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Sat Dec 3, 2016, 11:05 AM

Miner County case could be heard by U.S. Supreme Court

MINER COUNTY After years of litigation, two Miner County farmers could see their case reach the nation's highest court.

For eight years, Arlen and Cindy Foster have questioned the U.S. Natural Resource Conservation Service's (NRCS) wetland designation of 0.8 acres of their rural farmland a designation made by the agency using a proxy site 33 miles away to determine whether the Foster's similar land would support wetland plants.

The case can be traced to 2008, when the Fosters asked the NRCS to reconsider a previous delineation deeming 0.8 acres of their farm as wetlands land which, under the "Swampbuster" provisions of the Food Security Act of 1985, can limit eligibility to federal agriculture programs if converted to cropland. Because the acreage was disturbed, the NRCS used a proxy site to determine if the small area of land would support the growth of wetland plants.

Following several failed appeals, the Fosters have now petitioned to have their case against U.S. Secretary of Agriculture Tom Vilsack heard by the U.S. Supreme Court. The Fosters claim federal courts should not defer to agencies like the NRCS to use preselected proxy sites to make wetland determinations, coupled with the argument the Fosters due process rights protected by the Fifth Amendment of the U.S. Constitution may have been violated when the farmers weren't notified of the selection of the comparison site.

Read more: http://www.mitchellrepublic.com/news/local/4171447-miner-co-case-could-be-heard-us-supreme-court

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