Davids v. United States Department of Agriculture
Filing
33
ORDER Adopting 30 Report and Recommendations for 1 Complaint filed by Karen G Davids. The final decision of the USDA is affirmed. The Complaint is dismissed with prejudice. Signed by Judge Linda R Reade on 03/18/2019. (jjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
KAREN G. DAVIDS, as Trustee of the
Harold D. and Karen G. Davids
Revocable Trust,
Plaintiff,
No. 17-CV-3091-LRR
vs.
ORDER
UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendant.
TABLE OF CONTENTS
I.
INTRODUCTION...............................................................................1
II.
RELEVANT PROCEDURAL HISTORY...................................................2
III.
STANDARD OF REVIEW....................................................................2
A.
B.
Review of Final Decision..............................................................2
Review of Report and Recommendation............................................3
IV.
RELEVANT FACTUAL BACKGROUND..................................................5
V.
RELEVANT STATUTORY BACKGROUND..............................................6
VI.
OBJECTIONS...................................................................................8
A.
B.
C.
D.
VII.
The Clark Case.........................................................................8
NRCS’s Duty to Consider Evidence of Minimal Effects.......................10
NFSAM Compliance..................................................................12
Affirmance of the Final Decision..................................................13
CONCLUSION.................................................................................14
I. INTRODUCTION
The matter before the court is Plaintiff Karen G. Davids’s Objections (docket no.
31) to United States Chief Magistrate Judge Kelly K.E. Mahoney’s Report and
Recommendation (docket no. 30), which recommends that the court affirm the decision of
Defendant United States Department of Agriculture (“USDA”) and enter judgment in its
favor. See Report and Recommendation at 9.
II. RELEVANT PROCEDURAL HISTORY
On November 2, 2017, Plaintiff filed a Complaint (docket no. 1), seeking judicial
review of a final administrative decision denying the applicability of the “minimal effect”
exception to wetlands located on farmland owed by Davids. See generally Complaint. On
January 12, 2018, the USDA filed an Answer (docket no. 6). On April 20, 2018, Davids
filed the Plaintiff’s Brief (docket no. 25). On May 25, 2018, the USDA filed the
Defendant’s Brief (docket no. 27). On June 7, 2018, Davids filed the Reply Brief (docket
no. 28). On June 8, 2018, 2018, the matter was referred to Judge Mahoney for issuance
of a report and recommendation. On October 16, 2018, Judge Mahoney issued the Report
and Recommendation, which recommends that the court affirm the USDA’s decision. On
October 30, 2018, Davids filed the Objections. On November 6, 2018, the USDA filed
a Response (docket no. 32) to Davids’s Objections. Neither party has requested oral
argument and the court finds that oral argument is unnecessary. The matter is fully
submitted and ready for decision.
III. STANDARD OF REVIEW
A. Review of Final Decision
The USDA’s decision is the result of formal adjudication and, therefore, judicial
review is governed by the standard set forth in the Administrative Procedure Act (“APA”).
See id. Under the APA, a reviewing court may set aside an agency decision if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”
or “unsupported by substantial evidence.” 5 U.S.C. §§ 706(2)(A), (E). “When reviewing
an agency decision, [the court] accord[s] substantial deference to the agency’s
interpretation of the statutes and regulations it administers.” Siebrasse v. USDA, 418 F.3d
2
847, 851 (8th Cir. 2005). However, courts do not defer to an agency interpretation that
is “inconsistent with the plain language of the statute or constitutes an unreasonable
interpretation of an ambiguous statute.” Afolayan v. INS, 219 F.3d 784, 787 (8th Cir.
2000). Simply put, courts “do not defer to legal interpretations that are arbitrary,
capricious, or manifestly contrary to the statutory law.” Patel v. Ashcroft, 375 F.3d 693,
696 (8th Cir. 2004).
B. Review of Report and Recommendation
Pursuant to statute, the court applies the following standard of review to the report
and recommendation of a magistrate judge:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
28 U.S.C. § 636(b)(1). Similarly, Federal Rule of Civil Procedure 72(b) provides for de
novo review of a magistrate judge’s report and recommendation on dispositive motions
when objections are made. Fed. R. Civ. P. 72(b)(3). The Eighth Circuit Court of
Appeals has held that it is reversible error for a district court to fail to conduct a de novo
review of a magistrate judge’s report and recommendation when such review is required.
