                                  ___________

                                  No. 95-3034
                                  ___________


Daniel Von Eye,                       *
                                      *
           Appellant,                 *
                                      *   Appeal from the United States
      v.                              *   District Court for the
                                      *   District of South Dakota.
United States of America;             *
United States Department of           *
Agriculture, Daniel R.                *
Glickman,* Secretary,                 *
                                      *
           Appellees.                 *

                                  ___________

                   Submitted:     May 15, 1996

                         Filed:   August 9, 1996
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN
     SICKLE,** District Judge.

                                  ___________
MAGILL, Circuit Judge.


      Daniel Von Eye wishes to continue his efforts to drain wetlands on
his   farm, but does not want to lose eligibility for United States
Department of Agriculture (USDA) benefits under the Swampbuster Act, 16
U.S.C. §§ 3821-3824, which conditions receipt




      *This action was originally brought against then
      Secretary Michael Espy in his official capacity. During
      the pendency of the proceedings in the district court,
      Daniel   R.   Glickman   was   appointed  Secretary  of
      Agriculture.

      *THE HONORABLE BRUCE M. VAN SICKLE, United States
      District Judge for the District of North Dakota, sitting
      by designation.
of USDA benefits on wetlands preservation.            The USDA's Agricultural
Stabilization and Conservation Service's (ASCS) National Appeals Division
(NDS) determined that, while Von Eye's previous drainage of wetlands fell
within an exception to the Swampbuster Act, any additional excavations to
drain the wetlands would render him ineligible for benefits.          Von Eye
                                           1
brought suit in the district court,            challenging this administrative
decision.    The district court dismissed Von Eye's complaint, upholding the
NDS decision.     Von Eye now appeals, arguing that the NDS's decision was
arbitrary and capricious.    We affirm.


                                      I.


        Von Eye farms land in Clare Township in Moody County, South Dakota.
He works fields containing three wetland areas.         In 1984, Von Eye began
constructing a series of four ditches to drain approximately twenty acres
of these wetlands.      The ditches fed water through two township-owned
culverts set underneath a public road, and eventually drained into a state-
owned slough.


        In 1988, Von Eye received notice that he may have violated the
Swampbuster Act, and Von Eye sought a commenced conversion exemption to the
Act.2   Von Eye described a plan in his application for the exemption that,
using a backhoe and a dirt scraper, four "channels were to be cut so all
the farm ground would be drained."   Von Eye v. United States, 887 F. Supp.
1287, 1289 (D.S.D. 1995).   Von Eye submitted documents which indicated that
the project was initiated in 1984 and completed in 1986, see J.A. at 137,
and in 1987, see id. at 138.    In June 1989, after several administrative




         1
       The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota.
         2
       16 U.S.C. § 3822(b)(1)(a) provides an exemption from the
Swampbuster Act for wetland conversion projects commenced prior to
December 23, 1985.

                                     -2-
proceedings, an ASCS committee determined that Von Eye was eligible for a
commenced conversion exemption, and no explicit limits were set on the
scope of conversion activities.


     In 1990, Von Eye reported problems with one of the township-owned
culverts to the local township board.          In November 1990, Von Eye had the
culvert replaced with a larger culvert, which was set six inches lower in
the ground.   Although the township board had not given prior approval to
the replacement of the culvert, it agreed to cover the cost of replacement.
Von Eye also had the second culvert lowered two feet, which the township
board did not pay for.      Lowering the culverts improved drainage of Von
Eye's fields, converting more wetland.


     On   November   14,   1991,   Von   Eye    received   notice   from   the   Soil
Conservation Service that any further wetland manipulation activities were
not authorized by the commenced conversion exemption, and that additional
manipulations would disqualify him for USDA benefits.           After a series of
administrative hearings, the NDS determined, on December 6, 1993, that
conversion actions completed by Von Eye prior to November 14, 1991,
including the lowering of the culverts, would be exempted from the
Swampbuster Act, because Von Eye had not been "notified of the scope and
effect of the activities authorized by the county committee's original
approval of the commenced conversion exemption."       NDS Decision, J.A. at 12.
In addition, Von Eye was allowed to maintain any conversion manipulations
completed before November 14, 1991.            However, the NDS concluded that
manipulation activities commenced by Von Eye after November 14, 1991, were
not included in Von Eye's commenced conversion exemption, and warned Von
Eye that "[f]urther manipulation of the areas in question or other areas
subject to the [Swampbuster Act] provisions may cause [Von Eye] to lose
eligibility for USDA program benefits."         Id.


