                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 05-2566
                                 ___________

Alex Falk; Annie Falk;                  *
Big Bend Ranch Hunting, Inc.;           *
Mohammed Hattum; Bob Nystrom,           *
                                        *
             Appellants,                *
                                        * Appeal from the United States
       v.                               * District Court for the
                                        * District of South Dakota.
United States, by and through The       *
Department of the Interior, United      *
States Fish and Wildlife Service,       *
                                        *
             Appellee.                  *
                                   ___________

                           Submitted: February 17, 2006
                              Filed: July 5, 2006
                               ___________

Before LOKEN, Chief Judge, LAY, and SMITH, Circuit Judges.
                              ___________

SMITH, Circuit Judge.

      Appellants, South Dakota landowners, commenced a declaratory judgment
action challenging decisions made by the United States Fish and Wildlife Service
("FWS") affecting the use of their land for goose hunting. After considering the
stipulated facts, the district court1 entered judgment in favor of FWS, finding that its
decisions were reasonable and not arbitrary or capricious. We affirm.

                                    I. Background
       Appellants Alex Falk, Annie Falk, Mohammed Hattum, and Bob Nystrom all
own land in South Dakota. They all use their land for both the planting of crops and
hunting of migratory fowl. Appellant Big Bend Ranch Hunting, Inc., leases the right
to hunt the Falks' land. Appellants receive significant income from both farming and
commercial hunting operations. For example, Big Bend Hunting Ranch normally
receives an average of $284,250 in annual gross revenue for a season of hunting, in
addition to approximately $9,000 gross revenue derived from membership charges for
its waterfowl hunting club.

       To attract the maximum number of geese, the Falks and Hattum leave corn
standing in their fields, harvesting only a few rows at a time. By harvesting a few rows
of corn at a time, the appellants essentially ration the supply of corn available for the
geese to eat because the geese will not venture into the standing corn. Because
appellants' corn crop residue provides a known food source, the geese return annually
as they migrate.

       Planting and harvesting methods are permissible under FSW regulations as long
as they are considered "normal." Appellants' incremental harvesting technique often
delays their harvest beyond December 1 of any given year. In 1999, Officer Bob
Prieksat, the federal warden, informed the Falks that hunting in fields harvested after
December 1 would be illegal. Since that time, the Falks have complied with Officer
Prieksat's conclusion. Dr. Robert Hall, an agronomist for the United States
Department of Agriculture Cooperative Extension Service ("CES") and a professor


      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.

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of plant sciences at South Dakota State University, opined that a normal harvest would
take place before December 1. Dr. Hall estimated that 95 to 100 percent of the corn
in South Dakota is harvested by December 1. In reaching this conclusion, Dr. Hall
relied on a South Dakota Agricultural Statistics Service publication entitled "Seeding
to Harvest" that covered years 1970–1994. Dr. Hall also estimated that nearly 90
percent of the corn harvest in South Dakota is completed by November 14 in any
given year. The earliest harvest considered in the published survey was October 29,
1991, in which roughly 100 percent of the planted corn was harvested. By contrast,
the latest harvest contained in the published survey was November 24, 1992, which
resulted in a harvest of only 50 percent of the crop planted that year. Thus, the longer
corn remains in the field, the potential for loss increases due to excessive drying,
excessive moisture, wind loss, and stalk breakage.

      In recent years, the entire goose hunting season has tended to start and end later
each year. For example, a recent goose season opened on October 24, 2004, and
closed on January 28, 2005. The appellants wish to "tailor their [corn] harvesting to
the goose hunting season in order to maximize the number of geese attracted" to their
property during the hunting season by harvesting their crop a few rows at a time and
completing their harvest after December 1.

        Although geese will not venture into standing corn, geese will feed on green
wheat growing in fields. With that goose trait in mind, the appellants wish to aerially
seed winter wheat in their standing corn crop to attract geese in addition to continuing
post-December 1 corn harvesting. Officer Prieksat informed the plaintiffs that hunting
in a field seeded in this manner would be illegal. Dr. Hall opined that aerial seeding
was not a recommended method for planting wheat in South Dakota. Aerial seeding
permits the wheat to be infected by bacteria harbored in the corn residue, resulting in
a loss of 10 to 100 percent of the wheat harvest. In addition, Dr. Hall noted that
although aerial seeding is sometimes used in emergencies, such as years in which the



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fields are too wet to support ground-driven equipment, growers are generally
disappointed with the results.

       In 2001, a neighbor to the Falks' land harvested a cornfield adjacent to the
Falks' property after December 1. This neighbor, who competes with the Falks
through his own commercial waterfowl hunting operation, contacted Alex Falk and
told him that his field probably would be considered baited. If considered baited,
Falk's pits adjacent to the neighbor's baited field could not be legally hunted. Falk
contacted Officer Prieksat, who confirmed that it would be illegal to hunt waterfowl
in the Falks' fields that were influenced by the neighbor's baited area.