See United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (providing that “failure
to engage in the required de novo review is reversible error”).
The statute governing review provides only for de novo review of “those portions
of the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). When a party fails to object to any portion of a magistrate
judge’s report and recommendation, he or she waives the right to de novo review. See
Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994). The United States Supreme Court
has stated that “[t]here is no indication that Congress, in enacting § 636(b)(1)[ ], intended
to require a district judge to review a magistrate’s report to which no objections are filed.”
3
Thomas v. Arn, 474 U.S. 140, 152 (1985). However, “while the statute does not require
the judge to review an issue de novo if no objections are filed, it does not preclude further
review by the district judge, sua sponte or at the request of a party, under de novo or any
other standard.” Id. at 154.
The Eighth Circuit has suggested that in order to trigger de novo review, objections
to a magistrate judge’s conclusions must be specific. See Branch v. Martin, 886 F.2d
1043, 1046 (8th Cir. 1989); see also Belk, 15 F.3d at 815 (noting that some circuits do not
apply de novo review when a party makes only general and conclusory objections to a
magistrate judge’s report and recommendation and finding that Branch indicates the Eighth
Circuit’s “approval of such an exception”); Thompson v. Nix, 897 F.2d 356, 357-58 (8th
Cir. 1990) (reminding parties that “objections must be . . . specific to trigger de novo
review by the [d]istrict [c]ourt of any portion of the magistrate’s report and
recommendation”). The Sixth Circuit Court of Appeals has explained this approach as
follows:
A general objection to the entirety of the magistrate’s report
has the same effects as would a failure to object. The district
court’s attention is not focused on any specific issues for
review, thereby making the initial reference to the magistrate
useless. The functions of the district court are effectively
duplicated as both the magistrate and the district court perform
identical tasks. This duplication of time and effort wastes
judicial resources rather than saving them, and runs contrary
to the purposes of the Magistrates Act. We would hardly
countenance an appellant’s brief simply objecting to the district
court’s determination without explaining the source of the
error. We should not permit appellants to do the same to the
district court reviewing the magistrate’s report.
Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991); see also
Goney v. Clark, 749 F.2d 5, 6 n.1 (3d Cir. 1984) (finding that “plaintiff’s objections
lacked the specificity necessary to trigger de novo review”); Whited v. Colvin, No. C 13-
4
4039-MWB, 2014 WL 1571321, at *2-3 (N.D. Iowa Apr. 18, 2014) (concluding that,
because the plaintiff “offer[ed] nothing more than a conclusory objection to . . . [the report
and recommendation] . . . [the plaintiff’s] objection [should be treated] as if he had not
objected at all”); Banta Corp. v. Hunter Publ’g Ltd. P’ship, 915 F. Supp. 80, 81 (E.D.
Wis. 1995) (“De novo review of a magistrate judge’s recommendation is required only for
those portions of the recommendation for which particularized objections, accompanied
by legal authority and argument in support of the objections, are made.”).
IV. RELEVANT FACTUAL BACKGROUND
In 2005, Davids and her now deceased husband, Harold Davids, purchased a farm
in Kossuth County, Iowa.1 Administrative Record (“AR”) at 384. In 2011, Davids
completed a tile installation project to restore and improve drainage on the farm. Id. In
June 2012, Harold Davids filed an AD-1026 form, a wetlands certification form, informing
the USDA of the drainage tile alteration and acknowledging that a wetland evaluation may
be conducted by the National Resource Conservation Service (“NRCS”). Id. at 385;
Complaint at ¶ 16. On April 21, 2016, the NRCS filed its final determination that, as a
result of the 2011 drainage tile installation project, 1.55 acres of the Davids’s farmland
was converted wetland. See AR at 5; Complaint at ¶ 17.
Davids appealed the NRCS’s decision to the National Appeals Division (“NAD”).