     Von Eye brought suit in the district court challenging this




                                         -3-
administrative decision, seeking an affirmative order allowing him to
complete his conversion project while remaining eligible for USDA benefits.
The district court dismissed Von Eye's suit, concluding that "there is a
rational relationship between the evidence considered and the agency's
denial of a continuing commenced determination."            Von Eye, 887 F. Supp. at
1293.    Von Eye appeals the district court's ruling.


                                            II.


        As   an   initial   matter,   the    government   challenges   this   Court's
jurisdiction in this matter, arguing that the case is not ripe for
adjudication, and that it is moot.           We disagree.


        The government argues that this case is not ripe because Von Eye's
only proposed manipulation activities involve further lowering a culvert
owned by the township.         Because Von Eye does not have the township's
permission to lower the culvert, and because this Court has no authority
under the facts of this case to require the township to grant Von Eye such
permission, the government asserts that we should not reach the merits of
this case.


        The government is correct that we do not have jurisdiction to
consider a case which is not ripe.          Ripeness exists if two requirements are
met:


        First, [a plaintiff] must demonstrate a sufficiently concrete
        case or controversy within the meaning of Article III of the
        Constitution. Second, prudential considerations must justify
        the present exercise of judicial power.       The concept of
        ripeness is particularly important in cases challenging land
        use regulations and results in a fact-sensitive inquiry.


Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269, 1272-73 (8th
Cir. 1994) (citations omitted; note omitted).         These requirements have been
met in this case.      The controversy at hand




                                            -4-
is clear: Von Eye wishes to pursue a drainage project and still be eligible
for USDA benefits, which is not possible under the district court ruling.
Prudential considerations, including the length of time in which Von Eye's
complaint has been in administrative and judicial proceedings, support our
exercise of jurisdiction.    While it is true that we have no authority, nor
inclination, to require the township to allow Von Eye to lower its
culverts, whether the township were to give or withhold its approval for
the project would be irrelevant to Von Eye's continued eligibility for USDA
benefits.     Indeed, Von Eye has replaced and lowered township culverts in
the past without its approval, and we see no reason to suppose that he
would not do so again.


     The government's mootness argument has more strength.    Because "[t]he
existence of a live case or controversy is a constitutional prerequisite
to the jurisdiction of the federal courts," In re Grand Jury Subpoenas
Duces Tecum, 78 F.3d 1307, 1310 (8th Cir. 1996) (quotations and citations
omitted), "federal courts have no authority to render decisions upon moot
questions."    Id.   Where


     a party has a sufficient stake in the outcome so that the
     court's rendering of relief alleviates the harm complained of,
     the question presented is not moot. However, if during the
     pendency of an appeal, an event occurs which destroys the
     court's ability to render the prevailing party any effectual
     relief whatever, the appeal must be dismissed as moot.


Id. (quotations and citations omitted).    Under 7 C.F.R. § 12.5(b)(5)(iii),
conversion activities allowed under the commenced conversion exemption must
be completed on or before January 1, 1995.    As that date is well past, the
government argues that our decision could not affect Von Eye's rights in
this matter.


     The government accepts, however, that under certain circumstances the
time limitation in § 12.5(b)(5)(iii) could be equitably tolled.         See
Appellee's Br. at 23.    Although equitable




                                     -5-
tolling is appropriate only in rare cases, see Disabled Rights Union v.
Shalala, 40 F.3d 1018, 1021 (9th Cir. 1994), cert. denied, 116 S. Ct. 105
(1995), we agree that it could be available under the facts of this case.
See,   e.g.,   Bowen    v.    City    of   New    York,   476    U.S.   467,    480   (1986)
("traditional    equitable      tolling     principle"     applicable     to    period   for
appealing administrative decision (quotations omitted)); see also Lyng v.
Payne, 476 U.S. 926, 936 (1986) ("If, for example, a farmer had filed a
loan application prior to the expiration of the loan deadline and a court
determined     that   the    denial   of   the     application    after   the   deadline's
expiration was arbitrary, capricious and not in accordance with law, the
appropriate remedy under the APA would be to direct that the application
be granted or reconsidered." (quotations and citations omitted)).                      Since
1991, long before the 1995 deadline, Von Eye attempted to convince the
government to allow him to complete his drainage project.                 Contrary to the
government's assertion, therefore, Von Eye has not "slept on his rights,"
see Appellee's Br. at 23, but rather did all that he reasonably could to
prosecute his case.     We conclude that, if Von Eye succeeded in this appeal,
he would not be without relief, but rather would have the opportunity to
request that the district court, on remand, equitably toll the period in
which he could complete his drainage project.


