- Ag Docket
(case involves 2.24-acre tract on plaintiff’s farm that defendant claimed was wetland; tract at issue was initially drained and tiled in 1964 and crops were grown on tract through at least 1982; in early 1980s drainage on tract deteriorated; after enactment of Swampbuster provisions of 1985 Farm Bill, NRCS made wetland determinations on tract in 1988 and 1993 from which plaintiff did not appeal; plaintiff executed Form AD-1026 in 2008 indicating he was intending to plant crops on land for which a highly erodible determination had not been made and conduct land drainage or associated activities that had not been evaluated by NRCS; executed form also authorized NRCS to conduct wetland determination on plaintiff’s property; 2008 wetland determination made and plaintiff appealed by requesting reconsideration and mediation; mediation agreement entered into in early 2009 under which NRCS agreed to make a wetland delineation and allowing planting of crops in spring of 2009; NRCS conducted delineation after spring crops planted resulting in Final Technical Determination that tract was converted wetland and that plaintiff was ineligible for farm program benefits; plaintiff appealed to the NAD which suspended appeal while mediation continued; mediation failed and appeal proceeded; NAD Hearing Officer upheld NRCS determination and noted that tract could not be determined to be prior converted wetland because it had wetland conditions as of Dec. 23, 1985; Hearing Officer also noted that plaintiff did not request minimal effect determination before converting wetland; Deputy Director upheld NAD Hearing Officer decision on appeal; court upheld NRCS interpretation of 16 U.S.C. §3822(b)(2)(D) that status of land as of December 23, 1985 was determinative of issue irrespective of whether land drained and cropped prior to that date and merely reverted to wetland status as a result of deterioration to drainage work citing Horn Farms, Inc. v. Johanns, 397 F.3d 472 (7th Cir. 2005); agency determination entitled to Chevron deference).
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