Summary of a Recent
Judicial
Development in
Farm Commodity Programs
NRCS May Not Use Guidebook Retrospectively
Brandon WillisNational AgLaw Center Graduate Assistant
"In May of 1999, after a heavy rainfall, the Rosenaus used a one bottom plow to cut furrows through ... "an established wetland to drain water from a field. Rosenau v. Farm Service Agency, No. Al-02-0, 2005 U.S. Dist. Lexis 8779 at 2[MSOffice1] (D.N.D. S.W. Div. 2005). The Natural Resources Conservation Service (NRCS) notified the Rosenaus that they had violated a wetland provision, thus disqualifying them for farm program payments. Id. The Rosenaus argued that their drainage qualified under the minimal effects exemption to the wetland provisions. See id. at 8. The minimal effects "determination shall be based upon a functional assessment of functions and values of the wetland under consideration and other related wetlands in the area." Id. at 11 (citing 7 C.F.R. § 12.31(d)). The Rosenaus asserted that they did not have an opportunity to qualify for the exemption because "Defendant [NRCS] did not have a functional assessment model in place at the time of the alleged conversion." Id. at 8. The NRCS "used the Guidebook approved and adopted in 2003, to recalculate the Rosenaus' minimal effect exemption for alleged violations that occurred in the summer of 1999." Id. at 12. The Court found the retroactive application of the Guidebook was an abuse of discretion and otherwise not in accordance with the law. See id. at 14-15. Since the NRCS' actions were not in accordance with the law, Rosenaus were entitled to the exemption as a matter of law. Id. at 15.
The case was decided on May 11, 2005; this summary was posted Oct. 25, 2005.