Federal Overreach: The Nation’s Most Expensive Mud Puddle

Just thought you might like to know what the federal government is doing on your behalf, how the feds are spending your tax dollars on a crazy-sounding lawsuit.

The dispute pits a South Dakota farm family, the Fosters, against the U.S. Department of Agriculture. The fight is over a mud puddle. Yep, you read that right. Said mud puddle is located smack in the middle of prime farmland.

The USDA has decreed that the family may not fill in the muddy patch to plant more crops because it considers the 0.08 acre of land to be federally protected under the 1985 Swampbuster Act, which protects wetlands. No matter that the Foster’s puddle is not connected to any waterway and is not near any other officially designated wetlands property. According to their lawyer, if the family dares to tamper with the puddle, they will lose access to crop insurance and other federal programs designed to help American farmers survive.

Photo credit: Flickr free photos
Farming is Hard Enough Without Having to Battle the Feds Too

Amazing, right? Now, consider that this dispute has been going on since 2004! Imagine how many of your tax dollars the USDA has spent over the years arguing about mud. Imagine how much the family has had to spend commissioning surveys and filing appeals.

The Fosters, obviously from hearty stock, have refused to give in to the absurdity of it all. The family’s requests for reconsideration have been rejected by the USDA, as was their appeal in 2016 to the U.S. Supreme Court. But the Fosters continue to believe the federal government should not dictate how a landowner uses their land. And they certainly ought not to be punished with the threat of withholding federal programs other farmers get.

At a time when family farms are being gobbled up by Big Agriculture, you’d think Uncle Sam would see the value that the Foster’s land (a total of some 1,300 acres) brings to both them and the surrounding community.

Photo credit: SnappyGoat free photos
The Fosters Grow Cattle, Corn, Soybeans and Hay

By any measure, Arlen and Cindy Foster have been good stewards to the property, working it with their daughter, son-in-law and six grandchildren. They are third-generation farmers who raise cattle, corn, soybeans and hay. They practice no-till farming and have a long history of conservation efforts dating back to 1900, when Arlen’s grandfather, Francis Foster, bought the land with a loan of $1,000.

In 1938, as the Dust Bowl era saw farms across the country decimated, Grandpa Francis planted stands of trees to prevent erosion. Today, the Foster’s groves of trees are large and trap snow during the severe South Dakota winters. The spring melt creates a stream of water that seeps the lowland, thus creating the controversial mud puddle.

But darn it, it’s their mud puddle to do with as they please, they believe. And that includes filling it in and planting more corn if they so choose. But they can’t.

Undaunted, the Fosters recently filed a new federal lawsuit with the U.S. District Court in Sioux Falls, South Dakota. In a nutshell, it declares that the government has overstepped its commerce powers and violated the Foster’s constitutional rights. The suit was filed with assistance from the Pacific Legal Foundation, a nonprofit, pro-bono group that fights against government overreach and abuse.

Photo from Pacific Legal Foundation website
Tony Francois, Senior Attorney, Pacific Legal Foundation

I spoke with the foundation’s lead attorney, Tony Francois. “Even if you’re an ardent environmentalist, I defy you to look at this puddle and say it’s worth the money the feds have and will spend,” he told me.

Francois said it’s clear that the USDA made a bad decision way back when and simply can’t admit it. “This case really is about whether Congress has the power to regulate that mud puddle. If they do, there is no constitutional limit on what they can do,” he said. “The fact that dirt gets wet, so therefore they can ignore the U.S. Constitution? Absurd!”

The USDA says it does not comment on pending litigation, so I cannot report to you that side of the story.

These days, many Americans seem to embrace the idea of more government. The idea that dear old Uncle Sam will take care of us with trillions in spending seems attractive. But remember what the Fosters have been dealing with at the hands of unchecked feds. Realize that more federal money means more control over your everyday lives.



  1. Diane Dimond on May 24, 2021 at 11:17 am

    Guyholcomb writes:

    This is about government controlling people, not about protected wet land!

  2. Diane Dimond on May 24, 2021 at 11:19 am

    Shoshi B writes:

    Good for them!
    The Fosters are truly salt of the earth.
    Never give up, never surrender!

  3. Diane Dimond on May 24, 2021 at 11:20 am

    Raoul Bilbao writes:

    Like everything the federal government seems to do these days, this has nothing to do with protecting Americans or even the environment. It has everything to do with asserting control and making citizens bend to their will. This is abhorrent.
    The government no longer serves at the will of the people.

  4. Diane Dimond on May 24, 2021 at 11:20 am

    Larry Smolka writes:


    Call it mud puddle, Playa, Prairie pothole, swamp or wetland. You are not a biologist, ecologist or hydrologist. These “mud puddles” serve many.
    a biological purpose—ask any waterfowl! I guess burning the Amazon rain forest is okay also. Do your research. Just as many acres of rain forest are destroyed each year so are these wetlands. It all adds up..loss of habitat and biological diversity. Think long term.

    Thank you

    Larry Smolka
    Retired aquatic biologist/hydrologist

    • Diane Dimond on May 24, 2021 at 11:21 am

      Diane replies to Larry:

      What a monumental leap you’ve made from a South Dakota mudpuddle (which, btw, isn’t near any source of water fowl) and burning the Amazon rainforest. To deflect: a typical amateur’s debate ploy.
      No, I don’t think burning the rainforest is okay. I think Federal Government overreach, putting the needs of citizens at the bottom of the priority list, is also not okay.

  5. Diane Dimond on May 24, 2021 at 11:21 am

    JSP Wagner writes:

    How did the USDA find out about the mud puddle in the first place?
    Invasion of privacy much?

