
legislative program and thereby impair the state's ability to function independently). Defendants
are entitled to summary judgment on Foster's count seeking declaratory relief that the
Swampbuster Act is unconstitutional.
B. Whether 7 C.F.R.§ 12.30(c)(6) Contravenes the Congressional Review Act
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Foster's second claim seeks declaratory relief that 7 C.F.R. § 12.30(c)(6) does not comply
with the Congressional Review Aet(CRA),5 U.S.C. § 801, and is therefore unlawful. Doc. 1 at
22-23; Doc. 36 at 26-33. In March 1996, Congress enacted the CRA, which requires federal
agencies to submit administrative rules to Congress before enacting those rules. 5 U.S.C. § 801.
Congress may then submit a joint resolution disapproving of the rule if certain provisions of the
CRA are satisfied. 5 U.S.C. § 802. The CRA defines a "rule" as "the whole or apart of an agency
statement of general or particular applicability and fiiture effect designed to implement, interpret,
or prescribe law or policy or describing the organization, procedure, or practice requirements of
an agency " 5 U.S.C. § 804; 5 U.S.C. § 551. 5 U.S.C. § 805 of the CRA states that "[n]o
determination, finding, action, or omission under this chapter shall be subject to judicial review."
5 U.S.C. § 805.
Foster argues that 7 C.F.R.§ 12.30(c)(6), which restricts the circumstances in which a party
may request review ofa wetland certification, was not submitted to Congress pursuant to the CRA
and is therefore invalid. Doc. 1 at 22—23; Doc. 35 at 6—7; Doc. 36 at 26—35; Doc. 38 at 10; Doc.
39 at 13-15. Foster asserts that if 7 C.F.R. § 12.30(c)(6) is unenforceable, then Defendants were
required to accept his 2017 and 2020 requests to review the 2011 certification under 16 U.S.C. §
3822(a)(4). Doc. 1 at 23. Defendants respond that this claim is barred because the CRA does not
waive sovereign immunity to challenge 7 C.F.R. § 12.30(c)(6) on these grounds. Doc. 22 at 14—
15; Doc. 37 at 7-8.
"Congress is generally hee to limit the jurisdiction offederal courts." Ctr. for Biological
Diversity v. Bemhardt,946 F.3d 553,563(9th Cir. 2019)(citing United States v. Hudson,7 Crunch
32, 33 (1812)). "But in order to do so. Congress must enact a statute that provides 'clear and
convincing evidence that Congress intended to deny' access to judicial review." Id (quoting
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of Governors of Fed. Reserve Svs. v. MCorp Fin.. Inc.. 502 U.S. 32, 44 (1991)). "A statute
provides such clear and convincing evidence,'and the presumption favoring judicial review [is]
overcome, whenever the congressional intent to precludejudicial review is fairly discernible in the
statutory scheme.'" Id (quoting Block v. Cmtv.Nutrition Inst.. 467 U.S. 340, 351 (1984)).
Most courts examining 5 U.S.C. § 805 have determined that it is a "Jurisdiction-Stripping
Provision" that "bars judicial review." Id (collecting cases); Kansas Nat. Res. Coal, v. U.S.
Den't of the Interior. 382 F. Supp. 3d 1179, 1183-85(D. Kan. 2019)(explaining that most courts
have found 5 U.S.C. § 805 precludes judicial review while "[ojnly two district court cases
specifically have found that § 805 does not preclude relief when an agency fails to submit a rule
to Congress under the CRA"). For instance, the Tenth Circuit has held that "the plain language of
§ 805" denies a court subject matter jurisdiction over a claim that an agency failed to submit an
administrative rule to Congress prior to its enactment as required by § 801(a)(1)(A) ofthe CRA.
Kansas Nat. Res. Coal, v. United States Den't of Interior. 971 F.3d 1222, 1235 (10th Cir. 2020).
Likewise, the Ninth Circuit has held § 805 "deprived [it] of jurisdiction to review any claim
challenging a 'determination, finding, action, or omission' under the CRA," including a failure to
comply with 5 U.S.C. § 801. Bemhardt. 946 F.3d at 562-63 (quoting 5 U.S.C. § 805).
