Clark v. U.S. Department of Agriculture

Aug 12: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-3127. Appellant Dorothy Clark appealed the district court’s refusal to grant a declaratory judgment and set aside a United States Department of Agriculture (USDA) determination that she converted wetlands in violation of the "Swampbuster" provisions of the Food Security Act of 1985. Because the USDA determined she had converted wetlands, Clark became ineligible for certain farm program payments. Clark challenged the USDA’s interpretation of the term “converted wetland” and argues the evidence is insufficient to support the USDA’s determination that she converted wetlands. In addition, she challenged a USDA regulation that placed the burden on her to request, and prove her eligibility for, a “minimal effect” exemption. The Appeals Court said, "Given the deference we owe to the USDA’s regulation, its interpretation of the applicable law, and its factual determinations, we affirm the district court’s denial of relief."

The so-called Swampbuster provisions, designed to deter the conversion of wetlands, authorize the USDA to make determinations as to whether certain lands qualify as wetlands and whether wetlands that have been manipulated qualify as converted wetlands. A person determined to have converted wetlands may become ineligible to receive farm program payments; however, there is an exception to the ineligibility provision for manipulations determined to have only a "minimal effect" upon wetland and biological functions.

In making its ruling, the Appeals Court indicates that, Clark notes that Congress amended 16 U.S.C. § 3822(f) in 1990, replacing the phrase “The Secretary may exempt,” with the phrase “The Secretary shall exempt.” Pub. L. 101-624, Title XIV, § 1422, Nov. 28, 1990, 104 Stat. 3573. Clark argued generally that this amendment reflects a legislative desire to curb perceived resistance from the USDA towards issuing such exemptions.

The Appeals Court says, "We do not disagree with this general statement: the amendment clearly deprives the USDA of discretion where discretion previously existed, and following the 1990 amendment the USDA must grant such exemptions where a manipulation is shown to have a minimal effect. The statute, even as amended, however, does not apportion the burden of proof regarding the technical determination of whether a manipulation has more than minimal effect. Nor does it contain any language suggesting the USDA is without authority to impose a burden of proof upon landowners who fail to request a determination prior to taking action likely to hinder the USDA in its assessment of the wetlands’ pre-manipulation function and value."

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U.S. v. Tankersley

Aug 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-30334. In this environmental terrorism case, Kendall Tankersley appealed a 41-month sentence imposed following her guilty plea to conspiracy to commit arson and destruction of an energy facility in violation of 18 U.S.C. § 371, aiding and abetting attempted arson in violation of 18 U.S.C. §§ 2 and 844(i), and aiding and abetting arson in violation of 18 U.S.C. The district court imposed a sentencing enhancement for the commission of a “federal crime of terrorism,” pursuant to United States Sentencing Guidelines (U.S.S.G. or Sentencing Guidelines) § 3A1.4 (2000), against several of Tankersley’s co-defendants who targeted government property. The district court did not impose this enhancement on Tankersley because she targeted only private property. It did, however, impose a twelve-level upward departure pursuant to U.S.S.G. § 5K2.0, which had the effect of making her base offense level the same as if she had been subject to the terrorism enhancement. The Appeals Court affirmed the ruling of the district court.

From 1996 through 2001, activist groups known publicly as the Earth Liberation Front (ELF) and the Animal Liberation Front (ALF) committed arson and other crimes against government and private entities in several Western states. The groups’ membership changed over the lifetime of the conspiracy but included as many as sixteen conspirators. Tankersley actively participated in both an attempted and a subsequently completed arson that destroyed the headquarters building of U.S. Forest Industries, Inc., a private timber company located in Medford, Oregon.

In its ruling the Appeals Court said, "The district court sentenced ten individuals involved in this conspiracy. . . The district court fully considered Tankersley’s subsequent behavior, and the court’s expectations that Tankersley, once having completed her sentence, will hopefully lead a productive, crimefree life. Nevertheless, the district court could not ignore the grave nature and aggravated circumstances of Tankersley’s offense, the enormous destruction it caused, and the intent to harm and intimidate entire communities. The district court’s sentence was well-reasoned and properly based on the § 3553(a) factors. We therefore conclude Tankersley’s 41-month sentence is reasonable."

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