Issue
Whether federal courts should defer to an agency construction of an interpretive field manual. Additionally, whether the use of a remote comparison site, preselected ten years prior and without notice to the petitioners or an opportunity to be heard, as the sole means of determining that their land supports wetland plants, violates their rights to due process of law under the Fifth Amendment.
Facts
Arlen and Cindy Foster are farmers living in Miner County, South Dakota. Mr. Foster’s grandfather purchased land there over 100 years ago and Mr. Foster’s family has used that land for farming ever since. However, there is a small depression on their land. This small depression occasionally fills with melted snow. That melted snow provided the federal government with all the license it thought it needed to declare that portion of their property to be a “wetland,” which means that the Fosters are barred from using that portion of their land to farm, despite it being on their property and only a “wetland” intermittently through the year. The definition of wetland is determined by the Department of Agriculture’s own regulations but there are unanswered questions despite the definition. For instance, if the status of a parcel of land cannot be determined due to alterations like filling in the depression, for example, another parcel from the “local area” will be substituted. What exactly constitutes a local area is never defined. The Army Corps of Engineers ultimately began referring to an area of nearly 11,000 square miles, almost the size of Rhode Island 1,212 square miles, as a “local area.” Based on their huge “local area” definition, the Corps of Engineers went thirty-three miles away to find a substitute for the depression in the Foster’s land. That substitute site supports wetland vegetation, so the Foster’s farm was also deemed to be a wetland.
Predictably upset that some of their farmland had been deemed a wetland over a temporary pool of water, the Fosters sued the Secretary of Agriculture, Thomas Vilsack, in an attempt to regain the ability to farm their now useless land under the Administrative Procedure Act, claiming that their land being deemed a wetland constituted the final agency action on the matter, and therefore is subject to judicial review.
The Court Below
The District Court for the District of South Dakota was the first to hear the case. The court ruled in favor of Vilsack and because the court determined that the Fosters did not persuasively show that the wetland determination was arbitrary, that proper procedures for the determination were followed, and the wetland determination was in error. See opinion below:
Foster v. Vilsack, 2014 WL 5512905 D.S.D., 2014
The Fosters then appealed the case to the Eighth Circuit Court of Appeals. The court ruled in favor of Vilsack for the same reasons the district court ruled for Vilsack. See opinion below:
Foster v. Vilsack, 820 F.3d 330 8th Cir., 2016
The Fosters then appealed to the Supreme Court. The Supreme Court declined to hear the case, meaning the Eighth Circuit Court of Appeals’ decision stood. See opinion below:
Foster v. Vilsack, 137 S.Ct. 620 S.Ct., 2017
CCJ filed an amicus curiae brief in support of Foster
Summary:
The testimony of a civil service employee on the meaning and application of agency rules and guidelines is not entitled to deference. This Court should re-examine its jurisprudence of “deference” to executive agencies on the meaning of laws and regulations.
The testimony of a civil service employee on the meaning and application of agency rules and guidelines is not entitled to deference. This case seems to demonstrate deference carried to its absurd extreme. A civil servant employee of the National Resources Conservation Service testified that the United States Department of Agriculture interprets the term “local area” in its regulations to mean an area that encompasses nearly 11,000 square miles. “Local area” is not a scientific term, nor is it even a term of art. The employee's interpretation in this case is not consonant with a plain language interpretation of the text of the regulation. The District Court noted that it was at best “unclear” whether the employee's testimony “represents the agency's interpretation.” Nonetheless, the District Court decided that the testimony should be accorded Skidmore “deference.” When this Court “defers” it transfers the judicial function to the agency. The agency's view on the legal meaning and application of a regulation become binding on everyone – including the judicial branch of government. Thus, an individual in the Executive Branch to whom a court “defers” wields enormous power.
The difficulty presented in the present case is not altogether unique but rather represents an extension of the precedent set forth in Seminole Rock and Auer. In the former case, this Court determined that an agency's interpretation of its own regulations would be given “controlling weight.” Unless the agency's interpretation was plainly erroneous or inconsistent with the regulation, the Court instructed the judiciary to defer to the agency's construction of its own regulation. Reiterated more recently in the latter case, this doctrine has since become known as Auer deference. Members of this Court have expressed doubts about the continuing validity of this doctrine. This case demonstrates the need for a reexamination of that doctrine. Relying on the deference granted in Seminole Rock and Auer, agencies can issue vague regulations and then proceed on an ad hoc basis to interpret the meaning of the regulations in the context of specific property owners, knowing that courts will not disturb those interpretations. As a result, Auer deference begets the very problem that arises in the present case: namely, a court declining judicial review in favor of an agency employee's interpretation on the legal meaning and applications of rules and guidelines.
The difficulty presented in the present case is not altogether unique but rather represents an extension of the precedent set forth in Seminole Rock and Auer. In the former case, this Court determined that an agency's interpretation of its own regulations would be given “controlling weight.” Unless the agency's interpretation was plainly erroneous or inconsistent with the regulation, the Court instructed the judiciary to defer to the agency's construction of its own regulation. Relying on the deference granted in Seminole Rock and Auer, agencies can issue vague regulations and then proceed on an ad hoc basis to interpret the meaning of the regulations in the context of specific property owners, knowing that courts will not disturb those interpretations. As a result, this deference begets the very problem that arises in the present case: namely, a court declining judicial review in favor of an agency employee's interpretation on the legal meaning and applications of rules and guidelines.
Separation of the powers of government is a foundational principle of our constitutional system. The ratification debates demonstrate the importance of this separation to the founding generation. The argument was not whether to separate power, but whether the proposed constitution separated power enough. Fearing that the mere prohibition of one branch exercising the powers of another was insufficient, the Framers designed a system that vested each branch with the power necessary to resist encroachment by another. Madison explained that what the anti-federalists saw as a violation of separation of powers was in fact the checks and balances necessary to enforce separation. To preserve the structure set out in the Constitution, and thus protect individual liberty, the constant pressures of each branch to exceed the limits of their authority must be resisted. Any attempt by any branch of government to encroach on powers of another branch, even if the other branch acquiesces in the encroachment, is void. The judicial branch, especially, is called on to enforce this essential protection of liberty. The deference shown under Seminole Rock and Auer, however, does runs counter to this duty by ceding judicial power to the executive branch. This allows the concentration of power feared by the founding generation.
In short, testimony by an agency employee is not entitled to deference. On that note, the jurisprudence of “deference” granted to agencies runs counter to the intent of the Framers and violates the principle of separation of powers.
Final Outcome
The Eighth Circuit issued the controlling decision in this case. The court held that there was enough evidence to categorize part of the Foster family’s farmland as wetland and there was enough evidence to conclude that hydrophytic vegetation could be supported by the land in question.
