                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 15 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DAVID WAYNE LANDRY,

                Plaintiff-Appellant,

    v.                                                    No. 98-7077
                                                    (D.C. No. CV-97-596-S)
    NORMAN G. COOPER, Director,                           (E.D. Okla.)
    USDA - National Appeals Division;
    USDA - NATIONAL APPEALS
    DIVISION,

                Defendants-Appellees.




                            ORDER AND JUDGMENT            *




Before TACHA , BARRETT , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       This appeal arises from Appellant David Landry’s request for review under

the Administrative Procedures Act (APA) of the final decision of the National

Appeals Division of the United States Department of Agriculture (USDA). The

National Appeals Division upheld the hearing officer’s determination that the

Natural Resources Conservation Service (NRCS) properly designated certain

property as wetland and that the wetland was not an artificial wetland. The

NRCS’s wetland designation prevented appellant from obtaining a loan from the

Farm Service Agency of the USDA for the purchase and development of the

property as an aquaculture farm.

       Appellant requested review of the agency’s final decision,       see 7 U.S.C.

§ 6999, and the district court affirmed the USDA’s decision. On appeal, we apply

the same standards as the district court.    See Santa Fe Energy Prods. Co. v.

McCutcheon , 90 F.3d 409, 413 (10th Cir. 1996). The controlling standards are set

forth in the APA.    See 7 U.S.C. § 6999. Pursuant to 5 U.S.C. § 706, we must set

aside the agency decision if it is arbitrary, capricious, an abuse of discretion,

otherwise not in accordance with law, or if the record does not contain substantial

evidence to support the decision.     See Hoyl v. Babbitt , 129 F.3d 1377, 1382 (10th

Cir. 1997). We will uphold the agency decision if it has a rational basis.      See


                                            -2-
Northwest Pipeline Corp. v. Federal Energy Regulatory Comm’n           , 61 F.3d 1479,

1486 (10th Cir. 1995). “[O]ur review is ultimately a narrow one,”          see Maier v.

United States EPA , 114 F.3d 1032, 1039 (10th Cir.),     cert. denied , 118 S. Ct. 599

(1997), and we are not free to substitute our judgment for the agency’s,          see

Northwest Pipeline , 61 F.3d at 1486.

       Having reviewed the administrative record, we cannot say that the agency’s

decision was arbitrary, capricious, or an abuse of discretion. Further, there is

substantial evidence to support the agency decision upholding the wetland

designation. In fact, appellant does not dispute that the property is wetland.

Instead, he argues that it is an artificial wetland, a former nonwetland that now

meets wetland criteria due to the action of man,    see 7 C.F.R. § 12.2(a).   1



       The hearing officer considered appellant’s contention that the wetland was

caused by a sewage pond that drained into the property by a man-made ditch. He

specifically found that “Appellant submitted no evidence or documentation which

would show that this ‘action of man’ contributed to the 143.3 acres of wetland.”          2




1
       If an area is an artificial wetland, it is exempted from ineligibility for the
type of loan appellant sought.    See 7 C.F.R. § 12.5(b)(1)(vii)(A).
2
        Appellee submits that the wetland determination is the only agency finding
relevant to this appeal. Appellee’s Br. at 14. We disagree. It is clear that the
hearing officer specifically found not only that the property was a wetland, but
that it was not an artificial wetland. Appellant has argued this point consistently
throughout both the administrative process and the judicial review. Indeed, had
the hearing officer found that the property was an artificial wetland, there would
                                                                       (continued...)

                                            -3-
Admin. Rec. at 000017. Appellant points to no specific evidence in either the

written or recorded administrative record of how the existence of the sewage pond

and ditch caused the wetland. Appellant’s general reference to the hearing tapes

in support of his conclusory argument is insufficient.     See SEC v. Thomas , 965

F.2d 825, 827 (10th Cir. 1992). Appellant also cites to the portion of the record

containing photographs of the ditch in support of his argument, but we fail to see

how the photographs, by themselves, provide evidence that the ditch contributed

to the wetland.

       The judgment of the United States District Court for the Eastern District

of Oklahoma is AFFIRMED.



                                                         Entered for the Court



                                                         Michael R. Murphy
                                                         Circuit Judge




2
 (...continued)
probably be no appeal for us to consider. We fail to see how the agency’s finding
on this question is irrelevant, and appellee does not suggest that the finding was
beyond the hearing officer’s authority.

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