*This action was originally brought against then

Secretary Michael Espy in his official capacity. During

the pendency of the proceedings in the district court,

Daniel R. Glickman was appointed Secretary of

Agriculture. 

*THE HONORABLE BRUCE M. VAN SICKLE, United States

District Judge for the District of North Dakota, sitting

by designation.

___________

No. 95-3034

___________

Daniel Von Eye, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

United States of America; *

United States Department of *

Agriculture, Daniel R. *

Glickman, Secretary, *

*

* 

Appellees. *

___________

 Submitted: May 15, 1996

 Filed: August 9, 1996

___________

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN

SICKLE, District Judge. **

___________

MAGILL, Circuit Judge.

Daniel Von Eye wishes to continue his efforts to drain wetlands on

his farm, but does not want to lose eligibility for United States

Department of Agriculture (USDA) benefits under the Swampbuster Act, 16

U.S.C. §§ 3821-3824, which conditions receipt
 The Honorable Lawrence L. Piersol, United States District

1

Judge for the District of South Dakota.

 16 U.S.C. § 3822(b)(1)(a) provides an exemption from the

2

Swampbuster Act for wetland conversion projects commenced prior to

December 23, 1985.

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of USDA benefits on wetlands preservation. The USDA's Agricultural

Stabilization and Conservation Service's (ASCS) National Appeals Division

(NDS) determined that, while Von Eye's previous drainage of wetlands fell

within an exception to the Swampbuster Act, any additional excavations to

drain the wetlands would render him ineligible for benefits. Von Eye

brought suit in the district court, challenging this administrative

1

decision. The district court dismissed Von Eye's complaint, upholding the

NDS decision. Von Eye now appeals, arguing that the NDS's decision was

arbitrary and capricious. We affirm.

I.

Von Eye farms land in Clare Township in Moody County, South Dakota.

He works fields containing three wetland areas. In 1984, Von Eye began

constructing a series of four ditches to drain approximately twenty acres

of these wetlands. The ditches fed water through two township-owned

culverts set underneath a public road, and eventually drained into a stateowned slough.

In 1988, Von Eye received notice that he may have violated the

Swampbuster Act, and Von Eye sought a commenced conversion exemption to the

Act. Von Eye described a plan in his application for the exemption that, 2

using a backhoe and a dirt scraper, four "channels were to be cut so all

the farm ground would be drained." Von Eye v. United States, 887 F. Supp.

1287, 1289 (D.S.D. 1995). Von Eye submitted documents which indicated that

the project was initiated in 1984 and completed in 1986, see J.A. at 137,

and in 1987, see id. at 138. In June 1989, after several administrative
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proceedings, an ASCS committee determined that Von Eye was eligible for a

commenced conversion exemption, and no explicit limits were set on the

scope of conversion activities. 

In 1990, Von Eye reported problems with one of the township-owned

culverts to the local township board. In November 1990, Von Eye had the

culvert replaced with a larger culvert, which was set six inches lower in

the ground. Although the township board had not given prior approval to

the replacement of the culvert, it agreed to cover the cost of replacement.

Von Eye also had the second culvert lowered two feet, which the township

board did not pay for. Lowering the culverts improved drainage of Von

Eye's fields, converting more wetland.

On November 14, 1991, Von Eye received notice from the Soil

Conservation Service that any further wetland manipulation activities were

not authorized by the commenced conversion exemption, and that additional

manipulations would disqualify him for USDA benefits. After a series of

administrative hearings, the NDS determined, on December 6, 1993, that

conversion actions completed by Von Eye prior to November 14, 1991,

including the lowering of the culverts, would be exempted from the

Swampbuster Act, because Von Eye had not been "notified of the scope and

effect of the activities authorized by the county committee's original

approval of the commenced conversion exemption." NDS Decision, J.A. at 12.