                                    II. Discussion
      On appeal, the appellants challenge determinations of the FSW that: (1)
harvesting after December 1 does not constitute "normal harvesting"; (2) aerial
seeding does not constitute "normal planting"; and (3) hunting is prohibited within the
zone of influence of a baited area regardless of who baited the area.

       We review the agency decisions for an abuse of discretion. The Administrative
Procedure Act provides that "[t]he reviewing court shall . . . hold unlawful and set
aside agency action, findings, and conclusions found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law . . . ." 5 U.S.C. §
706(2)(A); see also Bradley v. Bureau of Alcohol, Tobacco, & Firearms, 736 F.2d
1238, 1240 (8th Cir. 1984). In Bradley, we explained that:

      The "arbitrary and capricious" standard of review is a narrow one. Its
      scope is more restrictive than the "substantial evidence" test which is
      applied when reviewing formal findings made on a hearing record.
      "Administrative action may be regarded as arbitrary and capricious only
      where it is not supportable on any rational basis." Something more than
      mere error is necessary to meet the test. To have administrative action set
      aside as arbitrary and capricious, the party challenging the action must


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      prove that it was "willful and unreasoning action, without consideration
      and in disregard of the facts or circumstances of the case[.]"

736 F.2d at 1240 (citations omitted). "Similarly, we accord substantial deference to
an agency's interpretation of its own regulation, which we are bound to uphold unless
it violates the Constitution or a federal statute, or unless the interpretation is plainly
erroneous or inconsistent with the regulation." Coalition For Fair & Equitable
Regulation of Docks on Lake of the Ozarks v. F.E.R.C., 297 F.3d 771, 778 (8th Cir.
2002) (citation and internal quotations omitted).

       FSW regulations prohibit the taking of migratory birds "[b]y the aid of baiting,
or on or over any baited area." 50 C.F.R. § 20.21(i). Generally, one may permissibly
hunt "where seeds or grains have been scattered solely as the result of a normal
agricultural planting, harvesting, post-harvest manipulation or normal soil stabilization
practice," provided that the area is not otherwise considered baited. § 20.21(i)(1)(i).
The regulations define "baiting" as "the direct or indirect placing, exposing,
depositing, distributing, or scattering of salt, grain, or other feed that could serve as
a lure or attraction for migratory game birds to, on, or over any areas where hunters
are attempting to take them." 50 C.F.R. § 20.11(k). "Normal agricultural planting,
harvesting, or post-harvest manipulation means a planting or harvesting undertaken
for the purpose of producing and gathering a crop, or manipulation after such harvest
and removal of grain, that is conducted in accordance with official recommendations
of State Extension Specialists of the Cooperative Extension Service of the U.S.
Department of Agriculture." § 20.11(g) (emphasis added).

                           A. Harvesting after December 1
      First, the appellants seek a declaratory judgment that their preferred harvesting
methods do not constitute baiting. Specifically, the appellants argue that they have
complied with the regulations because (1) they have planted their fields for the
purpose of producing and gathering crops; and (2) the regulations do not require that


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the purpose of planting the crop is to produce the maximum yield. Therefore,
according to the appellants, they should not be penalized for harvesting their crop after
December 1 in order to increase the number of geese attracted to their fields.

       However, while the regulations do not require that a crop be harvested to
produce the maximum yield, the regulations do require that landowners use "normal
harvesting." Section 20.11(g) defines "normal harvesting" as harvesting conducted in
accordance with the official recommendations of the CES. The recommendations of
Dr. Robert Hall, an agronomist for the CES, represent the official recommendations
of the CES. Dr. Hall estimated that between 95 to 100 percent of the corn in South
Dakota is harvested by December 1. In making his estimation, Dr. Hall relied on a
South Dakota Agricultural Statistics Service publication entitled "Seeding to Harvest"
that covered years 1970–1994. Dr. Hall also estimated that nearly 90 percent of the
corn harvest in South Dakota is completed by November 14 in any given year. The
CES's determination that a normal harvest is completed by December 1 was based on
substantial evidence. Accordingly, we hold that FSW's reliance upon the CES data
was consistent with the regulations and not arbitrary and capricious. As a result, we
affirm.

                                  B. Aerial Seeding
       The appellants also challenge the agency's determination that aerial seeding of
winter wheat is not "normal planting" and represents baiting. As with the date of
harvest above, § 20.11(g) defines "normal planting" as planting conducted in
accordance with the official recommendations of the CES. Dr. Hall stated that the
aerial seeding of winter wheat into standing corn was not a recommended wheat
planting method in South Dakota. Aerial seeding often causes the wheat to be infected
by bacteria found in the corn residue and results in substantial losses of 10 to 100
percent of the wheat harvest. Dr. Hall noted that aerial seeding is sometimes used in
emergencies but that it generally produces disappointing results.



