Swampbuster News!

More Impacts of Chevron Doctrine Repeal

The U.S. Court of Appeals for the 8th Circuit has issued an order in the South Dakota case involving the reach of the Swampbuster program over a small wet area in a farm field in South Dakota. The case is Foster v. United States Department of Agriculture, 68 F.4th 372 (8th Cir. 2023). Foster involves a constitutional challenge to the government’s position concerning the “Grassley Amendment” to the Swampbuster program. On August 10, 2023, a petition for certiorari in Foster was filed with the U.S. Supreme Court. After the Court’s decision in Loper Bright Enterprises which repealed the Chevron Doctrine concerning administrative agency deference, the Supreme Court designated Foster for rehearing with the Eighth Circuit.

On Nov. 7, the 8th Circuit issued an order sending the case back to the federal district court in South Dakota for reconsideration in light of Loper Bright Enterprises. Importantly, the district court had also relied (along with the 8th Circuit on the appeal of the case) on Chevron deference when they decided the case. Clearly, the 8th Cir. wants the district court to consider the deference issue first.

Note: I discussed the Loper Bright Enterprises decision and the 8th Circuit’s Foster decision in Issue No. 2 of the Rural Practice Digest on pages 1-27 and 1-28.