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Construing Statutes and the Art of the Possible

By Eric L. Lipman

In an interesting opinion issued yesterday, a panel of the U.S. Court of Appeals for the Eighth Circuit turned away the challenge of an Iowa landowner to her exclusion from certain farm payment programs administered by the U.S. Department of Agriculture.

In order to deter the conversion of wetlands, federal law excludes from participation in farm program payments those persons who have been determined by the USDA to have converted wetlands to areas for crop production ? penalizing those manipulations of designated wetlands ?for the purpose or to have the effect of making the production of an agricultural commodity possible if-- (i) such production would not have been possible but for such action . . . .?

Focusing upon the ?possibility? of growing items on her land, the landowner argued that because the areas that the USDA designated as wetlands could have sustained some planting, however small, before she filled them in to support broader production, her actions did not amount to prohibited manipulation of wetlands.

Disagreeing, the panel sustained the agency?s interpretation of the exclusion statute, construing the term ?possible? ?in a practical sense, treating as conversion those actions that make a wetland more suitable for growing agricultural commodities.? Concluded the panel: ?As aptly noted by the district court, Clark?s position, if accepted, would exclude from protection all wetlands that were in any measure farmable prior to manipulation. The USDA described Clark?s position as follows, ?[Clark?s] construction would mean that, if the land could have occasionally produced one stunted ear of corn or pod of soybeans prior to being filled, there could be no conversion of a wetland triggering the [16 U.S.C.] § 3821 bar on participation in federal farm programs.? We agree that such a result would be absurd as it would remove from protection vast areas of wetlands.?

The Panel?s complete analysis, including an interesting discussion of Chevron and Skidmore deference for agency interpretations of statutes, is accessible here.

Full post as published by Within the Scope on August 13, 2008 (boomark / email).