UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Cardinal Land Conservancy, Inc.,

 Plaintiff,

 vs.

United States Department 

of Agriculture., et al.,

 

 Defendants.

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Case No.: 1:18-cv-00534

Judge Michael R. Barrett

OPINION & ORDER

This matter is before the Court on the Motion for Summary Judgment filed by 

Plaintiff Cardinal Land Conservancy, Inc. (Docs. 37, 40, 41) and the Motion for Summary 

Judgment filed by Defendants United States Department of Agriculture; Secretary, United 

States Department of Agriculture; National Appeals Division; Director, National Appeals 

Division; National Resources Conservation Service; Acting Chief, Natural Resources 

Conservation Service; State Conservationist, Natural Resources Conservation Service; 

and Commodity Credit Corporation (collectively, "Federal Defendants") (Docs. 38, 39).1

I. BACKGROUND

a. The Parties

Plaintiff is a non-profit land trust headquartered in Milford, Ohio, that helps 

preserve natural land and farmland in Southwestern Ohio.2 Plaintiff works closely with 

1 Defendant Ohio Department of Agriculture and Defendant Director, Ohio Department of Agriculture did 

not file a motion for summary judgment or respond to the pending Motions for Summary Judgment as the 

legal question before the Court predominately involves Plaintiff and the Federal Defendants.

2 Plaintiff's predecessor was an organization called Citizens' Land Conservancy of Hamilton County Ohio,

Inc. ("Citizens' Land"). Sometime before March 2016, Citizens' Land merged with two other land trusts to 

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landowners who want to legally preserve their land. The property at issue consists of two 

parcels of land ("Parcels") that combine for a total of 154.40 acres and lie directly east of 

the Great Miami River. (Doc. 22-4 PageID 360); (Doc. 29-2 PageID 641-51). Carriage 

House Farm Services, LLC ("Carriage House Farm")—a registered sesquicentennial 

farm owned by the same family for over 150 years3—owns the Parcels. (Doc. 22-4

PageID 361). Carriage House Farm currently grows corn, soybeans, and vegetables, and 

also boards approximately 30 horses on the Parcels. (Id.) Plaintiff works with Carriage 

House Farm to preserve the Parcels.

Defendant United States Department of Agriculture ("USDA") is a federal executive 

department made up of federal agencies.4 Defendant National Resources Conservation 

Service ("NRCS") is an agency within Defendant USDA and provides conservation 

planning and assistance programs to landowners.

5 Defendant NRCS implements its 

various programs using the funds, facilities, or authorities of Defendant Commodity Credit 

Corporation, a wholly-owned government corporation within Defendant USDA. (Doc. 29-

2 PageID 476, 480, 512). Defendant National Appeals Division ("NAD") is an independent 

office within Defendant USDA that conducts administrative appeals hearings of adverse 

program decisions by, inter alia, Defendant NRCS.

6 7 C.F.R. § 11.2.

form Plaintiff. (Doc. 22-4 PageID 362); (Doc. 29-2 PageID 652-57). For ease of reference, the Court will 

refer to Citizen's Land's actions in this matter as Plaintiff's actions.

3 A brother and sister currently own Carriage House Farm. (Doc. 22-4 PageID 361). The brother works on 

the farm. (Id.) The sister does not as she lives outside of Ohio. (Id.)

4 Defendant Thomas J. Vilsack is the Secretary of Defendant USDA.

5 Defendant Terry Cosby is the Chief of the Natural Resources Conservation Service.

6 Defendant Frank M. Wood is the Director of the National Appeals Division.

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One of the assistance programs that Defendant NRCS implements is called the 

Agricultural Conservation Easement7 Program. 16 U.S.C. § 3865 et. seq.; (Doc. 29-2 

PageID 525). One purpose of the Agricultural Conservation Easement Program is to

protect the agricultural viability and related conservation values of eligible land by limiting 

nonagricultural uses of that land. (Doc. 29-2 PageID 525). Stated otherwise, one purpose 

of the program is long-term agricultural protection. The Agricultural Conservation 

Easement Program is one easement program with two easement enrollment

components: agricultural land easements and wetland reserve easements. 16 U.S.C. 

