Penner v. Vilsack, NO. 11-1059-KHV, 2011 U.S. Dist. LEXIS 144376 (D. Kan. Dec. 15, 2011)

(Swampbuster case in which plaintiff claims that feds failed to implement final USDA determination that plaintiff’s property does not contain a certified wetland and then made an unauthorized wetland determination; technical determination made on 9/15/08 that tract contained wetland; reconsideration requested on 9/25/08; on-site investigation on 10/9/08 with same result; plaintiff appealed to NAD; on 5/15/09, FSA withdrew decision and plaintiff dismissed NAD appeal; second field visit on 6/23/09 and on 6/26/09 plaintiff gets letter affirming original preliminary technical determination that field contained wetland; on 7/16/09, plaintiff requested NRCS to provide minimal effects determination (MED); on 7/20/09, NRCS said it couldn’t do that until it made final wetland determination, which it did on 9/25/09; MED issued on 10/27/09 concluding that plaintiff’s proposed action would drain 4.9 acres of wetland and would not constitute a minimal effect; plaintiff appealed both the final wetland determination and the MED; NAD hearing on 1/13/10 in which NAD officer upheld (on 5/7/10) NRCS finding of wetland and denied MED; plaintiff requested Director review; Deputy Director issued determination on 8/23/10 reversing NAD hearing officer’s determination as not being supported by substantial evidence – NRCS erred in evaluation of wetland hydrology and did not properly show that wetland exists and did not follow its own procedures in determining wetland hydrology; Director issued letter to plaintiff’s attorney that determination was a final order concluding all administrative processing of the appeal; on 1/21/11 plaintiff’s fee application under EAJA granted; plaintiff directed draining of depression on land during week of 9/6/10; on 9/9/10, state conservationist sent letter to Assistant State Conservationist stating that initial wetland determination would be withdrawn and NRCS would do another preliminary wetland determination; on 9/10/10, NRCS received whistleblower complaint that plaintiff diverting and draining playa lake on property; on 9/11/10 plaintiff’s attorney advised NRCS to stay off property and on 10/4/10, FSA informed plaintiff that farm ineligible for USDA program payments until FSA got a new Form AD-1026 (highly erodible land conservation and wetland conservation certification); on 10/7/10, plaintiff’s attorney withdrew denial of permission to enter property; on 10/28/10, offsite review conducted which identified two wetland areas; on-site review conduced on 10/29/10; on 1/4/11, NRCS sent plaintiff preliminary wetland determination letter with map; plaintiff did not request mediation or reconsideration by NRCS so determination became final; on 3/7/11, plaintiff appealed to NAD and filed court action; on 3/11/11 NAD suspended agency appeal pending outcome of litigation; defendant claimed that plaintiff failed to exhaust administrative remedies and plaintiff claimed that 8/23/10 determination was final agency determination that land did not contain wetlands; government claimed that 8/23/10 determination was final as to the agency not following proper delineation procedures and did not preclude agency from conducting new wetland determination because NAD Director did not make final determination that plaintiff’s land did not contain a wetland; court holds that previous wetland determination was invalid, thus not wetland determination had been made to indicate status of wetlands on plaintiff’s land and agency entitled to make that determination using proper procedures; plaintiff failed to exhaust administrative remedies and case dismissed).

CALT does not provide legal advice. Any information provided on this website is not intended to be a substitute for legal services from a competent professional. CALT's work is supported by fee-based seminars and generous private gifts. Any opinions, findings, conclusions or recommendations expressed in the material contained on this website do not necessarily reflect the views of Iowa State University.

RSS​ Facebook Twitter