An agency's alleged failure to submit an administrative rule to Congress, such as 7 C.F.R.
§ 12.30(c)(6), is an omission under 5 U.S.C. § 801 of the CRA. Therefore, the plain language of
5 U.S.C. § 805—^that "[n]o determination, finding, action, or omission under this chapter shall be
subject to judicial review"—^bars this Court from exercising jurisdiction over Foster's claim that 7
C.F.R. § 12.30(c)(6) was enacted in violation ofthe CRA. 5 U.S.C. § 805;^Kansas Nat. Res.
Coal.. 382 F. Supp. 3d-at 1183-85 (holding 5 U.S.C. § 805 precluded judicial review of a claim
that a Fish and Wildlife agency rule was invalid because the rule was not submitted to Congress
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as required by 5 U.S.C. § 801); Montanans For Multiple Use v. Barbouletos, 568 F.3d 225, 229
(D.C. Cir. 2009)(holding 5 U.S.C. § 805 precluded judicial review of a forest management plan
that the plaintiffs alleged was not submitted to Congress in compliance with 5 U.S.C. §
801(a)(1)(A)). Defendants are entitled to summary judgment on Foster's second count seeking
declaratory relief that 7 C.F.R. § 12.30(c)(6) is invalid and unenforceable.
C. Whether 7 C.F.R.§ 12.30(c)(6) violates the Swampbuster Act and the Due Process
Clause
Next,Foster alleges that 7 C.F.R. § 12.30(c)(6) violates 16 U.S.C.§ 3822(a)(4) by limiting
a review of a wetland certification to "only [when] a natural event alters the topography or
hydrology of the subject land to the extent that the final certification is no longer a reliable
indication of site conditions, or [when]NRCS concurs with an affected person that an error exists
in the current wetland determination." Doc. 1 at 23-25; 7 C.F.R. § 12.30(c)(6). As discussed, 16
U.S.C. § 3822(a)(4) concerns the "Duration of Certification" and states that once an area is
certified as a "wetland" under the Swampbuster Act, that certification remains valid and
enforceable "as long as the area is devoted to an agricultural use or until such time as the person
affected by the certification requests review of the certification by the Secretary." 16 U.S.C. §
3822(a)(4). Foster claims that because 16 U.S.C. § 3822(a)(4)does not discuss any restrictions on
requesting a final certification review,the statute implicitly imposes a mandatory duty on agencies
to conduct a review and issue a new certification every time an aggrieved party requests such a
review. Doc. 1 at 23-25. Foster also argues that 7 C.F.R. § 12.30(c)(6) violates the due process
clause by restricting review of wetland certifications.^ Doc. 1 at 24-25; Doc. 36 at 24-26.
^ In the complaint, Foster does not specify whether he is alleging a substantive due process
violation or a procedural due process violation. Doc. 1 at 24—25. In Foster's motion for summary
judgment, he alleges that 7 C.F.R. § 12.30(c)(6) violates his procedural due process rights. Doc.
36 at 24-26.
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"[W]hen a court reviews an agency's construction of the statute which it administers, it is
con&onted with two questions First, applying the ordinary tools of statutory construction, the
court must determine whether Congress has directly spoken to the precise question at issue. Ifthe
intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Congress.... But if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute." City of Arlington v. F.C.C., 569
U.S. 290, 296 (2013); see also Mavo Clinic v. United States. 997 F.3d 789, 792(8th Cir. 2021).
"Generally speaking, the langiiage in the [the Swampbuster Act], just as in any statute, is to be
given its ordinary meaning." Mavo Clinic, 997 F.3d at 793(citation omitted). "It is a fundamental
canon ofstatutory construction that the words ofa statute must be read in their context and with a
view to their place in the overall statutory scheme." Id. at 794 (citation omitted).
Here, the question is whether Congress imposed any restrictions on how often or under
what circumstances a party may request a review of a final certification, or if Congress required
an agency to repeat the certification process whenever an unsatisfied party requests a review.