§ 3865a; (Doc. 29-2 PageID 525). Pertinent here, an agricultural land easement is an 

easement or other interest in eligible land that is conveyed for the purpose of protecting 

natural resources and the agricultural nature of the land; and permits the landowner the 

right to continue agricultural production and related uses. 16 U.S.C. § 3865a(1).

b. 2015-2016

On September 18, 2015, via letter and in response to Plaintiff's application,

Defendant NRCS offered Plaintiff enrollment of the Parcels into the Agricultural 

Conservation Easement Program for an agricultural land easement. (Doc. 29-2 

PageID 637). Defendant NRCS instructed Plaintiff to return two signed documents, one 

titled "Notice of Grant and Agreement Award" and another titled "Cooperative 

Agreement," to move forward on the application. (Id.) Defendant NRCS noted that 

Plaintiff's "easement grantees must provide clear title and written, recordable right of 

access to the easement area" and that "[t]his may require obtaining subordination 

7 "[A]n easement is an interest in the land of another, created by prescription or express or implied grant,

which entitles the owner of the easement to a limited use of the land in which the interest exists." (Doc. 22-

4 PageID 367) (quoting Andrews v. Columbia Gas Transmission Corp., 544 F. 3d 618, 624 (6th Cir. 2008)).

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agreements from a bank or other lending institution for any debts that may encumber the 

property." (Id.)

On September 21, 2015, Plaintiff, Defendant NRCS, and Defendant Ohio 

Department of Agriculture entered into a 3-year Cooperative Agreement for the purchase 

of the agricultural land easement to protect the agricultural use of Parcels. (Id. 

PageID 641-51). Pursuant to the Cooperative Agreement, Defendant NRCS agreed to 

provide Plaintiff a $385,000.00 grant—that was to be combined with $171,542.00 in 

funding from Defendant Ohio Department of Agriculture—that would be used to purchase 

the agricultural land easement. (Id.) Pursuant to the Cooperative Agreement, Plaintiff

agreed to "ensure that the title to the lands or interests therein will be unencumbered or 

that outstanding or reserved interests are subordinated to the agricultural land easement."

(Id. PageID 646).

c. 2016-2017

On March 23, 2016, Attorney G. Robert Hines, Plaintiff's title agent, provided a title 

opinion letter—addressed to representatives for Defendant NRCS and Defendant Ohio 

Department of Agriculture and carbon copying Plaintiff's representative—that sets forth 

the state of the title for the Parcels. (Id. PageID 703-06); see (Doc. 29-3 PageID 840-41).

Attorney Hines explained that a Commitment of Title Insurance would issue, in the name 

of Defendant Ohio Department of Agriculture and the amount of $171,542.00, within 

14 days of the date of that letter. (Doc. 29-2 PageID 703). Attorney Hines found that the 

fee simple title to the Parcels is vested in Carriage House Farm. (Id. PageID 705). He

then found that the Parcels are subject to certain exceptions including, inter alia, flowage 

easements in favor of the United States. (Id.) The title insurance commitment,

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accordingly, listed those flowage easements as exceptions to the title insurance 

coverage. (Id. PageID 703 - Doc. 29-3 PageID 770-824, 827-29). Attorney Hines opined

that, subject to his findings regarding the certain exceptions, the title to the Parcels is 

good and marketable. (Doc. 29-2 PageID 706).

The flowage easements in favor of the United States are specifically in favor of the 

United States Army Corps of Engineers ("USACE"), and are associated with the operation 

of the Markland Locks and Dam on the Ohio River. (Id. PageID 740-73). The flowage 

easements allow the USACE to permanently flood the land on the Parcels that is below 

elevation 456 feet Mean Sea Level ("MSL"); allow the USACE to occasionally flood the

land on the Parcels that is above elevation 456 feet MSL; allow the USACE to clear and 

remove any brush, debris, and natural obstruction that is below elevation 463 feet MSL; 

and prohibit the construction of any structure on the land without written approval of a

USACE representative. (Id.)

In August 2016, one of Defendant NRCS's two primary representatives on the 

Parcels' project emailed the other Defendant NRCS primary representative on the project 

regarding the title opinion letter. (Doc. 29-3 PageID 831-32). She stated that she read the 

USACE flowage easements to mean that the USACE could permanently flood any land 

on the Parcels that is below elevation 500 feet, and questioned whether NRCS should 

request a subordination before proceeding with the agricultural land easement on the 

Parcels. (Id.)

