United States Court of Appeals

For the Eighth Circuit 

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No. 22-2729

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Arlen Foster

 Plaintiff - Appellant

v.

United States Department of Agriculture; Tom Vilsack, in his official capacity as 

Secretary of the United States Department of Agriculture; The Natural Resources 

Conservation Service; Terry Cosby, in his official capacity as Acting Chief of the 

Natural Resources Conservation Service; Tony Suseri, in his official capacity as 

Acting South Dakota State Conservationist

 Defendants - Appellees

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Appeal from United States District Court 

for the District of South Dakota - Southern

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Submitted: March 21, 2023

Filed: May 12, 2023

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Before BENTON, ERICKSON, and KOBES, Circuit Judges. 

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ERICKSON, Circuit Judge.
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In this action, Arlen Foster maintains several administrative law claims 

against appellees. The district court1 granted summary judgment in favor of 

appellees. We affirm.

I. BACKGROUND

A. Statutory and Regulatory Framework

The Secretary of Agriculture (“Secretary”) is responsible for “delineat[ing], 

determin[ing], and certify[ing] all wetlands” and has authority to promulgate rules 

necessary to implement the provisions contained in 16 U.S.C. § 3821 et seq. 

(“Swampbuster Act”). 16 U.S.C. §§ 3801(a)(21), 3822(a)(1), 3846(a). The National 

Resources Conservation Service (“NRCS”) is a federal agency that acts at the 

direction of the Secretary to certify wetlands and otherwise administer the 

Swampbuster Act. Id. § 3822(j); see 7 C.F.R. §§ 12.6(c), 12.30(a)(3). To preserve 

wetlands, the Swampbuster Act precludes farmers who convert wetlands or produce 

crops on converted wetlands from receiving certain farm-related benefits. See 16 

U.S.C. § 3821(a)-(c); Clark v. USDA, 537 F.3d 934, 935 (8th Cir. 2008) (citation 

omitted). The Swampbuster Act generally does not prohibit farmers from converting 

or farming on artificial wetlands. See 16 U.S.C. § 3822(b)(1)(E), (b)(2)(A).

The Swampbuster Act and United States Department of Agriculture 

(“USDA”) regulations work together to provide farmers with the right to request

reviews of wetland certifications. The Swampbuster Act’s review provision 

(“Swampbuster Review Provision”) provides that a prior wetland certification “shall 

remain valid and in effect . . . until such time as the person affected by the 

certification requests review of the certification by the Secretary.” Id. § 3822(a)(4). 

In turn, a regulation (“Review Regulation”) provides procedural requirements a 

farmer must follow to make an effective review request. Specifically, a farmer “may 

1

The Honorable Roberto A. Lange, Chief Judge, United States District Court 

for the District of South Dakota.
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request review of a certification only if a natural event alters the topography or 

hydrology of the subject land . . . or if NRCS concurs with an affected person that 

an error exists in the current wetland determination.” 7 C.F.R. § 12.30(c)(6). Other 

regulations provide administrative appeal rights to persons subject to adverse 

certifications. See generally id. §§ 11.1, 11.9, 614.1. After exhausting 

administrative remedies, a farmer may seek judicial review of the NRCS’s wetland

determination in federal district court. See id. § 11.13(a); see also 7 U.S.C. 

§§ 6912(e), 6999.

B. Factual Background and Procedural History

Foster owns a tract of land in South Dakota that contains a tree belt. In the 

winter, snow accumulates around the tree belt. When the snow melts in the spring, 

some ponding in the nature of a shallow puddle can occur on a portion of the property 

