Issues and Cases

Regulators reached way too far to justify this “wetlands” designation

Foster v. Vilsack


Contact: Anthony L. Francois

Status: Case sent to Supreme Court.

Summary:
Arlen and Cindy Foster own a farm in South Dakota.  They requested that the Department of Agriculture determine whether their property contains any federally protected wetlands, for compliance with the Food Security Act of 1985.  After multiple site inspections and administrative appeals, the Department claims that 0.8 acres of their property is wetlands. 

The Department used a comparison site for determining whether the inspected site grows wetland plants, and the applicable regulation requires that the comparison site be in “the local area.”  The Department has established a list of preselected comparison sites for large regions, including a 10,835-square-mile region in which the Fosters’ property is located.  This pre-selected site is 33 miles away from the Fosters’ property.  Since the preselected site is known to contain wetland plants, the effect is that any site on similar soils within those 10,835-square miles will also be determined to contain wetland plants.  Asking the Supreme Court to hear the Fosters’ case, PLF argues that the preselected site is not within the “local area” as defined by regulation, and that determining their property to have wetlands on it because a different, preselected property also does, violates the Due Process Clause of the U.S. Constitution.

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