ELR Citation: ELR 21434
No(s). WC 91-47-B-D (N.D. Miss. Feb 18, 1993)

The court holds that the U.S. Fish and Wildlife Service (FWS) did not act arbitrarily or capriciously or abuse its discretion in designating as wetlands property that was resold to a farmer after it was acquired by the Farmers Home Administration (FHA) in foreclosure proceedings. The court first holds that FWS' failure to take on-site soil samples was not indicative of arbitrary agency action, because plaintiff's expert followed the same procedure for delineating the property as did FWS' expert. The court next holds that the presence on the property of water control structures, which allegedly artificially created wetlands characteristics, was not legally relevant to the issue of whether FWS' delineation was procedurally sufficient. Executive Order No. 11990, under which the agency made its wetlands delineation, does not require that the property or land on which wetland conditions are found must be excluded because the "wet" conditions are the result of human alteration rather than natural processes. Moreover, no court that has considered the issue has made such a distinction. Also, plaintiff adduced no evidence that either FWS' expert or any agency personnel participating in the delineation failed to consider the structures or their causal relationship to the "wet" conditions on the property. The court holds that the wetland delineation performed by FWS was procedurally sufficient, because the procedures employed by the agency included consultation of soil surveys, aerial photography, on-site inspection, and agency regional review and approval. Finally, the court holds that FHA's reliance on FWS' delineation in placing conservation easements on the property was not arbitrary or capricious.

Counsel for Plaintiff
Preston D. Rideout Jr.
211 W. Market St., Ste. 1, Greenwood MS 38930
(601) 455-9999

Counsel for Defendant
Patricia D. Rogers, Ass't U.S. Attorney
U.S. Attorney's Office
P.O. Box 886, Oxford MS 38655
(601) 234-3351