BENNETT, Chief Judge.
TABLE OF CONTENTS
I. INTRODUCTION .........................................................898
A. Factual Background ................................................898
B. The Agency Determination ..........................................899
C. The Action For Judicial Review ....................................900
D. The Motion For Preliminary Injunction .............................901
II. LEGAL ANALYSIS .......................................................902
A. Standards For Issuance Of A Preliminary Injunction ................902
B. Impediments To Injunctive Relief ..................................903
1. A complete bar .................................................903
2. Heightened requirements ........................................905
C. Application Of The "Dataphase Factors" ............................906
1. Likelihood of success on the merits ............................906
a. The meaning of "likelihood of success" ......................906
b. B & D's likelihood of success ...............................908
2. Irreparable harm ...............................................910
3. Balance of harms ...............................................911
4. The public interest ............................................912
D. The Bond Requirement ..............................................913
III. CONCLUSION ...........................................................914
This action for judicial review of a determination by the USDA that the plaintiff "converted" "wetland" in violation of the "Swampbuster" Act, 16 U.S.C. §§ 3801, 3821-24,
I. INTRODUCTION
A. Factual Background
As mentioned above, the factual background to plaintiff B & D Land and Livestock Company's motion for a preliminary injunction — and indeed, its action for judicial review — appears to be largely undisputed. Nevertheless, the court will attempt to provide here only enough factual background, and enough identification of any factual disputes, to put in context the motion for a preliminary injunction. In doing so, the court is mindful of the general rule that "the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits." University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); accord Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 962 (8th Cir.1995) (citing this statement from Camenisch as the "general rule" for findings of fact and conclusions of law in preliminary injunction rulings); Circle R, Inc. v. Smithco Mfg., Inc., 919 F.Supp. 1272, 1289 (N.D.Iowa 1996) (applying this "general rule" to a request for a preliminary injunction in a patent case); United States v. Barnes, 912 F.Supp. 1187, 1190 (N.D.Iowa 1996) (applying the "general rule" of Camenisch to a preliminary injunction ruling on the government's request for a preliminary injunction pursuant to 18 U.S.C. § 1345 to enjoin activities of defendants who were allegedly engaged in mail fraud in violation of 18 U.S.C. § 1341). Thus, any findings of fact in this ruling, made either here or in the course of the legal analysis to follow, as well as any conclusions of law forming part of the court's determination of whether a preliminary injunction should issue in this case, are intended to be subject to this "general rule" and are not to be considered "final."
There does not appear to be any dispute that this case involves a purported wetland violation, involving "conversion" of 0.9 acres of "wetland," on Tract # 1653, Section 32, Owen Township, Cerro Gordo County, Iowa. The tract in question is owned and farmed by plaintiff B & D Land and Livestock Company. The president and shareholder of B & D is Larry L. Doane. After purchasing the pertinent farmland, B & D requested that the Natural Resources Conservation Service (NRCS), which is a department of the USDA, make a certified wetland determination as to Tract # 1653. The NRCS completed that wetland determination on April 27, 1998, and after a review requested by B & D, certified three areas on Tract # 1653 as "wetland," designated "W," on January 20, 1999 (hereinafter, the 1999 wetland determination). B & D initiated an administrative appeal of the 1999 wetland determination, but then withdrew the administrative appeal after purportedly receiving assurances from Tony Moore, the District Conservationist of the NRCS, that B & D could remove certain "woody vegetation" from the Tract. There is no dispute that in 2000, B & D removed woody vegetation from the designated wetland on Tract # 1653, plowed the entire tract, except for the designated wetland in the southeast corner of the tract, then raised corn on the tract in the calendar year 2000 and soybeans in the calendar year 2001.
B. The Agency Determination
The agency action currently under review began in April 14, 2000, when Tony Moore, the NRCS District Conservationist, noticed that the woody vegetation had been "grubbed" from the designated wetland on Tract # 1653 while he was working on adjacent land owned by another producer.
