Legal Case Summary

case make the way forward. You may sit down, other if you're not leaving you certainly may sit down. Good morning and may it please the court. I'm Tom Lawler. I'm here representing a balanced D bass. He brings to this court an action to review a final decision made by USDA. Subject to review under the Administrator Procedure Act. The case is before the court on a motion for some judgment made by USDA. Mr. Bass brings to the court two errors that USDA made in making its final decision. One is that when the USDA or when I'm sorry when Mr. Bass appealed the USDA 2010 determination he held that a 1984 determination was still valid in effect and therefore Mr. Bass could not question whether the 13.5 acres converted was a wetland prior to the conversion. The other error that he brings is that when USDA considered whether Mr. Bass entitled to a minimal effect exception it did have minimal effect exemption and only looked at the effect of the conversion on the 13.5 acres rather than on the area. On the first issue the statute says that a certified wetland determination remains valid and in effect until the person affected by the agents or by the decision requests a review. Joe Bass and Steve Bass went to the local USDA office in December of 2004. They told the agency that they wanted to clear approximately 40 acres of land and turn it into farmland. Did they ever anywhere use the word the word request review? Did they ever use those words anywhere? No. What is your strongest evidence then and what they did made it clear they were requesting a review? My strongest evidence is that the agency did a review and under the agency's regulations did they do a review or did they just do an examination? You'll find that the language that they used in their testimony before an ad was that they did a field review. Did they do a review of the certification by the secretary? Not that they review the land, did they review? Did they request a review and you said they didn't use those words but you think they did somehow implicitly? Where does the request review of the certification by the secretary? Yes it does

. Same with what it does. And it does that because the agency has not established any other procedure. You will find there's nowhere on the form to say this is a request for review. There's no boxes to check. It says I'm requesting a review. The property that was involved, the track 80. There was a box on the 2000 or five application. It says something about it. You ever had a prior certification or something without a fact that you said check. That is correct. There is a box on that. That's not saying I'm requesting a review that is saying that wouldn't that suggest there's nothing to be reviewed? What that suggests is that when Mr. Bass said that there was nothing to be reviewed when you say there's been no prior certification or whatever that box is. Does that almost unquestionably say this is we're doing it for the first time. In fact, is it not what that says? No that's not what it says. What does it mean? What it means? It doesn't mean that. What it says and means is that when the bass is filled out the form, the very recollection at that time there were no wetland germinations in it. So was the application truthful? I can't answer that. I mean obviously there was a prior determination. So there wasn't truthful then. That's correct. I'm not saying they lied about it

. Would you just give an explanation for why that was truthful? That representation was not accurate. That's correct. But you think although there was a prior certification, you suggested that there wasn't any, I think it's a clear emphasis for your clients filling that out. Is your argument that the agency should have known from its own files? Yes, it is your honor. Additional evidence that it was considered a review by the agency. That was the agency's judgment. It was that it did in fact do a review. The agency has no statutory authority to review a prior determination unless a review is requested. So the agency could not have done a review. That changed on the fact that again that the agency should have known from their own records. There was a prior certification. The statute that I refer to says that USDA may not, but I'm asking your argument. Is your argument that it had to be something independent because they did want and to do otherwise they should have known from their own records that they couldn't do one. Isn't that your argument? My argument is that they were not fooled by the fact that the box was checked. They were not fooled. They were not confident. I don't know about their competency. What I'm saying is they realized that it was their certification. How would they miss it? I don't think they did miss it. Oh, you think they knew about it? I think they knew about it. Yes. And they reviewed it and that's why the words that they use is a field review

. They use the term review and the statute does not allow them to issue a new decision unless there is a request for review. Is that the way it works? That you would come up and see a view. You don't tell an agency that there's been a prior determined. And then you just say, well, they knew the way it works. It's worked that way and court. We're not in court. I've been understandably, but I mean, we're dealing with an agency in which I'm not sure. I don't know these things, but do specifically check a box to say no. There's been no prior determination here. And then say, well, they're reviewing that determination because they knew that I was not telling the truth against the censored. Is that the posh that you put in this thing? What you're proposing, Judge, is I don't want to propose it. I want to give it just like it is. Your question, here it is. There was a box check said no. There's no prior determination to put in 1994. And now your position is the agency was reviewing 1994 because it has to be because they knew that that was not a true statement or we would call a false statement and part of your client or they knew it was a false statement. And therefore they were reviewing. Is that your position? It's my argument that they did know there was a 1994 determination. And I can tell you this is not in the record, but if you go to the USDA office, they have a file for every producer and every piece of paper is in that file. So anybody that seeks to review these things, the easy way to do it is to go up to the agency and just check that box because I never had one of these before and let the agency tell them do you all to know and just go forward with it and then you can bring a whole bunch of arguments up then. And is that the practice if we write a opinion to that of me? Is that what we're going to say? It sounds like to me a counsel who advises client if a case comes from this pool on that basis with then for then on said check that box and says no it didn't happen before. Now let's file an action

. I don't think that needs to be a basis for the court's decision. Not a basis, but it has to be a fact that's included in the record and I don't think you can ignore it. You got to figure out a way to get a round having said that in the record. And the way that I argue with that issue is that wasn't the judgment of USDA. When it's did it's determination and its final determination, USDA did not say you check the box wrong and because you checked the box wrong that threw us off. What USDA said is and you're looking the findings of fact in their final decision. But if you checked the box right they would have taken a double up so that I think that me judgment has a very good point and if we're not careful the instruction from this court would be it's malpractice to tell your client just tell the truth because if you don't you tell the truth that you had a prior review they're going to check it and you're going to have to overcome that. But if you checked that you didn't have one maybe they'll catch it in the files but maybe they won't but either way your chances are enhanced if you don't tell the truth. There's no way in the record that we know what the agency does based on how that box is checked. Can we take that it's not there for no purpose? Can we take it's there for a purpose? We cannot say why it's there. I said it's there for a purpose. We don't know why it's there. We don't know what the purpose was. I'm asking you do you think it's a reasonable inference that if the form asks the question it's just not a random question. What should Zodiac sign? You know how tall are you? I mean can't we take it a reasonable inference that if some of that form that is therefore a purpose? Apparently USDA thinks there is a purpose they've never put in. You don't think there is. You don't think there's a purpose. You're trying to answer it all. Why did you try to answer it then? Why did you try to answer it because it was on the form? And I thought it it was just it didn't mean anything to him. It didn't mean anything at all to him. I kind of think you argue an upstream for you to or if you argue me this based on a question on an application about a government program is it's just not relevant. I mean it seems to be the emphasis in Israel