(“Site”). In 2004, the NRCS certified the Site as a wetland. Following a 2008

request by Foster to review the certification, the NRCS reviewed the certification 

and in 2011 recertified the Site as a wetland. In the 2011 recertification, the NRCS 

specifically found that the Site is not an artificial wetland. Foster exhausted his 

administrative remedies and sought judicial review in the district court. The district 

court upheld the agency’s determination as not arbitrary and capricious, this Court 

affirmed, and the Supreme Court declined to grant certiorari. See generally Foster 

v. Vilsack, No. CIV. 13-4060-KES, 2014 WL 5512905 (D.S.D. Oct. 31, 2014), aff’d 

820 F.3d 330 (8th Cir. 2016), cert. denied 137 S. Ct. 620 (2017). 

In 2017, Foster requested review of the 2011 recertification. The NRCS did 

not conduct the review, finding that Foster had failed to comply with the Review 

Regulation because he failed to provide new information that the NRCS had not 

previously considered. In 2020, Foster submitted a third review request, but this 

time, he also submitted an engineering report that opined that the Site’s ponding is 

the result of the tree belt and is properly considered an artificial wetland outside the 

scope of the Swampbuster Act. The NRCS noted the opinion and asked Foster’s 

engineering firm to identify any evidence that would show that the NRCS had not
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fully considered the tree belt at the time of the 2011 recertification decision. Neither 

Foster nor the engineering firm ever responded to the request. Thereafter, the NRCS 

reviewed the engineering report, “compared [it] to the agency record,” and declined 

to consider Foster’s 2020 review request on the ground that the request did not 

comply with the Review Regulation.

In May 2021, Foster filed this action in the district court alleging that: (1) the 

Review Regulation contravenes the Swampbuster Review Provision; (2) the Review 

Regulation was never submitted to Congress or the Comptroller General as required 

by the Congressional Review Act (“CRA”); and (3) the NRCS’s decisions to refuse 

to consider Foster’s 2017 and 2020 review requests violated the Administrative 

Procedure Act (“APA”). The district court granted summary judgment in favor of 

appellees, holding: (1) the Review Regulation does not conflict with the 

Swampbuster Review Provision; (2) the CRA’s judicial review provision precludes 

judicial review of Foster’s CRA claim; and (3) the NRCS’s decisions to decline to 

consider Foster’s 2017 and 2020 review requests did not violate the APA. Foster 

appeals. 

II. DISCUSSION

“We review the district court’s grant of summary judgment de novo, viewing 

the evidence and drawing all reasonable inferences in the light most favorable 

to . . . the nonmoving party.” Kallail v. Alliant Energy Corp. Servs., Inc., 691 F.3d 

925, 929 (8th Cir. 2012) (citation omitted).

Foster reasserts the claims raised below, urging this Court to find the district 

court erred in each of its three holdings. Specifically, Foster argues that the Review 

Regulation is in conflict with the Swampbuster Review Provision, the CRA does not 

preclude judicial review of his CRA claim, and the NRCS’s decisions to decline to 

consider his 2017 and 2020 review requests violated the APA. We discuss each 

assertion in turn.
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A. The Swampbuster Review Provision and the Review Regulation

Foster contends the Review Regulation unlawfully conflicts with the 

Swampbuster Review Provision. He argues that the Review Regulation limits a 

farmer’s right to request review of a wetland certification while the Swampbuster 

Act permits broad review upon request by a farmer. When asked to review whether 

a regulation is consistent with a statute, we apply the two-step framework from 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 

(1984). See Voigt v. EPA, 46 F.4th 895, 900 (8th Cir. 2022) (citation omitted). We 

first consider whether the statute is ambiguous “us[ing] traditional tools of statutory 

construction,” including the statute’s “text, structure, history, and purpose.” See

Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); Voigt, 46 F.4th at 900-01 (alteration 

in original) (citation omitted). If the statute is unambiguous, we must simply apply 

it. Voigt, 46 F.4th at 901 (citation omitted). If the statute is ambiguous, we defer to 

and apply the agency’s interpretation of the statute so long as it is reasonable. Id.

(citation omitted); see Ameren Corp. v. FCC, 865 F.3d 1009, 1012 (8th Cir. 2017) 

(quoting Entergy Corp. v. Riverkeeper, Inc., 566 U.S. 208, 218 (2009)). 