In addition, Von Eye was allowed to maintain any conversion manipulations

completed before November 14, 1991. However, the NDS concluded that

manipulation activities commenced by Von Eye after November 14, 1991, were

not included in Von Eye's commenced conversion exemption, and warned Von

Eye that "[f]urther manipulation of the areas in question or other areas

subject to the [Swampbuster Act] provisions may cause [Von Eye] to lose

eligibility for USDA program benefits." Id.

Von Eye brought suit in the district court challenging this
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administrative decision, seeking an affirmative order allowing him to

complete his conversion project while remaining eligible for USDA benefits.

The district court dismissed Von Eye's suit, concluding that "there is a

rational relationship between the evidence considered and the agency's

denial of a continuing commenced determination." Von Eye, 887 F. Supp. at

1293. Von Eye appeals the district court's ruling. 

II.

As an initial matter, the government challenges this Court's

jurisdiction in this matter, arguing that the case is not ripe for

adjudication, and that it is moot. We disagree.

The government argues that this case is not ripe because Von Eye's

only proposed manipulation activities involve further lowering a culvert

owned by the township. Because Von Eye does not have the township's

permission to lower the culvert, and because this Court has no authority

under the facts of this case to require the township to grant Von Eye such

permission, the government asserts that we should not reach the merits of

this case. 

The government is correct that we do not have jurisdiction to

consider a case which is not ripe. Ripeness exists if two requirements are

met: 

First, [a plaintiff] must demonstrate a sufficiently concrete

case or controversy within the meaning of Article III of the

Constitution. Second, prudential considerations must justify

the present exercise of judicial power. The concept of

ripeness is particularly important in cases challenging land

use regulations and results in a fact-sensitive inquiry.

Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269, 1272-73 (8th

Cir. 1994) (citations omitted; note omitted). These requirements have been

met in this case. The controversy at hand
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is clear: Von Eye wishes to pursue a drainage project and still be eligible

for USDA benefits, which is not possible under the district court ruling.

Prudential considerations, including the length of time in which Von Eye's

complaint has been in administrative and judicial proceedings, support our

exercise of jurisdiction. While it is true that we have no authority, nor

inclination, to require the township to allow Von Eye to lower its

culverts, whether the township were to give or withhold its approval for

the project would be irrelevant to Von Eye's continued eligibility for USDA

benefits. Indeed, Von Eye has replaced and lowered township culverts in

the past without its approval, and we see no reason to suppose that he

would not do so again.

The government's mootness argument has more strength. Because "[t]he

existence of a live case or controversy is a constitutional prerequisite

to the jurisdiction of the federal courts," In re Grand Jury Subpoenas

Duces Tecum, 78 F.3d 1307, 1310 (8th Cir. 1996) (quotations and citations

omitted), "federal courts have no authority to render decisions upon moot

questions." Id. Where 

a party has a sufficient stake in the outcome so that the

court's rendering of relief alleviates the harm complained of,

the question presented is not moot. However, if during the

pendency of an appeal, an event occurs which destroys the

court's ability to render the prevailing party any effectual

relief whatever, the appeal must be dismissed as moot.

Id. (quotations and citations omitted). Under 7 C.F.R. § 12.5(b)(5)(iii),

conversion activities allowed under the commenced conversion exemption must

be completed on or before January 1, 1995. As that date is well past, the

government argues that our decision could not affect Von Eye's rights in

this matter.

The government accepts, however, that under certain circumstances the

time limitation in § 12.5(b)(5)(iii) could be equitably tolled. See

Appellee's Br. at 23. Although equitable
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tolling is appropriate only in rare cases, see Disabled Rights Union v.

Shalala, 40 F.3d 1018, 1021 (9th Cir. 1994), cert. denied, 116 S. Ct. 105

(1995), we agree that it could be available under the facts of this case.

See, e.g., Bowen v. City of New York, 476 U.S. 467, 480 (1986)

("traditional equitable tolling principle" applicable to period for

appealing administrative decision (quotations omitted)); see also Lyng v.

