### *This action was originally brought against the n

Secretary Michael Espy in his official capacity. During the pe ndency of the proceedings in the district court , Daniel R. Glickman was appointed Secretary o f Agriculture.
*THE HONORABLE BRUCE M. VAN SICKLE, United State s District Judge for the Distric t 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 o n his farm , but does not want to lose eligibility for United State s Depart ment of Agriculture (USDA) benefits under the Swampbuster Act, 1 6 U.S.C. §§ 3821-3824, which conditions receipt

### The Honorable Lawrence L. Piersol, United States Distric t 1 

### Judge for the District of South Dakota.

16 U .S.C. § 3822(b)(1)(a) provides an exemption from th e 2 

### Swampbuster Act for wetland co nversion projects commenced prior to December 23, 1985. -2- of USD A benefits on wetlands preservation. The USDA's Agricultura l Stabilization and Con servation Service's (ASCS) National Appeals Division (NDS) determined that , while Von Eye's previous drainage of wetlands fell within an exception t o the Swampbuster Act, any additional excavations to drain the wetlands would render him ineligible for benefits. Von Ey e broug ht suit in the district court, challenging this administrativ e 1 decision. The district court dismissed Von Eye' s complaint, upholding the NDS decis ion. Von Eye now appeals, arguing that the NDS's decision wa s arbitrary and capricious. We affirm.

I.
Von Eye f arms land in Clare Township in Moody County, South Dakota. He works fields containing three wetland areas. In 1984, Von Eye bega n constructing a series of four ditches to drain approximately twenty acres of t hese wetlands. The ditches fed water through two township-owne d culverts set underneath a public road, and eventually drained into a state

owned slough.

In 19 88, Von Eye received notice that he may have violated th e Swampbuster Act, and Von Eye sought a commenced conversion exemption to th e Act. Von Eye described a plan in h is 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 tha t the project was initi ated in 1984 and completed in 1986, see J.A. at 137, and in 1987, see id. at 138. In June 1989, after several administrative

### -3-

proceedings, an ASCS committee determined that Von Eye was eligible for a commenced conversion exemption, and no explicit limits were set on th e scope of conversion activities.

In 19 90, Von Eye reported problems with one of the township-owne d 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

. VonEye also had the second culvert lowered two feet, which the township board did not pay for. Lowering the culverts improved drainage of Vo n Eye's fields, converting more wetland.

On Nove mber 14, 1991, Von Eye received notice from the Soi l Conservation Service that any further wetland ma nipulation activities were not authorized by the commenced conversion exemption, and that additional manipulations would disqualify him for USDA benefits. After a series of admini strative hearings, the NDS determined, on December 6, 1993, tha t conversion actions completed by Von Eye prior to November 14, 1991 , includin g the lowering of the culverts, would be exempted from th e Swampbuster Act, because Von Eye had not been "notified of the scope and effect of the activities authorized by the county committee's origina l approval of the commenced conversion exemption." NDS Decision, J.A. at 12

. In addition, Von Eye was allowed to maintain any conversion manipulations comp leted before November 14, 1991. However, the NDS concluded tha t manipulation activities commenced by Von Eye aft er 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 los e eligibility for USDA program benefits." Id.
Von Eye brought suit in the district court challenging this

### -4-

adminis trative decision, seeking an affirmative order allowing him t o complete his conversion project while remaining eligible for USDA benefits

. The district court dismissed Von Eye's suit, concluding that "there is a rati onal 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 a n initial matter, the government challenges this Court' s jur isdictionin this matter, arguing that the case is not ripe fo r adjudication, and that it is moot. We disagree.

The gov ernment argues that this case is not ripe because Von Eye' s onlyproposed manipulation activities involve further lowering a culvert owned by the township. Because Von Eye does not have the township' s permissionto lower the culvert, and because this Court has no authority under the facts of this case to require the town ship to grant Von Eye such permission, the gover nment asserts that we should not reach the merits of this case.

