Active: Eighth Circuit asked to break federal agency’s unlawful bureaucratic limbo

Arlen Foster is a third generation farmer in Miner County, South Dakota. Joined by his daughter and son-in-law and six grandchildren, the Fosters raise cattle, corn, soybeans, and hay on the same land Arlen’s grandfather bought back in 1900 with a $1,000 loan.

The family is also proud of their responsible conservation practices on the farm. These practices include no-till farming and preserving tree belts and are as time-honored to the Fosters as the farming itself.

One of the family’s long-ago conservation efforts, however, has led to a present-day legal problem.

Arlen’s father planted a tree belt on the south side of the farm in 1936 to prevent erosion. The tree belt is much taller today and collects deep snow drifts in the winter. As the weather warms, the melting snow collects in a low spot in the middle of a farm field before soaking into the ground or evaporating.

In 2011, the federal Natural Resources Conservation Service (NRCS) decided to call the puddle a wetland, claiming that it is protected by federal law.

As long as the feds consider the puddle a wetland, Arlen cannot farm it. Doing so would violate the “Swampbuster” provisions of the 1985 Food Security Act that tie wetlands to federal assistance programs provided by the U.S. Department of Agriculture.

In other words, the wetland certification limits how the Fosters can use their land, forcing them to choose between the most productive farming possible, and eligibility for federal benefits.

However, the Swampbuster Act also allows landowners to ask for agency review of such wetland claims—at any time. In fact, Congress specifically amended the law in 1986 to give property owners a fair shot at challenging government authority over their land.

Yet the regulators refused Arlen’s requests for review in 2017 and again in 2020, ignoring new evidence provided by Arlen and its own legal obligations to do so.

In addition to the agency’s intentional, unlawful bureaucratic limbo to avoid reviewing a claim made more than a decade ago, the NRCS has another problem: the rules are not even legal to begin with, because the agency never submitted them to Congress as required by the Congressional Review Act.

Because Arlen cannot challenge the wetland claim until the agency reviews it, he’s fighting back. Represented at no charge by PLF, Arlen is asking a federal court to compel the NRCS’s long-overdue review and to hold federal agencies accountable to the rule of law.

What’s At Stake?

  • Rulemakers must follow the rules: No unelected, unaccountable bureaucrat can enforce any rule without first submitting the rule to Congress for review. Failure to do so creates an unnecessary cloud of uncertainty around rules that people must be able to rely on.
  • Property owners have the right to make responsible and productive use of their own land. They shouldn’t have to spend decades of their lives fighting government agencies’ inaction and refusal to follow the law to defend that right.

Case Timeline

August 10, 2023
Petition for Writ of Certiorari
United States Supreme Court
May 12, 2023
September 29, 2022
May 05, 2021