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Barthel v. United States Department of Agriculture

June 18, 1999


Before McMILLIAN, Beam, and Loken, Circuit Judges.

The opinion of the court was delivered by: Beam, Circuit Judge.

Appeal from the United States District Court for the District of Nebraska.

Submitted: January 21, 1999

Keith and Dorothy Barthel (the Barthels) appeal the district court's decision upholding the United States Department of Agriculture's (USDA) limitation on the dredging of a drainage ditch.*fn1 The limitation leaves the Barthels' hay meadow flooded.

We reverse and remand.


In 1916, the South Fork of the Elkhorn river was straightened to improve drainage. The straightened portion, referred to as "the ditch," allowed certain land to be used for hay and pasture. The ditch was dredged in 1951 to clean out obstructions and silting which had occurred through the passage of time and caused water to back-up. In 1957, the Barthels purchased their 450-acre hay meadow. The meadow is drained by the ditch which runs along the south side of the Barthels' property. The ditch also runs on adjacent property owned by Gene and Erna Liermann. The Liermanns' land is directly downstream from the Barthels' tract.

The Barthels, together with a neighbor, dredged the ditch again in 1983. The Liermanns gave permission for this work to be done to the portion of the ditch on their land as well. The following year the county replaced a culvert under a county road where it crosses over the ditch. Road department workers testified that sometime in 1986, the culvert was lowered by approximately eighteen inches. In the interim period, on December 23, 1985, the Food Security Act (the Act) became effective. The Act contains federal Swampbuster provisions aimed at preserving wetlands. See Gunn v. USDA, 118 F.3d 1233, 1235 (8th Cir. 1997), cert. denied, 118 S. Ct. 1042 (1998).

By 1987, the ditch had again become obstructed with debris and clutter, allegedly caused by the Liermanns' cattle crossing the ditch. The Barthels sought to dredge the ditch on the Liermanns' property or in the alternative have the Liermanns clean that portion pursuant to their state law obligations. This time the Liermanns refused, and eventually the Barthels filed suit in Nebraska state court. A mandatory injunction was issued requiring the Liermanns to clean out the portion of the ditch on their property "so that water will flow." Admin. R. at 327 (state court injunction). Because cleaning and maintenance of the ditch impacted a potential wetland area, the USDA,*fn2 the agency responsible for enforcement of the Swampbuster provisions, became involved. Initially, the USDA determined that the cleaning and maintenance required by the state court did not violate any Swampbuster provisions. However, after the Liermanns appealed, the USDA reversed course. Based upon reliable evidence that the culvert was lowered eighteen inches in 1986, the USDA determined the grade and depth of the ditch required under the Swampbuster provisions and implementing regulations, and refused to allow dredging that exceeded eighteen inches above the bottom of the downstream culvert. At that level and grade, the Barthels' hay meadow is flooded.

Following exhaustion of administrative appeals, the Barthels brought suit in federal district court. The district court affirmed the USDA's decision, and the Barthels appeal. The Barthels argue that the agency interpretation of the federal statute is incorrect. They contend that although they were able to produce hay, and pasture their milk cows on the land before December 23, 1985, the agency's determination has left their land completely and permanently underwater. *fn3


"In order to combat the disappearance of wetlands through their conversion into crop lands, Congress passed a law known commonly as'Swampbuster.'" Gunn, 118 F.3d at 1235 (citing Food Security Act of 1985 §§ 1201, 1221-23, 16 U.S.C. §§ 3801, 3821-24). The law denies eligibility for several federal farm-assistance programs if wetlands are converted to agricultural use. See National Wildlife Fed'n v. Agricultural Stabilization and Conservation Serv., 955 F.2d 1199, 1200 (8th Cir. 1992). *fn4 In addition, the law provides for exemptions, namely wetlands that were converted before December 23, 1985– the effective date of the law.*fn5 See Gunn, 118 F.3d at 1235. Land meeting this exemption can be maintained as it was prior to the effective date of the Act without loss of federal benefits. Neither the Barthels nor the USDA dispute that the land in question here, a 450-acre hay meadow, was altered by the ditch and drained prior to the effective date of the Act. See Barthel v. Glickman, No. 4: 96CV3034, mem. op. at 7 (D. Neb. May 1, 1998). The only dispute is the extent to which the land was altered and can now be maintained. The Barthels contend that the land was previously used for hay production and pasture and should be maintained at the level of prior use. The USDA argues that the current level of the ditch should be maintained, whatever the effect upon the property.

The regulations implementing the Swampbuster provisions classify the Barthels' land as "other wetland area" because it is seasonally flooded or ponded but was "manipulated prior to December 23, 1985." 7 C.F.R. § 12.32(a)(3) (1992). "Persons may continue to farm such wetlands... as they did prior to December 23, 1985. However, no action can be taken to increase effects on the water regime beyond that which existed on such lands" on or before that date. Id. § 12.33(a) (1992) (emphasis added).

As noted, the Barthels had manipulated the water regime on their land before the effective date of the Act by improving drainage. The record provides uncontroverted examples of this. When the time came to clean the drainage ditch, the USDA denied permission despite a state mandatory injunction. The agency denied permission based upon the National Food Security Act Manual (the Manual), which more ...

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