How did a farmer’s half-acre puddle become the government’s wetland? By science or decree?
In the annals of private property ownership versus government regulation, Arlen Foster’s case is standout. His entire agriculture operation hinges on an isolated dot within his South Dakota property—a .8-acre depression seasonally holding up to 8.5” of water. USDA claims the .8-acre spot is a wetland, but Foster counters it is manmade and attributable to snowmelt from an adjacent shelterbelt planted by his father.
If Foster dares drain the eight-tenths of an acre, he faces ruin—the total loss of USDA loans, payment programs, and crop insurance subsidies, as well as a potential requirement to repay benefits previously received.
“I’ve proven the .8-acre is artificial, and not a wetland, but in the bureaucracy’s looped, in-house system, the courts only rely on what the government reps claim,” Foster says. “Whatever USDA says about wetlands is the only science allowed in the room.”
No more. In a landmark July 2024 ruling, the Supreme Court tossed out a legal doctrine—Chevron deference—that allowed judges to rely on government interpretation whenever statutory text was deemed complicated or ambiguous. By extension, the Court’s ruling now will allow Foster to present evidence on equal footing.
“I never asked for special treatment,” he adds. “I only wanted a chance to present facts and data, but the government refused. The truth didn’t matter for almost 20 years. It does now.”
Untouchable Forever
In 1936, along the south edge of a flat 44-acre field, Gordon Foster planted 1,000-plus trees: eastern red cedar, cottonwood, ash, and plum. At a half-mile long and 25 yards deep, with tree heights reaching 40’, the belt of timber stands today in southeast South Dakota’s Miner County.
“My Father was the one who planted the trees, but if he returned today, he’d never believe what has happened,” says Arlen Foster, 73. “In fact, he planted the trees at the encouragement of USDA.”
Every year, snow drifts—sometimes up to 7’ in depth—accumulate along the belt. By nature’s clockwork, the eventual melt drains north, pooling in a .8-acre depression roughly 40 yards into the adjacent 44-acre field, Foster contends.
Described as a “muddy puddle” by Foster, the depression is not a prairie pothole and connects with no other water sources, i.e., it sits in isolation. As planting season approaches each year, the greater field dries—while the puddle often remains wet.
When the depression is dry, Foster can farm the ground, but when wet, he cannot drain the spot to make it more it more productive. “Less than 1’ of water gets in that puddle, but I’m not allowed to drain it,” Foster says. “It’s untouchable forever, according to the government, and this madness has been going on since 2004.”
“It’s hard to truly understand the irrationality of the bureaucracy,” Foster says. “It would take me days to explain in detail how NRCS has repeatedly broken its own rules. It’s been a series of measures that defies belief for regular people.”
Back to Zero
Conservationists to their core, Foster and his wife, Cindy, requested wetlands determinations from USDA’s Natural Resources Conservation Service (NRCS) on four quarters of family ground in 2000. Four years later, those determinations were completed after several challenges to the NRCS procedures.
“That’s how the whole story began,” Foster says. “NRCS called the .8-acre spot a natural wetland. I tried to show them it was an artificial wetland from melt from the manmade tree belt, just like a stock-watering pond. Suddenly, I wasn’t allowed to pull off the water and my surrounding crop would drown every other year.”
Right, wrong, good, or bad, Foster was in the crosshairs of Swampbuster enforcement, enabling NRCS to penalize any farmer that worked acreage deemed as wetlands, including surrender of USDA loans, payment programs, and crop insurance subsidies.
(NRCS declined to comment on the Foster case, citing pending litigation.)
Eight years after the first request, in 2008, after a blizzard piled deep snow along the tree belt, Foster asked for a review of the wetlands determination on the .8-acre, technically labeled as Site 1. “The drifts were easy to see, and I was surprised when NRCS agreed to a review,” he says. “Months later we received their determination—still a wetland.”
Foster took the determination to NRCS’ in-house National Appeals Division (NAD), and entered a multi-year loop of attorney fees, two recissions, hearing officers, director’s review, repeat scheduling, field visits, paperwork, and lost time. Meanwhile, Site 1 again was deemed a .8-acre wetland.
“NRCS rescinded the wetlands determination twice and we were right back at zero, starting from scratch. It was maddening,” Foster explains. “When they wanted to test a reference site with the same soil type, I offered a place a half-mile away on our farm that was in native grass. An NRCS employee drove over, but he didn’t get out of his truck. He said he couldn’t identify the grass because it wasn’t headed out; he said I had not told him what the soil type was—which was NRCS’ role and responsibility; and he said the site had been disturbed by haying, grazing, or spraying.”
“Instead, NRCS used a reference site that was about 40 miles away, had also been ‘disturbed,’ and had already previously been determined to be a wetland some 10 years earlier. It was on private land owned by the regional FSA director. That’s basically plug-and-play by NRCS and a means to ensure they get the data they’re looking for,” Foster contends.
The substitute site supported wetland vegetation—therefore the government deemed the small pool of temporary water on Foster’s land to be a wetland.
