* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 2 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

RICHARD M. SNELL,

Plaintiff-Appellant,

v. DAN GLICKMAN, Secretary of the Department of Agriculture for the United States of America,

Defendant-Appellee. No. 98-2190 (D.C. No. CIV 97-387-BB/WWD)

(D. N.M.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff Richard M. Snell appeals from the distric t court’s judgment affirming an administrative decision by the United States Department of Agriculture denying his claim under the Federal Cro p Insurance Act. Our review of an agency’s actions, which is the same as that p erformed by the district court and to whose decision we owe no deference, see Valley Camp of Utah, Inc. v. Babbitt , 24 F.3d 1263, 1267 (10th Cir. 1994), is narrow, a nd we afford substantial deference to an administrative agency acting in com pliance with its statutory obligations. See Phillips Petroleum Co. v. Lujan , 951 F.2d 257, 259 (10th Cir. 1991). Thus, we will not set aside agency action u nless it is “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Id. (quoting 5 U.S.C. § 706(2)(A)). Mr. Snell operates a dry land wheat farm in Curry C ounty, New Mexico. In the fall of 1994, this area of New Mexico had be en under drought conditions for three to four years. After determining that th e moisture level in his soil was very low, he decided not to plant a wheat crop thatfall because the lack of soil moisture would likely cause the crop to “blow out” (not mature), which would in turn cause his land to suffer wind erosion. Mr. Sn ell’s neighbors did plant that fall, and their crops did in fact “blow out,” resul ting in severe wind erosion to their land.-3-

Mr. Snell applied to recover benefits from his wheat insurance on the basis that the drought prevented him from planting his wh eat crop. The Small Grains Crop Insurance program in which he participated pro vided coverage in certain circumstances for “prevented plantings,” defined in part as the inability “to plant the insured crop due to an insured cause of loss that is general in the area (i.e., most producers in the surrounding area are unable t o plant due to similar insurable causes) .” 7 C.F.R. § 457.101.1(p) (1995) (emphasis added)

. He conceded that he had been physically able to pla nt a crop, but argued that in light of the drought conditions, good land conservation practices dictated that he not plant. The local Farm Service Agency denied his claim, and he appealed to the Department of Agriculture’s National Appeals Divisi on. Following a hearing, the hearing officer found that the drought conditio ns qualified as an insurable cause of loss, but that his “concern for conservati on of the land was secondary in respect to the terms of the crop insurance polic y.” Appellee’s Suppl. App. at 6. The hearing officer upheld the denial of his claim because she concluded that, since his neighbors were able to and did plant, he did not meet the insurance criteria for “prevented plantings.” See id. The hearing officer’s decision was upheld in a subsequent agency appeal, and Mr. Snell then brought this action.-4-

In challenging the decision denying his insurance c laim, Mr. Snell does not dispute the hearing officer’s factual findings, and he essentially admits that his failure to plant did not meet the “prevented planti ng” requirement of the program because he did not plant when his neighbors did. H is contention on appeal is that the “prevented planting” provision is unreasonable because it requires him to violate sound conservation practices--because his n eighbors do--to be eligible to recover under the crop insurance program. These insurance provisions were promulgated as regu lations through statutory authority conferred by Congress, see Federal Crop Ins. Corp. v. Merrill , 332 U.S. 380, 384 (1947), and we must give effect t o such regulations so long as they are based on reasonable interpretations of statutory authority, see Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 843-44 (1984). While in hindsight in this particular case , the neighbors’ decisions to plant may have been unwise from a conservation stan dpoint, Mr. Snell has not demonstrated that the insurance program’s general r eliance on what other farmers do as a measure for determining whether planting is “prevented” is unreasonable or not in accordance with law. He also has not dem onstrated that the hearing officer misinterpreted or misapplied this provision in assessing his claim. We therefore agree with the district court that he has not shown that the decision to deny his insurance claim was error.-5-

The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge