United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________ No. 96-3995SI

____________
Charles Gunn, * * Appellant, * * v. * On Appeal from the United * States District Court for * the Southern District of United States Department of Agriculture * Iowa. and Natural Resources Conservation * Service, * * Appellees. *

___________ Submitted: May 19, 1997 Filed: July 7, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, BOWMAN an d MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________
RICHARD S. ARNOLD, Chief Judge.The Hon. Charles R. Wolle, Chief Judge, United States District Court for the 1 Southern District of Iowa. The SCS, an agency within the Department of Agriculture, was abolished i n 2 1994, and its functions were transferred to the Natural Resources Conservat ion Service. See Pub. L. No. 103-354, § 246, 108 Stat. 3178, 3223-25 (1994) (codified at 7 U.S.C. § 6962). For ease of reference, we use the term SCS throughout the opinion. -2- Char les Gunn filed this action in the District Court to challenge the Soi l 1 Conservation

Service’s (SCS's ) determination that certain parts of his farmland were 2 converted wetlands and could therefore not be farmed without his losing eligibility for certain farm

benefit programs. The District Court held that the SCS’s regulations are
areasonable interpretation of the pertinent statute, 16 U.S.C. §§ 3801, 3821-24, and that the SCS’s determination that the lands were wetlands was supported by substantial evidence. The Court dismissed Gunn’s taking-by-in verse-condemnation claim for lack of jurisdiction. We affirm.

I.

Gunnowns 160 acres of land in Iowa that he and his predecessors-in-interes t have farmed since 1906. Before that time the acreage was wetlands and not arable

. In 1906 the local drainage district installed tiles under the land to drai n the excess water from the land. Other tiling allowed water from neighboring farmland to drain across Gunn’s land. By 1947, additions to the drainage system had increased the drained area so that the amount of water in some years exceeded the capacity of the system, leaving parts of Gunn’s land wet and unsuitable for farming. Realizingthat a drainage problem existed, the drainage district in 1992 installed newdrainage tiles and dug an open ditch on Gunn’s land that remedied the system’s shortcomings.

In order to comba

t the disappearance of wetlands through their conversion into crop lands, Congress passed a law known commonly as “Swampbuster.” Food-3-

Security Act of 1985, Pub. L. No. 99-198, §§ 1201, 1221-23, 99 Stat. 1354, 1504-08 (codi fied as amended at 16 U.S.C. §§ 3801, 3821-24). This law did not make illegal the conversion of wetlands to agricultural use, but did provide that any agricultura l production on

a converted wetland would cause the farmer to forfeit his eligibility for
a number o f federal farm-assistance programs. Among the exemptions to th e provisions of Swampbuster is on e for wetlands that had been converted to agricultural production before December 23, 1985. See § 3821(d). The farming of such previously converted wetlands does not make the farmer ineligible for benefits.

In order for a farmer to participate in the benefits programs, he must certify his eligibility to the SCS. The S CS determines whether the land for which a farmer seeks benefits contains wetlands that have been conv erted for agricultural purposes. Charles Gunn sought certification in 1991, and was told by the SCS that his farm containe d 32.9 acres of “farmed wetlands,” which are, in essence, wetlands that are sometimes dry enough to farm. The SCS advised Gunn that he could continue to farm these lands as well as maintain the existing drainage system , but if he wished to remain eligible for benefits he could not improve the land’s drainage. This ruling was upheld after a n appeal within the agency. Gunn did not seek further review.

In 1992 , the local drainage district improved the drainage system, as note d above. In the pro cess of analyzing the new system, SCS discovered that the previous drainage system had had a gre ater capacity than previously realized, but still had been in sufficient

to drain the land completely. It also determined that because the ne w sys tem completely drained the land, part of Gunn’s land now constituted converte d wetla nds. After a series of appeals within the agency, the SCS concluded that 28. 2 acres of Gunn’s land were we tlands that had been converted by the drainage district’s recent activities and could not be farmed by Gunn withou t his losing eligibility for farm benefit programs.-4-

Gunn then filed this action in the District Court, seeking a declaratory judgment that he was entitled to farm this land without losing benefits, and damages for his not hav ing farmed the lands during the decision and appeal process. In the alternative, if the converted-wetlands determination was upheld, he soug ht compensation for a taking of land by inverse condemnati on. The District Court held that the classification of the lands as converted wetlands was reasonable, denied Gunn’s desired declaration, and refused to awa

rd damages. It also dismissed the takings claim for lack of jurisdiction because Gunn sought compensation in an amount greater than $10,000, a claim over which the Court of Federal Claims h as exclusive jurisdiction. See 28 U.S.C. §§ 1346, 149 1. The District Court also stated that the government’s action was not a taking

. Gunn then took this appeal.

