Clark v. U.S. Dept. of Agr.

492 F.Supp.2d 1085

Dorothy CLARK, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Mike Johanns, Secretary, Defendant.

No. 4:06-cv-00473.

United States District Court, S.D. Iowa, Central Division.

June 25, 2007.

COPYRIGHT MATERIAL OMITTED

Thomas A. Lawler, Lawler & Swanson, PLC, Parkersburg, IA, for Plaintiff.

Gary L. Hayward, United States Attorney, Des Moines, IA, for Defendant.

ORDER

PRATT, Chief Judge.

I. INTRODUCTION

Plaintiff, Dorothy Clark ("Clark"), seeks judicial review of Defendant, the United States Department of Agriculture's (the "USDA" or the "Agency") decision that designated five acres of Clark's farm as wetlands, and a subsequent decision that designated .9 acres as converted wetlands under 16 U.S.C. § 3801, thereby making her ineligible for certain federal benefits under 16 U.S.C. § 3821. In particular, Clark appeals a decision issued on December 29, 2005, by M. Terry Johnson, Deputy Director of the USDA National Appeals Division ("AND"). In that decision, Deputy Director Johnson upheld Hearing Officer James R. Holman's October 25, 2005 decision finding: (1) that the five acres designated as wetlands met all the criteria for wetlands, including wetland hydrology, hydric soil, and hydrophytic vegetation; (2) that Clark converted .9 acres of wetland; and (3) that Clark did not establish that the wetland conversion had minimal effect.

II. PROCEEDINGS

Clark filed a Complaint (Clerk's No. 1) in this Court on September 29, 2006, and the USDA filed an Answer (Clerk's No. 4) on November 21, 2006. On December 7, 2006, the parties agreed to submit the case on the certified administrative record and written briefs, rather than to proceed with trial. Clerk's Nos. 7-8. The USDA filed a certified administrative record on December 20, 2006. Clerk's No. 9. Clark filed a trial brief (Clerk's No. 10) on February 5, 2007, and the USDA filed a trial brief (Clerk's No. 13) on March 19, 2007. Clark filed a reply brief (Clerk's No. 14) on March 30, 2007. Clark requested oral argument, however, the Court finds that such argument would not materially aid the resolution of this case. Accordingly, the matter is fully submitted.

III. FACTS

Clark resides in Boone County, Iowa, and owns a farm' there labeled by the USDA as Farm No. 4591, Tract No. 2332. Compl. ¶¶ 4, 15. On November 18, 2002, Clark requested that the United States Department of Agriculture Natural Resources Conservation Service ("NRCS")¹ complete a Highly Erodible Land Conservation and Wetland Conservation Certification for an area of her farmland previously used for pasture. See Compl. ¶ 16; Admin. Rec. at 6, 26. Clark sought the certification to convert her pastureland into cropland.² See Admin. Rec. at 26. On or about December 2, 2002, Jared Finley ("Finley"), District Conservationist Field Officer of NRCS was scheduled to meet with Stephen Clark ("Mr.Clark"), Clark's son, at the farm to discuss "sodbusting and wetlands." Id. at 47, 404. Mr. Clark canceled the meeting. Finley, nonetheless, visited the Clark farm. Id. at 47. After a visual inspection, Finley noted potential areas of wetland. Id. However, because of the frozen conditions, Finley did not complete a Highly Erodible Land Conservation and Wetland Conservation Determination ("the Determination"). Id. Finley called Mr. Clark to inform him "not to do any bull-dozing or leveling [of] the oxbows³ due to wetland issues." Id. On or about December 18, 2002, Finley received telephone calls stating that bull-dozing was taking place at the Clark farm. Id. Finley called Mr. Clark to reiterate his concerns over potential wetland issues. See id. Approximately three months later, on or about March 6, 2003, Jim Anderson, the tenant who farms the Clark farm, visited Finley to express concerns over "compliance issues on sodbusting [and] wetland." Id.