. And my answer to that is that was not the judgment of the agency. And this court may come to a different conclusion and it may be a very reasonable conclusion. But under administrative procedure act review you cannot substitute. I'm sorry the court may not substitute its judgment for the judgment of the agency. I don't know how to know it wasn't relevant because of the certs. I mean the re-certification process they went through. If that's true how would we know a situation where it was relevant but they decided to do a review and where they just acted is that there'd been no earlier certification. How do we know that from the facts of this case since those facts weren't squarely put to them? How we know from the facts of the case is nowhere did the agency USDA ever say we were deceived we were tricked by that question. It was only brought up by the U.S. Attorney in the brief of the U.S. Attorney's office. And that is after the fact justification and it may be again as I say a reasonable decision it was not the decision of the agency. So under the administrative procedure act you cannot pursue that. I'm going to feel from your argument. I'm glad to answer your questions for you. I think the other issue the other part of that error on limiting Mr. Bass's appeal to the only question whether there was a conversion is the statute that the agency uses or I'm sorry the regulation that the agency uses starts out with the words before any benefits are withheld in our CSU do an onsite inspection the producer can appeal that onsite inspection but in appealing it they're limited to the only question of whether a conversion appeal or applied there were no benefits being withheld in 2010. This issue was before in our CS it was a wetland determination so there was it's not in our CS that decides who gets benefits it's not in our CS that withholds benefits it's the farm service agency that does that another agency of USDA. So what was before the agency when the basses appeal this was not whether they were the benefits were being withheld it was whether the wetland determination was accurate. So that in my opinion is another reason why there was error in that decision

. Well it creates a sort of a conundrum of trying to figure this out because if you say that in 2005 that it was a review of the 1994 wetland determination then the issues are pretty limited at least initially because you can only see a review it it was a natural situation that causes a change in the topography and you don't I don't think you maintain that it seems that you've maintained that it was a concurrence that allowed you to do this. I would agree and when did that occur from current occur? The current occurred but in fact they did do a field review and all of the four you filed this in 2005 or was it after they did that? It was the field review was done after the farm was turned in in December of 2004. So the current occurred after you turned in the form? That is correct. The wet gave you the basis for the review before 2004. Before what gave you the basis for the review? It wasn't a change, it did the geography had a change and you tell me the concurrence only came after so what gave the basis for the review? The statute says that that's a simple question I'm not trying to give you an answer. Well I'm more humble than you do it if you think. That sounds very simple to me. It sounds very simple. You say that the basis for the review was that there was a concurrence here but that the current did not occur until after you had filed for the review. That is correct and so I take it your position is you can get the concurrence after you file and it all comes based upon the evidence you present. That's correct. That's implied concurrence. I take it because they never actually said we concur. That is correct. That's correct. Much like court operates you will not give a person a decision before they file something with the court. So the evidence that showed the implied concurrence. The evidence that there was an implied concurrence is that the agency said that they did a field review and they did in fact go to the field they did their data collection they went back to the office. I would need to on field review because Mr. Bass had filed a request for a review. Did you tell me or did you not say that a field review occurs once they make a determination that the benefits are not going to be comfortable and there is no benefits? No. Is that the type of review you are talking about? I am talking about in the statute it says that it is invalid and in effect until there is a request for review

. That is the only place in the statute where the term review occurs. The agency's regulations repeat that same language. They do add the conditions you refer to. You can only ask for a review if there has been a topographical or hydrological change. I roll it up here. Or if the agency can curse that there may be something wrong with the original one. In this case if they did not concur they would. Which we must intuit from the final standard answers to Judge Williams question. We have to intuit that they concur. There was some error by the fact they went through this process if they actually did a review. Yes, I think you can intuit that because it means they concur. If they did not occur they would not have done the review. Thank you very much. You reserved some time. Thank you very much. Mr. Bassick. Mr. Bassick when you are ready. I am pleased to court. Good morning. My name is Matthew Fisek

. I represent the United States in this appeal. I am going to jump straight to the issue that seem to interest the court the most. The thought is always a good idea. Yes. The governing regulation I think is before the court defines the circumstances in which review may be requested of a prior wetland determination. As Judge Williams pointed out there are only two circumstances allowed. One of which is if there is a natural event which alters the topography or hydrology of the land. He does say that. He is basically in our CS concur. Correct. The first is not an issue. The second is whether the agency concur with an affected person that an error exists in the wetland determination. The prior wetland determination. If you dissect that provision I would submit you have two elements. One of which is going to be a meeting of the minds between the agency and the producer. How do you do that before review? How do you do that before you undertake a review? What if you think there might be a mistake you just not positive? I think it can come that you can't request a review until you absolutely concur that there is a mistake. No, you are. I think it's a process. And I think certainly so. In that process may in your opinion if a person may not request a review until you concur that there is an error do you just go out independently and check behind your cell to see if there is an error? No, you are. I think if you think the concurrence in an error that there was an error in the prior certification is that a condition preceded to a person being able to ask for a review? No, you are. I think that would be the wrong interpretation of the regular

. Well, there was a word say a person may request a review if in our CS concurrence with the affected person that an error exists. I think we are mistaken going out and what Mr. Lawler called a field review or field inspection. I mean certainly when they fill out the form it permits NCRS to go out. How do you request a review? By filling out the form. And you can't do that, you can't fill out that form to request a review until NCRS says there is an error. I do not believe that it's true. Also, how does the land owner know if he wishes to pursue this requestification? How does it know that and it's not using the meteorological change? How do they know they've fulfilled this other, this is just a question. How does the land owner know that the agency converse that there's some error in the prior determination? Because you're on it, there's a certification a determination form highly erudable land and wet land. You probably have to use the microphone. I'm sorry. Let me just bring this up in front of me. There's a form. It's the USDA form 26e and CRS that's filed in every case. And that's again the culmination of the problem. I can't ask you this. Is there a form that your agency files saying we think there is an error in our prior certification of land parcel one? Yes, your honor. They do? Well, I mean, not explicitly to the extent that you presented it. Listen. If you could answer my question, it's the same question Judge AGS. How is it that anybody knows that your agency has concurred with the land owner that there is an error in the prior certification which has to happen that concurrence in the error has to happen before the land owner may file a request for you to review the whole classification again. How do you convey that concurrence? Your honor, respectfully

. I don't believe that's how the process has to happen. Well, what does that have to do with it? I read it to you. It says a person may request review if your agency concurred with an infected person, a faked person that an error exists in the current determination. What do you think that means? But I'm submitting your honor that the initial paperwork that his client filed is not the request for review as contemplated by that regular. I know that you know what I've understood that answer. So my question is when can he file the review that you think is a review that you won't that you need? When can he file that? I don't know if it's really something that's filed your honor. It's a process where there's an inspection. A full-on letter? Wait, wait, wait, wait. So there are a number of ways a person can request a review other than actually saying I hear by request review of my prior certification. You can do it a lot of different ways. No, you're right. It's a sequential process. It begins with the filing of a form. Okay, stop. Now let me ask you where in that sequential process is the land owner informed that your agency can curse that there is an error which will then allow him to request a review. Not until the conclusion of the process. And therefore, but he can't. In other words, he can't. How does that you just start that of your own desire? How does the land owner get that process started? You're right. The process, I don't know how to, I don't think I have a... Is it by request? It is by requesting a review a new determination from... It is requesting a new determination in your mind. Is that requesting a review? Certainly not in the facts of this case. And I said this case, I'm asking about the agency view. What the heck is a form of supposed to do? The ultimately USDA... And I say this, you seem not to know and you have a law degree. It has a form of supposed to know that. What's a form of supposed to do? I think your honor. I mean, it really is not as complex of a form of... It's a good way to do that. Because I'm going to need it out to be. So I apologize. But it'll tell me again that the form of things, there's a mistake. And he won't shoot a reconsider. Correct. What's he do? He goes to his form services agency