In September 2016, via email, Defendant NRCS's two primary representatives 

project continued to question whether NRCS should proceed with project in light of the

USACE flowage easements. (Id.) The two representatives first questioned whether 

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Parcels are already protected due to the USACE flowage easements, as the easements 

prohibit construction of infrastructure on the land. (Id.) The representatives next

questioned whether the USACE flowage easements would permit long-term agricultural 

protection on the Parcels, as the easements permit permanent flooding on a large portion 

of the land. (Id.) One representative stated that, based on her review of a map8 of the 

Parcels and the USACE flowage easement language, she thought that the USACE

easements permitted the USACE to permanently flood 90% of the Parcels. (Id.) The other 

representative, in response, wondered if Plaintiff could request that the USACE release 

the flowage easements. (Id.)

d. January 2017 – July 18, 2017

On April 26, 2017, Attorney Hines—in an email to, inter alia, the primary

representatives working on the Parcels' project for Plaintiff, Defendant NRCS, and 

Defendant Ohio Department of Agriculture—explained that the USACE has had flowage 

easements up and down the Ohio River, and all of the rivers flowing into it, since the

construction of the Markland Dam in 1964. (Id. PageID 838-39). He explained that the 

flowage easements shield the USACE from liability for claims by land owners whose 

property abuts the Ohio River and the Great Miami River for any flooding that results from 

closing the dam gates. (Id.) He opined that the USACE would never consider a request 

for a release or subordination of the flowage easements. (Id.)

Later that day, a Defendant NRCS employee—who was not on Attorney Hine's 

earlier email, is not one of two NRCS primary representatives on the Parcels' project, and 

who is an NRCS realty specialist who works for an easement support services team—

8 It is not clear what map she was reviewing at that time. 

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sent an email to, inter alia, Attorney Hines and the primary representatives on the Parcels'

project for Plaintiff, Defendant NRCS, and Defendant Ohio Department of Agriculture. (Id.

PageID 845-46). In it, the Defendant NRCS employee explained that NRCS did not 

require a subordination for the USACE flowage easements, and he did not foresee the 

flowage easements being an issue for NRCS to move forward on the Parcel's enrollment 

in NRCS's Agricultural Conservation Easement Program. (Id.)

However, in an April 27, 2017 email from one of Defendant NRCS's primary 

representatives to Defendant Ohio Department of Agriculture's primary representative,

NRCS's primary representative indicated that NRCS remained uneasy with the USACE

flowage easements and noted that, in the past, NRCS had cut similar easements out, as 

the land is already protected. (Id. PageID 838).

On May 15, 2017, via email, one of Defendant NRCS's primary representatives

asked Plaintiff's primary representative to provide Defendant NRCS with a map directly 

from the USACE that specifically shows the permanent and temporary pool lines found in 

the USACE flowage easement language. (Id. PageID 844-45). Defendant NRCS 

explained that it needed this map to make its final decision regarding enrolling the Parcels

in the Agricultural Conservation Easement Program. (Id.) One week later, via email,

Plaintiff's primary representative forwarded maps obtained from the USACE to, inter alia,

one of Defendant NRCS's primary representatives. (Id. PageID 834).

On June 6, 2017, via email, one of Defendant NRCS's primary representatives

informed Plaintiff's primary representative that, unless Plaintiff can obtain a subordination 

or release of the USACE flowage easements, Defendant NRCS will not fund the project

or enroll the Parcels in the Agricultural Conservation Easement Program. (Id.

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PageID 847).

On June 12, 2017, Plaintiff's primary representative emailed, inter alia, one of 

Defendant NRCS's primary representatives and Defendant Ohio Department of 

Agriculture's primary representative. (Id. PageID 849). Plaintiff's representative reiterated 

the USACE easement language that permits permanent flooding on the land that is below 

elevation 456 feet MSL; attached a different map of the Parcels, that includes contour 

lines from Hamilton County Cincinnati Area Geographic Information Systems,

9 that 

Plaintiff states shows that almost all of the land in the Parcels is above 456 MSL; 

reiterated the statements made in the April 2017 email from Defendant NRCS's employee 

that the USACE flowage easements are not a problem; stated that occasionally flooded 

land makes for the best farm ground; and concluded that Plaintiff's application for the 

Parcels should move forward. (Id.)

On June 14, 2017, Plaintiff's primary representative emailed, inter alia, Defendant 

NRCS's two primary representatives and explained that there might be some confusion 

regarding what the forwarded maps from the USACE portrayed. (Id. PageID 852). 

Plaintiff's representative explained that he followed up with the USACE about the maps 

and the USACE was unable to tell him where the elevation lines were located on the map 

because the USACE did not have the data to determine contour lines. (Id.) He clarified 

that the USACE maps did not specifically show the distinct permanent and temporary 

pool lines of the USACE flowage easements, and that the USACE would not supply such 

9 The contour map from Cincinnati Area Geographic Information Systems used light detection and ranging 

data to create the map (Doc. 22-8), and thus did not use a physical survey of the land to create the map.

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a differentiating map without first physically surveying the land.

10 (Id.) He explained that 

the forwarded maps, instead, show the land covered by both the permanent and 

temporary flooding portions of the USACE's flowage easements. (Id.) He noted that the 

map from Cincinnati Area Geographic Information Systems includes contour lines and,

using that map, the overwhelming majority of the Parcels is above 456 MSL and thus not 

subject to permanent flooding by the USACE easement. (Id.)