See Complaint at ¶ 19. Davids argued that the 1.55 acres determined to be converted
wetland was actually farmed wetland. Id. Davids also argued that the 1.55 acres should
be labeled as prior converted crop land due to manipulations made to the land prior to
1
On June 18, 2015, the Harold D. And Karen G. Davids Revocable Trust was
created. See Complaint at ¶ 21. Title of the farm was transferred by Harold and Karen
Davids to Harold Davids and Karen Davids as Trustees of the Harold D. And Karen G.
Davids Revocable Trust by warranty deed. Id. The terms of the trust agreement provided
that Harold and Karen Davids were Co-Trustees and that upon the death of either CoTrustee, the surviving Trustee would remain as the sole Trustee. Id. Harold Davids died
on August 16, 2016, leaving Karen Davids as the sole Trustee. Id.
5
December 23, 1985. Id. Further, Davids argued that the NRCS erred because it did not
consider whether the minimal effects exemption applied to the 2011 tiling project.2 Id.
On October 12, 2016, an administrative law judge (“ALJ”) determined that the NRCS
“erred when it did not complete a functional assessment nor otherwise consider[] whether
[the Davids’s] conversion of the 1.55-acre [s]ite had a minimal effect on the existing
wetland functions in the watershed.” AR at 353; Complaint at ¶ 22.
The NRCS sought review of the ALJ’s decision to the Director of the NAD. See
Complaint at ¶ 23. On May 17, 2017, the Director entered a Final Agency Decision
reversing the ALJ’s decision. AR at 389. The Director found that:
The record in this case shows that [the Davids’s] completed
excavation and tile installation in the fall of 2011 to improve
drainage at the [s]ite; however, [the Davids’s] did not consult
NRCS and request a minimal effect exemption before doing
so. NRCS was not required to perform either a functional
assessment of the wetland conversion or a minimal effect
exemption evaluation in the absence of a specific request for
the exemption prior to [the Davids’s] excavation and tile
installation. Following the wetland manipulation, the burden
rested upon [the Davids’s] to show to the satisfaction of NRCS
that the effect of the wetland conversion was minimal.
AR 387. On November 2, 2017, Davids filed the Complaint, seeking judicial review of
the Director’s final administrative decision.
V. RELEVANT STATUTORY BACKGROUND
In her opening brief, Davids asserts that the issue to be resolved in this matter is
whether the “USDA [is] required to consider whether a wetland conversion activity is
exempt from the statute’s ineligibility because the effect of the conversion is minimal
(minimal effect exemption)?” Plaintiff’s Brief at 9.
2
Davids did not present evidence of minimal effects to the NRCS. Instead, Davids
presented such evidence on appeal, after NRCS had made its decision.
6
16 U.S.C. § 3821(a)(2) provides in pertinent part that, “[e]xcept as provided in this
subchapter and notwithstanding any other provision of law, any person who in any crop
year produces an agricultural commodity on converted wetland . . . shall be . . . ineligible
for loans or payments . . . proportionate to the severity of the violation.” Id. The
minimal effect exemption provides in pertinent part that:
The Secretary shall exempt a person from the ineligibility
provisions of [16 U.S.C. §] 3821 . . . for any action associated
with the production of an agricultural commodity on a
converted wetland, or the conversion of a wetland, if . . .
(1) The action, individually and in connection with all other
similar actions authorized by the Secretary in the area, will
have a minimal effect on the functional hydrological and
biological value of the wetlands in the area, including the value
to waterfowl and wildlife.
16 U.S.C. § 3822(f)(1).
The USDA promulgated a regulation addressing minimal effect determination:
For purposes of § 12.5(b)(1)(v), NRCS shall determine
whether the effect of any action of a person associated with the
conversion of a wetland, the conversion of wetland and the
production of an agricultural commodity on converted wetland,
or the combined effect of the production of an agricultural
commodity on a wetland converted by someone else has a
minimal effect on the functions and values of wetlands in the
area. Such determination shall be based upon a functional
assessment of functions and values of the subject wetland and
other related wetlands in the area. The assessment of
functions and values of the subject wetland will be made
through an on-site evaluation. Such an assessment of related
wetlands in the area may be made based on a general
knowledge of wetland conditions in the area. A request for
such determination will be made prior to the beginning of
activities that would convert the wetland. If a person has
converted a wetland and then seeks a determination that the
effect of such conversion on wetland was minimal, the burden
7
will be upon the person to demonstrate to the satisfaction of
NRCS that the effect was minimal.