“That’s just one example from a countless list,” he says. “All that time and effort, and they still wouldn’t consider the simple explanation of snow melt from the tree belt.”
Never Alone
In 2014, Foster sued USDA in federal district court, but he was stymied by the merry-go-round of Chevron deference, the legal doctrine enabling judges to rely on government interpretation of statutory text. When courts doubted the particulars of a regulation issued under a statute, they were required to defer to an agency’s judgment—the same agency that wrote the regulation. Therefore, agency officials could write the rules, decide on the meaning of the rules, and enforce the rules.
In Foster’s case, the court ruled for USDA, backing NRCS’ claims by “deferring to the expertise of the agency.”
“It didn’t matter what I did to prove I had a snowmelt-fed puddle, because the court accepted whatever NRCS said,” Foster exclaims. “For example, to monitor subsurface water levels, I’d previously dug two holes, one at the Site 1 puddle, and one about 75’ away beside the tree belt. The water in the tree belt hole was always higher, clearly showing saturated soil conditions. NRCS gave it no credibility and said I wasn’t qualified to interpret my data.”
In 2017, Foster again requested a wetlands determination on Site 1. NRCS declined the request, asserting that Foster had to provide new evidence on hydrography or topography.
“Provide evidence? That’s what I’d been trying to do since day one. I had never stopped accumulating data. We installed two weather stations—one beside the tree belt, the other 40 rods north on the opposite side of the field. I hired an engineering firm to interpret the data, and the findings were obvious: wind slowed along the tree belt building snow drifts in winter and reducing drying winds in summer. It was simple—the trees had a significant effect.”
Foster went a big step further: He hired an additional engineering firm (Banner Associates) to conduct on-site testing to quantify snow melt along the tree belt in relation to Site 1. According to Banner Associates, 13.12” of snow melt water flowed into Site 1 via the tree belt, in addition to average annual rainfall. Per the report: “This is evidence that the snow captured in the manmade shelter belt provides a major contribution to the annual hydrology for this wetland.”
“Documented with drones, LIDAR, testing, all of it,” Foster says. “The drifts were contributing an extra 13.12” of water to our artificial wetland and our annual rainfall is only about 26”.”
In 2020, engineering report in hand, Foster submitted another request for a new wetlands determination of Site 1.
Result? Foster’s request was denied, again.
“There is no sense of reason or fairness in the bureaucracy, but I wasn’t giving up,” Foster says. “My faith in God was my rock. So many times I went to that little low spot in the field and asked for guidance. I was never alone.”
Money and Will
By 2023, Foster was out of lower court options. “I had to take my case to the U.S. Supreme Court, because the district court and the Eighth Circuit repeated each other, deferring to NRCS expertise for every technical issue about Site 1. It was beyond frustrating to have evidence in hand, but not have it considered,” Foster notes. “That’s classic Chevron deference.”
Recognizing the gravity of Foster’s contentions, Pacific Legal Foundation (PLF) took his case (pro bono) to the Supreme Court. The Court, already in the process of deciding on another case related to Chevron deference, made a benchmark decision in June 2024, striking down Chevron in Loper v. Raimondo. The Loper result was monumental: The administrative state lost one of its most frequently played wild cards in control of private land.
Based on Loper, SCOTUS sent Foster’s case back to the Eighth Circuit to be decided by evidence—and not Chevron deference. “The Supreme Court justices ruled that lower courts must look at statutory text and decide the correct interpretation without deferring to any agency or the executive branch on what is the best decision,” says PLF attorney Paige Gilliard.
“In Arlen Foster’s case, the Eighth Circuit now will make a decision without relying on NRCS and it will take a fresh look at the Swampbuster statute,” Gilliard adds. “By using Chevron, agencies have been able to get away with creative interpretations of statutes, and that aggrandizes their power. But now, Arlen will get an opportunity to present his evidence—and he couldn’t before.”
When private landowners challenge regulatory agencies, the response is an intentional, slow roll, Foster contends, i.e., process is punishment. “It’s hard to believe this has dragged out for two decades,” he says. “They stretch you out over time and never give you a determination, just waiting for you to run out of money or will power. I couldn’t have done this without PLF’s representation at no charge.”
In 2022, Foster’s wife, Cindy—at his side from the get-go—passed away. “I wish Cindy was here to see this,” he adds. “We’re finally getting a chance to present the facts to a court that will listen. My job now is to keep going for the sake of other landowners and the truth.”
For more from Chris Bennett (@ChrisBennettMS or cbennett@farmjournal.com or 662-592-1106), see:
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Bagging the Tomato King: The Insane Hunt for Agriculture’s Wildest Con Man
Ghost in the House: A Forgotten American Farming Tragedy
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American Gothic: Farm Couple Nailed In Massive $9M Crop Insurance Fraud
Evil Grain: The Wild Tale of History’s Biggest Crop Insurance Scam
Fleecing the Farm: How a Fake Crop Fueled a Bizarre $25 Million Ag Scam
The Arrowhead Whisperer: Stunning Indian Artifact Collection Found on Farmland
Skeleton In the Walls: Mysterious Arkansas Farmhouse Hides Civil War History
