concurring and dissenting in part.
I agree with the majority that the Secretary may properly decide to implement section 3835(a) of the Conservation Reserve Program (CRP) through adjudication on a case by case basis, and I join in the court’s opinion insofar as it reverses the district court’s order requiring the Secretary to promulgate rules to implement this section. I respectfully dissent, however, from the majority’s holding that the court lacks jurisdiction to review the agency’s adjudicatory action. In my view, the court can and should rule on whether the Secretary acted arbitrarily and capriciously in refusing to allow North Dakota to participate in CRP based upon an internal agency presumption or “bright line test” that land acquired after October 1, 1985, was acquired for the purpose of placing it in the CRP.
The majority reaches its conclusion that the court lacks jurisdiction based upon a narrow reading of the statutory language contained in section 3835(a), which, according to the majority, provides the court with “no law to apply.” I am not as convinced as the majority that the Supreme Court’s decision in Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), restricts our inquiry concerning the review-ability of agency action to statutory language alone. Both Webster and its predecessor, Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1983), involved areas where courts traditionally have been reluctant to intervene: national security in Webster and traditional prosecu-torial discretion in Chaney. See 486 U.S. at 600-01, 108 S.Ct. at 2052-53; 470 U.S. at 831-32, 105 S.Ct. at 1655-56.
While I agree that the starting point for determining the application of section 702(a)(2) should be the specific language and overall structure of the legislation, I am hesitant to exclude consideration of other factors which may well assist the court in determining whether the question presented by the plaintiff is one which “is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). As Justice O’Connor noted in her concurring opinion in Webster, “1 do not understand the Court to say that the exception in § 702(a)(2) is necessarily or fully defined by reference to statutes ‘drawn in such broad terms that in a given case there is no law to apply.’ ” Webster, 486 U.S. at 605, 108 S.Ct. at 2055 (O’Con-nor, J. concurring in part and dissenting in part) (emphasis supplied).
Moreover, even assuming the test of re-viewability is confined to the specific statutory language, I believe section 3835(a) provides a sufficient standard under which to review agency action in this case. The requirement that individuals own land for at least three years was designed to “prevent the type of speculator/investor abuse which has occasionally cropped up under previous programs.” H.R.Rep. No. 99-271, Part 1, 99th Cong. 1st Sess. 82 (1985), reprinted in 1985 U.S.Code Cong. & Admin.News 1103, 1186.
Section 3835(a)(1) sets out the rule that “[n]o contract shall be entered into” with landowners who have held their land less than three years, unless (A) the ownership was acquired by will or succession as a result of the death of the previous owner; (B) the ownership was acquired prior to the effective date of the CRP program; (C) the Secretary “determines that the land was acquired under circumstances that give adequate assurance that such land was not acquired for the purpose of placing it in the program;” or (D) there was a foreclosure and the prior owner exercised his or her right of redemption under state law. Section 3835(a)(2) further provides that (A) a new owner is entitled to continue an agreement already in force (the contract runs *1039with the land), and (B) a farmer who rents land may participate so long as the farmer has control over the land for the contract period and has farmed it for at least three years or prior to the effective date of the CRP. See 16 U.S.C. § 3835(a).
The majority concludes that the term “adequate assurance” in this context provides no law to apply. I disagree. Courts have not hesitated to hold, under other statutory schemes, that an agency’s determination of “satisfactory assurances” is subject to judicial review. See, e.g., Johnston v. Davis, 698 F.2d 1088, 1093 (10th Cir.1983) (and cases cited therein). That the statutory scheme vests the Secretary with broad discretion in determining eligibility for the CRP program, and that courts should defer to that discretion, does not render the Secretary’s administration of the program unreviewable. See generally Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670-71, 106 S.Ct. 2133, 2135-36, 90 L.Ed.2d 623 (1986) (noting strong presumption that Congress intends judicial review of administrative action).
In this case, the State of North Dakota contends the Secretary has abdicated his statutory responsibility under section 3835(a)(1)(C) by adopting a “bright line test” that land purchased after October 1, 1985, must be held for three years in order to participate in the program. The district court agreed that the Secretary had adopted such a test, and had uniformly applied it to find “adequate assurances” lacking except in two very narrow circumstances: when the land did not fit the definition of “erodible” at the time of acquisition or where the transfer was one of form rather than substance.
The state argues the Secretary’s position is arbitrary because, rather than examine the specific facts regarding its acquisition of the lands in question, the Secretary mechanically applied the “bright line test.” The record lends some support to this contention. It is undisputed that the state initially became involved with the land through the Bank of North Dakota, which lent money to two farm families in connection with a state/Farmers Home Administration loan program. The loans were made in 1978, seven years prior to the establishment of the CRP, and were secured in part by a mortgage on the families’ farm property.
The farmers were four and five years delinquent on their payments when the state determined that all other options had failed and foreclosure was required. Foreclosure went forward, the farmers failed to redeem their property during the one year redemption period allowed by state law, and the state received title to the lands in November, 1987. In 1988, the state applied for participation in the CRP. One of the farmers had participated in CRP prior to the foreclosure, but the contract was can-celled during the redemption period, so the state could not continue the contract as a successor in interest.
In the statement of undisputed material facts filed by the Secretary in connection with the Secretary’s motion for summary judgment,1 the Secretary conceded that the state’s land qualifies for inclusion in the CRP and that the state’s applications were denied “because the State had owned the property it sought to enroll for less than three years.” The Secretary’s notice of disapproval offered the following rationale:
It has been determined that after October 1, 1985, there was sufficient information available about the Food Security Act of 1985 for the public to be aware of CRP; therefore, we have established that any land purchased after October 1, 1985, may have been acquired under circumstances that cannot give adequate assurance that the land was not acquired for the purpose of placing it in CRP (emphasis supplied).
Because the district court held it lacked jurisdiction, it did not reach the question of whether the agency acted arbitrarily in failing to consider the specific facts before it *1040or in failing to explain why “adequate assurances” were nonetheless lacking. I would reverse and remand to give the district court the opportunity to address this question.
. North Dakota Local Rule 5 requires parties to submit, in addition to brief in support of a motion for summary judgment, a short and concise statement of the material facts as to which there is no genuine issue to be tried.