II.

Gunn ch allenges the SCS’s decision in two ways. First, he contends that th e pertinent regulations are neither c onsistent with, nor a reasonable interpretation of, the Swampbuste r

statute. Second, he argues that the SCS failed to follow its ow n regulations in deciding his eligibility. We hold that the regulations are consistent with the statute and that the SCS followed those regulations in its decision-making process.

A.

The stat ute makes ineligible for benefits, listed at 16 U.S.C. § 3821(b), an y perso n who “converts a wetland by draining, dredging, filling, leveling, or any othe r means for the purpose, or to have the effect, of making the product ion of an agricultural
co mmodity possible on such converted wetland . . . for that crop year and al l subsequent

crop years.” § 3821(c). It also makes ineligible for these same benefits, such as crop insurance, price supports, and government-sponsored loans, any person who “produces an agricultural commodity on converted wetland.” § 3821(a). The actdefines a converted wetland as a “wetland that has been drained, dredged, filled,16 U.S.C. § 3801(a)(6)(A) provides that: 3
The term “converted wetland” means wetland that has been drained , dredged, filled, lev eled, or otherwise manipulated (including any activity that res ults in impairing or reducing the flow, circulation, or reach o f water) for the purpose or to have the effect of making the production of an agricultural commodity possible if (i) such production would not have been possible but for suc h action; and (ii) before such action — (I) such land was wetland; and (II) such land was neither highly erodible land nor highl y erodible cropland. In comparison, 7 C.F.R. § 12.2(a)(6)(A) provides that: -5- lev eledor otherwise manipulated” so that agricultural production is made possible

. § 3801(a)(6) (A). The statute provides one exception relevant to this case: no person becomes ineligible for agricultural production on converted wetlands “if the conversion of the wetland was commenced before December 23, 1985.” § 3822(b)(1)(A).

The SCS has promulgated regulations to refine the scope of these provisions

. Gunn contends the regul ations are contrary to the plain language of the statute, and, if the statute is am

biguous, that the regulations are not a reasonable interpretation under the rule of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1 984). Therefore, he argues, the decision by the SCS is invalid. We disagree , and conc lude that the regulations carefully follow the statutory language and ar e reasonable interpretations of any statutory ambiguities.

The first aspect of the regulations that Gunn challenges is their definition of a converted wetland . He contends that the definitions at 7 C.F.R. § 12.2(a)(6) & 12.32 (199 2) are contrary to the statute. Section 12.2(a)(6) defines converted wetlands i n terms virtually identical to those used in t he statute. Section 12.32(a) lists factors that

3Converted wetland means wetl and that has been drained, dredged, filled,

le veled, or otherwise manipulated (including any activity that results i n impairing or reducing the fl ow, circulation, or reach of water) that makes pos sible the production of an agricultural commodity without furthe r ap plication of the manipulations described herein if (i) such productio n would not have been possible but for such action; and (ii), before suc h action such land was wetland and was neither highly erodible land no r highly erodible cropland.
Gunn points to the phrase “without further application of the manipulation s described herein,” which is in the regulation but not in the statute. We do not see what of substanc e this phrase adds or changes. Under the statute, conversion occurs when wetland is “manipulated” with a certain effect . The regulation simply underscores that itis the initial manipulation, not some subsequent “applications” of it, that is to b e considered for this purpose. This is a reasonable interpretation of the statute.
-6- are to be considered in determining whether a wetland has been converted, such a s whether woody hydrophytic vegetation has been removed. Finally, Section 12.32(b), which accords with the exception provided by 16 U.S.C. § 3801 (a)(6)(B), explains that
a wetl and shall not be considered converted just because natural conditions, such a s drough t, allow a farmer to cultivate certain land, so long as that farming does no t “permanently alter or des troy natural wetland characteristics” — the farmed-wetlands exception. We perceive no inc onsistency between the regulations and the statute they
are intended to effectuate. Rather, they provide scientifically defined bases fo r de termining whether the provisions of the statute have been violated. Such expert refinements are well within the purview o f the SCS, and do not make its determination in Gunn’s case invalid. Next, Gunn challenges the regulations’ definition of “commenced.” The statute allow s the farming of wetlands the conversion of which was commenced befor e De cember