After closely reviewing the Review Regulation and the Swampbuster Act, we 

conclude the Review Regulation does not contravene the Swampbuster Review 

Provision. The Swampbuster Review Provision appears to us to suffer from some 

ambiguity related to whether it disallows regulations establishing procedural 

requirements for making effective review requests. We first consider the text of the 

statute, which provides that a wetland certification “shall remain valid and in 

effect . . . until such time as the person affected by the certification requests review.” 

See 16 U.S.C. § 3822(a)(4). On one hand, by suggesting a certification is effective 

“until” a farmer requests review, the statute may reflect a Congressional intent to 

provide that a farmer’s review request in and of itself voids a prior certification

without the need to follow any procedural requirements like those enumerated in the 

Review Regulation. See also 142 Cong. Rec. S3038 (daily ed. Mar. 28, 1996) 

(statement of Sen. Richard Lugar) (“The agreement stipulates that current wetlands 

delineations remain valid until a producer requests a review.”). On the other hand, 
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the Swampbuster Review Provision provides no direction as to what constitutes a

proper review request and as a result may not preclude the existence of procedural 

requirements for making an effective review request.

The legislative history offers no clarification. In 1990, Congress amended the 

Swampbuster Act and adopted a version of the Swampbuster Review Provision that 

permitted the Secretary to update “wetland delineations as the Secretary deem[ed] 

appropriate.” 16 U.S.C. § 3822(a)(4) (1990) (amended 1996). These amendments 

also made the Secretary responsible for creating a process to review wetland 

certifications to “provide farmers with certainty as to which of their lands 

are . . . wetlands.” H.R. Rep. No. 101-916 (1990), as reprinted in 1990 

U.S.C.A.A.N. 5286, 5436. 

By 1996, members of Congress recognized the amendments had operated in 

a manner that increased uncertainty. Senator Grassley noted that after the 

amendments, the NRCS began conducting aerial photography to delineate new 

wetlands, which “caused a lot of anxiety and uncertainty for” farmers who could not 

operate with constantly-changing delineations. See 142 Cong. Rec. S4420 (daily ed. 

Apr. 30, 1996) (statement of Sen. Charles Grassley); see also 141 Cong. Rec. 

S1702-03 (daily ed. Jan. 27, 1995) (statement of Sen. Charles Grassley) (requesting 

a moratorium on new wetland delineations pending new legislation). As a result, 

Congress proposed new amendments in 1996, and senators expressed their 

understanding that these new amendments would “give farmers certainty . . . [by] 

allow[ing] prior delineations of wetlands to be changed only upon request of the 

farmer.” 142 Cong. Rec. S4420. The 1996 amendments contained the current 

Swampbuster Review Provision. See 16 U.S.C. § 3822(a)(4) (1996) (amended 

2008). 

 

Foster suggests that when Congress amended the Swampbuster Act to permit 

only farmers to initiate reviews, it necessarily granted individual farmers the right to 

freely make review requests that automatically void prior wetland certifications. 

This is a broader reading of the statute than is supported by the legislative record. 
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The legislative history suggests that the sole purpose of the 1996 amendments was

to promote certainty by preventing the NRCS from constantly changing wetland 

delineations. Nothing in the legislative history can be fairly read to evince a 

Congressional purpose to prevent the USDA from implementing a reasonable

process to facilitate a farmer’s ability to seek a new wetland determination.

Under Foster’s interpretation, farmers could unilaterally nullify wetland 

certifications as the NRCS makes them by filing vague and facially-meritless review 

requests. This ability to request review would be without limit and would grant 

farmers the unfettered ability to render any attempted certification by the NRCS 

uncertain. The absurd results construction canon supports the validity of the Review 

Regulation. Because the relevant tools of construction demonstrate the 

Swampbuster Review Provision is ambiguous, we defer to the USDA’s 

interpretation (as reflected by the Review Regulation) so long as it is reasonable.

