LINCOLN, Neb. (DTN) -- Miner County, South Dakota, farmer Arlen Foster is ready for a resolution to his long-fought wetlands determination case, as he waits for a federal court to decide whether he will get a re-review after a major Supreme Court ruling injected new life into his case.

Foster has been fighting USDA's wetland determination on a 0.8-acre tract of land for more than 15 years and wants a court to grant a review of that determination based on new evidence that he says shows the tract in question is not a wetland.

A recent Supreme Court ruling and perhaps a change of direction on the case by the new Trump administration are seen as potential avenues for Foster to be granted a re-review.

The Supreme Court overturned a ruling by the U.S. Court of Appeals for the Eighth Circuit that denied Foster, sending the case back to the U.S. District Court for the District of South Dakota.

In briefs filed in the district court in South Dakota, however, it appears there has been little or no change in the federal government's stance that Foster is not warranted a review under the "swampbuster" program that is part of the 1985 Food Security Act. That program aims to protect wetlands by discouraging their conversion to agricultural lands.

"The defense did ask for an extension to consult with the new administration, but there seemed to be no change in their briefs after that," Foster told DTN.

"It will be very interesting to see if the court will acknowledge Chevron enough differently than they did the first time. The waiting is frustrating as we have no idea how long the district court will take to take action."

Last year, the Supreme Court granted Foster's petition for a rehearing after overturning the Chevron doctrine, which granted deference to federal agencies for about 40 years for interpreting federal statutes.

Courts can no longer automatically defer to agency expertise and interpretation of laws when they are ambiguous, as a result of the court's ruling in Loper Bright Enterprises v. Raimondo.

In 2020, Foster presented new evidence to USDA that a tree belt installed on his farm by his father in 1936 is the cause of large snow accumulations in the field. Annual spring melt has left a perpetual puddle the agency has deemed to be a protected wetland.

Swampbuster provisions prohibit draining water from a wetland if farmers are to take part in farm programs.

Foster's attorneys at the Pacific Legal Foundation filed briefs in the federal court in South Dakota, arguing that prior analyses by the district court and the Eighth Circuit -- which found the statute ambiguous under Chevron -- are insufficient under the Loper Bright mandate.

That's because neither court has done a detailed textual analysis, statutory structure, context and history in rendering a decision in Foster's case.

Foster asked the district court to vacate its prior decision in his case, set aside the regulation and order USDA to accept the Foster's request to review the 2011 wetland certification supported by new expert testimony.

Foster's briefs argue the statute explicitly permits such challenges to wetland determinations and that federal agencies cannot override Congress' "clear intent."

USDA's Natural Resources Conservation Service argues in its briefs that the district court's previous analysis in Foster's case aligns with Loper Bright's requirement to independently determine the "best meaning" of the swampbuster program -- without deferring to agency interpretation under Chevron.

Attorneys for the federal government said the Eighth Circuit previously found the review provision consistent with swampbuster and rejected Foster's claim that the statute mandates a re-review upon request.

They said Foster's interpretation -- allowing farmers to reopen certifications unilaterally -- would nullify the statutory administrative appeal process and lead to "absurd" results.

That would include undermining the finality of determinations with "vague or meritless" review requests, the briefs said, as recognized by the Eighth Circuit.

USDA argues that Foster's specific request for re-review "lacks merit" because it was made after "extensive prior proceedings" without identifying errors or new evidence.

Read more on DTN:

"Foster Wetland Case Sent Back to Court," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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