In the first round of B & D's administrative appeal, the FSA County Committee determined that there was merit to the appeal and asked the NRCS State Conservationist to review the file. However, the State Conservationist, Leroy Brown, notified the Director of the FSA County Committee on July 30, 2001, that the file had been reviewed and that "[t]he administrative record has ample technical documentation per current technical federal wetland determination methodology that the site has wetland and the manipulation in 2000 caused the site to meet converted wetland criteria." Administrative Record at 205. Specifically, the State Conservationist concluded that "[t]he 0.9 acres of CW + 2000 determination is correct per Federal Wetland Delineation Methodology." Id.
B & D next appealed the determination that it had "converted" wetland to the USDA's National Appeals Division (NAD). A NAD Hearing Officer held an evidentiary hearing on December 6, 2001, at Mason City, Iowa, at which B & D presented evidence, but no one appeared on behalf of the agency. Instead, the USDA submitted a written statement in support of its position. On January 18, 2002, the Hearing Officer issued an appeal determination in which he also concluded that B & D had converted a wetland by removing woody vegetation. Although the Hearing Officer found that the NRCS District Conservationist had told B & D's president that he could remove certain woody vegetation on Tract # 1653, the Hearing Officer determined that the permission was for woody vegetation other than that in the designated wetland. See Administrative Record at 213. The Hearing Officer then concluded that "[i]n 2000 the Appellant converted the wetland (W) by removing woody vegetation from it." Id. The Hearing Officer next concluded that, while 7 C.F.R. § 11.9(e) grants the Director of the NAD the authority to grant equitable relief, that authority was not granted to Hearing Officers, who instead are responsible for developing the record for the Director to make a decision on equitable relief. Id. The Hearing Officer's specific "determination" was as follows: "The Agency's designation of a site as a converted wetland (CW + 2000) is not erroneous." Id.
At the final stage of its administrative appeal, B & D requested review of the
Director Review Determination, Administrative Record at 269 (¶ 3). The Acting Director also rejected B & D's contention that it had a right to a review of the 1999 wetland determination, because the Acting Director concluded that B & D had "waived the right for a review of NRCS wetland determination" by filing an administrative appeal of the determination, but then withdrawing it. Id. (¶ 4). The Acting Director acknowledged that 7 C.F.R. § 11.9(e) granted the Director of NAD the authority to grant equitable relief, but concluded that "[t]he circumstances of this case do not warrant equitable relief." Id. (¶ 5). The Acting Director also concluded that "Appellant failed to prove by a preponderance of evidence that the Agency's decision was erroneous." Id. at 270 (¶ 6). The Acting Director, therefore, made the following determinations: (1) that "[t]he Hearing officer's determination is upheld"; (2) that "[e]quitable relief is denied"; and (3) that his determination "concludes the administrative appeal of this case." Id. (Determination).
On July 19, 2002, the FSA notified B & D and Larry Doane that they were ineligible for USDA program benefits for 2000 and all subsequent program years because of the conversion of the wetland in 2000 and demanded repayment of benefits paid from 2000 to the date of the letter, or a total of $71,944.77.
C. The Action For Judicial Review
This lawsuit for judicial review and declaratory judgment followed on July 10, 2002. In its Complaint, B & D demands judgment as follows:
Complaint at 9-10. The Secretary answered B & D's Complaint on September 13, 2002, denying that B & D was entitled to the judgment requested and praying that the court, instead, dismiss the cause of action with costs to the plaintiff.
By order dated September 16, 2002, the court established a briefing schedule on the merits of B & D's Complaint. Although B & D filed its brief on the merits on October 21, 2002, the deadline for the Secretary's brief on the merits is not until sixty days after that date. Therefore, this case is not yet ready for disposition on the merits and may not be resolved for some time.