Section 3822(a)(4) does not address any restrictions on when a party can request a review, much
less impose a nondiscretionary duty on an agency to repeat the certification process whenever
requested to do so by an unsatisfied party. 16 U.S.C. § 3822(a)(4). The other provisions of the
Swampbuster Act also do not address or set forth any requirements for requesting review of a
wetland certification. 16 U.S.C. §§3801, 3821-3824. Because the Swampbuster Act is silent
on the requirements for requesting review of a wetland certification,the question becomes whether
7 C.F.R. § 12.30(c)(6) is a permissible interpretation of 16 U.S.C. § 3822(a)(4). S^ City of
Arlington, 569 U.S. at 296.
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"In deterauning whether a particular regulation carries out the congressional mandate in a
proper manner, we look to see whether the regulation harmonizes with the plain language of
the statute, its origin, and its purpose." Nat'l Muffler Dealers Ass'n v. United States, 440 U.S.
472, 477 (1979); see also Mavo Clinic. 997 F.3d at 794. "When an agency iuvokes its authority
to issue regulations, which then interpret ambiguous statutory terms, the courts defer to its
reasonable interpretations. . . . We have interpreted this deference as amounting to controlling
weight unless the regulation is arbitrary, capricious, or manifestly contrary to the statute." Clark
V. U.S. Dep't ofAgric..537 F.3d 934,939(8th Cir. 2008)(cleaned up and citation omitted). When
possible, courts should also seek to harmonize statutes and agency regulations. See, e.g..
Carmichael V. The Payment Ctr.. Inc., 336 F.3d 636,640(7th Cir. 2003)(stating "[a] statute and
its implementing regulations should be read as a whole and, where possible, afforded a harmonious
interpretation"); Powell v. Heckler, 789 F.2d 176, 179 (3d Cir. 1986)(stating that "statutes and
regulations should be read and construed as a whole and, wherever possible, given a harmonious,
comprehensive meaning"); McCuin v. Sec'v of Health & Human Servs., 817 F.2d 161, 168 (1st
Cir. 1987)(stating that, "[i]n interpreting statutes and regulations, courts must try to give them
a harmonious, comprehensive meaning, giving effect, when possible, to all provisions").
Here,7 C.F.R. § 12.30(c)(6)is easily reconciled with 16 U.S.C. § 3822(a)(4) and the other
provisions of the Swampbuster Act. 7 C.F.R. § 12.30(c)(6) merely restricts the circumstances in
which an agency must review a final certification to when it receives information that(1)the final
certification was no longer reliable due to changes in natural conditions, or(2) the NRCS agrees
with the party requesting review that the final certification is no longer accurate. 7 C.F.R. §
12.30(c)(6). 7 C.F.R. § 12.30(c)(6) does not contradict any provision ofthe Swampbuster Act and
is rationally related to promoting efficiency in the certification review process. West v.
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Bergland. 611 F.2d 710, 725 (8th Cir. 1979)(upholding a regulation that was "unchallenged" for
decades, "reasonably designed to preserve the integrity and reliability of a government
agricultural program, and was "not inconsistent either with an express statutory provision or with
the agriculture laws taken as a whole").
Additionally, 7 C.F.R. § 12.30(c)(6) does not violate the due process clause. "To have a
property interest in a benefit," protected by the due process clause,"a person clearly must have
more than an abstract need or desire and more than a unilateral expectation of it. He must,instead,
have a legitimate claim of entitlement to it. . . . Such entitlements are, of course, not created by
the Constitution. Rather, they are created and their dimensions are defined by existing rules or
understandings that stem fi:om an independent source such as state law." Keating v. Nebraska Pub.
Power Dist., 660 F.3d 1014, 1017 (8th Cir. 2011) (citations omitted). "The requirements of
procedural due process apply only to governmental decisions which deprive individuals of liberty
or property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth
Amendment." United States v.Long.977 F.2d 1264,1276(8th Cir. 1992)(cleaned up and citation
omitted); see also Demming v. Hous. & Redevelopment Auth.. of Duluth 66 F.3d 950, 953 (8th
Cir. 1995). "The relevant consideration for [a procedural due process] analysis is a two-part
inquiry. We must determine (1) whether the [Foster was] deprived of a protected interest, and if
so,(2) what process was due." Schneider v. United States. 27 F.3d 1327, 1333 (8th Cir. 1994).
Foster has not established that he suffered any due process violation because there is no
law or independent source of authority giving Foster a right to certification review upon request.