The government is correct that we do not have jurisdiction t o consider a case which is not ripe. Ripeness exists if two requirements ar e met:
First, [a plaintiff] must demonstrate a sufficiently concrete case or controversy within the meaning of Article III of th e Constitution. Second, prudential considerations must justify the present exercise of judicial power. The concept o f ri peness is particularly important in cases challenging lan d 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 bee n met in this case. The controversy at hand

### -5-

is clear: Von Eye wishes to pursue a drainage project and still be eligibl e for USDA benefits, wh ich 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 judicia l proceedings, support our exercise of jurisdiction. While it is true that we have no authority, nor inc lination, to require the township to allow Von Eye to lower it s 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 h e 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 th e jurisdiction of the federal courts," In re Grand Jury Subpoena s Duces Tecum , 78 F.3d 1307, 1310 (8th Cir. 1996) (quotations and citations omitted), "federal co urts have no authority to render decisions upon moot questions." Id. Where

a party has a sufficient stake in the outcome so that th e court's rendering of rel ief alleviates the harm complained of, the que stion presented is not moot. However, if during th e pen dencyof an appeal, an event occurs which destroys th e court' s ability to render the prevailing party any effectua l 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 mus t be completed on or before January 1, 1995. As t hat 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 circumstanc es the time limitation in § 12.5(b)(5)(iii) could be equitably tolled. Se e Appellee's Br. at 23. Although equitable

### -6-

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 fo r appealing administrat ive decision (quotations omitted)); see also Lyng v. Payne , 476 U.S. 926, 936 (1986) ("If, for example, a farmer had filed a loan application prio r to the expiration of the loan deadline and a court determ ined that the denial of the application after the deadline' s expirationwas 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 th e government to allow him to complete his drainage project. Contrary to the government's assertio n, 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 i n 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 importa nt 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 wh o produc es an agricultural commodity on a converted wetland, or convert s wetland by "draining, dredging, filling, levelin g, or any other means," 16 U.S.C. § 3821(b), is ineligible for enumerated USDA benefits, includin g price s upports, loans, disaster payments, and crop insurance. See 1 6 U.S.C. § 3821(a). The Act provides, however, that wetland conversio n commenced prior to De cember 23, 1985, does not render a person ineligible for benef its. 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 bee n physical efforts to convert the wetland, or if s ubstantial funds have been
comm itted to the conversion. "A person must show that the commence d activityhas been actively pursued or the conversion will not be exemp t under this section." 7 C.F.R. § 12.5(b)(5)(ii). In addition, "[o]nl y those wet lands for which the construction has begun or to which th e [committed funds] relate may qualify for a deter mination of commencement." 7 C.F.R. § 12.5(b)(5)(iv). A special determination of commencement o f
conver sionis allowed, however, "upon a showing that undue economi c hardship will result because of substantial fina ncial obligations incurred prior to December 23, 1985, for the primary and direct purpose o f 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 cul verts, and all actions that he intends to take, including additiona l loweri ng of a culvert, should fall within the commenced conversio n
exem ption. He argues, therefore, that the NDS acted arbitrarily an d capriciously in exempting part of his

### -8-

commenced conversion, but disallowing its ultimate completion.
We disagree. In describing his conv ersion 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 loweringof culverts. Von Eye did not p roject a completion date some six years after initiating hi s conversion activities, but rather stated that he had completed the project in 1986 and 1987. As noted by the NDS, there wa s no evidence that Von Eye had committed substantial funds to the conversio n activities he planned to engage in, see NDS Decision, J.A. at 12, nor has Von Eye demonstrated undu e hardship. See Von Eye , 887 F. Supp. at 1292.

We conclude that the NDS considered relevant evidence and arrived at a rational result. R ather than arbitrarily denying Von Eye the exemption provi ded by the Swampbuster Act, the NDS was extremely liberal i n 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 th e statute and regulations. That Von Eye is dissat isfied with the results of his conversion project does not entitle him, und er 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.