D. The Motion For Preliminary Injunction
On September 20, 2002, shortly after filing its brief on the merits, B & D filed the motion for preliminary injunction presently before the court. In its motion, B & D asserts that, as a result of enforcement action by the USDA — in the form of the July 19, 2002, letter from the Executive Director of the County FSA notifying the plaintiff that it is ineligible for USDA benefits based on the converted wetland determination and demanding repayment of funds disbursed since the conversion — B & D will be put out of business, because it is unable to meet its financial obligations without federal farm program benefits and is unable to afford repayment of the previously disbursed benefits. Therefore, B & D asserts that the Agency action will cause it to suffer irreparable damage if USDA benefits are not restored and if collection action is begun on past benefits; that it has no other adequate remedy; that the harm to the USDA from a preliminary injunction is small in comparison to the harm to B & D if the preliminary injunction is not granted; and that the damage to the USDA from a preliminary injunction is less than $1,000. B & D prays that the court "preliminarily enjoin the Secretary from pursuing, instituting, continuing, or completing any and all enforcement action against the Plaintiffs [sic] on account of the matter pending in this action and further from denying the payment of any USDA benefits to the Plaintiffs [sic] on account of the matter pending in this action until such time as the preliminary injunction is dissolved or vacated." Plaintiff's Motion For Preliminary injunction at 6. B & D also filed a brief in support of its motion for a preliminary injunction.
On October 2, 2002, the Secretary filed her resistance to the motion for a preliminary injunction and a brief in support of that resistance. Subsequently, on October 23, 2002, the Secretary sought leave to file a supplemental brief to discuss and distinguish this court's Branstad line of cases granting preliminary injunctions in "Swampbuster" cases, Branstad v. Glickman, 118 F.Supp.2d 925 (N.D.Iowa 2000) (Branstad I), and Branstad v. Veneman, 145 F.Supp.2d 1011 (N.D.Iowa 2001) (Branstad II), as well as the decision of the Eighth Circuit Court of Appeals in Barthel v. USDA, 181 F.3d 934 (8th Cir. 1999). The court granted that request, and the Secretary ultimately filed her Supplemental Brief on November 4, 2002.
II. LEGAL ANALYSIS
A. Standards For Issuance Of A Preliminary Injunction
Just as there appears to be no substantial dispute about the factual background to this action for judicial review or the present motion for preliminary injunction, there appears to be no substantial dispute about the factors that must be considered for a preliminary injunction to issue. This court identified the pertinent factors in the Branstad cases, in which other producers also sought preliminary injunctions on enforcement actions by the USDA during the pendency of their actions for judicial review of the Secretary's determination that they, too, had violated the "Swampbuster" Act by "converting" "wetlands." Those standards are as follows:
Branstad v. Glickman, 118 F.Supp.2d 925, 937-38 (N.D.Iowa 2000) (Branstad I); see also Branstad v. Veneman, 145 F.Supp.2d 1011, 1022-23 (N.D.Iowa 2001) (Branstad II) (quoting these standards from Branstad I in a separate action for judicial review involving the same producers, but a purported wetland violation on a different tract of farmland).
The court finds nothing in the parties' arguments suggesting that different factors are pertinent here to B & D's motion for a preliminary injunction. However, in this case, the Secretary does assert that there are certain impediments to granting B & D any injunctive relief at all, or failing that, that B & D's preliminary injunction seeks relief requiring B & D to meet a heightened standard of proof on the relevant factors. Therefore, the court turns to consideration of these purported impediments to preliminary injunctive relief in this case.
B. Impediments To Injunctive Relief
1. A complete bar
First, the Secretary argues that "[n]o injunction can issue against the Commodity Credit Corporation," or CCC, which is the entity actually responsible for funding federal farm program benefits. Defendant's Brief In Opposition To Motion For Preliminary Injunction (Defendant's Brief) at 4. The Secretary argues that B & D "has conspicuously failed to include the Commodity Credit Corporation as a defendant," even though it would be the entity "forced" to make payments in this case, if the court grants the requested injunction. Id. The Secretary argues that the bar against enjoining action by the CCC is statutory, because 15 U.S.C. § 714b(c) provides that "no attachment, injunction, garnishment or other similar process, mesne or final, shall be issued against the Corporation or its property." The Secretary argues that "[t]here could be no clearer indication that this injunction cannot issue against the defendant and in particular against the Commodity Credit Corporation." Defendant's Brief at 5.
