REICHENBACH et al v. VILSACK et al
ORDER granting 28 Defendant's Motion for Summary Judgment - The Defendants' motion for summary judgment is GRANTED inits entirety. Signed by Judge William T. Lawrence on 1/4/2013. (JKS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
RICHARD REICHENBACH and
THE UNITED STATES DEPARTMENT OF
AGRICULTURE, et. al,
) Cause No. 1:10-cv-994-WTL-TAB
ENTRY ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on the Defendants’ Motion for Summary Judgment (Dkt.
No. 27). The motion is fully briefed, and the Court, being duly advised, now rules as follows.
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the Court
accepts as true the admissible evidence presented by the non-moving party and draws all
reasonable inferences in the non-movant’s favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.
2009). However, “[a] party who bears the burden of proof on a particular issue may not rest on
its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a
genuine issue of material fact that requires trial.” Id. Finally, the non-moving party bears the
burden of specifically identifying the relevant evidence of record, and “the court is not required
to scour the record in search of evidence to defeat a motion for summary judgment.” Ritchie v.
Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
Concerned that wetlands in agricultural areas were being lost, Congress enacted the
Wetland Conservation Compliance provisions, commonly known as “Swampbuster,” under the
1985 Food Security Act. 16 U.S.C. §§ 3801, 3821-24. Swampbuster provisions limit farm
program benefit eligibility for farmers who improperly manipulate land, drainage, or ditches
affecting the hydrology, vegetative criteria, or hydric soils of an area determined to be a wetland.
Plaintiffs Richard and Pamela Reichenbach appeal from a determination that five acres of their
farm are wetlands subject to Swampbuster protection.
It is a violation of Swampbuster to produce an agricultural commodity on converted
wetland. 16 U.S.C. § 3821. A “wetland” is an area that (1) has a predominance of hydric soils;
(2) is inundated or saturated by surface or groundwater at a frequency and duration sufficient to
support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil
conditions; and (3) under normal circumstances supports a prevalence of such vegetation. 7
C.F.R. § 12.2(a). A “converted wetland” is a wetland that has been “drained, dredged, filled,
leveled, or otherwise manipulated (including the removal of woody vegetation) for the purpose
of or to have the effect of making possible the production of an agricultural commodity.” 7
C.F.R. § 12.2(a).
However, a farmer does not lose his eligibility for program benefits as the result of the
production of an agricultural commodity on wetlands that meet the definitions of a “prior
converted cropland” or a “commenced conversion.” 7 C.F.R. § 12.5(b)(1), (2). A “prior
converted cropland” is a converted wetland where (1) the conversion occurred prior to December
The Record consists of two appeals, NAD Case No. 2008E000400 and NAD Case No.
2009E000842. Factual citations to the Record contained in NAD Case No. 2008E000400 will be
identified as “AR A:[page number],” and citations to the Record contained in NAD Case No.
2009E000842 will be identified as “AR B: [page number].”
23, 1985; (2) an agricultural commodity had been produced at least once before December 23,
1985; and (3) as of December 23, 1985, the converted wetland did not support woody vegetation
and met certain hydrologic criteria. 7 C.F.R. § 12.2(a)(8). A “commenced conversion” is a
wetland on which conversion began, but was not completed, prior to December 23, 1985. 7
C.F.R. § 12.2(a)(2). A commenced conversion determination allows persons who had actually
started conversion of a wetland prior to December 23, 1985, to complete the conversion without
jeopardizing USDA program benefits. 7 C.F.R. § 12.5(b). However, to be eligible for the
commenced conversion exception, a request for the designation must have been filed with the
FSA before September 19, 1988. 7 C.F.R. § 12.5(b)(2)(ii).
Plaintiffs Richard and Pamela Reichenbach purchased Farm No. 4335, tract 802, located
in Hancock County, Indiana (the “Farm”), in 2006. On January 29, 2007, the Reichenbachs
requested permission from the Farm Service Agency (“FSA”) in Greenfield, Indiana, to remove
timber from existing fence rows located on the Farm and additional property they owned.
On March 16, 2007, a scientist from the National Resources Conservation Service (the
“NRCS”) visited the Farm to inspect the area from which the Reichenbachs planned to remove
timber. While on the Farm, he noted that the tract had a potential wetland violation that needed
On June 11, 2007, a preliminary determination was issued, finding that 4.4 acres of the
Farm were converted wetlands. This June 2007 preliminary determination was upheld on review
by the NRCS State Conservationist on December 17, 2007. The December 2007 decision was
deemed the final determination of the agency. The Reichenbachs initiated an appeal of the
decision to the National Appeals Division (the“NAD”).
