Arlen Foster v. Department of Agriculture, et al.

In 2011, Respondent Natural Resources Conservation Service concluded that an 8-inch-deep pool of water in the middle of Petitioner Arlen Foster’s farm is a naturally occurring wetland under 16 U.S.C. § 3822 (Swampbuster). As a result of this certified wetland delineation, in the years the water appears, Foster is unable to drain it to farm that area of his land. Since 2011, Foster has hired experts who have gathered new information about the hydrology of this purported wetland. Based on this new data, Foster requested that Respondent review his previous delineation. Swampbuster provides that a certified delineation “remain[s] valid and in effect . . . until such time as the person affected by the certification requests review of the certification by the Secretary.” 16 U.S.C. § 3822(a)(4). Despite this statutory language, Respondent applied its regulations to deny Foster’s request to review the previous delineation and kept the previous delineation in place. The Eighth Circuit deferred to the agency’s interpretation of Swampbuster under Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), and upheld the agency’s denial. The questions presented are:

1. Whether a statute that provides that a wetlands certification “remain[s] valid and in effect . . . until such time as the person affected by the certification requests review of the certification” requires an agency to treat a certification as invalid and not in effect when a person affected by that certification requests review.

2. Whether the Court should overrule Chevron.