In a July 11, 2017 email from Defendant Ohio Department of Agriculture's primary 

representative to Plaintiff's primary representative and one of Defendant NRCS's primary 

representatives, Defendant Ohio Department of Agriculture informed the parties that it 

would move forward with its $171,542.00 portion of the funding on the Parcels' project 

despite the USACE's flowage easements and NRCS's hesitation. (Id. PageID 853).

e. July 19, 2017 ineligibility determination

In a July 19, 2017 letter—that appears to have been emailed to Plaintiff on 

August 24, 2017—Defendant NRCS informed11 Plaintiff that NRCS determined that 

Plaintiff's application for the agricultural land easement was ineligible because Plaintiff 

could not provide clear title for the Parcels in light of the USACE flowage easements. 

(Doc. 29-2 PageID 470-72) (citing Agricultural Conservation Easement Program Manual 

440 – 528.62.7). Stated differently, Defendant NRCS found the USACE flowage 

easements to be an unacceptable exception to clear title. (Id.) Defendant NRCS informed 

Plaintiff that it could either request substitution of an eligible parcel in place of the Parcels,

10 It appears that such surveying did not occur. Compare (Doc. 29-3 PageID 852), with (Doc. 22-4 

PageID 363-64), and (Doc. 22-8 PageID 411-12).

11 Defendant State Conservationist of Defendant NRCS signed the letter, as the State Conservationists is 

ultimately responsible for ensuring that the Agricultural Conservation Easement Program agricultural 

easements are implemented at the state level. (Doc. 29-2 PageID 470-71, 531).

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or seek an administrative review of this ineligibility determination through the 

administrative appeals process. (Id.)

f. January 2018 Administrative Judge decision

Plaintiff timely sought administrative review of Defendant NRCS's ineligibility 

determination,

12 and the assigned Administrative Judge held a hearing and then closed 

the administrative record. (Doc. 22-4 PageID 360). The Administrative Judge found that 

Plaintiff established that Defendant NRCS's July 19, 2017 ineligibility determination was 

erroneous.

13 (Id.) He explained that, under Defendant NRCS's rules, an existing 

easement constitutes an unacceptable exception to clear title only when the easement 

carries a high likelihood of resulting in conversion to nonagricultural use. (Id. PageID 366).

He found that the existing USACE flowage easements do not constitute an unacceptable 

exception to clear title on the Parcels because the facts do not show that those easements 

carry a high likelihood of conversion of the Parcels to nonagricultural use. (Id.

PageID 360).

First, the Administrative Judge acknowledged Plaintiff's responsibility to provide 

clear title to the land offered for enrollment into the Agricultural Conservation Easement 

Program and that the USACE confirmed that Plaintiff had not requested a waiver of the 

flowage easements. (Id. PageID 369). 

12 Separately, in a July 31, 2017 email from Plaintiff's primary representative to one of Defendant NRCS's 

primary representatives, Plaintiff indicated that a Carriage House Farm owner disagreed with Attorney 

Hines' title work and would obtain an additional title examination to be certain that the USACE flowage 

easements affect the Parcels. (Doc. 29-3 PageID 856). The record does not indicate whether additional 

title work occurred.

13 The Administrative Judge was to determine if Plaintiff had established that the Defendant NRCS's July 19,

2017 ineligibility determination was erroneous by a preponderance of the evidence. See 7 C.F.R. § 11.8(e) 

("The appellant has the burden of proving that the adverse decision of the agency was erroneous by a 

preponderance of the evidence.").

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Second, the Administrative Judge determined that the USACE flowage easements 

do not already protect the Parcels because, although the easements prohibit construction 

of shelter on the land, the easements do not prohibit sand and gravel mining. (Id.

PageID 366). He found that agriculture and mining are the only two possible uses of the 

Parcels in light of their location on a flood plain. (Id. PageID 362). He explained that the 

Parcels have been valued at $1.5MM for sand and gravel mining,

14 and that any mining 

on the Parcels would go down below an aquifer and the land would become a lake if 

mined. (Id. PageID 360, 362, 366). He found sand and gravel excavation to be an obvious 

threat to both the Parcels' continued use for agriculture and the continuance of the

sesquicentennial farm. (Id. PageID 366). He found that Defendant NRCS's ineligibility 

determination ignored this obvious threat. (Id.)

Third, the Administrative Judge determined that Defendant NRCS's concern about 

the USACE flowage easements' ambiguity is misplaced. (Id. PageID 367). He found that 

that the USACE flowage easements do not apply to the entire acreage of the Parcels. (Id.