7 C.F.R. § 12.31(e)(1). 3
VI. OBJECTIONS
Davids raises four objections to the Report and Recommendation. First, Davids
argues that Judge Mahoney’s reliance on Clark v. USDA, 537 F.3d 934 (8th Cir. 2008)
is misplaced. See generally Objections at 3-4. Second, Davids argues that Judge Mahoney
erred in finding that NRCS did not have a duty to consider evidence Davids provided
regarding minimal effect. See generally Objections at 4-7. Third, Davids argues that,
even though Judge Mahoney conceded that the National Food Security Act Manual
(“NFSAM”) is entitled to Skidmore v. Swift & Co., 323 U.S. 134 (1944) deference, Judge
Mahoney erred in finding that “NRCS is not bound by NFSAM and a violation of the
NFSAM interpretation by NRCS does not state a legal claim because interpretations are
not mandatory and never can be violated.” Objections at 7. Fourth, Davids argues that
Judge Mahoney erred in recommending that the court affirm the USDA decision. See
Objections at 9. Davids concludes that, “[i]n the record . . . there is no evidence that
NRCS considered . . . Davids’[s] proof [of minimal effect] so she is asking that the court
remand the matter to NRCS with directions that it consider . . . Davids’[s] proof.”
Objections at 12.
A. The Clark Case
Davids argues that the “issue brought to this [c]ourt on appeal is that USDA is
required to consider whether a wetland conversion activity is exempt from [16 U.S.C.
§ 3822(f)] ineligibility because the effect of the conversion is minimal.” Id. at 3. Davids
objects to Judge Mahoney’s determination that her argument “is rejected in Clark v.
USDA, 537 F.3d 934 (8th Cir. 2008).” Objections at 3. Davids argues that “[t]he Report
3
Prior to December 7, 2018, this regulation was codified at 7 C.F.R. § 12.31(d).
8
and Recommendation’s position that . . . Davids’[s] argument that “shall” in the statute
and regulation mandates NRCS to consider whether the effect of her conversion activity
is only minimal is rejected in Clark” is misplaced. See Objections at 3. Davids asserts
that her “case parts company with Clark once she provided evidence and the question then
became what is NRCS’[s] duty once proof is provided.” Objections at 4.
In Clark, the Eighth Circuit Court of Appeals determined that 7 C.F.R.
§ 12.31(e)(1) makes it “clear in its requirement that a landowner must consult with the
USDA prior to manipulating a wetland or face the consequence of bearing the burden to
prove the manipulations have only a minimal effect.” 537 F.3d at 942. Further, in
interpreting 16 U.S.C. § 3822(f), the Eighth Circuit found that:
The statute . . . does not apportion the burden of proof
regarding the technical determination of whether a
manipulation has more than minimal effect. Nor does it
contain any language suggesting the USDA is without
authority to impose a burden of proof upon landowners who
fail to request a determination prior to taking action likely to
hinder the USDA in its assessment of the wetlands’[s] premanipulation function and value.
Clark, 537 F.3d at 942.
Here, Davids did not consult with the USDA prior to manipulating the wetlands on
her farm. Therefore, Davids beared the burden of proving that the manipulations had only
a minimal effect. See id. Contrary to Davids’s assertion in the Objections, Davids did not
provide NRCS with evidence that the manipulations to the wetlands had only a minimal
effect. Compare NRCS’s initial decision dated July 1, 2015 and final decision dated April
21, 2016, see Complaint at ¶ 17; AR at 5-7, with the opinions of Davids’s consultant
engineer, dated July 15, 2016, see AR at 1048-1054. Davids did not request a minimal
effect evaluation from NRCS and did not provide NRCS with proof that the manipulations
to the wetlands had only a minimal effect. The consultant engineer’s opinions were
provided to the NAD on appeal. The final decision of the Director of the NAD found that
9
the evidence provided by Davids was insufficient to show a minimal effect. The Director’s
decision is consistent with the statute and regulations. The court finds that Clark is
applicable under the circumstances Davids’s failure to request a minimal effect evaluation
prior to manipulating the wetlands on the farm and Judge Mahoney’s reliance on Clark
was not in error. Accordingly, the court shall overrule the objection.
