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‘As long as the feds consider the puddle a wetland, Arlen cannot farm it’

(Photo by Karsten Winegeart on Unsplash)

The now-failed Chevron precedent, struck down just days ago by the U.S. Supreme Court, had come up with some really unusual government mandates.

One was an order for a South Dakota farmer not to farm part of his ground because melting snow made it wet.

Another was that a truck repair shop actually was a … mine.

Those two case now are heading back to court – for a decision that disallows the sometimes odd opinions of bureaucrats working for federal agencies.

It was the Pacific Legal Foundation that confirmed already two of its cases, Foster v. U.S. Department of Agriculture and KC Transport v. Secretary of Labor, have been ordered back to court.

“Our clients may now make their case in court without judges putting their thumb on the scale in favor of the government,” said Paige Gilliard, an attorney at Pacific Legal Foundation. “The Supreme Court’s decision to end Chevron deference is a move to restore fairness in federal courts. Our clients Arlen Foster and KC Transport are among the first beneficiaries.”

The 1980s-era Chevron claimed that courts should submit to the opinions of bureaucrats should a federal law have a vague area. In that case, the bureaucrats’ interpretation was to be held as law.

No longer.

The foundation said Arlen Foster, a third-generation Miner County, S.D., farmer, works with his family to raise cattle, corn, soybeans and hay on land his grandfather bought in 1900 with a $1,000 loan.

It was Arlen’s father who planted a tree belt along the edge of the farm in 1936 to prevent erosion.

Today the trees are tall and collect deep snow drifts in the winter.

“As the weather warms, the melting snow collects in a low spot in the middle of a farm field before soaking into the ground or evaporating. In 2011, the federal Natural Resources Conservation Service (NRCS) decided to call the puddle a wetland, claiming that it is protected by federal law,” the legal team explained.

“As long as the feds consider the puddle a wetland, Arlen cannot farm it. Doing so would violate the ‘Swampbuster’ provisions of the 1985 Food Security Act that tie wetlands to federal assistance programs provided by the U.S. Department of Agriculture,” the team said.

At dispute was a provision allowing for a review of the designation. Foster asked for a review but the feds refused, demanding “new evidence” first, even though that is not a requirement of the actual law.

The second case involves KC Transport, a family-owned, independent trucking company serving a wide array of customers from its five locations in southern West Virginia and Virginia.

The trucks are used for coal, earth, gravel and more.

The foundation explained, “Trouble began for KC Transport in 2019, when a federal Mine Safety and Health Administration (MSHA) inspector showed up at the company’s Emmett, W.V., facility. The arrival of a federal regulator who inspects mines under the federal Mine Act was unexpected and unusual. The MSHA, which operates under the U.S. Department of Labor, had never before inspected the Emmett facility—for good reason. The Emmett facility parks, maintains, and repairs trucks that are occasionally hired to haul coal. Its property is neither on a mine nor attached to one; the closest mines are several miles away.”

That, however, was not an obstacle to the mine inspector deciding that the company should be fined nearly $10,000.

The company challenged the citations, explaining it is not a mine, but an administrative law judge said it was.

Eventually, the federal government said the trucks are subject to “mine” regulations, for being parked at a repair shop.

The ultimate decision in the case, now back for more review, was that the Labor secretary should decide the department’s own authority.

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