PageID 361). He found that the USACE maps are aerial images with the flowage 

easements outlined in red, but do not indicate any elevation points or contain a legend. 

(Id. PageID 363). He explained that the USACE clarified that the flowage easements 

outlined in red show the land covered by both the permanent and temporary flooding 

portions of the USACE's flowage easements, and that the USACE could not clarify any 

14 The first reference to the possibility of mining on the Parcels appears is in the Administrative Judge's 

decision. (Doc. 22-4 PageID 360, 362, 366). At the hearing before the Administrative Judge, thus before 

the Administrative Judge closed the record, Plaintiff argued that the Parcels are not adequately protected 

by the USACE flowage easements, as sand and gravel mining are a genuine risk to the Parcels' continued 

agricultural use in light of newer generations of the Carriage House Farm owners who will eventually inherit 

the property and have no emotional connection to the farm. (Id. PageID 360). The Administrative Judge 

explained that Carriage House Farm's current owners, i.e., not the newer generations, agreed to encumber 

the Parcels via the agricultural land easement from Defendant NRCS and, in by so, agreed to significantly 

decrease the land's value to the newer generations who will inherit it. (Id. PageID 361).

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elevation points on the maps without a survey. (Id.)

He then found the Cincinnati Area Geographic Information Systems map to be

more credible.

15 (Id. PageID 364, 367). He found that Cincinnati Area Geographic 

Information Systems map reveals that the acreage making up the area that the USACE 

can permanently flood consists of no more than 2% of the Parcels and the acreage 

making up the area that the USACE can occasionally flood is approximately 13% of the 

Parcels. (Id. PageID 364, 367). With respect to the 2% of the Parcels that the USACE 

flowage easements allow permanent flooding, he found that this area is currently not used 

for agricultural purposes as it is already permanently under water. (Id. PageID 367). With 

respect to the 13% of the Parcels that the USACE flowage easements allow occasional 

flooding, he found that the history of the easements—i.e., only two floods in the 55 years

since the flowage easements' inception—reveals that any occasional flooding will be a 

rare event and will not interfere with the agricultural use of the land. (Id. PageID 368). 

In sum, and largely based on the Cincinnati Area Geographic Information Systems 

map and Parcels' occasional flooding history, the Administrative Judge found that 

Defendant NRCS incorrectly interpreted the USACE flowage easements, erroneously 

concluded that the USACE was likely to exercise their rights under those easements, and

incorrectly determined that the USACE easements are an unacceptable right on the title 

of the Parcels. (Id. PageID 369).

g. August 2018 NAD Director Determination 

Defendant NRCS timely requested that the Director of NAD ("Defendant NAD 

Director") review the Administrative Judge's decision. (Doc. 22-5). Plaintiff timely 

15 Defendant NRCS argued that the Cincinnati Area Geographic Information Systems map was groundtruthed and thus not reliable. (Doc. 22-4 PageID 368). 

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submitted a Response to the Request for Director Review. (Doc. 22-6). In an untimely 

determination, Defendant NAD Director reversed the Administrative Judge's decision. 

(Doc. 22-8); see 7 U.S.C. § 6998(b)(1) (providing that the Director shall complete his 

review and issue a final determination or remand not later than 10 business days after 

receipt of the request for review received by the agency); 7 C.F.R. § 11.9(d)(2) (same).

h. Proceedings before the Court

Plaintiff brings this action pursuant to the Administrative Procedure Act ("APA"),

5 U.S.C. § 701 et seq., and seeks judicial review of Defendant NAD Director's 

August 2018 determination. (Doc. 22); see (Doc. 1). Plaintiff asks the Court to set aside 

Defendant NAD Director's determination, reinstate the Administrative Judge's decision,

direct Defendant NRCS to fund the Agricultural Conservation Easement Program 

agricultural land easement grant in Plaintiff's favor, and award costs and fees under the 

Equal Access to Justice Act ("EAJA"). (Doc. 22 PageID 302). The parties have filed cross

motions for summary judgment. (Docs. 37, 38).

II. STANDARD OF REVIEW

The APA provides for judicial review of final agency actions. Sierra Club v. United 

States Forest Serv., 828 F.3d 402, 407 (6th Cir. 2016) (citing 5 U.S.C. § 702). Summary 

judgment is an appropriate procedure when a court reviews an agency's administrative 

record. See id. However, given the district court's limited role in reviewing an

administrative record—because, under the APA, the agency, not the district court, finds 

facts and reaches a decision based on the administrative record—the summary judgment 

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standard found in Federal Rule of Civil Procedure 56(a)16 does not apply to judicial review 

of final agency action under the APA. See Daraghma v. U.S. Citizenship & Immigr. Servs.,

228 F. Supp. 3d 818, 822 (N.D. Ohio 2017). Rather, the standard of review for a district 

court ruling on a motion for summary judgment under the APA is whether, as a matter of 

law, the agency decision is supported by the administrative record and consistent with 

the APA standard of review. See id.