. Is it by request? It is by requesting a review a new determination from... It is requesting a new determination in your mind. Is that requesting a review? Certainly not in the facts of this case. And I said this case, I'm asking about the agency view. What the heck is a form of supposed to do? The ultimately USDA... And I say this, you seem not to know and you have a law degree. It has a form of supposed to know that. What's a form of supposed to do? I think your honor. I mean, it really is not as complex of a form of... It's a good way to do that. Because I'm going to need it out to be. So I apologize. But it'll tell me again that the form of things, there's a mistake. And he won't shoot a reconsider. Correct. What's he do? He goes to his form services agency. He files the form that the client filed in this case. But that's not, that doesn't request a review. Okay, that form you go. I think he can, your honor. There may be, there might be a different form. If there is, I'm not unaware of it. But I think that can start the process. That process, the form service agency then refers it to NCRS. NCRS sends someone out to the property. The landowner is there. Can express his opinions. What evidence is in the record that the agency in any way relied on or was affected by the falsehood in that form? You know, when he said there was no prior certification or determination, is there any evidence that the agency cared about that? Well, you're right. I will say this. And just as a kind of larger matter. How about answers specifically to this case? I would submit your honor and submit it based on the facts in this case. All of this is outside the record. There's no finding. There's no finding one where another. Hello or any of you. So that you're telling us there's no information in the record that suggests that the agency cared about that. Falsehood. I would say there's no

. He files the form that the client filed in this case. But that's not, that doesn't request a review. Okay, that form you go. I think he can, your honor. There may be, there might be a different form. If there is, I'm not unaware of it. But I think that can start the process. That process, the form service agency then refers it to NCRS. NCRS sends someone out to the property. The landowner is there. Can express his opinions. What evidence is in the record that the agency in any way relied on or was affected by the falsehood in that form? You know, when he said there was no prior certification or determination, is there any evidence that the agency cared about that? Well, you're right. I will say this. And just as a kind of larger matter. How about answers specifically to this case? I would submit your honor and submit it based on the facts in this case. All of this is outside the record. There's no finding. There's no finding one where another. Hello or any of you. So that you're telling us there's no information in the record that suggests that the agency cared about that. Falsehood. I would say there's no. There's no finding in the record. I'm not going to get an answer. There's no finding in the record as to whether the agency knew about it or relied upon it when they made it. Is there any evidence that it made a difference to you? I'm not trying to trick you. I'm just trying to figure this out. I mean, does that a red hearing? It looks like it's bad to me, but does it matter? Is there any evidence that it even matters? I'm not sure that it does. But certainly in terms of whether you're attributing validity to the prior certified determination on appeal of which Mr. Bass was on notice, the agency was I would submit completely unaware of. What he did is what he did. Is that a request for a review of the prior certification? Number one, number two, did you treat it that way? No, it was treated I would submit as a request for a new review. And the reason being that the paper work is actually initially filed with farm services agency. And they are kind of the record keepers and the central repository. The FSA would have been the one. You say a new review. It was a request for a new review of what? I'm sorry, a new wetland determination. As if there was nothing in the past on which to... Did you say the record didn't indicate that prior certification matter? What should you say? Oh, I'm sorry. Maybe I'm just saying that prior certification mattered because it triggered that the preclusion rule, which the ALJ used to essentially preclude Mr. Bass from reopening the question of whether wetlands ever existed. But the ALJ said I'm asking what's the evidence that it affected your agency? Do you understand that question? What about that fault statement mattered in the agency's handling of the request? Well, I think that the fact that it says I'm requesting a new determination, there was obviously not an awareness on whoever processed the form that there was a prior certification done, the agency probably took some steps that it might not have otherwise taken when it went out and redid a whole new inspection of the field

. There's no finding in the record. I'm not going to get an answer. There's no finding in the record as to whether the agency knew about it or relied upon it when they made it. Is there any evidence that it made a difference to you? I'm not trying to trick you. I'm just trying to figure this out. I mean, does that a red hearing? It looks like it's bad to me, but does it matter? Is there any evidence that it even matters? I'm not sure that it does. But certainly in terms of whether you're attributing validity to the prior certified determination on appeal of which Mr. Bass was on notice, the agency was I would submit completely unaware of. What he did is what he did. Is that a request for a review of the prior certification? Number one, number two, did you treat it that way? No, it was treated I would submit as a request for a new review. And the reason being that the paper work is actually initially filed with farm services agency. And they are kind of the record keepers and the central repository. The FSA would have been the one. You say a new review. It was a request for a new review of what? I'm sorry, a new wetland determination. As if there was nothing in the past on which to... Did you say the record didn't indicate that prior certification matter? What should you say? Oh, I'm sorry. Maybe I'm just saying that prior certification mattered because it triggered that the preclusion rule, which the ALJ used to essentially preclude Mr. Bass from reopening the question of whether wetlands ever existed. But the ALJ said I'm asking what's the evidence that it affected your agency? Do you understand that question? What about that fault statement mattered in the agency's handling of the request? Well, I think that the fact that it says I'm requesting a new determination, there was obviously not an awareness on whoever processed the form that there was a prior certification done, the agency probably took some steps that it might not have otherwise taken when it went out and redid a whole new inspection of the field. But beyond that, I simply submit to the court that both the 1994 determination and the 2005 determination both found wetlands present on field UN2. And therefore, if you look at the second element of that test, the concurrence that an error exists, even if there was a request for review or even if the agency treated it as a request for review, there's no concurrence of an error in the prior determination because what the agency's looking for when it does these determinations are the three statutory criteria of wetlands, hydric soils, wetland hydrology, and hydrophytic vegetation. Those were found in the initial 1994 determination, there was again found in the 2005 determination. So there's essentially a concurrence between the two that wetlands do exist, so there's no concurrence of an error. Tell me directly in a couple sentences if you can so I can understand it. What did the former do, did the bastards do anything wrong that mattered? Or is it just that as it works out you didn't have to change your certification under the your process in fact, so they don't win whether or not they made a falsehood? Which is it? I think what the what the bastards did wrong is they went ahead and cut down a forested wetland and turned it into a process. No, no, I'm talking about as far as the review process. What did they do wrong as far as the review process? Well other than the certification review that whole thing, classification process, what did they do wrong that mattered in your opinion? Other than checking the box note like I can't point the quirk to any. But you don't think does that matter or doesn't matter? It just matters in how the agency sees it. The question is does it matter or doesn't it matter? It I don't know that matters. I know I do have I don't want to speculate. You don't need land speculation. I understand. You know, in terms of the posture of this case, the only reason it matters is because what the term doesn't determine the stance of the review that the landowner would see. Correct. And that's where I was just getting to is it determines whether or not he can relegate the question of whether wetland criteria, the three that I mentioned were present. The 2005 action, whatever it is, is an effect and an addition in termination, they give one scope of review. It's not an addition to termination, but carry forward for 1994, they get a much more limited scope of review. It's true. Under the regulation, they get a more limited scope of review. I would not characterize it respectfully as a much more limited scope of review because in fact the ALJ spent four days on this hearing and Mr. Lawler can correct me if I'm wrong, but I'm not sure even though the ALJ applied this preclusion rule, I'm not sure that the ALJ actually excluded any evidence that Mr