As discussed, 7 C.F.R. § 12.30(c)(6) is a permissible interpretation of 16 U.S.C. § 3822(a)(4) and
restricts the circumstances in which a final certification merits review. Thus, 16 U.S.C. §
3822(a)(4) does not create a protected liberty or property interest requiring certification review
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upon request. See also United States v. Dierckman, 41 F. Supp. 2d 870, 878 (S.D. Ind. 1998)
(holding "the Food Security Act and its implementing regulations easily clear the substantive due
process hurdle," and "[t]he Swampbuster provisions undoubtedly relate to Congress' goal of
curtailing wetland conversion and do so within Constitutional limits"). Defendants are entitled to
summaryjudgment onFoster'scount seeking declaratory reliefthat7 C.F.R. § 12.30(c)(6) violates
16 U.S.C. § 3822(a)(4) and the due process clause.
D. Whether Defendants' Denials ofFoster's 2017 and 2020 Requests for Review were
Arbitrary and Capricious under the APA
Next Foster argues Defendants' refusal to accept his 2017 and 2020 requests to review the
2011 wetland certification were arbitrary and capricious, and therefore should be set aside under
the Administrative Procedure Act(APA). Doc. 1 at 25-27. Foster's claim rests on the premise
that 16 U.S.C. § 3822(a)(4) requires an agency to repeat the certification process whenever an
aggrieved party requests review of a final certification. Doc. 1 at 25-27. Alternatively, Foster
argues his 2020 review request should have been accepted pursuant to 7 C.F.R. § 12.30(c)(6)
because it was accompanied by an engineering report stating the site was an artificial wetland.
Doc. 1 at 25-27.
"The APA waives the United States' sovereign immunity in either one oftwo ways[:]" 5
U.S.C. § 702 and 5 U.S.C. § 704. Wright v. Langdeau, 158 F. Supp. 3d 825, 833-34 (D.S.D.
2016); see also Luian v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882(1990)(discussing avenues for
relief under 5'U.S.C. § 702 and 5 U.S.C. § 704). If a party has established either 5 U.S.C. § 702
or 5 U.S.C. § 704 waives sovereign immunity for its claim, the reviewing court shall review the
agency action and "shall set aside agency action found to be 'arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.'" Preferred Risk Mut. Ins. Co. v. United
States. 86 F.3d 789, 792 (8th Cir. 1996)(cleaned up)(quoting 5 U.S.C. § 706(2)(A)); 5 U.S.C.
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§ 706. Foster brings this claim under both 5 U.S.C. § 702 and 5 U.S.C. § 704, and this Court will
address each statute in turn. Doc. 1 at 3,17.
First, 5 U.S.C.§ 702 waives sovereign immunity for a person seeking injunctive relief who
"suffer[ed] legal wrong because of agency action, or [was] adversely affected or aggrieved by
agency action within the meaning of a relevant statute." 5 U.S.C. § 702. Section 702's waiver of
sovereign immunity "contains two separate requirements: 1)the person claiming a right to review
must identify some agency action, and 2)the party seeking review must show that he has suffered
a legal wrong or been adversely affected by that action within the meaning of a relevant statute."
Preferred Risk Mut. Ins. Co., 86 F.3d at 792. An "agency action" is defined "as the whole or a
part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure
to act." Luian,497 U.S. at 882(cleaned up and citation omitted). "A legal wrong is any invasion
of a legally protected right." Smith v. U.S. Dep't of Agric.. 888 F. Supp. 2d 945,954(S.D. Iowa
2012) Cciting Preferred Risk Mut. Ins. Co., 86 F.3d at 793 n.5). "[T]o be adversely affected or
aggrieved within the meaning of a statute, the plaintiff must establish that the injury he complains
of{his aggrievement, or the adverse effect upon him)falls within the 'zone of interests' sought to
be protected by the statutory provision whose violation forms the legal basis for his complaint."
Luian. 497 U.S. at 883 (cleaned up and citation omitted).