Pertinent here, a final determination by Defendant NAD Director is reviewable by 

the Court in accordance with the APA. See 7 U.S.C. § 6999; 7 C.F.R. § 11.13. 

Importantly, it is the final determination of Defendant NAD Director, rather than the 

underlying decision of Defendant NRCS, that the Court reviews in accordance with the 

APA. See Epp v. Nat. Res. Conservation Serv., 425 F. Supp. 3d 1142, 1147 (D. Neb. 

2019) (cleaned up); accord Foster v. Vilsack, No. CIV. 13-4060-KES, 2014 WL 5512905,

at *3 (D.S.D. Oct. 31, 2014), aff'd, 820 F.3d 330 (8th Cir. 2016).

The APA standard of review provides that "the reviewing court shall decide all 

relevant questions of law, interpret constitutional and statutory provisions, and determine 

the meaning or applicability of the terms of an agency action," and "shall hold unlawful 

and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of 

statutory right;

(D) without observance of procedure required by law;

16 Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law."

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(E) unsupported by substantial evidence in a case subject to sections 556 

and 557 of this title [i.e., in a case when an administrative hearing is 

required] or otherwise reviewed on the record of an agency hearing 

provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial 

de novo by the reviewing court.

5 U.S.C. § 706(2)(A). Thus, the court "reviews an agency's reasoning to determine 

whether it is 'arbitrary and capricious,' or, if bound up with a record-based factual 

conclusion, to determine whether it is supported by 'substantial evidence.'" First 

Tennessee Bank Nat. Ass'n v. Johanns, 618 F. Supp. 2d 778, 791 (M.D. Tenn. 2008),

amended in part sub nom. First Tennessee Bank Nat'l Ass'n v. Johanns, No. 1-05-0027,

2009 WL 10727933 (M.D. Tenn. Feb. 11, 2009) (citing Dickinson v. Zurko, 527 U.S. 150,

164 (1999)). 

The APA's "arbitrary or capricious standard" requires the court to ask whether the 

party challenging the agency's action has shown that the that the action had no rational 

basis or involved a clear and prejudicial violation of applicable statutes or regulations. 

Kroger Co. v. Reg'l Airport Auth. of Louisville & Jefferson Cty., 286 F.3d 382, 389 (6th Cir. 

2002); accord Michigan Bell Tel. Co. v. MCIMetro Access Transmission Servs., Inc.,

323 F.3d 348, 354 (6th Cir. 2003) ("The arbitrary and capricious standard is the most 

deferential standard of judicial review of agency action, upholding those outcomes 

supported by a reasoned explanation, based upon the evidence in the record as a 

whole."). "An agency decision would normally be considered arbitrary and capricious if its 

decision was based on factors that Congress did not intend it to consider; if the agency 

entirely failed to consider an important aspect of the problem; or if the agency offered an 

explanation for its decision that ran counter to the evidence before the agency or was so 

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implausible that it could not be ascribed to a difference in view or the product of agency 

expertise." First Tennessee Bank Nat. Ass'n, 618 F. Supp. 2d at 791 (citing Motor Vehicle 

Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

The APA's "substantial evidence" standard requires a court to ask whether a 

"reasonable mind might accept" a particular evidentiary record as "adequate to support a 

conclusion." Dickinson, 527 U.S. at 162. "Substantial evidence review gives the agency 

the benefit of the doubt, since it requires not the degree of evidence which satisfies the 

court that the requisite fact exists, but merely the degree which could satisfy a reasonable 

factfinder." First Tennessee Bank Nat. Ass'n, 618 F. Supp. 2d at 792 (internal quotation 

marks omitted) (citing Wilson Air Center, LLC v. F.A.A., 372 F.3d 807, 813 (6th Cir.

2004)). 