During this time, the Reichenbachs wished to operate and work the Farm for the crop
year 2008 without farming the area that had been classified as converted wetland, as farming this
area would render them ineligible for program benefits. As a result, an employee of the NRCS
visited the Farm to place stakes around the wetland on the property and provide the
Reichenbachs notice of the specific area they could not farm. During this visit the NRCS
employee used a Global Positioning Satellite based on previous NRCS aerial mapping
information and measured and staked off 3.5 acres of wetland on the Farm.
After this different measurement, NRCS State Conservationist Jane Hardisty wrote a
letter to the Reichenbachs acknowledging the difference between the initial determination of 4.4
acres of wetland and the new 3.5 acre assessment. Hardisty explained that the change in
measurements technically resulted in a new determination and the Reichenbachs had not been
officially notified by the NRCS of such a new determination. Hardisty acknowledged that “this
may have created a situation where it was not clear to [the Reichenbachs] what [they] could farm
without violating the wetland provisions.” AR A: 12. Accordingly, Hardisty offered to withdraw
the adverse determination of 4.4 acres from June 2007 for the purpose of reevaluating the site
and the wetland measurements. The Reichenbachs agreed to the withdrawal and reevaluation.
The NAD appeal was thus dismissed on July 21, 2008.
Meanwhile, on July 9, 2008, the NRCS team again visited the Farm for the purpose of
making a new wetland determination. Mr. Reichenbach, his son, counsel Dan Strahl, and wetland
consultant Randy Jones were present for the visit. After viewing the site and reviewing aerial
slides, the NRCS scientists confirmed that a converted wetland existed and determined that it
was five acres in size.
On March 27, 2009, Hardisty issued a preliminary technical determination that five acres
of the Farm constituted a converted wetland with restricted use. This letter informed the
Reichenbachs that the preliminary determination would become final within thirty days after
receipt of the letter unless the Reichenbachs requested (1) reconsideration of the field visit, (2)
mediation, or (3) a waiver of the thirty-day appeal period. The Reichenbachs requested
mediation on April 28, 2009, and the mediation process began soon thereafter.
On June 5, 2009, mediator Gail Kappel indicated to Hardisty and the Reichenbachs’
attorney, Dan Strahl, that her office would close its file relating to the case because the agency
was unwilling to mediate the wetland determination made by the NRCS. Kappel closed her file
on June 18, 2009. Accordingly, on June 30, 2009, the Reichenbachs submitted a letter to the
Hancock County FSA County Committee requesting an appeal of the March 2009 wetland
The Hancock County FSA Committee held a hearing on Reichenbachs’ request on July
21, 2009. Mr. Reichenbach and his counsel were both present. Mr. Reichenbach’s counsel
presented evidence at the hearing that he argued showed that the March 2009 NRCS wetland
determination was incorrect because the area in question had been converted prior to December
23, 1985. At that time, the Committee unanimously determined and informed Mr. Reichenbach
that his appeal had merit and the NRCS determination was incorrect as the land had previously
been drained and converted.
On August 3, 2009, the Hancock County FSA Committee met in an executive session and
based on “further clarification and findings” decided to deny Mr. Reichenbach’s request.
According to the minutes from that meeting, a letter dated February 22, 1988, was considered by
the Committee in making its decision. Neither Mr. Reichenbach nor his attorney were present at
the executive session, nor were they afforded the opportunity to review the additional evidence
the Committee considered, including the 1988 letter. On August 11, 2009, the Hancock County
FSA Executive Director sent a letter to the Reichenbachs, denying their request for a
redetermination of the previous NRCS wetland determination.
The Reichenbachs thereafter appealed the August 2009 decision to the NAD. An inperson hearing was held on October 22, 2009, before Hearing Officer Michael Jacobs. On
December 1, 2009, Jacobs issued his determination, which upheld the Hancock County FSA
Committee’s August 11, 2009, decision to deny the Plaintiffs’ appeal of the initial NRCS
wetland determination. Officer Jacobs did not mention the Hancock County FSA Committee’s
course of action.
On January 7, 2010, the Plaintiffs requested an NAD Director Review of the December
2009 NAD Hearing Appeal Determination. On July 9, 2010, M. Terry Johnson, Deputy Director
of the NAD, issued the Director Review Determination, which upheld the NAD Hearing
Officer’s determination. The Reichenbachs now appeal from the Director’s determination.