. But beyond that, I simply submit to the court that both the 1994 determination and the 2005 determination both found wetlands present on field UN2. And therefore, if you look at the second element of that test, the concurrence that an error exists, even if there was a request for review or even if the agency treated it as a request for review, there's no concurrence of an error in the prior determination because what the agency's looking for when it does these determinations are the three statutory criteria of wetlands, hydric soils, wetland hydrology, and hydrophytic vegetation. Those were found in the initial 1994 determination, there was again found in the 2005 determination. So there's essentially a concurrence between the two that wetlands do exist, so there's no concurrence of an error. Tell me directly in a couple sentences if you can so I can understand it. What did the former do, did the bastards do anything wrong that mattered? Or is it just that as it works out you didn't have to change your certification under the your process in fact, so they don't win whether or not they made a falsehood? Which is it? I think what the what the bastards did wrong is they went ahead and cut down a forested wetland and turned it into a process. No, no, I'm talking about as far as the review process. What did they do wrong as far as the review process? Well other than the certification review that whole thing, classification process, what did they do wrong that mattered in your opinion? Other than checking the box note like I can't point the quirk to any. But you don't think does that matter or doesn't matter? It just matters in how the agency sees it. The question is does it matter or doesn't it matter? It I don't know that matters. I know I do have I don't want to speculate. You don't need land speculation. I understand. You know, in terms of the posture of this case, the only reason it matters is because what the term doesn't determine the stance of the review that the landowner would see. Correct. And that's where I was just getting to is it determines whether or not he can relegate the question of whether wetland criteria, the three that I mentioned were present. The 2005 action, whatever it is, is an effect and an addition in termination, they give one scope of review. It's not an addition to termination, but carry forward for 1994, they get a much more limited scope of review. It's true. Under the regulation, they get a more limited scope of review. I would not characterize it respectfully as a much more limited scope of review because in fact the ALJ spent four days on this hearing and Mr. Lawler can correct me if I'm wrong, but I'm not sure even though the ALJ applied this preclusion rule, I'm not sure that the ALJ actually excluded any evidence that Mr. Bass wanted to submit. The ALJ made findings with respect to credibility of those witnesses and the different expert models that were used and the ALJ actually went and made alternative factual findings. I do put this in my brief, but I probably should have elaborated some more. Made alternative factual findings that the evidence showed all three wetland criteria were met on the phone. I want you to do this for me. Sure. At some point, I want you to tell me the single strongest point or argument that means you win. And then when you sit down, I'm going to ask Mr. Lawler to respond to that. So what's the single strongest point that you win? On me, I'd like to say two things, but I'll answer your first one and I'll follow up. Okay, okay, I'll give you two. Thank you Judge. With respect to affirming exactly what the ALJ did, the strongest point is that there was never a concurrence in an error between 2005 and 1994. Both determinations found wetland criteria having been met on the farm prior to their conversion activities. Therefore, 94 was still valid and it triggers this issue-proclusion rule. The second point and the second strongest argument that I'd like to make is that ultimately it doesn't matter because even if the court were to agree that the ALJ misapplied the law, the ALJ made those alternative factual findings based on a very large record after Mr. Bass was able to present all his evidence that found as a matter of fact, whereas the findings affect 23, 24 and 25, hydric soils, wetland hydrology, and hydrophytic vegetation were in existence, were present on the field prior to the conversion. So, assuming he wins, he convinces you of his argument that there was an error of law that the ALJ shouldn't have ruled as a matter of law that he was precluded. So you think the argument is the bottom line no matter what else happened, this was a wetlands and he couldn't do what he wanted to do. And what he did. And that fact was found in the administrative hearing, Judge Howard in the district court opinion found that that fact was supported by substantial evidence and the basses do not carry forward that substantial evidence argument to this appeal. So now it's waved and the district court opinion and the ALJ

. Bass wanted to submit. The ALJ made findings with respect to credibility of those witnesses and the different expert models that were used and the ALJ actually went and made alternative factual findings. I do put this in my brief, but I probably should have elaborated some more. Made alternative factual findings that the evidence showed all three wetland criteria were met on the phone. I want you to do this for me. Sure. At some point, I want you to tell me the single strongest point or argument that means you win. And then when you sit down, I'm going to ask Mr. Lawler to respond to that. So what's the single strongest point that you win? On me, I'd like to say two things, but I'll answer your first one and I'll follow up. Okay, okay, I'll give you two. Thank you Judge. With respect to affirming exactly what the ALJ did, the strongest point is that there was never a concurrence in an error between 2005 and 1994. Both determinations found wetland criteria having been met on the farm prior to their conversion activities. Therefore, 94 was still valid and it triggers this issue-proclusion rule. The second point and the second strongest argument that I'd like to make is that ultimately it doesn't matter because even if the court were to agree that the ALJ misapplied the law, the ALJ made those alternative factual findings based on a very large record after Mr. Bass was able to present all his evidence that found as a matter of fact, whereas the findings affect 23, 24 and 25, hydric soils, wetland hydrology, and hydrophytic vegetation were in existence, were present on the field prior to the conversion. So, assuming he wins, he convinces you of his argument that there was an error of law that the ALJ shouldn't have ruled as a matter of law that he was precluded. So you think the argument is the bottom line no matter what else happened, this was a wetlands and he couldn't do what he wanted to do. And what he did. And that fact was found in the administrative hearing, Judge Howard in the district court opinion found that that fact was supported by substantial evidence and the basses do not carry forward that substantial evidence argument to this appeal. So now it's waved and the district court opinion and the ALJ. So you're arguing me that I think I think I understand it. That's nice to talk about falsehoods and certifications and all that, but in reality it doesn't matter because the ALJ made findings that say you win and they haven't challenged that. Yes. Any further questions? The bottom line you're seeing is that even though the ALJ did not have to make a determination as to wetlands and facts. In fact, the finding was made. Yes, Your Honor. Thank you very much. Mr. Lawler? To answer your question, Judge, our best argument is that the finding the judgment of the USDA which is contained in the written decision in 2011 was that NRCS did a wetland review. They, you know, NRCS has no authority to do a wetland review unless there is a request by the producer for a review. So that finding supports that they requested a review. I will tell you that there is no such form that USDA has this entire request for review. And you can look in the National Food Security Act 3rd edition, which applies here. It's a little difficult. It is available online, but we're now on the 5th edition. So it's, but it is for that again, watch that home. That's the National Food Security Act manual and it's referred to as NAFSAAM NFSAM. I don't think I'll be reading it, but thank you very much. You won't. Thank you. Thank you. Mine's pretty right