  6. Diane Dimond on May 24, 2021 at 11:22 am

    John Vettel writes:

    Do we really need a Department of Agriculture?
    My feeling is that we need to eliminate about 80% of the federal government and dump the income tax in favor of a national sales tax like “ The Fair Tax!”

  7. Diane Dimond on May 24, 2021 at 11:23 am

    Tom Davidsonwrites:

    Their Governor and State Legislators should be all over this. I’d fill it in and be arrested about 6 months before election time up there.

    This sounds like an ego fueled overreach. Trump would step in and end this.

    If the threat of crop insurance is held over the State citizenry, then the State should void all business licenses from out of state insurance accompanies. Heat the entire thing up. Get neighboring States to do the same.

    Name the insurance companies.

  8. Diane Dimond on May 24, 2021 at 11:23 am

    Sally Evans writes:

    There was a recent study that found 55% of Americans actually want less government.
    Biden is doing God’s work in opening the eyes of many democrats who were blind before. I have gay friends, black friends, Hispanic friends, liberal small business owner friends who are no longer supporting Democrats because of all the destruction they are causing. And I never thought they could change course. Even children who have been home from school or muzzled in masks are outraged.
    Democrats are feeding a libertarian movement. Make no mistake, there is a huge backlash on the horizon. Just wait until people realize they want to take away our rights to eat meat. Shit is gonna hit the fan.

    • Diane Dimond on May 24, 2021 at 11:24 am

      Carl Dorman replies to Sally:

      That’s exactly how it works, you accept anything from the government and they’re like a mafia loan shark.
      Once you’ve lost some right or position on ownership, it will continue until you are stripped of everything.

    • Diane Dimond on May 24, 2021 at 11:24 am

      Diane Dimond replies to Sally:

      Just a note here:

      The Fosters have been fighting this since 2004 when Republican GW Bush was president.

  9. Diane Dimond on May 24, 2021 at 11:25 am

    I see everything from above writes:

    Stop accepting government money and do whatever you want with the mud puddle.
    If you can’t survive without a government handout, you’re in the wrong business.

    • Diane Dimond on May 24, 2021 at 11:25 am

      Dan McIlroy replies to I see:

      Did you read they can’t buy crop insurance? Would you want to 1⁄2 a million in a house and not have opportunity to buy insurance? Didn’t sound like they wanted a handout.

  10. Diane Dimond on May 24, 2021 at 11:26 am

    Old Boy Scout writes:

    A murky subject, Ms. Dimond. You do good work.

  11. Diane Dimond on May 24, 2021 at 11:26 am

    stan603 writes:

    The continuing stupidity of big government…

  12. Diane Dimond on May 24, 2021 at 11:26 am

    Anne M Erskine writes:

    Sounds like AMERICANS have to act on OUR RIGHTS and fill in the mud puddle in D.C. – you know the one surrounded by barbed wire – FILL IT IN WITH TRUE PATRIOTS – The government is our enemy.

  13. Diane Dimond on May 24, 2021 at 11:27 am

    timsmith7343 writes:

    The federal government has specific areas which should concern it. The growing overreach of the feds should be concerning to everyone. The idea that bigger and more government is better stems from a left leaning, Marxist indoctrination of our adult population when in school. It will be difficult to have them unlearn such an ideology.

  14. Diane Dimond on May 24, 2021 at 11:30 am

    gdns.lewen writes:

    I have one if these in my back yard.
    About the same size too.
    Notice to USDA and EPA:
    I’m about to fill it in to smooth out the uneven terrain.

  15. Diane Dimond on May 24, 2021 at 11:30 am

    mmheid writes:

    The scariest words ever spoken “ We are from the Government and we are here to help “

  16. MIKE HUGHES on May 24, 2021 at 4:01 pm


  17. Diane Dimond on May 25, 2021 at 3:40 pm

    Paul Bates writes:

    This is government bureaucracy at its worst. Someone is drunk with power and has lost reason. This is a farm family that made an improvement to the land by adding trees and then gets a mud puddle as a by-product. Where is the wildlife that should be associated with this so-called wetland?

  18. Diane Dimond on May 25, 2021 at 3:51 pm

    Stephanie Kovac writes:

    OMG, this is asinine! Really, no words. I can’t imagine how much the farmer has spent fighting this absurdity but I would too — on principle alone.

  19. Diane Dimond on May 27, 2021 at 4:48 pm


    I read your article on the farmer in South Dakota with the “mud puddle”. I’m from South Dakota. I grew up here in farm country. I have been a wildlife biologist for over 30 years. I’m from a farm family. To put it bluntly: you have no idea what you are talking about. That “mud puddle” is a prairie pothole wetland, part of the most important wetland complex in North America and breeding habitat for hundreds of species of migratory birds and other wildlife species. The size of that particular wetland, which you believe to be insignificant, is actually important because of the territorial nature of so many bird species during breeding periods. But, alas, I’m sure you don’t understand that – or even care.

    This fight over protection of prairie pothole wetlands has been going on for generations. The question is this: Should taxpayer money be used to subsidize the loss of important wildlife habitat? The taxpayers said “no” through their elected officials in the 1985 Farm Bill, which has protected these prairie pothole wetlands ever since. If you have a problem with the voters of this country, then I guess you should convince them that destruction of wildlife habitat is an important use for their tax dollars.

    And I haven’t even touched on increased downstream flooding, water quality degradation, and other environmental impacts resulting from the loss of millions of acres of prairie pothole wetlands that has occurred over the last 150 years, all due to the acts of farm families, like the Fosters, when they choose to drain wetlands.

    Steve Donovan
    Wildlife Biologist

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