B. NRCS’s Duty to Consider Evidence of Minimal Effects
Davids contends that the final decision of the USDA incorrectly determined that
Davids could “only satisfy her burden of proof by performing a functional assessment and,
failing this hurdle, NRCS has no mandatory duty to consider whether minimal effect
applies.” Objections at 5. Davids notes that:
NRCS’[s] regulation requires NRCS to use a functional
assessment to determine whether the conversion action has
only a minimal effect when there is a pre-conversion request
for a minimal effect determination. . . . For post-conversion
requests . . . Davids must demonstrate to the satisfaction of
NRCS that the effect is minimal, with no specifications given
as to what type of proof is required.
Id.
Davids maintains that the “USDA is wrong in holding that only a functional
assessment by . . . Davids will meet her burden of proof.” Id. Further, Davids argues
that once she “provided proof NRCS needed to evaluate the proof to determine if it is
satisfied that the conversion effect is minimal.” Id. As for Davids’s objection to the
Report and Recommendation, Davids generically states that the objection is to page 6 of
the Report and Recommendation.
Davids concludes that, “[w]hen the Report and
Recommendation says that if proof is provided that NRCS has no mandatory duty, [] the
Report and Recommendation is contrary to the statute, regulation, NRCS’[s] interpretation,
[and case law].” Objections at 7.
While Davids does not explicitly reference what she objects to on page 6 of the
Report and Recommendation, the court presumes Davids is referring to Judge Mahoney’s
10
finding that, while “Davids also argues that Clark is distinguishable because she provided
some evidence bearing on the minimal effect determination: a report from an engineer,”
the Director of the NAD, in the final agency decision, “addressed this report and found
that it did not contain the required analysis to meet Davids’s burden of showing the
minimal effect exemption applied.” Report and Recommendation at 6. The court finds
no error in Judge Mahoney’s finding.
First, the burden of proof to show that the manipulation of the wetlands had only
a minimal effect was on Davids because she did not consult with the USDA prior to
manipulating the wetlands. See Clark, 537 F.3d at 942; 7 C.F.R. § 12.31(e)(1) (“If a
person has converted a wetland and then seeks a determination that the effect of such
conversion on wetland was minimal, the burden will be upon the person to demonstrate
to the satisfaction of NRCS that the effect was minimal.”). Second, Davids did not
provide NRCS with proof of minimal effect. Davids submitted evidence of minimal effect
on appeal, only after NRCS had made its determination that 1.55 acres of the Davids’s
farmland was converted wetland. Moreover, after converting the farm land, Davids did
not request a minimal effect evaluation from NRCS. Instead, Davids filed an AD-1026
form, which alerted the USDA that the farmland had a new drainage system. See
Complaint at ¶ 16; AR at 549. By filing the AD-1026 form, Davids did not request a
minimal effect evaluation. See Penner v. Vilsack, No. 11-1059-KHV, 2011 WL 6258820,
at *5 n.9 (D. Kan. Dec. 15, 2011) (providing that Form AD-1026 is used to certify that
USDA farm program participants are in good standing with Highly Erodible Land
Conservation (“HELC”) and Wetland Conservation (“WC”)). NRCS was not required to
make a functional assessment for purposes of the minimal effect exemption simply because
Davids filed an AD-1026 form.