. So you're arguing me that I think I think I understand it. That's nice to talk about falsehoods and certifications and all that, but in reality it doesn't matter because the ALJ made findings that say you win and they haven't challenged that. Yes. Any further questions? The bottom line you're seeing is that even though the ALJ did not have to make a determination as to wetlands and facts. In fact, the finding was made. Yes, Your Honor. Thank you very much. Mr. Lawler? To answer your question, Judge, our best argument is that the finding the judgment of the USDA which is contained in the written decision in 2011 was that NRCS did a wetland review. They, you know, NRCS has no authority to do a wetland review unless there is a request by the producer for a review. So that finding supports that they requested a review. I will tell you that there is no such form that USDA has this entire request for review. And you can look in the National Food Security Act 3rd edition, which applies here. It's a little difficult. It is available online, but we're now on the 5th edition. So it's, but it is for that again, watch that home. That's the National Food Security Act manual and it's referred to as NAFSAAM NFSAM. I don't think I'll be reading it, but thank you very much. You won't. Thank you. Thank you. Mine's pretty right. I'll give you a hand, but that's the way. But it was in the 3rd edition that applies. So that's our best argument is that's the decision of the agency. This, a court might think that something else. About that final, what the other side said is this strong, this argument that you lose on the wetlands issue anyway. And all this stuff is just sort of red-haired, doesn't matter. That's because that's not what the agency decided. The agency's final decision was that the 2008 and 2010 data gathering and decision did not decide if it was a wetland priority conversion. The agency reached back to 1994 and said, we don't have to decide this. But your assertion then is what the ALJ did doesn't matter as far as finding wetlands. That you will, you could operate under the findings of the agency and your requests. Is that correct? I'm not saying that. What I'm saying is if the USDA had made its final decision that... But you have to put this in context for me so I can't say anything. Okay. You heard the government say, basically, their strongest argument is, all this stuff is nice to talk about, but it doesn't matter. Because the ALJ has made a finding that your client did interfere with wetlands. And so you lose. You didn't feel that. Your response to that is

. I'll give you a hand, but that's the way. But it was in the 3rd edition that applies. So that's our best argument is that's the decision of the agency. This, a court might think that something else. About that final, what the other side said is this strong, this argument that you lose on the wetlands issue anyway. And all this stuff is just sort of red-haired, doesn't matter. That's because that's not what the agency decided. The agency's final decision was that the 2008 and 2010 data gathering and decision did not decide if it was a wetland priority conversion. The agency reached back to 1994 and said, we don't have to decide this. But your assertion then is what the ALJ did doesn't matter as far as finding wetlands. That you will, you could operate under the findings of the agency and your requests. Is that correct? I'm not saying that. What I'm saying is if the USDA had made its final decision that... But you have to put this in context for me so I can't say anything. Okay. You heard the government say, basically, their strongest argument is, all this stuff is nice to talk about, but it doesn't matter. Because the ALJ has made a finding that your client did interfere with wetlands. And so you lose. You didn't feel that. Your response to that is... My response is that the agency determined that based on this 1994 determination that was no longer valid in every case. But he said the ALJ made that determination. That is the final decision of USDA. The National Appeals Division hearing is the final decision of the agency. So that is their final determination. So what the ALJ found doesn't matter? What the ALJ found was that there was wetlands because of the 1994 determination, which is our error. That was no longer valid in an effect. I'll give you 15 seconds. Okay. If I may, and I apologize to the US Attorney didn't bring this up in their presentation, but if I may address the minimal effect or just a minute... 15 seconds. We do encourage... You use your time. Okay. Thank you. No, no, no, no

... My response is that the agency determined that based on this 1994 determination that was no longer valid in every case. But he said the ALJ made that determination. That is the final decision of USDA. The National Appeals Division hearing is the final decision of the agency. So that is their final determination. So what the ALJ found doesn't matter? What the ALJ found was that there was wetlands because of the 1994 determination, which is our error. That was no longer valid in an effect. I'll give you 15 seconds. Okay. If I may, and I apologize to the US Attorney didn't bring this up in their presentation, but if I may address the minimal effect or just a minute... 15 seconds. We do encourage... You use your time. Okay. Thank you. No, no, no, no. I mean, I'm going to give you 15 seconds. No more than that, but I want you to make it. Okay. The USDA in this case did a minimal effects determination, and in doing that they looked at the 13.5 acres. The statute says they're to look in the area. They did not do that. The district court said that they did not exhaust their administrative remedies, and our position is there's an exception to that because it was in the record. There was no additional fact finding necessary. Thank you very much. We won't. We'll step down. Green Council, and then we'll take a very short break. The Senate will take a brief break.