The Relevant Evidence
The Site Reevaluation
When the NRCS team visited the Farm in order to make a new wetland determination on
July 9, 2008, they were met by Mr. Reichenbach, his son, his counsel Dan Strahl, and wetland
consultant Randy Jones. During the site visit, Mr. Reichenbach showed tile that was uncovered
with a back hoe at the site. One tile was a plugged clay tile and another one was plastic tile that
was installed in 1988.2 Mr. Reichenbach asked if a different wetland determination was possible
In their Statement of Facts, the Reichenbachs state that they “provided documentation
of existing tiles on the property that existed prior to 1985” and “also provided information that
the entire Farm, including the different areas in question, produced agricultural crops prior to
because draining the site was impossible until the County Drainage Board could obtain funding
to repair the tile that provides a drainage outlet for the tract of land in question. NRCS
Forester/Botanist Kenneth Collins explained to Mr. Reichenbach that a “Commenced
Determination” would have been possible by September 19983 with approval from the FSA
County Committee and that a record of a “Commenced Determination” was not on file.
In his July 16, 2008, report, Collins confirmed that a wetland existed and determined that
the converted wetland was five acres in size. He noted that, in making its determination, the
NRCS team also reviewed and “geo-referenced” FSA aerial slides of the property from 1981 to
1987. He reported that the 1984 slide was used as a possible wetland boundary, which boundary
was the same as that noted on the 1987 slide. He explained that the boundaries of the wetland
were determined using a Garmin-handheld Global Positioning Satellite to map the field.
The NAD Appeal
At the October 22, 2009, NAD hearing before Officer Michael Jacobs, Collins testified
about the aerial photographs he used. He admitted that he did not know when the photographs
were taken, other than that they were likely taken during the growing season of May to
September. He also admitted that he did not know whether any of the photographs had been
taken after heavy rainstorms.
The Reichenbachs also submitted a report by Randy Jones of AquaTerra Consulting, Inc.
In his report, Jones found the following information, which he indicated had not been considered
by the NRCS:
1985.” Pls.’ Br. at 4, ¶¶ 14-15. These assertions are not supported by the cited evidence of
record, NRCS Forester/Botanist Kenneth Collins’ report from the site visit. AR B:210-11.
The deadline for a commenced conversion application was September 1988. 7 C.F.R. §
12.5(b)(2)(ii). The source of this September 1998 date is unclear.
1. A 1956 aerial photograph showing agricultural production on the subject area;
2. Hancock County Surveyor records indicating the 1900 creation of the Walter S.
Alford drain and associated 12 inch tile arm, which provide drainage infrastructure to
3. Clay tile fragments on the surface of the site indicating the presence of a
remnant/historic private tiling system in the subject area;
4. The presence of concrete tiles of unknown age (between the original 1900 clay tile
and 1987 plastic tiles);
5. The presence of existing historic clay tiles at the site;
6. Hancock County Surveyor records indicating the 1983 maintenance dredging/reconstruction of the Walter S. Alford Drain to restore degraded drainage to affected
areas, including the subject site; and
7. Hancock County Surveyor records indicating the 1987 replacement/re-construction of
the 12 inch tile arm that begins at the subject area.
AR B: 377 Tab 20.6 Ex. P.
On August 6, 2010, the Reichenbachs filed in the instant action contesting the NAD
Director’s determination. The Defendants have moved for summary judgment.
Under the Administrative Procedures Act (the “APA”), a reviewing court must “hold
unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; . . . (D) without
observance of procedure required by law; [or] (E) unsupported by substantial evidence.” 5
U.S.C. § 706(2). “The scope of review under the ‘arbitrary and capricious’ standard is narrow
and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must
examine the relevant data and articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n
of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Accordingly, in
determining whether an agency action is arbitrary or capricious, the court considers “whether the
decision was based on a consideration of the relevant factors and whether there has been clear
error of judgment.” Id.; see also F.C.C. v. Fox Tel. Stations, Inc., 556 U.S. 502, 513 (2009).
The Reichenbachs contend that the USDA acted arbitrarily, capriciously, or otherwise
unlawfully when it upheld the determination of the Hancock County FSA Committee. It was
improper for the NAD Hearing Officer and the Director to uphold the Committee’s
determination from a meeting at which neither Mr. Reichenbach nor his counsel were present,
the Reichenbachs argue, and this impropriety harmed them insofar as the determination was
therefore not sent back for reevaluation to the NRCS, but rather had to be appealed to the NAD.4
The Reichenbachs assert that the original determination and subsequent agency review
procedures were “not in accordance with the required appeal procedures under the C.F.R.” Pls.’