As detailed above, the APA's "arbitrary or capricious standard" and "substantial 

evidence" standard are two of six provisions found in 5 U.S.C. § 706(2). Id. The two 

standards are separate standards, and, although an agency's final action may be 

supported by substantial evidence, the action may still reflect arbitrary and capricious 

action. Association of Data Processing Service Organizations, Inc. v. Board of Governors,

745 F.2d 677, 683-84 (D.C. Cir. 1984) (Scalia, J.); First Tennessee Bank Nat. Ass'n,

618 F. Supp. 2d at 792 (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc.,

419 U.S. 281, 284 (1974)). 

III. ANLAYSIS

Plaintiff asserts that Defendant NAD Director applied the wrong standard of review

to the wrong entity and abused his discretion in doing so. (Docs. 37, 39, 41) (relying 

primarily on 7 C.F.R. § 11.9(d)(1)). Specifically, Plaintiff argues that Defendant NAD 

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Director should have reviewed the Administrative Judge's decision under the substantial 

evidence standard of review but, instead, improperly passed over the Administrative 

Judge's decision and reviewed Defendant NRCS's ineligibility determination under the 

arbitrary, capricious, and an abuse of discretion standard of review. (Doc. 37 PageID 887-

889); (Doc. 39 PageID 908-12); (Doc. 41 PageID 928-34).

The Federal Defendants, in their Motion for Summary Judgment, first assert that 

Defendant NRCS correctly determined that Plaintiff's application for the agricultural land 

easement was ineligible because Plaintiff could not provide clear title for the Parcels in 

light of the USACE flowage easements and this determination was neither arbitrary nor 

capricious. (Doc. 38 PageID 902-06). The Federal Defendants only address Defendant 

NAD Director's determination in their Motion for Summary Judgment in the statement of 

facts. (Doc. 38). Subsequently, in their Response in Opposition to Plaintiff's Motion for 

Summary Judgment, the Federal Defendants argue that Defendant NAD Director's 

determination was not arbitrary, capricious, or an abuse of discretion, and was supported 

by substantial evidence, as the evidence found in the administrative record permitted the 

Director to reverse the Administrative Judge. (Doc. 40 PageID 922-25) (first 

acknowledging 7 C.F.R. § 11.9(d)(1)).

Pursuant to 7 C.F.R. § 11.9(d)(1), Defendant NAD Director was to review the 

Administrative Judge's decision to determine whether the Administrative Judge's decision 

was supported by substantial evidence. 7 C.F.R. 11.9(d)(1) ("The Director will conduct a 

review of the determination of the Hearing Officer using the agency record, the hearing 

record, the request for review, any responses submitted . . . , to determine whether the 

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decision of the Hearing Officer is supported by substantial evidence.").17 At one point,

Defendant NAD Director acknowledges his regulatory responsibility to review the 

Administrative Judge's decision to determine whether that decision is supported by 

substantial evidence. (Doc. 22-8 PageID 413) ("I conduct a review of the Administrative 

Judge's determination using the entire case record to determine if the decision is 

supported by substantial evidence.") (citing 7 C.F.R. 11.9(d)(1)). However, at four other

points, Defendant NAD Director states that he must review Defendant NRCS's ineligibility 

determination to determine whether that determination is arbitrary and capricious. In 

particular, Defendant NAD Director states:

• "I must determine whether NRCS acted arbitrarily and capriciously when it denied

Appellant's request to enroll land in the ACEP-ALE program." (Doc. 22-8 

PageID 408-09);

• " I review the agency's decision to determine whether it was arbitrary, capricious,

or an abuse of discretion." (Id. PageID 413) (citing 5 U.S.C. §706(2)(A));

• "I review NRCS's decision under the deferential abuse of discretion standard."

(Doc. 22-8 PageID 416);

• "I cannot conclude that NRCS acted arbitrarily and capriciously by denying 

Appellant's application for funding under the ACEP-ALE program." (Id.

PageID 418).

17 The Court acknowledges that the governing statute does not specifically impose a substantial evidence 

standard of review. 7 U.S.C. § 6998; J.O.C. Farms, LLC. V. Rural Cmty. Ins. Agency, Inc., 131 F. Supp. 3d 

514, 525 n.11 (E.D.N.C. 2015). As the Court will not manufacture arguments on represented parties' behalf,

and neither party questions whether the regulatory imposition of the substantial evidence standard of review 

in the pertinent regulation is proper, the Court will not resolve that possible issue at this time.