23, 1985, without the farmer’s losing benefits. The regulations allow a farmer to demonst

rate that he has commenced the conversion in one of two ways: by-7-

showing he has actually dredged, drained, f illed, leveled, or otherwise manipulated the wetlands before the given date, 7 C.F.R. § 12.2(a)(6) & 12.5(b)(3)(i), or that he ha s contractually committed substantial funds to someone else who will perform thes e acti vities, § 12.5(b)(3)(ii). Gunn reads the substantial-funds requirement to hav e imper missibly narrowed the statutory term “commenced” from what Congres s intended. Vo n Eye v. United States , 92 F.3d 681, 685 (8th Cir. 1996), whic h consi dered the application of the requirement, suggests it did not. Moreover, th e substantial-funds provision allows a farmer to come within the exception not only by actual lystarting the land-moving activities, as the statutory term “commenced ” naturally suggests, but also by simplycommitting to have such activities undertaken in the future. Gunn has not shown that the 1992 conversion was commenced under either the statutory definition or the definition in the regulations. Any discrepancy between the two, therefore, does not change the conclusion that his wetlands do not come within the exception for previously converted wetlands.
Alternatively, Gunn could succeed on his claim if he had actively pursued this par ticular conversion since before December 23, 1985. Downer v. United States , 97 F.3d 999, 1004 (8th Cir. 1996). The initial improvement took place in 1906, and the SCS told Gu nn he could maintain that drainage system without losing benefits. (This accords with Von Eye , 92 F.3d at 685, which allows post-19 85 conversions only to the extent of plans already in place in 1985.) In 1992 another conversion took place

. Gunn has n ot demonstrated that the two constructions, over 80 years apart, wer e actual lyone actively pursued conversion. To the contrary, the 1906 work achieve d what was intended, even though it later proved inadequate.
Gunn also argues — an d this may be his principal point — that he is entitled to
an ex emption under the plain words of the statute. Section 3822(b)(1)(A) of Title 16 pro vides, in relevant part, that “[n]o person shall become ineligible . . . for progra m loans or payments . . . [a]s the result of the production of an agricultural commodity on . . . [a] conv erted wetland if the conversion of the wetland was commenced before-8-

December 23 , 1985.” Gunn claims that his land fits this definition, because, in hi s
v i ew, it became a converted wetland in 1906, at the time of the initial improvements. He points t o the definition of the term “converted wetland” in 16 U.S.C

. § 3801 (a)(6)(A). This provision reads, in pertinent part, as follows: “ ‘converte d wetland’ means wetland that has been drained . . . or otherwise manipulated . . . for the purp ose or to have the effect of making the production of an agricultural commodity possible if . . . before such action . . . such land was wetland . . ..” In 1906, Gunn says, his land was drained or otherwise manipulated both for the purpose and with the effect of ma king the production of agricultural commodities possible. This production, i n fact, has continued ever since. Accordingly, the land became “converted wetland ” befor e December 23, 1985, and remains in that classification forever, whatever ma y have happened later.

