DTN writer Todd Neeley reported today that, “Winter dumps piles of snow nearly every year along a tree belt near an 0.8-acre tract of land on Arlen Foster’s farm in Miner County, South Dakota, in the southeastern part of the state.
“Spring melt drains onto his field, often making it impossible to farm.
“Such is life in the Prairie Pothole region, where centuries ago glacial formations carved into the land.”
Mr. Neeley noted that, “The 0.8 acres was declared a wetland based on a USDA process that Foster is asking the U.S. Supreme Court to review.
“The Natural Resources Conservation Service, or NRCS, faces a backlog of requests for wetlands determinations, leaving some landowners waiting for years.”
The DTN article explained that, “‘We requested determinations on tracts of our land,’ Foster said in an interview with DTN. ‘NRCS seems to have trouble with following procedure. We have a right to accurate, timely determinations.’
“NRCS instead used a comparison site to make a determination, Foster said. This deprives him of his rights, he contends in his appeal. Such comparisons are allowed by NRCS procedures.”
“Foster said the NRCS didn’t consider evidence the .8 acres is not an actual wetland. Instead, the NRCS deemed the land was similar to a known wetland more than 30 miles away,” the DTN article said.
Mr. Neeley also stated that, “Wetland conservation provisions in the Food Security Act place no restrictions on farming wetlands if natural conditions allow for it. The wetlands provision prohibits converting wetlands to crop production by draining, filling or other means.
“‘Production of an agricultural commodity on such land is possible as a result of a natural condition, such as drought, and it is determined that the actions of the person producing such agricultural commodity does not permanently alter or destroy natural wetland characteristics,’ the FSA provision reads.
“Foster argues in his petition the 0.8 acres is not a natural wetland.”
Today’s DTN article added that, “The Pacific Legal Foundation asked the Supreme Court to consider a number of questions, including whether the use of a comparison site selected a decade ago to make the wetlands determination violates Foster’s Fifth Amendment rights to due process.”
