BARTHEL v. U.S. DEPT. OF AGRICULTURENo. 98-2754.
181 F.3d 934 (1999)
Keith BARTHEL; Dorothy Barthel, Appellants,
UNITED STATES DEPARTMENT OF AGRICULTURE, Daniel Glickman, Secretary, Appellee.
UNITED STATES DEPARTMENT OF AGRICULTURE, Daniel Glickman, Secretary, Appellee.
United States Court of Appeals, Eighth Circuit.
Submitted January 21, 1999.
Decided June 18, 1999.
Richard E. Gee, Grand Island, NE, argued, for Appellant. Sally R. Johnson, Assistant U.S. Attorney, Lincoln, NE, argued, for Appellee.
Before McMILLIAN, BEAM, and LOKEN, Circuit Judges.
BEAM, Circuit Judge.
Keith and Dorothy Barthel (the Barthels) appeal the district court's decision upholding the United States Department of Agriculture's (USDA) limitation on the dredging of a drainage ditch.
In 1916, the South Fork of the Elkhorn river was straightened to improve drainage. The straightened portion, referred to as "the ditch," allowed certain land to be used for hay and pasture. The ditch was dredged in 1951 to clean out obstructions and silting which had occurred through the passage of time and caused water to backup. In 1957, the Barthels purchased their 450-acre hay meadow. The meadow is drained by the ditch which runs along the south side of the Barthels' property. The ditch also runs on adjacent property owned by Gene and Erna Liermann. The Liermanns' land is directly downstream from the Barthels' tract.
The Barthels, together with a neighbor, dredged the ditch again in 1983. The Liermanns gave permission for this work to be done to the portion of the ditch on their land as well. The following year the county replaced a culvert under a county road where it crosses over the ditch. Road department workers testified that sometime in 1986, the culvert was lowered by approximately eighteen inches. In the interim period, on December 23, 1985, the Food Security Act (the Act) became effective. The Act contains federal Swampbuster provisions aimed at preserving wetlands. See Gunn v. USDA,
By 1987, the ditch had again become obstructed with debris and clutter, allegedly caused by the Liermanns' cattle crossing the ditch. The Barthels sought to dredge the ditch on the Liermanns' property or in the alternative have the Liermanns clean that portion pursuant to their state law obligations. This time the Liermanns refused, and eventually the Barthels filed suit in Nebraska state court. A mandatory injunction was issued requiring the Liermanns to clean out the portion of the ditch on their property "so that water will flow." Admin. R. at 327 (state court injunction). Because cleaning and maintenance of the ditch impacted a potential wetland area, the USDA,
Following exhaustion of administrative appeals, the Barthels brought suit in federal district court. The district court affirmed the USDA's decision, and the Barthels appeal. The Barthels argue that the agency interpretation of the federal statute is incorrect. They contend that although
"In order to combat the disappearance of wetlands through their conversion into crop lands, Congress passed a law known commonly as "Swampbuster." Gunn, 118 F.3d at 1235 (citing Food Security Act of 1985 §§ 1201, 1221-23, 16 U.S.C. §§ 3801, 3821-24). The law denies eligibility for several federal farm-assistance programs if wetlands are converted to agricultural use. See National Wildlife Fed'n v. Agricultural Stabilization and Conservation Serv.,
The regulations implementing the Swampbuster provisions classify the Barthels' land as "other wetland area" because it is seasonally flooded or ponded but was "manipulated prior to December 23, 1985." 7 C.F.R. § 12.32(a)(3) (1992). "Persons may continue to farm such wetlands . . . as they did prior to December 23, 1985. However, no action can be taken to increase effects on the water regime beyond that which existed on such lands" on or before that date. Id. § 12.33(a) (1992) (emphasis added).
The Manual classifies the Barthels' land as "farmed wetland pasture or hayland." See NFSAM § 514.23.