Payne, 476 U.S. 926, 936 (1986) ("If, for example, a farmer had filed a

loan application prior to the expiration of the loan deadline and a court

determined that the denial of the application after the deadline's

expiration was arbitrary, capricious and not in accordance with law, the

appropriate remedy under the APA would be to direct that the application

be granted or reconsidered." (quotations and citations omitted)). Since

1991, long before the 1995 deadline, Von Eye attempted to convince the

government to allow him to complete his drainage project. Contrary to the

government's assertion, therefore, Von Eye has not "slept on his rights,"

see Appellee's Br. at 23, but rather did all that he reasonably could to

prosecute his case. We conclude that, if Von Eye succeeded in this appeal,

he would not be without relief, but rather would have the opportunity to

request that the district court, on remand, equitably toll the period in

which he could complete his drainage project.

III.

We review the district court's review of an administrative decision

de novo. See Lockhart v. Kenops, 927 F.2d 1028, 1032 (8th Cir.), cert.

denied, 502 U.S. 863 (1991). We must uphold the NDS's decision unless it

is "arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law." 5 U.S.C. § 706(2)(a). An arbitrary and capricious

decision exists where an

agency has relied on factors which Congress has not intended it

to consider, entirely failed to consider an important aspect of

the problem, offered an explanation
-7-

for its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to

a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29, 43 (1983).

Under the Swampbuster Act, 16 U.S.C. §§ 3821-3824, anyone who

produces an agricultural commodity on a converted wetland, or converts

wetland by "draining, dredging, filling, leveling, or any other means," 16

U.S.C. § 3821(b), is ineligible for enumerated USDA benefits, including

price supports, loans, disaster payments, and crop insurance. See 16

U.S.C. § 3821(a). The Act provides, however, that wetland conversion

commenced prior to December 23, 1985, does not render a person ineligible

for benefits. See 16 U.S.C. § 3822(b)(1)(A). Under 7 C.F.R. §

12.5(b)(3)(i)-(ii), conversion has commenced if either there have been

physical efforts to convert the wetland, or if substantial funds have been

committed to the conversion. "A person must show that the commenced

activity has been actively pursued or the conversion will not be exempt

under this section." 7 C.F.R. § 12.5(b)(5)(ii). In addition, "[o]nly

those wetlands for which the construction has begun or to which the

[committed funds] relate may qualify for a determination of commencement."

7 C.F.R. § 12.5(b)(5)(iv). A special determination of commencement of

conversion is allowed, however, "upon a showing that undue economic

hardship will result because of substantial financial obligations incurred

prior to December 23, 1985, for the primary and direct purpose of

converting the wetland." Id.

Von Eye asserts that he commenced draining the wetlands in his fields

in 1984, and that all of the actions he has taken, including lowering the

culverts, and all actions that he intends to take, including additional

lowering of a culvert, should fall within the commenced conversion

exemption. He argues, therefore, that the NDS acted arbitrarily and

capriciously in exempting part of his
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commenced conversion, but disallowing its ultimate completion.

We disagree. In describing his conversion plan to the ASCS, Von Eye

referred only to the construction of four channels dug with a backhoe and

a dirt scraper, and did not mention the lowering of culverts. Von Eye did

not project a completion date some six years after initiating his

conversion activities, but rather stated that he had completed the project

in 1986 and 1987. As noted by the NDS, there was no evidence that Von Eye

had committed substantial funds to the conversion activities he planned to

engage in, see NDS Decision, J.A. at 12, nor has Von Eye demonstrated undue

hardship. See Von Eye, 887 F. Supp. at 1292. 

We conclude that the NDS considered relevant evidence and arrived at

a rational result. Rather than arbitrarily denying Von Eye the exemption

provided by the Swampbuster Act, the NDS was extremely liberal in

interpreting the Act and regulations in Von Eye's favor, and in allowing

him the advantages of an exemption longer than strictly provided for by the

statute and regulations. That Von Eye is dissatisfied with the results of

his conversion project does not entitle him, under the Swampbuster Act, to

engage in a new conversion project.

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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