222729P.pdf   05/12/2023  Arlen Foster  v.  U.S. Dept. of Agriculture
   U.S. Court of Appeals Case No:  22-2729
   U.S. District Court for the District of South Dakota - Southern   
   [PUBLISHED] [Erickson, Author, with Benton and Kobes, Circuit Judges] 
   Civil case - Wetlands regulation. For the court's prior opinion affirming 
   the agency's determination that a portion of defendant's farmland was a 
   covered wetland, see Foster v. Vilsack, 820 F.3d 330 (8th Cir. 2016); 
   plaintiff brought this action challenging the agency's Review Regulation 
   after the agency rejected his requests for reclassification of the 
   property. Held: The Review Regulation does not unlawfully conflict with 
   the Swampbuster Review Provision - see 16 U.S.C. Sec. 3822(a)(4); the 
   district court did not err in concluding the Congressional Review Act's 
   judicial review provision precluded review of plaintiff's claim under the 
   Act because the Act forbids judicial review of all omissions under the 
   Act, and here plaintiff's claim is based on the USDA's alleged omission in 
   failing to submit the Review Regulation to Congress and the Comptroller 
   General; assuming plaintiff's APA claims are not barred for failure to 
   exhaust, they fail on the merits because the agency's decisions to refuse 
   to consider plaintiff's 2017 and 2020 review requests were neither 
   arbitrary nor capricious.