We agree with Gunn that the words of the statute, considered in isolation, can bear the me aning for which he contends. The agency’s interpretation, however, i s differ ent, and we believe that the interpretation is sufficiently plausible to meet th e Chevro n test. The agency stresses the requirement that “converted wetland” is lan d that before drainage “was wetlan d.” On this view, land is either wetland or converted wetla nd. If significant wetland characteristics remain, the land remains wetland an d cannot be converted wetland. If the drainag e or other manipulation has been sufficient to make c rops producible, as is the case here, the land is best described as “farme d wetland,” a term that does not appear in the statute but that the agency’s regulation s have adopted. “Farmed wetland” can continue to be farmed without the loss o f benefi ts, but only so long as the previously accomplished drainage or manipulation is
no t significantly improved upon, so that wetland characteristics are further degrade d in a significant way. In the present case, of course, the 1992 improvements have done exactly that. They were designed to and have in fact further degraded the wetlan d characteristics of the farm. It fol lows that part of the farm is “converted wetland,” but that it did not become converted wetland until 1992.Gunn contends that the regulations are inconsistent with a subsequently enacted 4 (1990) provision, 16 U.S.C. § 3824, which provides that croplands that have bee n -9- This interp retation also accords with the general purpose of the statute — t o preserve those wetland characteristics still in existence in 1985. Gunn’s view, b y contrast, would run counter to this purpose, at least to a significant extent. Under his approach, i f any drainage has taken place before December 23, 1985, making i t possible to produce agricultural commodities to any significant extent, the property becomes exempt altogether, no matter what further improvements might occur. A s Gunn r ecognizes, under this approach, “it does not matter if the production [mad e possible by the earlier drainage] is merely 20% possible or 99% p ossible.” Reply Brief for Appellant 12. The land, once any improvement whatever has occurred before 1985, becomes permanently exempt from the statute. We do not think that this interpretation furthers C ongress’s general purpose, nor do we think that it is the only one possibl e under the s tatutory language. We therefore defer to the interpretation of th e Depa rtment of Agriculture. Gunn does not contest the fact that the land continued to have signi ficant wetland characteristics before the 1992 work. Part of the purpose of Congress was to preserve these characteristics.
Next, Gunn argues that the conversion comes within th e outside-agent exception to the anti-conversion ru les. The regulations establish a presumption that conversions undertaken by a drainage district, in who se jurisdiction a farmer resides and which has assessed th e farmer for part of the costs of the activity, are attributed to the farmer , unless he can show that the conversion was caused by an unassocia ted third person and that h e is not using the land for agricultural production. See 7 C.F.R

. § 12.5( b)(1)(iv)(D). Gunn contends that the drainage district’s ditch-digging shoul d not, as a matter of law, be attributed to him, and therefore that his land should not be deemed converted. But Gunn has not met the burden placed upon him by th e regulations, and nothing in the statute exempts a farmer from the provisions of the Act simply because that land is converted by a drainage district. We have found no 4turned into wetland by “the act ions of an unrelated person or public entity, outside the control of, and without the prior approval of, the landow ner . . . shall not be considered to be w etland.” That provision does not apply to Gunn’s situation. Section 382 4 a llows a farmer whose cropland is turned into wetland to return that land to cropland without converting it within the meaning of the statute. We do not see how this statute is applicable to the case at hand, as Gunn does not contend that his land w as turned into wetland b y the drainage district. He contends the opposite: that his wetlands wer e turned into cropland. In addition, the dr ainage district is not “unrelated” to Gunn. His land is included within i t, and he was one of the landowners who applied for the 1992 ditching. We have received a brief amicus curiae from the Iowa Drainage Distric t 5 Association in support of Gunn’s position. We have considered it to the extent i t supports arguments advan ced by Gunn on appeal. We have no reason to consider the arguments it advances that were not raised by Gunn himsel f. Knetsch v. United States , 364 U.S. 361, 370 (1960). -10- evidence in the record to support Gunn’s argument that attribution to him of th e district’s activities was erroneous. In fact, Gunn joined with other landowners in the petiti onto have the improvements made. Jt. App. 108. Therefore, he can be hel d respon sible for the conversion of wetlands that the improved drainage was found t o have caused, and he is not entitled to the exemption in the regulation. 5

B.
Gunn also argues that the SCS failed to follow its own regulations in determining that the acreage in question was “wetland.” He cites 7 C.F.R. § 12.33(b). The portion of the regulation on which Gunn relies reads as follows:

Mai ntenance or improvement of . . . converted wetlands for th e production of agricultural commodities a re not subject to this rule so long as such action s do not bring additional wetland into the production of an agricultural commodity. Additional wetland means any natural wetland-11-

or any conv erted wetland that has reverted to wetland as the result o f abandonment of crop production. We do not believe that the quoted language helps Gunn’s case. His property, for
reaso ns we have given earlier in this opinion, never became “converted wetland, ” because it retained continuously from 1906 until at least 1992 wetland characteristics. The prope rty was thus properly classified as “farmed wetland,” rather than “prio r
con vertedwetland.” The quoted portion of the regulation comes into play only i f “converted wetlands” are involved.

