999 F.3d 1107
8th Cir.2021Background
- In 1973 the Fish and Wildlife Service (FWS) acquired a permanent wetland easement on two tracts; the easement protected wetlands and required the owner not to drain surface water on the described tracts.
- Kevin Mast purchased the tracts in 1983 and in 2013 installed subsurface drain tile to increase farmable acreage after seeking NRCS approval to avoid USDA program ineligibility.
- FWS mapping in 2010 identified seven wetland areas on the tract; NRCS’s 2012 certified wetland determination identified only three and allowed tile at certain setbacks; Mast installed tile consistent with NRCS but inconsistent with FWS mapping.
- Mast was indicted (2017) for draining wetlands covered by the FWS easement; a 2018 jury conviction of the lesser offense was vacated on a jury-instruction error. The government refiled a superseding information and the district court (bench trial) convicted Mast based on the trial record.
- Mast appealed multiple rulings: admissibility of witness testimony (lay vs. expert), exclusion of certain evidence, proper measure of easement scope (USDA regs v. easement documents), sufficiency of evidence that wetlands existed/ were identifiable in 1973, and restitution requiring restoration of one wetland area Mast did not directly drain.
Issues
| Issue | Mast's Argument | Government's Argument | Held |
|---|---|---|---|
| Admissibility of FWS technician Emily Fischer’s testimony (lay vs. expert) | Fischer’s mapping testimony was expert in substance and should have required expert designation | Fischer’s testimony was limited to firsthand perception and mapping process and was admissible under Rule 701 | Admitted as lay testimony; court found testimony limited to personal, non‑specialized mapping methods and not expert opinion |
| Exclusion of FWS biologist Loesch’s testimony under Fed. R. Evid. 403 | Loesch’s testimony about wetlands’ importance to waterfowl was unduly prejudicial/emotional and should be excluded | Testimony was probative of whether tile installation impaired wetlands’ suitability for waterfowl production | Denied; court did not abuse discretion—testimony was relevant and not substantially outweighed by unfair prejudice |
| Proper metric for easement scope: apply USDA wetland definition (7 C.F.R. §12.2) or the easement documents | Court should apply USDA regulatory definition/delineation criteria to identify which areas were wetlands covered by the easement | Scope is determined from the easement text and the FWS Easement Summary, not USDA regs | Held: Use easement language and easement summary to define covered wetlands; district court properly excluded USDA regulatory definitions |
| Sufficiency of evidence that the wetlands existed and were identifiable at 1973 conveyance | Evidence insufficient—only one of seven areas met the criteria for being identifiable wetlands at conveyance | Aerial photos (pre‑1973), maps, and expert testimony showed seven persistent wetland areas present at conveyance | Affirmed; substantial evidence supported a finding that all seven wetland areas existed and were identifiable in 1973 |
| Restitution / Wetland Restoration Plan requiring restoration of wetland area 5 | Court erred to require restoration of wetland 5 because there was no proof Mast directly drained that wetland | Draining other wetlands in the complex damaged wetland 5’s surface/subsurface and restoration is necessary to make the victim whole | Affirmed; court may order restoration of wetland 5 because it found all seven were damaged (directly or indirectly) and restitution aims to compensate victim losses |
Key Cases Cited
- United States v. Peterson, 632 F.3d 1038 (8th Cir.) (evidence required that identifiable, covered wetlands existed at time of easement conveyance)
- United States v. Johansen, 93 F.3d 459 (8th Cir.) (government must prove identifiable covered wetlands were damaged)
- United States v. Vesterso, 828 F.2d 1234 (8th Cir.) (easement language can clearly describe protected wetlands)
- United States v. STABL, Inc., 800 F.3d 476 (8th Cir.) (analysis distinguishing lay and expert opinion testimony)
- Farner v. Paccar, Inc., 562 F.2d 518 (8th Cir.) (experienced practitioners may testify as lay witnesses about matters within their perception and experience)
- Harris v. Rivera, 454 U.S. 339 (1981) (bench judges may hear evidence they would otherwise exclude for juries)
- United States v. Iqbal, 869 F.3d 627 (8th Cir.) (bench‑trial sufficiency review; view evidence in light most favorable to verdict)
- Hughey v. United States, 495 U.S. 411 (1990) (restitution limited to losses caused by the offense)