The Secretary makes it sound for all the world as though this argument were newly-minted for the present dispute over injunctive relief. However, far from novel, this argument has twice been presented to — and soundly rejected by — this court in rulings on applications for preliminary injunctions pending judicial review in prior "Swampbuster" cases. See Branstad I, 118 F.Supp.2d at 935; Branstad II, 145 F.Supp.2d at 1021-22. What is surprising, therefore, is not the novelty of the Secretary's present argument concerning a bar on injunctions against the CCC, but the fact that the Secretary could raise it once again without so much as confronting, discussing, or attempting to distinguish or refute this court's prior rejections in decisions that are directly on point. Although the Secretary sought leave to file a supplemental brief specifically for the purpose of addressing this court's Branstad line of cases — having first briefed only what the Secretary herself describes as "the black letter law applicable in this matter," i.e., a generic or "canned" brief, in which the Secretary inexplicably failed to address the Branstad cases — she still did not address this court's rejection in both of the Branstad rulings on applications for preliminary injunctions of the present argument concerning a bar on injunctions against the CCC. Even had the Secretary's only goal in resurrecting the argument now been to preserve it for appeal, a laudable goal, the Secretary's failure to confront this court's prior rejections of the
In short, the court is no more impressed by the Secretary's argument on the third go around than it was on either of the prior invocations. The court rejected the identical contention in Branstad I, as follows:
Branstad I, 118 F.Supp.2d at 935 (footnote omitted).
In Branstad II, the court noted and rejected an additional argument, as follows:
Branstad II, 145 F.Supp.2d at 1021-22.
Again, even in her Supplemental Brief, the Secretary made no attempt to
2. Heightened requirements
In this case, the Secretary also argues that B & D seeks here the sort of preliminary injunction that is "heavily disfavored by the courts," such that it must "`satisfy an even heavier burden of showing that, on balance, the preliminary injunction factors weigh heavily and compellingly in movant's favor before an injunction may be issued.'" Defendant's Brief at 4 (quoting Sportsmen's Wildlife Defense Fund v. United States Dep't of Interior, 949 F.Supp. 1510, 1523 (D.Colo.1996)). Specifically, the Secretary argues that the preliminary injunction B & D seeks here "would disturb the status quo and force action rather than enjoin any activity." Id. The Secretary argues that the action that would be "forced" by the present injunction is that the defendant would be forced to pay for something that the plaintiff has failed to earn, a farm program benefits check that has not been earned by compliance with wetlands regulations. Id. at 6. The Secretary also argues that requiring the USDA to continue to pay benefits would "essentially giv[e] the plaintiff what it seeks in the substantive lawsuit." Id. The Secretary boldly argues, "The USDA is not taking away money from the plaintiff, but rather wants to stop paying it for benefits that were never earned." Id. While the Secretary's argument for a heightened standard of proof is cast primarily in terms of its reading of the requested preliminary injunction as requiring payment of future farm program benefits, the plaintiff contends that there is a threat of irreparable harm from imminent enforcement action by the USDA, in the form a demand for repayment of past farm program benefits, which the plaintiff contends could put it out of the farming business. Thus, the question is whether the focus of the preliminary injunction is to maintain the status quo, as B & D contends, or instead to force certain action on the part of the defendant and provide substantially all of the relief sought in the underlying action for judicial review, as the Secretary argues.