case make the way forward. You may sit down, other if you're not leaving you certainly may sit down. Good morning and may it please the court. I'm Tom Lawler. I'm here representing a balanced D bass. He brings to this court an action to review a final decision made by USDA. Subject to review under the Administrator Procedure Act. The case is before the court on a motion for some judgment made by USDA. Mr. Bass brings to the court two errors that USDA made in making its final decision. One is that when the USDA or when I'm sorry when Mr. Bass appealed the USDA 2010 determination he held that a 1984 determination was still valid in effect and therefore Mr. Bass could not question whether the 13.5 acres converted was a wetland prior to the conversion. The other error that he brings is that when USDA considered whether Mr. Bass entitled to a minimal effect exception it did have minimal effect exemption and only looked at the effect of the conversion on the 13.5 acres rather than on the area. On the first issue the statute says that a certified wetland determination remains valid and in effect until the person affected by the agents or by the decision requests a review. Joe Bass and Steve Bass went to the local USDA office in December of 2004. They told the agency that they wanted to clear approximately 40 acres of land and turn it into farmland. Did they ever anywhere use the word the word request review? Did they ever use those words anywhere? No. What is your strongest evidence then and what they did made it clear they were requesting a review? My strongest evidence is that the agency did a review and under the agency's regulations did they do a review or did they just do an examination? You'll find that the language that they used in their testimony before an ad was that they did a field review. Did they do a review of the certification by the secretary? Not that they review the land, did they review? Did they request a review and you said they didn't use those words but you think they did somehow implicitly? Where does the request review of the certification by the secretary? Yes it does. Same with what it does. And it does that because the agency has not established any other procedure. You will find there's nowhere on the form to say this is a request for review. There's no boxes to check. It says I'm requesting a review. The property that was involved, the track 80. There was a box on the 2000 or five application. It says something about it. You ever had a prior certification or something without a fact that you said check. That is correct. There is a box on that. That's not saying I'm requesting a review that is saying that wouldn't that suggest there's nothing to be reviewed? What that suggests is that when Mr. Bass said that there was nothing to be reviewed when you say there's been no prior certification or whatever that box is. Does that almost unquestionably say this is we're doing it for the first time. In fact, is it not what that says? No that's not what it says. What does it mean? What it means? It doesn't mean that. What it says and means is that when the bass is filled out the form, the very recollection at that time there were no wetland germinations in it. So was the application truthful? I can't answer that. I mean obviously there was a prior determination. So there wasn't truthful then. That's correct. I'm not saying they lied about it. Would you just give an explanation for why that was truthful? That representation was not accurate. That's correct. But you think although there was a prior certification, you suggested that there wasn't any, I think it's a clear emphasis for your clients filling that out. Is your argument that the agency should have known from its own files? Yes, it is your honor. Additional evidence that it was considered a review by the agency. That was the agency's judgment. It was that it did in fact do a review. The agency has no statutory authority to review a prior determination unless a review is requested. So the agency could not have done a review. That changed on the fact that again that the agency should have known from their own records. There was a prior certification. The statute that I refer to says that USDA may not, but I'm asking your argument. Is your argument that it had to be something independent because they did want and to do otherwise they should have known from their own records that they couldn't do one. Isn't that your argument? My argument is that they were not fooled by the fact that the box was checked. They were not fooled. They were not confident. I don't know about their competency. What I'm saying is they realized that it was their certification. How would they miss it? I don't think they did miss it. Oh, you think they knew about it? I think they knew about it. Yes. And they reviewed it and that's why the words that they use is a field review. They use the term review and the statute does not allow them to issue a new decision unless there is a request for review. Is that the way it works? That you would come up and see a view. You don't tell an agency that there's been a prior determined. And then you just say, well, they knew the way it works. It's worked that way and court. We're not in court. I've been understandably, but I mean, we're dealing with an agency in which I'm not sure. I don't know these things, but do specifically check a box to say no. There's been no prior determination here. And then say, well, they're reviewing that determination because they knew that I was not telling the truth against the censored. Is that the posh that you put in this thing? What you're proposing, Judge, is I don't want to propose it. I want to give it just like it is. Your question, here it is. There was a box check said no. There's no prior determination to put in 1994. And now your position is the agency was reviewing 1994 because it has to be because they knew that that was not a true statement or we would call a false statement and part of your client or they knew it was a false statement. And therefore they were reviewing. Is that your position? It's my argument that they did know there was a 1994 determination. And I can tell you this is not in the record, but if you go to the USDA office, they have a file for every producer and every piece of paper is in that file. So anybody that seeks to review these things, the easy way to do it is to go up to the agency and just check that box because I never had one of these before and let the agency tell them do you all to know and just go forward with it and then you can bring a whole bunch of arguments up then. And is that the practice if we write a opinion to that of me? Is that what we're going to say? It sounds like to me a counsel who advises client if a case comes from this pool on that basis with then for then on said check that box and says no it didn't happen before. Now let's file an action. I don't think that needs to be a basis for the court's decision. Not a basis, but it has to be a fact that's included in the record and I don't think you can ignore it. You got to figure out a way to get a round having said that in the record. And the way that I argue with that issue is that wasn't the judgment of USDA. When it's did it's determination and its final determination, USDA did not say you check the box wrong and because you checked the box wrong that threw us off. What USDA said is and you're looking the findings of fact in their final decision. But if you checked the box right they would have taken a double up so that I think that me judgment has a very good point and if we're not careful the instruction from this court would be it's malpractice to tell your client just tell the truth because if you don't you tell the truth that you had a prior review they're going to check it and you're going to have to overcome that. But if you checked that you didn't have one maybe they'll catch it in the files but maybe they won't but either way your chances are enhanced if you don't tell the truth. There's no way in the record that we know what the agency does based on how that box is checked. Can we take that it's not there for no purpose? Can we take it's there for a purpose? We cannot say why it's there. I said it's there for a purpose. We don't know why it's there. We don't know what the purpose was. I'm asking you do you think it's a reasonable inference that if the form asks the question it's just not a random question. What should Zodiac sign? You know how tall are you? I mean can't we take it a reasonable inference that if some of that form that is therefore a purpose? Apparently USDA thinks there is a purpose they've never put in. You don't think there is. You don't think there's a purpose. You're trying to answer it all. Why did you try to answer it then? Why did you try to answer it because it was on the form? And I thought it it was just it didn't mean anything to him. It didn't mean anything at all to him. I kind of think you argue an upstream for you to or if you argue me this based on a question on an application about a government program is it's just not relevant. I mean it seems to be the emphasis in Israel. And my answer to that is that was not the judgment of the agency. And this court may come to a different conclusion and it may be a very reasonable conclusion. But under administrative procedure act review you cannot substitute. I'm sorry the court may not substitute its judgment for the judgment of the agency. I don't know how to know it wasn't relevant because of the certs. I mean the re-certification process they went through. If that's true how would we know a situation where it was relevant but they decided to do a review and where they just acted is that there'd been no earlier certification. How do we know that from the facts of this case since those facts weren't squarely put to them? How we know from the facts of the case is nowhere did the agency USDA ever say we were deceived we were tricked by that question. It was only brought up by the U.S. Attorney in the brief of the U.S. Attorney's office. And that is after the fact justification and it may be again as I say a reasonable decision it was not the decision of the agency. So under the administrative procedure act you cannot pursue that. I'm going to feel from your argument. I'm glad to answer your questions for you. I think the other issue the other part of that error on limiting Mr. Bass's appeal to the only question whether there was a conversion is the statute that the agency uses or I'm sorry the regulation that the agency uses starts out with the words before any benefits are withheld in our CSU do an onsite inspection the producer can appeal that onsite inspection but in appealing it they're limited to the only question of whether a conversion appeal or applied there were no