                                          -6-
       The appellants also attempt to argue that aerial seeding should be permitted
because a FWS brochure allows for the planting of a "goose field," provided that the
seeds germinate at least ten days prior to hunting. However, in the paragraph
preceding the one highlighted by the appellants, the brochure states "Lands planted
by means of top sowing or aerial seeding can only be hunted if seeds are present
solely as the result of normal agricultural planting . . . ." (App. 82).

       Because aerial seeding of winter wheat into standing corn is not "normal
planting," the agency's prohibition of hunting pursuant to § 20.21(i)(1)(i) on land
seeded in that manner is not arbitrary and capricious.

                                  C. Zone of Influence
       Lastly, the appellants contend that the government could not lawfully close their
property to hunting because of a neighbor's baiting on adjoining land. Admittedly, the
regulations are not a model of clarity on this point; however, the agency's
interpretations of the regulations are reasonable when § 20.21(i) is considered in light
of § 20.11(j).

        Under § 20.21(i), a person is prohibited from taking migratory birds "[b]y the
aid of baiting, or on or over any baited area." A "baited area" is "any area on which
salt, grain, or other feed has been placed, exposed, deposited, distributed, or scattered,
if that salt, grain, or other feed could serve as a lure or attraction for migratory game
birds to, on, or over areas where hunters are attempting to take them." § 20.11(j)
(emphasis added). The italicized language describes the zone of influence of a baited
area. See United States v. Manning, 787 F.2d 431, 438 (8th Cir. 1986) ("[The FWS
Agent] determined that the geese were taken within the zone of influence of the bait
based on his firsthand observations and his eleven years of experience . . . .").
Considering § 20.21(i) and § 20.11(j) together, it is reasonable to interpret the
regulations prohibiting hunting within the zone of influence of a baited area. See
United States v. Chandler, 753 F.2d 360, 362 (4th Cir. 1985) ("The manifest intent of

                                           -7-
the regulation [§ 20.21(i)] is to prohibit the taking of waterfowl that are lured to an
area by bait."). Whether an area is a "baited area" is a factual determination. Manning,
787 F.2d at 437 ("Congress must have intended for the violation to turn on the factual
determination that birds are being lured to a hunter's shooting location, no matter how
far the bait is from that location." (quoting Chandler, 753 F.2d at 363)).

      In the instant case, the Falks' neighbor harvested his land after December 1,
2001. Because harvesting corn after December 1 is not "normal harvesting," the
neighbor's land was a "baited area" within the meaning of § 20.11(j). As a result, any
area within the zone of influence of the neighbor's late harvest would be precluded
from hunting. The agency's interpretation of the regulations is reasonable.

        Appellants do not dispute the agency's definition of zone of influence.
However, appellants contend that the acts of third parties on land not owned or
controlled by appellants should not diminish appellants use of their own land
particularly when such acts could be done maliciously by competitors. For reversal,
appellants rely on Allen v. Merovka, 382 F.2d 589 (10th Cir. 1967). However Allen
is distinguishable from the case at bar. The regulation at issue in Allen defined "baited
area" more narrowly than the regulation at issue here. Id. at 590. The regulation in
Allen did not include language that gives rise to the zone of influence notion discussed
above.2 Id. Thus, Allen did not discuss the zone of influence. The Allen court's holding
pertained to the "by aid of baiting" language. Id. Allen held that the prohibition on

      2
        The regulation at issue in Allen defined "baited area" as "any area where
shelled, shucked, or unshucked corn, wheat or other grain, salt or other feed
whatsoever capable of luring, attracting, or enticing such birds is directly or indirectly
placed, exposed, deposited, distributed or scattered." Id. at 590 (citing 50 C.F.R. §
10.3(b)(9)). By contrast, 50 C.F.R. § 20.11(j), which is the relevant regulation in the
case at bar, defines "baited area" as "any area on which salt, grain, or other feed has
been placed, exposed, deposited, distributed, or scattered, if that salt, grain, or other
feed could serve as a lure or attraction for migratory game birds to, on, or over areas
where hunters are attempting to take them." (emphasis added).

                                           -8-
hunting in a "baited area" required that the hunters have some part, directly or
indirectly, in the baiting or that the baiting is done for their benefit. Id. at 591.

       We hold that the FWS's interpretation of the regulations as prohibiting hunting
within the zone of influence of a baited area, regardless of who baited the area, is not
plainly erroneous.

                                    III. Conclusion
      The district court correctly entered judgment for the government. The agency's
determinations were not arbitrary and capricious, and the agency's interpretation of the
regulations is not plainly erroneous. Therefore, we affirm.
                        ______________________________




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