Although the Secretary's argument is not a complete and disingenuous effort at misdirection, it nevertheless relies on a "half-truth" to such an extent that it cannot prevail. First, it is plain that the preliminary injunction sought here would prevent two kinds of enforcement actions by the USDA: (1) actions to recover past farm program benefits from 2000 to the date of its demand letter of July 19, 2002, which then totalled $71,944.77, and (2) actions by the USDA to decertify B & D from eligibility for future farm program benefits. However, neither the injunction on attempts to recover past benefits nor the injunction on decertification for future benefits would "disturb the status quo" or "force" payment of unearned benefits by the USDA. Plainly, the first form of relief would prevent the USDA from "taking away money from the plaintiff," which the USDA has stated its intent to do in the July 19, 2002, demand letter. However, this form of relief imposes only "inaction"
C. Application Of The "Dataphase Factors"
The court therefore turns, at last, to application of the "Dataphase factors identified above in Section II.A". Those factors, again, are the following: (1) the probability of success on the merits; (2) the threat of irreparable harm to the movant; (3) the balance between this harm and the injury that granting the injunction will inflict on other interested parties; and (4) whether the issuance of an injunction is in the public interest. See, e.g., Branstad I, 118 F.Supp.2d at 937; Branstad II, 145 F.Supp.2d at 1022.
1. Likelihood of success on the merits
a. The meaning of "likelihood of success"
In Branstad I, this court explained the meaning of "likelihood of success on the
Branstad I, 118 F.Supp.2d at 939. This court also added the following concerning the meaning of "likelihood of success" in the context of an action for judicial review of agency determinations:
Branstad I, 118 F.Supp.2d at 939-40.
b. B & D's likelihood of success
In this case, as to likelihood of success on the merits, B & D contends that it is likely to succeed on its argument that the USDA arbitrarily failed to consider whether any wetland conversion would have only "minimal effect" and arbitrarily denied equitable relief from ineligibility for benefits. However, the USDA contends that B & D has no real likelihood of success on the merits, because B & D abandoned its administrative appeal of the underlying 1999 wetland determination, and concedes that it subsequently removed brush from the identified wetlands, which constitutes a "conversion" of those wetlands.
As the Secretary asserts in her Supplemental Brief, in which she belatedly addresses this court's Branstad line of cases, B & D's prior attempt to pursue an administrative appeal of the 1999 wetland determination, including a withdrawal of that administrative appeal, at the time that the determination was made, appears to distinguish this case from the circumstances presented in the Branstad cases. In the Branstad cases, the producers challenged prior wetlands determinations on administrative appeals of determinations that they had "converted" those wetlands, but they had never before challenged the wetlands determinations, nor had the producers who owned the tracts in question at the time that the prior wetlands determinations were made. Nevertheless, that distinction appears to the court to be of no moment in the face of B & D's arguments for relief from the agency determination that it improperly "converted" wetland that are independent of whether or not the 1999 wetland determination was correct.
Rather, the court is persuaded, first, that B & D has shown sufficient support, under governing law, for its position that the USDA arbitrarily failed to consider whether or not any "conversion" of the wetland in question had only a "minimal effect." Somewhat more specifically, B & D has made sufficient showing for purposes of its motion for a preliminary injunction that the Hearing Officer could not properly consider whether removal of woody vegetation, standing alone, is enough to result in the "conversion" of a wetland under 7 C.F.R. § 12.4(a)(3) unless the Hearing Officer had first determined that the purported "conversion" would have more than a "minimal effect" on the wetland functions and values under 7 C.F.R. § 12.5(b)(1)(v). The regulation for "determination of ineligibility," 7 C.F.R. § 12.4, provides in pertinent part that, "[e]xcept as provided in § 12.5, a person
7 C.F.R. § 12.5(b)(1)(v). Because the record here indicates that the Hearing Officer made the "conversion" determination without considering this "minimal effects" exemption, notwithstanding that B & D had, at the time, identified sufficient evidence that any effects would have been "minimal," B & D has sufficient likelihood of success on the merits of its contention that the "conversion" determination was arbitrary and capricious to sustain its motion for a preliminary injunction.
