Order Fuel


- DTN Headline News
SCOTUS Rejects Petition
Tuesday, January 17, 2017 11:51AM CST

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) - The U.S. Supreme Court rejected a petition filed by South Dakota farmer Arlen Foster challenging a USDA wetlands determination system, the court ruled last week.

Foster challenged the Natural Resource Conservation Service's use of a so-called "reference site" in Kingsbury County about 33 miles from the Foster farm and a 0.8-acre tract of land that Foster contends is not a wetland. The petition said NRCS investigated Foster's land and found it had been disturbed and naturally occurring vegetation altered. Foster contends repeated snow melt onto the land is the reason for standing water.

Pacific Legal Foundation attorney Tony Francois, who filed Foster's petition to the high court, said in a statement he will continue to argue the USDA's wetlands determination system is flawed.

"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," Francois said in a blog posted to the PLF website.

"... 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."

Francois said the 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."

Foster could not be reached for comment at press time.

A 0.8-acre tract of land on Foster's farm in Miner County, South Dakota, in the southeastern part of the state, frequently is underwater in spring. The USDA declared it was a wetland making it difficult if not impossible for Foster to farm. The NRCS has faced a backlog of requests for wetlands determinations, leaving some landowners waiting for years.

After Foster made a determination request, NRCS used a comparison site to make a determination. Though he argued the system deprives him of his rights, such comparisons are allowed by NRCS procedures.

In July 2008, Foster asked the NRCS to reconsider an earlier wetland delineation it performed, according to the petition. Foster continued to challenge NRCS through a series of court cases eventually losing an appeal to the U.S. Court of Appeals for the Eighth Circuit in St. Louis in April 2016.

Wetland conservation provisions in the Food Security Act place no restrictions on farming wetlands if natural conditions allow for it. The wetlands provision prohibits converting wetlands to crop production by draining, filling or other means.

The Pacific Legal Foundation asked the Supreme Court to consider a number of questions, including whether the use of a comparison site selected a decade ago to make the wetlands determination violates Foster's Fifth Amendment rights to due process.

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

Follow him on Twitter @toddneeleyDTN


blog iconDTN Blogs & Forums
DTN Market Matters Blog
Editorial Staff
Tuesday, January 17, 2017 10:28AM CST
Monday, January 16, 2017 12:01PM CST
Wednesday, January 11, 2017 7:26AM CST
Technically Speaking
Darin Newsom
DTN Senior Analyst
Sunday, January 15, 2017 10:14AM CST
Sunday, January 15, 2017 10:12AM CST
Sunday, January 15, 2017 10:09AM CST
Fundamentally Speaking
Joel Karlin
DTN Contributing Analyst
Tuesday, January 17, 2017 11:05AM CST
Friday, January 13, 2017 7:30AM CST
Friday, December 23, 2016 7:37AM CST
DTN Ag Policy Blog
Chris Clayton
DTN Ag Policy Editor
Tuesday, January 17, 2017 2:00PM CST
Monday, January 16, 2017 8:13AM CST
Friday, January 13, 2017 6:30AM CST
Minding Ag's Business
Marcia Taylor
DTN Executive Editor
Thursday, January 12, 2017 9:51AM CST
Wednesday, January 11, 2017 8:36AM CST
Friday, January 6, 2017 9:33AM CST
DTN Ag Weather Forum
Bryce Anderson
DTN Ag Meteorologist and DTN Analyst
Wednesday, January 18, 2017 3:36PM CST
Monday, January 16, 2017 8:35AM CST
Thursday, January 12, 2017 12:57PM CST
Tuesday, January 17, 2017 4:11PM CST
Friday, January 13, 2017 1:25PM CST
Friday, January 13, 2017 12:20PM CST
DTN Production Blog
Pam Smith
Crops Technology Editor
Friday, January 6, 2017 11:05AM CST
Tuesday, December 6, 2016 5:19PM CST
Friday, November 4, 2016 10:59AM CST
Harrington's Sort & Cull
John Harrington
DTN Livestock Analyst
Friday, January 13, 2017 1:56PM CST
Friday, January 6, 2017 3:49PM CST
Friday, December 30, 2016 2:59PM CST
South America Calling
Alastair Stewart
South America Correspondent
Tuesday, January 17, 2017 6:22PM CST
Wednesday, January 11, 2017 2:52PM CST
Wednesday, January 4, 2017 1:59PM CST
An Urban’s Rural View
Urban Lehner
Editor Emeritus
Wednesday, January 18, 2017 1:19PM CST
Wednesday, January 11, 2017 10:22AM CST
Thursday, January 5, 2017 5:15PM CST
Machinery Chatter
Jim Patrico
Progressive Farmer Senior Editor
Thursday, January 12, 2017 2:58PM CST
Friday, January 6, 2017 12:06PM CST
Friday, December 30, 2016 10:49AM CST
Canadian Markets
Cliff Jamieson
Canadian Grains Analyst
Thursday, January 19, 2017 5:09PM CST
Wednesday, January 18, 2017 4:25PM CST
Tuesday, January 17, 2017 5:18PM CST
Editor’s Notebook
Greg D. Horstmeier
DTN Editor-in-Chief
Thursday, January 19, 2017 10:46AM CST
Thursday, January 5, 2017 11:52AM CST
Thursday, December 29, 2016 12:35PM CST
Copyright DTN. All rights reserved. Disclaimer.
Powered By DTN