The Review Regulation imposes reasonable procedural requirements a farmer 

must follow to make an effective review request and thereby delimit a prior wetland 

certification. Because the Swampbuster Review Provision is silent as to the nature 

of an effective review request, the Review Regulation does not conflict with the 

Swampbuster Review Provision. Moreover, from an economic perspective, the 

Review Regulation preserves agency resources by allowing the NRCS to refuse to 

consider facially-meritless review requests, and it promotes certainty among farmers 

by preventing farmers from nullifying certifications at will. We note our decision is 

consistent with an agency adjudication that addressed the same issue. See generally

In re XXXXX, Case No. 2014E000753 (USDA June 22, 2016) (URL omitted). 

Because the USDA’s interpretation is reasonable, we will defer to it and find the 

Review Regulation does not contravene the Swampbuster Review Provision.

B. CRA Claim

Foster next asserts the district court erred in finding the CRA’s judicial review 

provision precludes review of his CRA claim. Under the CRA, “[b]efore a rule can 
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take effect, the Federal agency promulgating such rule shall submit [the rule] to each 

House of the Congress and to the Comptroller General.” 5 U.S.C. § 801(a)(1)(A)(i). 

Congress may then pass a joint resolution disapproving the rule to nullify it and 

prevent the agency from reissuing another rule “in substantially the same form.” Id. 

§ 801(b). If Congress takes no action, the rule automatically takes effect. See id.

§ 801(a)(3). Finally, the CRA contains a judicial review provision, 5 U.S.C. § 805, 

which provides that “[n]o determination, finding, action, or omission under [the 

CRA] shall be subject to judicial review.”

Because “legal lapses and violations occur” without consequences, “[t]here is 

a strong presumption that administrative action is subject to judicial review,” and 

“[o]nly upon a showing of ‘clear and convincing evidence’ of a contrary legislative 

intent should the courts restrict access to judicial review.” Mach Mining, LLC v. 

EEOC, 575 U.S. 480, 489 (2015); Clark v. United States, 482 F.2d 586, 590 (8th 

Cir. 1973) (citations omitted). Nevertheless, an agency may overcome the 

presumption of judicial review by showing there is no “substantial doubt” that 

Congress intended to bar judicial review. See Block v. Cmty. Nutrition Inst., 467 

U.S. 340, 351 (1984). This Congressional intent may be “fairly discernible in” a 

judicial review provision’s “express language, . . . structure[,] . . . its objectives, its 

legislative history, and the nature of the administrative action involved.” Id. at 345, 

351 (citations omitted); see also Clark, 482 F.2d at 590 (noting judicial review is 

unavailable “where a statute specifically precludes judicial review”). 

Here, the CRA’s judicial review provision precludes review of Foster’s CRA 

claim. Section 805 states that “[n]o determination, finding, action, or omission under 

[the CRA] shall be subject to judicial review.” 5 U.S.C. § 805. This language is 

broad and unambiguous. It precludes judicial review of all omissions under the 

CRA, including those of agencies such as the USDA. Because Foster’s CRA claim

is based on the USDA’s alleged omission in failing to submit the Review Regulation 

to Congress and the Comptroller General, we lack the authority to review his claim. 
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Foster contends § 805 does not apply because it only precludes review of 

alleged omissions of Congress as only Congress can engage in all four of the 

enumerated activities in § 805 (i.e., determinations, findings, actions, and 

omissions). But § 805’s broad language covers all omissions under the CRA, 

including agency omissions, so whether an agency can make “determinations” and 

“findings” or take other “actions” under the CRA is irrelevant. Foster raises several 

other arguments against our interpretation, but we find the decisions of our sister 

circuits that have reached the same conclusion we have persuasive. See Kan. Nat. 