To determine the original scope and effect of the manipulation, the USDA focused solely on the depth of the ditch that drains the hay meadow. In essence, the USDA interprets the manipulation to be the ditch. This led all involved to drudge through the mud of determining its precise depth. The agency argues, with supporting evidence, that the level of the culvert on or before December 23, 1985, was eighteen inches higher than its current level and as a result the ditch can only be maintained at that level. Unfortunately, this results in flooding on the Barthels' land. The Barthels challenge the agency's interpretation of the Swampbuster provisions and argue that maintenance of the manipulation should allow them to use the land as they did prior to the passage of the Act.
"We must uphold the [agency's] decision unless it is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Von Eye v. United States,
The Act's proclaimed purpose is to preserve wetlands, or, if wetlands are altered, to preserve the conditions as altered. The Act says nothing about preserving the precise depth of drainage ditches or culverts. The government emphasizes that "[w]etlands are a priceless resource whose contributions have long gone unrecognized." Appellee's Brief at 12 (quoting H.R.Rep. No. 99-271, pt. 1, at 86 (1985), reprinted in 1985 U.S.C.C.A.N. 1103, 1190). However, a drainage ditch is not the envisioned protected area. The agency's implementing regulations also focus on the wetlands. Under the regulations, farming of a wetland should be maintained at the level that was achieved prior to the Act. The "water regime" is maintained, not necessarily the ditch and culvert levels. See, e.g., Gunn, 118 F.3d at 1235 (focusing on the notion that a person cannot "improve the land's drainage"). As further evidence of this point, the current regulation on "use of wetland and converted wetland" provides that changes in the watershed due to human activity which increases the water regime on a person's land, can result in a
This is not to say that the level of a ditch or culvert cannot provide an accurate indication of the water regime which previously existed. In fact, the Manual states that "any other available information relating to systems installed before 12/23/85" can be applicable in determining the "original scope and effect" of a wetland manipulation. NFSAM § 515.11(e). In the Barthels' case, the USDA's findings for the ditch and culvert depths apparently conflict with the water regime that existed prior to December 23, 1985. In such a conflict, the government's position is that the level of the ditch should win, at the expense of the prior conditions of the land. In short, the means are more important than the ends. We disagree. The unambiguous focus of the statute and implementing regulations is to maintain the status quo of the manipulated wetlands—not the drainage ditch. And a technical determination that establishes the level of a culvert in a ditch, but which produces a result contrary to the previous status quo of the wetlands cannot stand.
The government also maintains that the authority granted to the agency to "determine the scope and effect of [the] original manipulation," id. § 515.11(b), gives discretion to select "any pre-December 23, 1985, manipulation `which can be determined by reliable evidence.'" Barthel, mem. op. at 9 (quoting USDA's brief). Thus, if the agency had reliable evidence about the ditch level in 1965, then the Barthels would be stuck with those findings, even if in 1983 (still before the effective date of the Act), more far reaching modifications were made.
The burden is on the government to show that the proposed maintenance, in this case cleaning the ditch so that the hay meadow is not underwater, exceeds the scope and effect of the original manipulation. Cf. Downer, 97 F.3d at 1009 (Beam, J., concurring and dissenting) (stating that it is the burden of the agency to prove ineligibility for benefits). However, this does not give the agency the right to arbitrarily define what the original scope and effect was. Is it arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law for the agency to pick an original manipulation regardless of how it affects the use of the land?
We are presented with a factual setting that is cyclical. The record shows that the ditch is continually silted-in by natural conditions and animal traffic and must be periodically cleaned out. If we accept the government's argument, the USDA could select a level for the original manipulation, either intentionally or unintentionally, which is at the end of the natural cycle—just before the periodic clean-up. This
Under the federal Swampbuster provisions and the implementing regulations, the Barthels are entitled to farm their land as they did on or before December 23, 1985, "so long as the previously accomplished drainage or manipulation is not significantly improved upon, so that wetland characteristics are further degraded in a significant way." Gunn, 118 F.3d at 1238 (emphasis added). We therefore reverse and remand this matter to the district court with instructions that the case be remanded to the agency for a hearing and determination of the wetland characteristics and associated use of the Barthels' 450-acre hay meadow, prior to December 23, 1985, and the necessary dredging and cleaning of the ditch to accomplish that water and farming regime.
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