Br. at 13. However, the Reichenbachs do not point to any specific regulation that has not been
followed. Rather, at its core, the Reichenbachs’ claim is that the Hancock County FSA
Committee’s subsequent meeting violated their procedural due process rights. According to the
Reichenbachs, it follows that subsequent agency determinations upholding a decision reached in
violation of the Reichenbachs’ due process rights are in error.
In determining whether a due process violation has occurred, the court engages in a twopart analysis. Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999). First, the court considers
whether the plaintiffs have been deprived of a liberty or property interest. Id. Second, the court
determines what process is due. Id. The Plaintiffs do not clarify the nature of their interest, but
If a County FSA Committee hears an appeal and believes the challenge to the NRCS
determination is not frivolous, the County FSA Committee must refer the case with its findings
on other issues to the NRCS State Conservationist to review the determination, or make such a
referral in advance of resolving other issues. 7 C.F.R. § 780.11(b). A decision of the County
Committee not to refer the case with its findings to the NRCS State Conservationist may be
appealed to the State Committee. 7 C.F.R. § 780.11(c).
the Defendants do not challenge them on that point. In fact, the Defendants do not even appear to
challenge the Plaintiffs’ implicit assertion that they were entitled to be present at the second
County Committee hearing. Rather, the Defendants urge, the Plaintiffs cannot show prejudice,
and therefore their claim fails. See Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004) (“To
prevail on a due process claim an applicant must show prejudice.”).
“Prejudice can be found only when the due process transgression is likely to impact the
results of the proceedings.” Id. at 1087-88 (citation and quotation marks omitted). In other
words, the Reichenbachs must put forth sufficient evidence to support a finding that, had they
been able to participate in the second hearing, as well as review the new evidence considered by
the Committee, their participation and review were likely to have had an impact on the result of
that second hearing. The Reichenbachs have pointed to no such evidence. Accordingly, they
have pointed to no evidence that the subsequent decisions by the NAD Hearing Officer and the
Director upholding the County Committee decision were arbitrary, capricious, or otherwise not
in accordance with the law.5 The Defendants are therefore entitled to summary judgment on this
The underlying determination that the area in question does not qualify as prior-converted
cropland turns on whether the area supported woody vegetation and met certain hydrologic
Indeed, the Director acknowledged as much in his review determination: “Regarding
Appellants’ contention that they did not have access to one of the documents the [County
Committee] relied on, i.e., the February 22, 1988 letter, until the NAD hearing, I do not find that
document was critical to the [Committee’s] decision. . . . I do not find any violation of the
Appellants’ due process rights occurred.” AR B: 111.
criteria as of December 23, 1985. 7 C.F.R. § 12.12(a)(8).6 According to the Reichenbachs, the
methodology used by the NRCS to determine both the ability to support woody vegetation and
the size of the wetland area is arbitrary, capricious, and otherwise not in accordance with the law.
NRCS Forester/Botanist Collins explained the methodology used in his July 16, 2008,
After reviewing the Farm Service Agency (FSA) 1981-1987 slides that were
scanned and geo referenced for a GIS program we determined that the site was
converted in 1988. Before conversion the site was approximately 50% shallow
water with shrubby woody vegetation. The site meets wetland criteria using the
approved 1994 SCS mapping conventions as documented on the Remote Sensing
Data Form. The 1984 image was selected for a possible wetland boundary
because it gives us the site condition applicable to the December 23, 1985 date in
accordance with the NFSAM. The 1984 boundary is also the same as noted on the
1987 slide before the wetland was converted in 1988. To mark the proposed
wetland boundary the data points from the GIS program were loaded into a
Garmin handheld GPS unit.
AR B: 210. The Reichenbachs contend that Collins erred when he relied on a single slide from
1984 to determine that woody vegetation was present on the site as of December 23, 1985,
because he admitted that he was not sure when in 1984 the photo was taken. Pls.’ Br. at 17 (“The
only evidence the NRCS scientist ever produced to the contrary was a review of one aerial
photograph taken in 1984”). If that were true, the Reichenbachs may have cause to complain.7
The Director acknowledged the Reichenbachs’ evidence as to the other two
requirements. AR B: 73.