Similarly, B & D has sufficient likelihood of success on the merits of its contention that the Acting Director's conclusion that equitable relief was not warranted under the circumstances was arbitrary and capricious. B & D had put forward sufficient evidence in the administrative record that it believed that it had the District Conservationist's permission to remove woody vegetation, notwithstanding that the Hearing Officer determined that any such permission actually pertained to other parts of the tract in question. Some confusion about the scope of the District Conservationist's permission is apparent from the record. This view of the record is reinforced by the court's belief that common sense alone would have prevented a producer from intentionally and improperly removing woody vegetation from so small an area of designated wetland, a mere 0.9 acres, at the risk of losing such substantial farm program benefits, amounting to more than $71,000 in benefits from 2000 to 2002, and doubtless many more thousands of dollars thereafter. Moreover, the Acting Director's denial of equitable relief, in the form of a "good faith" restoration agreement, for example, smacks of absurdity, when the USDA has not countered B & D's assertions that any "conversion" was based on a good faith mistake about the scope of the District Conservationist's permission; that less than $1,000 in materials and expenses would be required to restore the "grubbed" vegetation; that there would have been, at most, a very small "loss" of wetland function resulting from the "conversion" of only 0.9 acres of wetland; and that any supposed "loss" is called even further into doubt by the effects of repairs to an adjacent drainage system on property of another producer.
Thus, the court concludes that B & D has shown sufficient likelihood of success on the merits of its underlying action for judicial review to support a preliminary injunction on enforcement actions that it seeks here.
2. Irreparable harm
As this court explained in Branstad I,
Branstad I, 118 F.Supp.2d at 941-42.
B & D contends that there is a threat of irreparable harm from imminent enforcement action by the USDA, in the form of a demand for repayment of past farm program benefits and decertification of eligibility for future benefits, which the plaintiff contends could put it out of the farming business. In response, the USDA focuses only on the purported harm from loss of future benefits, arguing that there is no threat of irreparable harm, because the delay in payment of future benefits until such time as the court might determine that the underlying agency determination was wrong does not constitute the necessary threat.
Here, the relief that B & D seeks in its motion for a preliminary injunction involves the same focus as B & D's underlying lawsuit, see Green Acres Enters., Inc., 86 F.3d at 133, relief from a determination that B & D improperly converted wetland, even if the nature of the relief sought in the motion for a preliminary injunction is somewhat different, cessation of enforcement actions. Moreover, contrary to the Secretary's contentions, B & D has shown that legal remedies would be
Thus, this factor also weighs strongly in favor of granting the preliminary injunctive relief sought by B & D in this case.
3. Balance of harms
As this court also explained in Branstad I,
Branstad I, 118 F.Supp.2d at 942-43.
B & D argues that the balance of harms also weighs in its favor, because the woody vegetation has already been removed, so that no further "conversion" will occur if the injunction is granted and that, if B & D is unsuccessful on the merits of its Complaint, it will have no choice but to attempt to restore the wetland. B & D argues that such restoration can be done for the minimal cost of about $1,000. Moreover, B & D argues, even if the
As pointed out above, the threatened harm to B & D from the USDA's enforcement actions is far from "illusory." See Frank B. Hall, 974 F.2d at 1023. Thus, there must be something significant on the other side of the scales for this factor to weigh against the issuance of an injunction. The court finds that there is no such significantly weighty harm to the USDA or the public interest. First, as mentioned above, any actual harm to the USDA — that is, to the USDA's interest in wetland protection and not paying benefits to persons who violate wetland protection regulations — is slight, because the "converted" wetland in question is small, B & D has made a sufficient preliminary showing that any conversion would have minimal effect in light of the nature of the alleged "conversion" and the effects of an adjacent drainage system on land of another producer, and the USDA has the means to recover improperly paid benefits, if the USDA ultimately prevails. Moreover, B & D has made a sufficient preliminary showing that any damage to the wetland can be repaired reasonably easily and inexpensively, should the decision in this action ultimately go against it. Thus, as in Branstad I, the potential for long term harm to wetlands is insufficient to bar an injunction when balanced against the almost certain and permanent disaster that loss of farm program benefits, and repayment of past benefits, would be to B & D. See Branstad I, 118 F.Supp.2d at 943 (citing Baker Elec. Co-op., 28 F.3d at 1473, for consideration of the rights and economic interests of the parties on this factor in the Dataphase analysis). Moreover, it is also true here, as in Branstad I, that the preliminary injunction would only maintain the status quo, the Secretary's arguments to the contrary not being persuasive, and B & D should not be effectively deprived of its right to judicial review by allowing enforcement action to proceed. Id.