Here, Defendants' denials of Foster's 2017 request and 2020 request to review the 2011
wetland certification are agency actions under 5 U.S.C. § 702. However,the second requirement
of5 U.S.C. § 702—requiring the party seeking review to establish that he or she "suffer[ed] legal
wrong because of agency action, or[was] adversely affected or aggrieved by agency action within
the meaning of a relevant statute"—is not satisfied. 5 U.S.C. § 702. As discussed, Foster's claim
that 16 U.S.C. § 3822(a)(4) required Defendants to review the 2011 certification is not supported
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by the statutory text. 16 U.S.C. § 3822(a)(4) sets forth the duration of a wetland certification
stating that the certification of a wetland endures "as long as the area is devoted to an agricultural
use or until such time as the person affected by the certification requests review ofthe certification
by the Secretary." 16 U.S.C. § 3822(a)(4). As explained above, 7 C.F.R. § 12.30(c)(6) is a
permissible interpretation of 16 U.S.C. § 3822(a)(4) that limits certification review to when "a
natural event alters the topography or hydrology of the subject land to the extent that the final
certification is no longer a reliable indication of site conditions, or [when]NRCS concurs with an
affected person that an error exists in the current wetland determination." 7 C.F.R. § 12.30(c)(6).
Therefore, Foster cannot show he suffered a "legal wrong or been adversely affected ... within
the meaning of a relevant statute." Preferred Risk Mut. Ins. Co.. 86 F.3d at 792.
A party may also seek relief under 5 U.S.C. § 704 of the APA. Section 704 states that a
"final agency action for which there is no other adequate remedy in a court [is] subject to judicial
review." 5 U.S.C. § 704. In these cases, where the "review is sought not pursuant to specific
authorization in the substantive statute, but only under the general review provisions of the APA
[5 U.S.C. § 704], the 'agency action' in question must be 'final agency action.'" Luian,497 U.S.
at 882. "Two conditions must be satisfied for an agency action to be "final": First, the action must
mark the consummation ofthe agency's decisionmaking process The agency's action cannot
be tentative or interlocutory in nature. . . . Second, the action must be one by which rights or
obligations have been determined, or from which legal consequences will flow." Sisseton-
Wahpeton Ovate of Lake Traverse Reservation, v. United States Corns of Engineers. 888 F.3d
906, 915 (8th Cir. 2018)(cleaned up and citation omitted). "To constitute a final agency action,
the agency's action must have inflicted an actual, concrete injury upon the party seeking judicial
review." Id (cleaned up and citation omitted).
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Here, Defendants' denial of Foster's requests for review in 2017 and 2020 were final
agency actions. The refusals, after administrative appeals and judicial appeals had been exhausted,
barred any further review of the 2011 wetland certification and ensured that the enforcement
provisions ofthe Swampbuster Act remain in place for the .8 acre site at issue. See Sierra Club v.
U.S. Armv Cores of Engineers. 446 F.3d 808, 813 (8th Cir. 2006)(stating that if an "agency has
issued a definitive statement of its position, determining the rights and obligations of the parties,
that action is fmal for purposes ofjudicial review despite the possibility offurther proceedings in
the agency to resolve subsidiary issues" (cleaned up and citation omitted)). Therefore, Section
704 waives sovereign immunity for Foster's claim, and this Court now reviews whether
Defendants' 2017 and 2020 denials of Foster's requests for review of the 2011 wetland
certification were "arbitrary and capricious." See Preferred Risk Mut. Ins. Co., 86 F.3d at 792.
7 C.F.R. § 12.30(c)(6)requires that "a natural event alterQ the topography or hydrology of
the subject land to the extent that the fmal certification is no longer a reliable indication of site
conditions, or [that] NRCS concurQ with an affected person that an error exists in the current
wetland determination" to merit a review of a final certification. 7 C.F.R. § 12.30(c)(6). Foster
does not allege or point to any evidence in the record suggesting that KRCS believed the 2011
wetland certification was erroneous when he brought his requests for review in 2017 and 2020.
See Doc. 1 at 25-27; Doc. 36.