The Reichenbachs also fault Collins’ analysis of a “single slide” because he admitted
that he did not know whether the photo was taken after a heavy rain. Given Collins’ testimony at
the NAD hearing, this argument is perplexing. It does not appear that the presence of standing
water on the property could skew the assessment of existing woody vegetation, for Collins
testified that he identified woody vegetation based on its textural appearance in the aerial
photographs. The Court supposes that the existence of standing water from a heavy rain could
affect the determination of the inundation level of the soil, but that is not the factor on which the
USDA’s determination turns, nor is it the factor on which the Reichenbachs focus their
argument. See 7 C.F.R. § 12.2(a)(2) (defining the elements of a wetland, including an area “that
is inundated or saturated by surface or groundwater at a frequency and duration sufficient to
However, the record indicates that Collins did not review merely a single slide in making his
determination that the area supported woody vegetation; rather, he reviewed slides from 1981
through 1987.8 While review of one slide of an unknown date and weather condition may be the
“very definition” of an arbitrary practice, Pls.’ Br. at 16, review of slides spanning seven years is
not. Collins’ analysis articulates a consideration of the relevant factors and demonstrates a
rational connection between the facts found and the choice made. As the methodology was sound
and properly applied, no clear error occurred.9
The Reichenbachs also argue that the method used to determine the size of the wetland
was arbitrary and capricious. As the Defendants admit, the methodology used to determine the
boundaries of the area supporting woody vegetation yielded three different conclusions about the
size of the converted wetland.10 However, the Reichenbachs’ complaint as to the accuracy of this
method suffers from a fundamental problem: it was not presented to the NAD or the USDA for
support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil
Elsewhere, the Reichenbachs admit as much: “Mr. Collins based this determination
[that the site was 50% shallow water with shrubby woody vegetation] by looking at the aerial
photographs from 1981-1987.” Pls.’ Br. at 6, ¶ 26. Furthermore, the Reichenbachs’ expert report
supports Collins’ assessment. AR B: 377.34 (“Subsequent aerial photographs, starting in 1972,
show . . . reversion to wetland conditions at the subject site . . . . Hancock County Surveyor
records indicate the Alford Legal Court Drain was bid for maintenance dredging/re-construction
in January of 1983 in an effort to remove accumulated sediment and to restore drainage . . . .
[F]unds became available in 1987”).
The Reichenbachs also argue that “No woody vegetation existed on the property during
the NRCS site visit,” Pls.’ Br. at 19, but the operative date for determining the support of woody
vegetation is December 23, 1985. It is irrelevant to the determination whether woody vegetation
existed in July 2008. See Horn Farms, Inc. v. Johanns, 397 F.3d 472, 477-78 (7th Cir. 2005)
(“[T]he timing question is whether the converted ground was a wetland on December 23,
With respect to the wetland boundary, Collins’ report indicates that he did rely on the
controversial 1984 slide, but the report also indicates that Collins cross-checked the 1984 slide
boundary with the 1987 slide boundary.
review as required.11 7 U.S.C. § 6912(e) (“[A] person shall exhaust all administrative appeal
procedures . . . before the person may bring an action in a court of competent jurisdiction”); see
Glisson v. United States Forest Serv., 55 F.3d 1325, 1328 (“agency action is reviewable even if
an administrative appeal is available unless either a statute or the agency’s rules require
exhaustion as a prerequisite to judicial review”) (citing Darby v. Cisneros, 509 U.S. 137, 146
(1993) (interpreting section 10(c) of the APA)). For this reason, the Defendants are entitled to
summary judgment on the Reichenbachs’ claim regarding the process used to determine the size
of the wetland at issue.12
For the foregoing reasons, the Defendants’ motion for summary judgment is GRANTED in
SO ORDERED: 1/04/13
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Copies to all counsel of record via electronic communication.
Before the NAD and USDA, the Reichenbachs made three arguments: (1) the Hancock
County FSA Committee decision was arbitrary, capricious, and an contrary to law; (2) the
NRCS’s report is arbitrary and capricious because it does not “prove” that the area contains
hydric soil, wetland hydrology, and hydrophytic vegetation; and (3) the site is eligible for a
“Commenced Conversion” determination since the governmental agency in charge of drainage
for the site was in the process of improving the drainage on the site before December 23, 1985.
AR B: 54-57; 312-15.
Indeed, it appears that the Reichenbachs raised the size issue for the first time in their
summary judgment response brief.