benefits being withheld in 2010. This issue was before in our CS it was a wetland determination so there was it's not in our CS that decides who gets benefits it's not in our CS that withholds benefits it's the farm service agency that does that another agency of USDA. So what was before the agency when the basses appeal this was not whether they were the benefits were being withheld it was whether the wetland determination was accurate. So that in my opinion is another reason why there was error in that decision. Well it creates a sort of a conundrum of trying to figure this out because if you say that in 2005 that it was a review of the 1994 wetland determination then the issues are pretty limited at least initially because you can only see a review it it was a natural situation that causes a change in the topography and you don't I don't think you maintain that it seems that you've maintained that it was a concurrence that allowed you to do this. I would agree and when did that occur from current occur? The current occurred but in fact they did do a field review and all of the four you filed this in 2005 or was it after they did that? It was the field review was done after the farm was turned in in December of 2004. So the current occurred after you turned in the form? That is correct. The wet gave you the basis for the review before 2004. Before what gave you the basis for the review? It wasn't a change, it did the geography had a change and you tell me the concurrence only came after so what gave the basis for the review? The statute says that that's a simple question I'm not trying to give you an answer. Well I'm more humble than you do it if you think. That sounds very simple to me. It sounds very simple. You say that the basis for the review was that there was a concurrence here but that the current did not occur until after you had filed for the review. That is correct and so I take it your position is you can get the concurrence after you file and it all comes based upon the evidence you present. That's correct. That's implied concurrence. I take it because they never actually said we concur. That is correct. That's correct. Much like court operates you will not give a person a decision before they file something with the court. So the evidence that showed the implied concurrence. The evidence that there was an implied concurrence is that the agency said that they did a field review and they did in fact go to the field they did their data collection they went back to the office. I would need to on field review because Mr. Bass had filed a request for a review. Did you tell me or did you not say that a field review occurs once they make a determination that the benefits are not going to be comfortable and there is no benefits? No. Is that the type of review you are talking about? I am talking about in the statute it says that it is invalid and in effect until there is a request for review. That is the only place in the statute where the term review occurs. The agency's regulations repeat that same language. They do add the conditions you refer to. You can only ask for a review if there has been a topographical or hydrological change. I roll it up here. Or if the agency can curse that there may be something wrong with the original one. In this case if they did not concur they would. Which we must intuit from the final standard answers to Judge Williams question. We have to intuit that they concur. There was some error by the fact they went through this process if they actually did a review. Yes, I think you can intuit that because it means they concur. If they did not occur they would not have done the review. Thank you very much. You reserved some time. Thank you very much. Mr. Bassick. Mr. Bassick when you are ready. I am pleased to court. Good morning. My name is Matthew Fisek. I represent the United States in this appeal. I am going to jump straight to the issue that seem to interest the court the most. The thought is always a good idea. Yes. The governing regulation I think is before the court defines the circumstances in which review may be requested of a prior wetland determination. As Judge Williams pointed out there are only two circumstances allowed. One of which is if there is a natural event which alters the topography or hydrology of the land. He does say that. He is basically in our CS concur. Correct. The first is not an issue. The second is whether the agency concur with an affected person that an error exists in the wetland determination. The prior wetland determination. If you dissect that provision I would submit you have two elements. One of which is going to be a meeting of the minds between the agency and the producer. How do you do that before review? How do you do that before you undertake a review? What if you think there might be a mistake you just not positive? I think it can come that you can't request a review until you absolutely concur that there is a mistake. No, you are. I think it's a process. And I think certainly so. In that process may in your opinion if a person may not request a review until you concur that there is an error do you just go out independently and check behind your cell to see if there is an error? No, you are. I think if you think the concurrence in an error that there was an error in the prior certification is that a condition preceded to a person being able to ask for a review? No, you are. I think that would be the wrong interpretation of the regular. Well, there was a word say a person may request a review if in our CS concurrence with the affected person that an error exists. I think we are mistaken going out and what Mr. Lawler called a field review or field inspection. I mean certainly when they fill out the form it permits NCRS to go out. How do you request a review? By filling out the form. And you can't do that, you can't fill out that form to request a review until NCRS says there is an error. I do not believe that it's true. Also, how does the land owner know if he wishes to pursue this requestification? How does it know that and it's not using the meteorological change? How do they know they've fulfilled this other, this is just a question. How does the land owner know that the agency converse that there's some error in the prior determination? Because you're on it, there's a certification a determination form highly erudable land and wet land. You probably have to use the microphone. I'm sorry. Let me just bring this up in front of me. There's a form. It's the USDA form 26e and CRS that's filed in every case. And that's again the culmination of the problem. I can't ask you this. Is there a form that your agency files saying we think there is an error in our prior certification of land parcel one? Yes, your honor. They do? Well, I mean, not explicitly to the extent that you presented it. Listen. If you could answer my question, it's the same question Judge AGS. How is it that anybody knows that your agency has concurred with the land owner that there is an error in the prior certification which has to happen that concurrence in the error has to happen before the land owner may file a request for you to review the whole classification again. How do you convey that concurrence? Your honor, respectfully. I don't believe that's how the process has to happen. Well, what does that have to do with it? I read it to you. It says a person may request review if your agency concurred with an infected person, a faked person that an error exists in the current determination. What do you think that means? But I'm submitting your honor that the initial paperwork that his client filed is not the request for review as contemplated by that regular. I know that you know what I've understood that answer. So my question is when can he file the review that you think is a review that you won't that you need? When can he file that? I don't know if it's really something that's filed your honor. It's a process where there's an inspection. A full-on letter? Wait, wait, wait, wait. So there are a number of ways a person can request a review other than actually saying I hear by request review of my prior certification. You can do it a lot of different ways. No, you're right. It's a sequential process. It begins with the filing of a form. Okay, stop. Now let me ask you where in that sequential process is the land owner informed that your agency can curse that there is an error which will then allow him to request a review. Not until the conclusion of the process. And therefore, but he can't. In other words, he can't. How does that you just start that of your own desire? How does the land owner get that process started? You're right. The process, I don't know how to, I don't think I have a... Is it by request? It is by requesting a review a new determination from... It is requesting a new determination in your mind. Is that requesting a review? Certainly not in the facts of this case. And I said this case, I'm asking about the agency view. What the heck is a form of supposed to do? The ultimately USDA... And I say this, you seem not to know and you have a law degree. It has a form of supposed to know that. What's a form of supposed to do? I think your honor. I mean, it really is not as complex of a form of... It's a good way to do that. Because I'm going to need it out to be. So I apologize. But it'll tell me again that the form of things, there's a mistake. And he won't shoot a reconsider. Correct. What's he do? He goes to his form services agency. He files the form that the client filed in this case. But that's not, that doesn't request a review. Okay, that form you go. I think he can, your honor. There may be, there might be a different form. If there is, I'm not unaware of it. But I think that can start the process. That process, the form service agency then refers it to NCRS. NCRS sends someone out to the property. The landowner is there. Can express his opinions. What evidence is in the record that the agency in any way relied on or was affected by the falsehood in that form? You know, when he said there was no prior certification or determination, is there any evidence that the agency cared about that? Well, you're right. I will say this. And just as a kind of larger matter. How about answers specifically to this case? I would submit your honor and submit it based on the facts in this case. All of this is outside the record. There's no finding. There's no finding one where another. Hello or any of you. So that you're telling us there's no information in the record that suggests that the agency cared about that. Falsehood. I would say there's no. There's no finding in the record. I'm not going to get an answer. There's no finding in the record as to whether the agency knew about it or relied upon it when they made it. Is there any