Arlen Foster and his wife, Cindy, are third-generation farmers in Miner County, South Dakota. Joined by their daughter and son-in-law and six grandchildren, the Fosters raise cattle, corn, soybeans, and hay on the land Arlen’s grandfather bought back in 1900 with a $1,000 loan.
The family is also proud of its responsible conservation practices on the farm. These practices include no-till farming and preserving tree belts and are as time-honored by 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 Department of Agriculture decided to call the puddle a wetland, claiming that it is protected by federal law.
Then, in 2020, the agency refused to reconsider its wetland determination. even though the Fosters collected new evidence to the contrary and despite its legal obligation to do so.
The wetland certification limits how the Fosters can farm their land, by forcing them to choose between the most productive farming possible, and eligibility for benefits provided by the U.S. Department of Agriculture.
The Commerce Clause of the Constitution, however, limits what Congress can regulate, including water that doesn’t drain anywhere. And the Supreme Court has said government cannot force people to waive a constitutional right as a condition of getting federal benefits.
Represented free of charge by PLF, the Fosters are fighting back with a federal lawsuit to hold federal agencies accountable to the rule of law, to stop illegal conditioning of federal benefits on regulatory compliance, and to restore congressional authority to its constitutional limits. PLF has previously represented the Fosters in a similar case.