Foster v. Vilsack

Issue: (1) Whether federal courts should defer, under Auer v. Robbins, to an agency construction of an interpretive field manual (“second level Auer deference”), as have the Sixth Circuit and the Eighth Circuit decision below, or not, as the Fifth Circuit has held; and (2) whether the use of a remote comparison site, preselected ten years prior and without notice to the petitioners or an opportunity to be heard, as the sole means of determining that their land supports wetland plants, violates their rights to due process of law under the Fifth Amendment.