January 13, 2017

Cert denied in Foster v. Vilsack

By Anthony L. Francois Senior Attorney

Earlier this week the Supreme Court decided not to hear the Arlen and Cindy Foster’s case against the U.S. Department of Agriculture, over the Department’s illegal determination that their farm contains a federally protected wetland. The petition asked the Supreme Court to decide whether judges should interpret federal law, or whether they should allow junior federal employees to interpret it conclusively for them.

The absurd bureaucratic interpretation in this case was how big a “local area” is under a federal law that requires the Department to limit its wetland investigations to the “local area” surrounding any given farm. According to a junior Department employee, the “local area” is the surrounding 11,000 square miles:

But, using the same Department handbook, a “local area” could include parts of Virginia, North and South Carolina, George, Florida, Alabama, Mississippi, Louisiana, and Tennessee. Some local area.

Under this obviously unreasonable interpretation of “local area,” the Department looked at a wetland research site more than 30 miles from the Fosters’ property, and decided that because that remote site is a wetland, so is a wet spot on the Fosters’ farm. Sadly, the lower federal court simply took the federal worker’s word for it, instead of exercising its constitutional responsibility to interpret the law independently.

Unfortunately, the Court decided not to hear the case, but PLF will continue to argue that judges have an independent duty to determine the requirements of federal law, and should not defer to the clearly unreasonable legal opinions of bureaucrats.

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