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It is clear that the applicable regulation charges Defendant NAD Director with

review of the Administrative Judge's January 2018 decision to determine whether that 

decision is supported by substantial evidence. See 7 C.F.R. 11.9(d)(1). It is also clear 

that the Court must review Defendant NAD Director's August 2018 decision, and not 

Defendant NRCS's July 2017 ineligibility determination or the Administrative Judge's 

January 2018 decision. See Epp, 425 F. Supp. 3d at 1147; Foster, 2014 WL 5512905, at 

*3. As it is Defendant NAD Director's August 2018 decision being reviewed, the question 

is not whether Defendant NRCS itself acted arbitrarily or capriciously with respect to its 

July 2017 ineligibility determination; rather, the question is whether Defendant NAD 

Director acted arbitrarily or capriciously with respect to his August 2018 reversal of the 

Administrative Judge's January 2018 decision. See Epp, 425 F. Supp. 3d at 1147; Foster,

2014 WL 5512905, at *3. A review of Defendant NAD Director's August 2018 decision

reveals that it is not clear whether he reviewed the Administrative Judge's January 2018 

decision to determine whether that January 2018 decision was supported by substantial 

evidence. (Doc. 22-8). Defendant NAD Director's August 2018 decision must be set aside 

as being arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

law, as it is not clear if the Director reviewed the Administrative Judge's January 2018 

decision in accordance with the pertinent regulation. See 5 U.S.C. § 706(2)(A); Kroger 

Co., 286 F.3d at 389.

Remand to Defendant NAD Director for reconsideration of the correct entity under 

the correct standard of review is the appropriate remedy.18 See Fla. Power & Light Co. v. 

18 As the Court remands this matter to Defendant NAD Director for reconsideration under the correct legal 

standard, it need not reach the issue of whether the Defendant NAD Director August 2018's decision is 

supported by substantial evidence.

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Lorion, 470 U.S. 729, 744 (1985) ("If the record before the agency does not support the 

agency action, if the agency has not considered all relevant factors, or if the reviewing 

court simply cannot evaluate the challenged agency action on the basis of the record 

before it, the proper course, except in rare circumstances, is to remand to the agency for 

additional investigation or explanation."); Kroger Co., 286 F.3d at 387; KindHearts for 

Charitable Humanitarian Dev., Inc. v. Geithner, 710 F. Supp. 2d 637, 661 (N.D. Ohio 

2010) ("Generally, where a court finds an agency's action arbitrary or capricious, it should 

remand to the agency rather than conduct a de novo review.").

As a Court of general jurisdiction, the Court is not trained to evaluate, for example,

whether reliance on the Cincinnati Area Geographic Information Systems map and 

USACE flowage easement language—which Plaintiff argues establish that no more than 

2% of the Parcels is subject to permanent flooding and no more than 13% of the Parcels 

is subject to occasional flooding—is more proper than reliance on the USACE maps and 

USACE flowage easement language—which Federal Defendants argue establish that up 

to 60% of the Parcels is subject to occasional flooding—in directing direct Defendant 

NRCS to fund the Agricultural Conservation Easement Program agricultural land 

easement grant in Plaintiff's favor, as Plaintiff requests the Court so direct. Defendant 

NAD Director should make that evaluation, as well as others, while reviewing the 

Administrative Judge's January 2018 decision to determine whether that January 2018 

decision is supported by substantial evidence. Cf. Dawson Farms v. Risk Mgmt. Agency,

698 F.3d 1079, 1083 (8th Cir. 2012). The court expresses no opinion as to the ultimate 

outcome in remanding.

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Finally, Plaintiff's request for an award of costs and fees under EAJA is premature

as final judgment in this matter has yet to occur. See 28 U.S.C. § 2412(d)(1)(B) ("A party 

seeking award of fees and other expenses shall, within thirty days of final judgment in the 

action, submit to the court an application . . . "); id. § 2412(d)(2)(G) (defining "final 

judgment" as "a judgment that is final and not appealable, and includes an order of 

settlement"); see also Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991) (holding that "final 

judgment" for purposes of EAJA "means a judgment rendered by a court that terminates 

the civil action for which EAJA fees may be received. The 30-day EAJA clock begins to 

run after the time to appeal that 'final judgment' has expired."). Plaintiff may file a motion 

for fees and other expenses at the appropriate time.

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IV. CONCLUSION

In light of the foregoing, it is hereby ORDERED that:

• Plaintiff's Motion for Summary Judgment (Doc. 37) is GRANTED in part, to the 

extent that it requests that the Court set aside Defendant NAD Director's 

August 2018 determination, and DENIED in part to the extent that it requests

that the Court reinstate the Administrative Judge's January 2018 decision,

direct Defendant NRCS to fund the Agricultural Conservation Easement 

Program agricultural land easement grant in Plaintiff's favor, and award costs 

and fees under EAJA at this time;

• Federal Defendants' Motion for Summary judgment (Doc. 38) is DENIED; 

• this matter is REMANDED to Defendant NAD; and

• this matter is CLOSED, and the Clerk will issue a separate JUDGMENT.

IT IS SO ORDERED. _/s Michael R. Barrett______

Michael R. Barrett, Judge

United States District Court

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