In 2017, Foster did not submit any new information suggesting that the natural conditions
of the site had changed pursuant to 7 C.F.R. § 12.30(c)(6). S^ Doc. 1 at 25-27. Therefore,
Defendants' denial of Foster's 2017 review request was not arbitrary or capricious. Foster's 2020
request for review is a somewhat closer question. Foster submitted a report stating that the wetland
was an artificial wetland. However, NRCS determined that the report did not allege or show the
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topography ofthe site had changed such that the 2011 wetland certification was no longer reliable
as required by 7 C.F.R. § 12.30(c)(6). Doc. 1 at 17, 25-27; Doc. 24 at 5; Doc. 35 at 6. Neither
does Foster allege or show that the report presented information that the topography ofthe site had
changed. Doc. 1 at 16,25-27; Doc. 24-1 at 22-35; Doc. 35 at 5-6. Rather,the engineering report
addressed how the longstanding tree belt affected the topography ofthe site. Doc. 1 atl6,25-27;
Doc. 24-1 at 22-35; Doc. 35 at 5. Therefore, by all accounts, Defendants' denial of Foster's 2020
request for review complied with 7 C.F.R. § 12.30(c)(6) and was not arbitrary and capricious.
Summary judgment for Defendants thus enters on Foster's fourth count seeking to set aside
Defendants' denials of his 2017 and 2020 requests for review.
E. Claim that the 2011 Wetland Certification is No Longer in Effect
Next, Foster seeks declaratory relief that the 2011 wetland certification is no longer valid
due to Foster's 2017 and 2020 requests for review. Doc. 1 at 27. In support, Foster relies on his
claim that 16 U.S.C. § 3822(a)(4) sets forth that a final certification is no longer valid whenever
an aggrieved party requests review of that certification. As discussed, 16 U.S.C. § 3822(a)(4)
governs the duration of a certification and cannot be read to nullify a wetland certification
whenever an aggrieved party requests review. See 16 U.S.C. § 3822(a)(4). Instead, because 7
C.F.R. § 12.30(c)(6) is a permissible interpretation of 16 U.S.C. § 3822(a)(4), a wetland
certification is subject to review when a qualifying party requests review ofthe certification and
"a natural event alters the topography or hydrology of the subject land to the extent that the final
certification is no longer a reliable indication of site conditions," or a qualifying party requests
review and the "NRCS concurs with an affected person that an error exists in the current wetland
determination." 7 C.F.R. § 12.30(c)(6). Defendants are entitled to summary judgment on Foster's
fifth count requesting a declaration that the 2011 wetland certification is no longer in effect.
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F. Foster's Motion to Supplement the Administrative Record
After the parties filed cross-motions for summary judgment, Foster filed a motion to
supplement the administrative record. Doc. 41. He seeks to add three documents to the
administrative record: a letter dated February 19, 2008 firom resource conservationist Karen
Cameron-Howell; a letter dated April 6,2009 ftom NRCS rescinding a 2009 wetland certification
of the site; and a letter dated J^uary 15, 2010 fi:om NRCS rescinding a subsequent wetland
determination ofthe site. Doc.41; Doc.42 at 1. Foster argues these letters are necessary to resolve
disputed issues offact in the record concerning the review process leading up to the 2011 wetland
certification, and these documents are necessary to complete the administrative record. Doc. 42
at 1-2, 6-7; Doc. 46.
Defendants oppose the motion and argue that these letters were properly excluded fi:om the
administrative record. Doc.45 at 2-4. These letters are now part ofthe record ofthis Court, so to
that extent Foster's motion is granted. However, while these three documents may have
significance to the 2011 wetland certification, they do not alter the analysis in this opinion and
order.
IV. Conclusion and Order
For the reasons discussed, it is hereby
ORDERED that Defendants' Motion for Summary Judgment, or in the alternative
Defendants' Motion to Dismiss for Lack of Jurisdiction, Motion to Dismiss for Failure to State a
Claim, or Motion for Judgment on the Pleading, Doc. 21,is granted. It is further
ORDERED that Plaintiffs Motion for Summary Judgment, Doc. 34, is denied. It is
finally
ORDERED that Plaintiffs Motion to Complete or Supplement the Record, Doc. 41,is
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granted to the extent that the three documents are now part ofthis Court's CM/ECF record for any
appeal that Plaintiff may wish to file.
DATED this day of July, 2022.
BY THE COURT:
ROBERTO A. LANGI
CHIEF JUDGE
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