Thus, this factor also weighs in favor of the issuance of a preliminary injunction.
4. The public interest
Finally, the court turns to the "public interest" factor in the "Dataphase analysis." See Branstad I, 118 F.Supp.2d at 943. As this court explained in Branstad I,
Branstad I, 118 F.Supp.2d at 943.
In its Branstad cases, including its disposition of those cases on the merits, see Branstad v. Veneman, 212 F.Supp.2d 976 (N.D.Iowa 2002) (Branstad III), this court discussed in considerable detail the public interest embodied in the Swampbuster Act. As in Branstad II, "[t]he court by no means denigrates the importance of and public interest in prevention of wetlands
Branstad II, 145 F.Supp.2d at 1024. Therefore, B & D has not only satisfied this final factor for issuance of a preliminary injunction, but all of the other "Dataphase factors."
The court, therefore, concludes that a preliminary injunction on enforcement action by the USDA should issue in this case.
D. The Bond Requirement
B & D recognizes that subsection (c) of Rule 65 of the Federal Rules of Civil Procedure requires the movant to give security for the issuance of a preliminary injunction. See FED. R. CIV. P. 65(c). As this court explained in Branstad I, "The bond posted under Rule 65(c) `is a security device, not a limit on the damages the [USDA] defendants may obtain against [B & D] if the facts warrant such an award.'" Branstad I, 118 F.Supp.2d at 944 (quoting Minnesota Mining & Mfg. Co. v. Rauh Rubber, Inc., 130 F.3d 1305, 1309 (8th Cir.1997)). Furthermore,
Branstad I, 118 F.Supp.2d at 944.
Based on a calculation of the per day interest for six months on the farm program benefits that the USDA has already demanded that B & D repay and any additional benefits that the USDA may pay out during the pendency of this action, B & D estimates that the USDA's "damages" from an improvidently granted preliminary injunction would be about $456.25. B & D, therefore, suggests that a bond in the amount of $1,000 would be reasonable. The Secretary makes no counterargument.
While instructive, the court finds that B & D's calculation is not complete. The court believes that it is also prudent, under the circumstances, for the determination of the proper amount of a bond to take into account reasonable estimates of the costs of restoring the wetland in question, if they are ultimately found to have been improperly converted, to as much of their wetland function as possible. This calculation would properly "secure" the USDA's and the public's interest in wetland protection and restoration. However, this calculation, too, seems to suggest that a bond in the amount of $1,000 would be reasonable, because that is the cost that B & D estimates that it would incur in "restoring" the 0.9 acres of "converted" wetland, and the Secretary has offered no contrary calculation. Moreover, because B & D has made a sufficient preliminary showing that any "conversion" of wetlands
Therefore, the court agrees that the preliminary injunction should issue upon the posting by B & D of bond in the amount of $1,000.
III. CONCLUSION
The court concludes that B & D has satisfied each of the "Dataphase factors" for issuance of a preliminary injunction under the circumstances presented here. Furthermore, the court finds no other impediment to the issuance of such an injunction, and that such an injunction should issue upon the posting of bond in the amount of $1,000.
Therefore, B & D's September 20, 2002, Motion for Preliminary Injunction is
PRELIMINARY INJUNCTION
This preliminary injunction shall be binding upon the parties to this action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of this order.
This preliminary injunction shall issue upon the posting by the plaintiff herein of a bond, in compliance with Rule 65(c) of the Federal Rules of Civil Procedure and such other rules, regulations, or statutes as shall apply, in the sum of one thousand dollars ($1,000).
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