                                            III.


       We review the district court's review of an administrative decision
de novo.     See Lockhart v. Kenops, 927 F.2d 1028, 1032 (8th Cir.), cert.
denied, 502 U.S. 863 (1991).          We must uphold the NDS's decision unless it
is "arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law."        5 U.S.C. § 706(2)(a).        An arbitrary and capricious
decision exists where an

       agency has relied on factors which Congress has not intended it
       to consider, entirely failed to consider an important aspect of
       the problem, offered an explanation




                                            -6-
        for its decision that runs counter to the evidence before the
        agency, or is so implausible that it could not be ascribed to
        a difference in view or the product of agency expertise.


Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29, 43 (1983).


        Under the Swampbuster Act, 16 U.S.C. §§ 3821-3824, anyone who
produces an agricultural commodity on a converted wetland, or converts
wetland by "draining, dredging, filling, leveling, or any other means," 16
U.S.C. § 3821(b), is ineligible for enumerated USDA benefits, including
price supports, loans, disaster payments, and crop insurance.                         See 16
U.S.C. § 3821(a).          The Act provides, however, that wetland conversion
commenced prior to December 23, 1985, does not render a person ineligible
for   benefits.         See   16   U.S.C.    §   3822(b)(1)(A).      Under     7    C.F.R.   §
12.5(b)(3)(i)-(ii), conversion has commenced if either there have been
physical efforts to convert the wetland, or if substantial funds have been
committed to the conversion.                "A person must show that the commenced
activity has been actively pursued or the conversion will not be exempt
under this section."          7 C.F.R. § 12.5(b)(5)(ii).           In addition, "[o]nly
those wetlands for which the construction has begun or to which the
[committed funds] relate may qualify for a determination of commencement."
7 C.F.R. § 12.5(b)(5)(iv).               A special determination of commencement of
conversion is allowed, however, "upon a showing that undue economic
hardship will result because of substantial financial obligations incurred
prior    to   December 23, 1985, for the primary and direct purpose of
converting the wetland."           Id.


        Von Eye asserts that he commenced draining the wetlands in his fields
in 1984, and that all of the actions he has taken, including lowering the
culverts, and all actions that he intends to take, including additional
lowering      of   a   culvert,    should    fall   within   the   commenced       conversion
exemption.         He argues, therefore, that the NDS acted arbitrarily and
capriciously in exempting part of his




                                              -7-
commenced conversion, but disallowing its ultimate completion.


      We disagree.       In describing his conversion plan to the ASCS, Von Eye
referred only to the construction of four channels dug with a backhoe and
a dirt scraper, and did not mention the lowering of culverts.              Von Eye did
not   project    a   completion   date   some   six   years    after   initiating    his
conversion activities, but rather stated that he had completed the project
in 1986 and 1987.       As noted by the NDS, there was no evidence that Von Eye
had committed substantial funds to the conversion activities he planned to
engage in, see NDS Decision, J.A. at 12, nor has Von Eye demonstrated undue
hardship.    See Von Eye, 887 F. Supp. at 1292.


      We conclude that the NDS considered relevant evidence and arrived at
a rational result.       Rather than arbitrarily denying Von Eye the exemption
provided    by   the    Swampbuster   Act,   the   NDS   was   extremely   liberal    in
interpreting the Act and regulations in Von Eye's favor, and in allowing
him the advantages of an exemption longer than strictly provided for by the
statute and regulations.       That Von Eye is dissatisfied with the results of
his conversion project does not entitle him, under the Swampbuster Act, to
engage in a new conversion project.


      Accordingly, we affirm the judgment of the district court.


      A true copy.


             Attest:


                       CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -8-