We add that the concluding sentence of the regulation appears to lend furthe r support to the SCS position in this case. This sentence reads as follows, in pertinent part:
Furthermore, the maintenance of any alteration or manipulation that affects the reach or flow of water made to a wetland that was croppe d before December 23, 1985, would not cause a p erson to be determined to be ineli gible under this part, provided that the maintenance does no t exceed thescope and effect of the original alteration or manipulation, as determined by SCS . . ..

We think this language fits Gunn’s situation. His property is wetland that was cropped before December 23, 1985. The work undertaken in 1992 definitely di d
exc eed the scope and effect of the original manipulation. Accordingly, SCS acte d consistently with its own regulations in determining that the 28.2 ac res in question were wetlands, on which Gunn could not farm by mechanical means without losing hi s eligibility for federal farm benefits.-12- III.

Both par ties now agree that the District Court was without jurisdiction t o
en tertain Gunn’s claim for just compensation under the Fifth Amendment, becaus e Gunn request ed damages in excess of $10,000.00. See 28 U.S.C. §§ 1491 & 1346(a)(2), the Little Tucker Act. Gunn argues on appeal, however, that the District Court should have transferre d this claim to the United States Court of Federal Claims. Su ch a transfer is authorized by 28 U.S.C. § 1631 if the interests of justice warrant it and the court to which the case is transferred woul d have jurisdiction. Another statute, 28 U.S.C. § 1500, provides that the Court of Federal Claims has no jurisdiction over
a claim for wh ich, or in respect of which, a case is pending in another court. Th e Federal Circuit has interpreted this provision to bar the Court of Federal Claims ’ jurisdic tionover a claim only when another claim based on the same operative fact s and seeking the same type of relief is pending in a different court. See Loveladie s Harbor, Inc. v. United States , 27 F.3d 1545, 1551 (Fe d. Cir. 1994) (en banc). The two claim s in Loveladies were a challenge to the government’s denial of a wetlands-us e permitunder the Administrative Procedure Act and a takings claim based on tha t denial. The cour

t held the two claims sought different types of relief. Id. at 1551-52. Gunn’s tw o claims are similar. We think the Court of Federal Claims would hav e jurisdiction over the takings claim if it were transferred.

Gunn also must show th at the interests of justice require transfer of his claim, a decision that lies w ithin the discretion of the trial court. Section 1631 was enacted so that parties confused

about which court has subject-matter jurisdiction would not lose
an opportunity to present the merits of a claim by filing in the wrong court and then , upon dismissal, having the claim barred by a statute of limitations. Accordingly, w e have in the past directed transfer wh en a plaintiff in good faith filed in the wrong court and the statute of limitations would hav e run before he could refile properly. See In re Apex Oil C o. , 884 F.2d 343, 346 (8th Cir. 1989); Hempstead County & Nevad a County Project v. United S tates E.P.A. , 700 F.2d 459, 463 (8th Cir. 1983). Gunn has-13-

not shown that either of those circumstances exists here. So far as we can tell from the record now before us, Gunn is free at any time to file his takings claim in a separat e action before the Court of Federal Claims.
An additional word should be added to clarify the situation in the e vent of further proceedings on count I I in the Court of Federal Claims. The District Court’s opinion, slip op. 7, states that “Gunn has not shown that he is entitled to compensation under an inverse condemnation theory.” This statement appears in the opinion after the Court had already held that it lacked jurisdiction of count II, whic h is the count containing the inverse-condemnation theory. We take this statement to b e dictum. The District Court had no jurisdiction to pass on the merits of the inverse- condemnation theory, and if this theory, eit her in a separate action or otherwise, should later be asserted before th e Court of Federal Claims, we do not believe the District Court’s statement should b e taken to preclude whatever rights Gunn may have. In that event, in other words, i t would be up to the Court of Federal Claims to decide the merits of Gunn’s inverse

condemnation theory.
On this understanding, the judgment of the District Court is

Affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.