High Court asked to hear suit over feds’ rigged scheme for “discovering” wetlands

South Dakota farming couple is represented, free of charge, by Pacific Legal Foundation

The U.S. Supreme Court is being asked to hear a South Dakota farming couple’s lawsuit over the federal government’s “rigged” formula for labeling their property as “wetlands” converted to agricultural uses.    

Arlen and Cindy Foster are suing the U.S. Department of Agriculture for using a process that pre-determined the result when it “concluded” that 0.8 acres of their Miner County farm are “wetlands.”  Under provisions of the Food Security Act of 1985, such a classification can have the effect of denying a farmer access to certain federal assistance programs.

In a petition for certiorari filed this week, asking the Supreme Court to hear their suit over the arbitrary and unfair way that the “wetlands” designation was reached, the Fosters are represented by Pacific Legal Foundation (PLF), a watchdog organization that litigates nationwide for property rights and a balanced approach to environmental regulations.  Donor-supported PLF represents the Fosters free of charge, as with all its clients.

Arlen Foster’s family has been farming the same land in Miner County for three generations, since his grandfather bought the property in 1900.  He and his wife Cindy grow corn, soybeans, hay, and raise cattle, and hope that their grandchildren will have the opportunity to follow in their footsteps.

But an agency of the Department of Agriculture — the National Resources Conservation Service — has accused them of violating the Food Security Act of 1985 by farming 0.8 acres of federally protected wetlands on their property.

An inquiry gamed to produce the desired result

“The bureaucrats leveled this charge against the Fosters based on a bogus calculus that was rigged to produce the desired result of finding the Fosters in violation,” said Tony Francois, a PLF senior staff attorney.  “The regulators had to determine whether the farmland in question could have supported wetlands vegetation in its pre-farmed state.  For an informed conclusion, they could have carefully analyzed the Fosters’ farmland itself, or used a nearby comparison site that shares relevant environmental characteristics.  Instead, they chose, for comparison, a site more than 30 miles away where they already knew that wetlands vegetation could be found.  In other words, they gamed the outcome by choosing a control site that gave them the answer they wanted.

“The Fosters are not the only victims of this fixed scheme,” Francois continued.  “The comparison site, which was employed in a lazy and arbitrary way to label their property as wetlands, is used for the same purpose throughout much of eastern South Dakota.  This comparison site was preselected 16 years ago with the knowledge that it supports wetland plants.  Now federal officials use it anytime they are investigating a possible wetland with similar soils and disturbed vegetation, anywhere in the surrounding 10,835 square miles.”

Courts must hold bureaucracies accountable to standards of legality and fairness

In asking the Supreme Court to hear the Fosters’ lawsuit, PLF argues that the Department violated due process and its own regulations by using a preselected comparison site that is so far away from the Fosters’ property and is already known to be wetlands.  Moreover, the petition argues that the Eighth U.S. Circuit Court of Appeals showed too much deference when it declined to second-guess the bureaucrats’ unfair process.

“When an agency’s decisions have real-world consequences for the public and for individual property owners, unelected bureaucracies cannot be allowed to be their own judges and juries,” said Francois.  “In this case, we are trying to promote standards of fairness and credibility in environmental policy, and also to establish that courts have an active role in enforcing those standards.”

“I am disappointed but not surprised by the way federal officials handled the wetland determination that has such significant impact on our farm and our family,” said Arlen Foster.  “It is just simply the nature of the bureaucracy to cut corners and disregard rights when they do not have a personal stake in the results of their work.  Even beyond the importance of this case for my own family, it needs to be pursued to defend the principles and rights that those before us have bequeathed to all Americans.  That is why we are so grateful to Pacific Legal Foundation for their work in standing with us on these important issues.”

The case is Foster v. Vilsack.  More information, including the petition for certiorari  and apodcast, is available at PLF’s website:  www.pacificlegal.org.


pacific.legalAbout Pacific Legal Foundation
Donor-supported PLF is a watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulations, nationwide.  At the Supreme Court, PLF has won nine consecutive direct-representation cases for liberty and limited government.  PLF’s most recent Supreme Court victory came earlier this year, in the Clean Water Act case of U.S. Army Corps of Engineers v. Hawkes.



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