On April 11, 2003, Finley made a field visit to make the Determination on the specified pastureland. Id. After review of approximately thirty three acres, Finley determined that five acres, referred to as "the oxbows," were wetlands. See id. at 8-10. Under the National Food Security Act Manual (Third Edition) (the "NFSAM" or the "Manual"),⁴ wetlands are identified by confirming the presence of the following three wetland criteria: (1) hydric soil; (2) hydrology; and (3) hydrophytic vegetation. Id. at 457, 462; see NFSAM § 513.11, available at www.nrcs. usda.gov/programs/c ompliance/pdf — files/ 3rd E D-NF SAM — S E C513 — v2006.pdf (hereinafter "NFSAM §. "). Finley designated the oxbows into eight parcels of land and determined that each parcel met all three wetland criteria. See Admin. Admin. Rec. at 63-78. In a letter dated April 16, 2003, Finley informed Clark of the wetland determination and her appeal rights. Id. at 43-44. Specifically, the letter stated: "this preliminary technical determination will become final within 30 clays [May 19, 2003] unless you request either [a field visit from NRCS to discuss the basis of the preliminary technical determination, answer any questions and gather additional information, or request a mediation to settle any concerns with the preliminary technical determination]." Id. The letter further stated that if neither option was requested and the preliminary technical determination became final, Clark could appeal the final technical determination to the Farm Service Agency (the "FSA"),⁵ Boone County Committee, within thirty days. Id. at 44. Thus, Clark had the right to appeal the preliminary technical determination (five acres of wetland designation) to NRCS, then once the determination became final, appeal to the Farm Service Agency would be available. See id.

On May 7, 2003, Finley visited the Clarks to assess their bull-dozing activities. Id. at 47. At that time, only the fence lines on the farm were bull-dozed, and the bull-dozing did not affect the oxbows. Id. Finley reiterated that the Clarks would have to get a permit to do anything to the oxbows. Id. The next day, on May 8, 2003, Finley received a "whistle blower" telephone call reporting that the Clarks were filling the oxbows. Id. Almost a year and a half later, on or about November 30, 2004, Finley again heard "[r]umors of [bull-]dozers moving in to fill [the] oxbows" at the Clark farm. Id. On December 6, 2004, Finley received another "whistle blower" call about bull-dozers filling in the oxbows. Id. On December 8, 2004, Finley met with Mr. Clark at the farm to observe potential wetland violations. Id. at 48. Finley noted that two of the eight parcels of the wetlands were filled, and informed Mr. Clark that he was most likely "out of compliance." Id. In a letter dated December 10, 2004, Finley stated: "Your manipulation by filling in on this wetland area is considered an alteration that makes the area more farmable which is in violation of Swampbuster provisions [of the Food Security Act, as amended]." Id. at 34-35.⁶ Finley informed Clark of her appeal rights, and concluded, "[y]ou will, in all likelihood, be determined to be ineligible for USDA benefits...." Id. at 35.

Clark appealed the NRCS determination.⁷ On March 1, 2005, the Farm Service Agency denied Clark's appeal. Id. at 208-10. In the letter, the FSA stated:

[We] reviewed the information you submitted which consisted of the reasons you feel the areas that NRCS determined wetlands were in fact not natural wetlands at all. You stated 9 different reasons that you feel the violation was not serious and in fact these areas should not be determined wetlands.... After review of all of the information [we] determined that NRCS did complete the wetland determination correctly. ... NRCS documented how they arrived at the wetland determination through reviewing soil types and vegetation along with numerous other criteria that ultimately found the areas marked, to be determined wetlands according to their regulations.

Id. at 208-09. Clark was also informed of her right to appeal to the National Appeals Division.

A. Appeal to National Appeals Division Hearing Officer Holman

In a letter dated March 21, 2005, Clark appealed the FSA's decision. See id. at 204. Clark stated that "the areas in question are not natural wetlands" and listed eight different reasons in support of that contention.⁸ Id. at 204-05. On August 31, 2005, an appeal hearing was held before Hearing Officer Holman. See id. at 342-43. Mark Lindflott of NRCS represented the FSA during the hearing. See id. at 344 ("The agency, the decision-maker in this case is actually the Farm Service Agency that sent out the adverse notice as we reference it. However, the agency decision is based on a technical determination that was made by the Natural Resource Conservation Service and they are here representing Farm Service Agency today."). Prior to opening statements, Hearing Officer Holman sought clarification of the issue(s) on appeal. See id. at 352-53. Mr. Lawler, counsel for Clark, explained: "Appeal was taken from the [determination that 9/10 of the wetlands were converted] but my client's position is that in doing that appeal that they're entitled to appeal and review of all the determinations made by NRCS." Id. In response, Mr. Lindflott stated: "[Mr. Lawler] did mention — thought they wanted to appeal them all, and I guess we got no problem discussing all the sites. That's fine." Id. at 354.

During the appeal, Clark argued that NRCS made errors in its wetland determinations. Specifically, Clark claimed: (1) NRCS should have obtained assistance from an experienced wetland delineator or soil scientist; (2) NRCS failed to intensively collect data to document its conclusions; (3) NRCS did not properly document the presence of hydrophytic vegetation; (4) NRCS did not refer to any recorded data concerning hydrology of the area; (5) NRCS made wetland vegetation determinations even in the absence of vegetation; (6) NRCS's use of watermarks as the sole indicator of wetland hydrology was incorrect; (7) NRCS failed to follow procedure to...