Third, in his decision, the Director of the NAD
thoroughly addressed the evidence provided by Davids to the NAD regarding minimal
effect. See AR at 387-88. Specifically, the Director found that Davids’s “arguments
11
concerning the volume of runoff water, removal of subsurface saturation, and disparate
treatment do not demonstrate that the effect of the wetland conversion was minimal.” Id.
at 388. Further, the Director stated “[n]owhere do I find any functional assessment of the
wetland’s hydrology . . . its biogeochemistry . . . or its plant[s] and fauna.” Id. The
director concluded that, “[a]s they have not provided a functional assessment of the
wetland, [Davids has] not met [the] burden to show that the effect of the wetland
conversion was minimal.” Id. The court finds that Davids’s objection has no merit.
Accordingly, the court shall overrule the objection.
C. NFSAM Compliance
Davids argues that Judge Mahoney erred in finding that no weight should be given
to NRCS’s “violation of its interpretive rules [(NFSAM)] when considering whether NRCS
violated the statute’s mandatory duty.” Objections at 11. While the Davids’s objection
is not entirely clear, it appears Davids objects to Judge M ahoney’s finding that:
Davids does not seem to dispute that the [NFSAM] contains
interpretive rules, . . . arguing instead that the Manual is
evidence that the USDA’s decisions on this issue were not
consistent. She points to no administrative decisions applying
the Manual in the manner she advocates, and I have found
none. I recommend holding that Davids cannot challenge the
USDA’s decision based on any inconsistency with the
provisions of the Manual.
Report and Recommendation at 9.
NFSAM § 515.1 (5th ed. 2010) provides in pertinent part:
(C) Minimal Effect Evaluations After Conversion Has
Occurred
If a person has converted a wetland and then seeks
determination where the effect of such conversion on wetland
was minimal, the burden will be upon the person to
demonstrate to the satisfaction of NRCS the effect was
minimal. If a wetland conversion has already occurred, NRCS
will use the best available information to complete the
12
functional assessment.
Id.4 In Clark, the Eighth Circuit noted that NFSAM “is not contained in a regulation born
of the rulemaking process, and ‘does not appear to have the force of law.’” 537 F.3d at
941 (quoting St. Mary’s Hosp. of Rochester, Minn. v. Leavitt, 416 F.3d 906, 914 (8th Cir.
2005)); see also Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995) (noting that
“[i]nterpretive rules . . . do not have the force and effect of law”). Rather, “a claim of
conduct inconsistent with an interpretive rule is advanced only to show that the statute
itself has been violated.” Drake v. Honeywell, Inc., 797 F.2d 603, 607 (8th Cir. 1986).
Further, “[a]n action based on a violation of an interpretive rule does not state a legal
claim. Being in nature hortatory, rather than mandatory, interpretive rules never can be
violated.” Id.
After de novo review, the court finds that it is unnecessary to determine whether
the final decision of the USDA is inconsistent with NFSAM. The court has already
determined, for the reasons previously stated, that the USDA’s final decision is not
inconsistent with 16 U.S.C. § 3822(f)(1) and 7 C.F.R. § 12.31(e)(1). Therefore, any
allegation that the USDA acted inconsistently with NFSAM is irrelevant.
See id.
(“[I]nterpretive rules never can be violated.”). Accordingly, the court shall overrule the
objection as moot.
D. Affirmance of the Final Decision
Davids generally objects to Judge Mahoney’s recommendation that the final decision
of the USDA should be affirmed. Because the court has already determined, for the
reasons previously stated, that the USDA’s final decision is not inconsistent with 16
U.S.C. § 3822(f)(1) and 7 C.F.R. § 12.31(e)(1), the court finds that the USDA’s final
4
The relevant portion of the manual can be accessed at
https://directives.sc.egov.usda.gov/viewerFS.aspx?hid= 29397 (last visited March 12,
2019).
13
decision is not “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law” or “unsupported by substantial evidence.” 5 U.S.C. §§ 706(2)(A),
(E).
Therefore, the final decision should be affirmed. Accordingly, the court shall
overrule the objection.
VII. CONCLUSION
In light of the foregoing, it is hereby ORDERED:
(1)
The Objections (docket no. 31) are OVERRULED;
(2)
The Report and Recommendation (docket no. 30) is ADOPTED and the
final decision of the USDA is AFFIRMED; and
(3)
The Complaint (docket no. 1) is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
DATED this 18th day of March, 2019.
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