evidence that it made a difference to you? I'm not trying to trick you. I'm just trying to figure this out. I mean, does that a red hearing? It looks like it's bad to me, but does it matter? Is there any evidence that it even matters? I'm not sure that it does. But certainly in terms of whether you're attributing validity to the prior certified determination on appeal of which Mr. Bass was on notice, the agency was I would submit completely unaware of. What he did is what he did. Is that a request for a review of the prior certification? Number one, number two, did you treat it that way? No, it was treated I would submit as a request for a new review. And the reason being that the paper work is actually initially filed with farm services agency. And they are kind of the record keepers and the central repository. The FSA would have been the one. You say a new review. It was a request for a new review of what? I'm sorry, a new wetland determination. As if there was nothing in the past on which to... Did you say the record didn't indicate that prior certification matter? What should you say? Oh, I'm sorry. Maybe I'm just saying that prior certification mattered because it triggered that the preclusion rule, which the ALJ used to essentially preclude Mr. Bass from reopening the question of whether wetlands ever existed. But the ALJ said I'm asking what's the evidence that it affected your agency? Do you understand that question? What about that fault statement mattered in the agency's handling of the request? Well, I think that the fact that it says I'm requesting a new determination, there was obviously not an awareness on whoever processed the form that there was a prior certification done, the agency probably took some steps that it might not have otherwise taken when it went out and redid a whole new inspection of the field. But beyond that, I simply submit to the court that both the 1994 determination and the 2005 determination both found wetlands present on field UN2. And therefore, if you look at the second element of that test, the concurrence that an error exists, even if there was a request for review or even if the agency treated it as a request for review, there's no concurrence of an error in the prior determination because what the agency's looking for when it does these determinations are the three statutory criteria of wetlands, hydric soils, wetland hydrology, and hydrophytic vegetation. Those were found in the initial 1994 determination, there was again found in the 2005 determination. So there's essentially a concurrence between the two that wetlands do exist, so there's no concurrence of an error. Tell me directly in a couple sentences if you can so I can understand it. What did the former do, did the bastards do anything wrong that mattered? Or is it just that as it works out you didn't have to change your certification under the your process in fact, so they don't win whether or not they made a falsehood? Which is it? I think what the what the bastards did wrong is they went ahead and cut down a forested wetland and turned it into a process. No, no, I'm talking about as far as the review process. What did they do wrong as far as the review process? Well other than the certification review that whole thing, classification process, what did they do wrong that mattered in your opinion? Other than checking the box note like I can't point the quirk to any. But you don't think does that matter or doesn't matter? It just matters in how the agency sees it. The question is does it matter or doesn't it matter? It I don't know that matters. I know I do have I don't want to speculate. You don't need land speculation. I understand. You know, in terms of the posture of this case, the only reason it matters is because what the term doesn't determine the stance of the review that the landowner would see. Correct. And that's where I was just getting to is it determines whether or not he can relegate the question of whether wetland criteria, the three that I mentioned were present. The 2005 action, whatever it is, is an effect and an addition in termination, they give one scope of review. It's not an addition to termination, but carry forward for 1994, they get a much more limited scope of review. It's true. Under the regulation, they get a more limited scope of review. I would not characterize it respectfully as a much more limited scope of review because in fact the ALJ spent four days on this hearing and Mr. Lawler can correct me if I'm wrong, but I'm not sure even though the ALJ applied this preclusion rule, I'm not sure that the ALJ actually excluded any evidence that Mr. Bass wanted to submit. The ALJ made findings with respect to credibility of those witnesses and the different expert models that were used and the ALJ actually went and made alternative factual findings. I do put this in my brief, but I probably should have elaborated some more. Made alternative factual findings that the evidence showed all three wetland criteria were met on the phone. I want you to do this for me. Sure. At some point, I want you to tell me the single strongest point or argument that means you win. And then when you sit down, I'm going to ask Mr. Lawler to respond to that. So what's the single strongest point that you win? On me, I'd like to say two things, but I'll answer your first one and I'll follow up. Okay, okay, I'll give you two. Thank you Judge. With respect to affirming exactly what the ALJ did, the strongest point is that there was never a concurrence in an error between 2005 and 1994. Both determinations found wetland criteria having been met on the farm prior to their conversion activities. Therefore, 94 was still valid and it triggers this issue-proclusion rule. The second point and the second strongest argument that I'd like to make is that ultimately it doesn't matter because even if the court were to agree that the ALJ misapplied the law, the ALJ made those alternative factual findings based on a very large record after Mr. Bass was able to present all his evidence that found as a matter of fact, whereas the findings affect 23, 24 and 25, hydric soils, wetland hydrology, and hydrophytic vegetation were in existence, were present on the field prior to the conversion. So, assuming he wins, he convinces you of his argument that there was an error of law that the ALJ shouldn't have ruled as a matter of law that he was precluded. So you think the argument is the bottom line no matter what else happened, this was a wetlands and he couldn't do what he wanted to do. And what he did. And that fact was found in the administrative hearing, Judge Howard in the district court opinion found that that fact was supported by substantial evidence and the basses do not carry forward that substantial evidence argument to this appeal. So now it's waved and the district court opinion and the ALJ. So you're arguing me that I think I think I understand it. That's nice to talk about falsehoods and certifications and all that, but in reality it doesn't matter because the ALJ made findings that say you win and they haven't challenged that. Yes. Any further questions? The bottom line you're seeing is that even though the ALJ did not have to make a determination as to wetlands and facts. In fact, the finding was made. Yes, Your Honor. Thank you very much. Mr. Lawler? To answer your question, Judge, our best argument is that the finding the judgment of the USDA which is contained in the written decision in 2011 was that NRCS did a wetland review. They, you know, NRCS has no authority to do a wetland review unless there is a request by the producer for a review. So that finding supports that they requested a review. I will tell you that there is no such form that USDA has this entire request for review. And you can look in the National Food Security Act 3rd edition, which applies here. It's a little difficult. It is available online, but we're now on the 5th edition. So it's, but it is for that again, watch that home. That's the National Food Security Act manual and it's referred to as NAFSAAM NFSAM. I don't think I'll be reading it, but thank you very much. You won't. Thank you. Thank you. Mine's pretty right. I'll give you a hand, but that's the way. But it was in the 3rd edition that applies. So that's our best argument is that's the decision of the agency. This, a court might think that something else. About that final, what the other side said is this strong, this argument that you lose on the wetlands issue anyway. And all this stuff is just sort of red-haired, doesn't matter. That's because that's not what the agency decided. The agency's final decision was that the 2008 and 2010 data gathering and decision did not decide if it was a wetland priority conversion. The agency reached back to 1994 and said, we don't have to decide this. But your assertion then is what the ALJ did doesn't matter as far as finding wetlands. That you will, you could operate under the findings of the agency and your requests. Is that correct? I'm not saying that. What I'm saying is if the USDA had made its final decision that... But you have to put this in context for me so I can't say anything. Okay. You heard the government say, basically, their strongest argument is, all this stuff is nice to talk about, but it doesn't matter. Because the ALJ has made a finding that your client did interfere with wetlands. And so you lose. You didn't feel that. Your response to that is... My response is that the agency determined that based on this 1994 determination that was no longer valid in every case. But he said the ALJ made that determination. That is the final decision of USDA. The National Appeals Division hearing is the final decision of the agency. So that is their final determination. So what the ALJ found doesn't matter? What the ALJ found was that there was wetlands because of the 1994 determination, which is our error. That was no longer valid in an effect. I'll give you 15 seconds. Okay. If I may, and I apologize to the US Attorney didn't bring this up in their presentation, but if I may address the minimal effect or just a minute... 15 seconds. We do encourage... You use your time. Okay. Thank you. No, no, no, no. I mean, I'm going to give you 15 seconds. No more than that, but I want you to make it. Okay. The USDA in this case did a minimal effects determination, and in doing that they looked at the 13.5 acres. The statute says they're to look in the area. They did not do that. The district court said that they did not exhaust their administrative remedies, and our position is there's an exception to that because it was in the record. There was no additional fact finding necessary. Thank you very much. We won't. We'll step down. Green Council, and then we'll take a very short break. The Senate will take a brief break