Res. Coal. v. U.S. Dep’t of the Interior, 971 F.3d 1222, 1235-38 (10th Cir. 2020) 

(considering § 805’s plain language, other canons of construction, and legislative 

history); Montanans for Multiple Use v. Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 

2009) (Kavanaugh, J.) (relying on § 805’s plain language alone); see also Ctr. for 

Biological Diversity v. Bernhardt, 946 F.3d 553, 562-64 (9th Cir. 2019) (citations 

omitted) (adopting the Tenth’s and D.C. Circuit’s approaches when finding § 805 

precluded review of a claim based on an action of Congress).2

C. APA Claim

1. Exhaustion

Before reaching the merits of Foster’s APA claim, appellees suggest Foster 

failed to exhaust his APA claim by failing to administratively appeal the NRCS’s 

decisions to refuse to consider his 2017 and 2020 review requests. “[A] person shall 

exhaust all administrative appeal procedures . . . before the person may bring an 

action . . . against” the Secretary, the USDA, or “an agency, office, officer, or 

employee of the” USDA. 7 U.S.C. §§ 6902(1), 6912(e). Assuming without deciding 

that one of the exceptions applies, Foster’s APA claim fails on the merits. See Ace 

Prop. & Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 999 (8th Cir. 2006) 

2

Foster suggests the Second and Federal Circuits have adopted his 

construction of § 805. However, the cited decisions do not address § 805. See Nat. 

Res. Def. Council v. Abraham, 355 F.3d 179, 201-02 (2d Cir. 2004); Liesegang v. 

Sec’y of Veterans Affs., 312 F.3d 1368, 1372-76 (Fed. Cir. 2002).
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(determining §6912(e) sets forth an administrative exhaustion requirement and is 

non-jurisdictional and may be waived or excused). 

2. APA Claim

Foster argues the district court erred by finding the NRCS’s decisions to deny 

his 2017 and 2020 review requests did not violate the APA. Agency actions,

findings, and conclusions that are “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law” are to be set aside. 5 U.S.C. § 706(2)(A). 

“This is a highly deferential standard” providing a “narrow” standard of review. 

Org. for Competitive Mkts. v. USDA, 912 F.3d 455, 459 (8th Cir. 2018) (quoting 

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009)). While we must 

ensure an agency has considered “relevant data and articulate[d] a satisfactory 

explanation for its action,” we are to uphold that action if it is “supportable on any 

rational basis.” Id. (citation omitted). We will not interfere with agency action based 

on the agency’s failure to fully explain its decision so long as “the agency’s path 

may reasonably be discerned.” Voigt, 46 F.4th at 900 (quoting Alaska Dep’t of 

Env’t Conservation v. EPA, 540 U.S. 461, 497 (2004)).

The NRCS’s decisions to refuse to consider Foster’s 2017 and 2020 review 

requests were not arbitrary and capricious because Foster failed to comply with the 

Review Regulation as he never provided evidence that a natural event altered the 

Site or that an error exists in the NRCS’s current wetland certification. See 7 C.F.R. 

§ 12.30(c)(6). Regarding Foster’s 2017 review request, Foster does not assert that

he complied with the Review Regulation. We find the NRCS’s refusal to consider 

his 2017 review request was not arbitrary and capricious. 

The NRCS also did not arbitrarily and capriciously decline to review Foster’s 

2020 review request because that request also failed to comply with the Review 

Regulation. While Foster asserts the NRCS unreasonably refused to consider the 

“new information” he provided in his engineering report, before the NRCS made 

any decision regarding the 2020 review request, the NRCS requested Foster’s 
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engineering firm to identify evidence showing the NRCS had failed to consider the 

tree belt on the Site when it made its prior certification. The record shows no 

indication that Foster or his engineering firm responded to this request. After 

affording Foster an opportunity to provide the additional information, the NRCS 

denied the 2020 review request, noting Foster failed “to supply the specific 

information and data sufficient to justify a review.” It “may reasonably be 

discerned” from the NRCS’s decision and the record that the NRCS declined to 

consider the 2020 review request because Foster failed to show the NRCS’s prior 

certification was erroneous in that it did not account for the tree belt. See Voigt, 46 

F.4th at 900 (citation omitted). Because Foster failed to make this showing and did 

not otherwise claim there had been any natural change in the Site, he necessarily 

failed to comply with the Review Regulation. 

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

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