United States of America, Appellee, v. Kerry Johansen, Michael Johansen, Appellants.
No. 95-3996
United States Court of Appeals, Eighth Circuit
August 19, 1996
Appeal from the United States District Court for the District of North Dakota. Submitted: June 11, 1996. Filed: August 19, 1996.
Before BEAM and HEANEY, Circuit Judges, and BOGUE, District Judge.
In the early 1960s, the federal government purchased easements on the farmland tracts of Kerry Johansen and Michael Johansen (the Johansens) for the maintenance of waterfowl production areas. After two unusually wet years in North Dakota, the Johansens requested the United States Fish and Wildlife Service (FWS) to delineate the extent of its wetland easements. The FWS refused, arguing that any wetlands that develop during wet years are subject to the easements’ restrictions. Nevertheless, the Johansens proceeded to drain portions of their farmland tracts to contain the surface and subsurface water. The United States then charged the Johansens with unauthorized draining of wetlands in a Waterfowl Production Area, a violation of
I.
A. History of the Federal Conservation Program.
In 1929, Congress enacted the Migratory Bird Conservation Act, 45 Stat. 1222, ch. 257 (1929) (codified as
B. The Steele County Tracts.
In the mid-1960s, as part of the Waterfowl Production Area Program, the FWS purchased easements on three tracts of land from the Johansens’ predecessors. These tracts, described as Steele County tracts 21X, 24X, and 30X, consist of two half sections (319.58 acres and 317.70 acres) and a half section plus eighty acres (395.98 acres), respectively. As with most wetland easement purchases, the FWS used a standardized wetland conveyance developed for the program. The conveyance instrument granted the United States “an easement or right of use for the maintenance of the land described below as a waterfowl production area in perpetuity . . . .” As was standard practice prior to 1976, the conveyance then legally described the whole parcel. In exchange for the easement, the property owner was given $600 for each of the half-section parcels and $700 for tract 30X. The conditions imposed by the easement on the servient tenement are as follows:
The parties of the first part . . . agree to cooperate in the maintenance of the aforesaid lands as a waterfowl production area by not draining or permitting the draining, through the transfer of appurtenant water rights or otherwise, of any water including lakes, ponds, marshes, sloughs, swales, swamps, or potholes, now existing or reoccurring due to natural causes on the above-described tract, by ditching or any other means . . . .
C. The Johansens.
The spring of 1995 was a wet one in North Dakota. The Johansens, farmers in Steele County, North Dakota, were faced with the second consecutive wet year and farmland that could not support farm machinery due to the surface and subsurface water.3 Aware that their farmland tracts were burdened by wetland easements, Kerry Johansen wrote the FWS to explain his problem and to ask “what water [he could] contain to get back to [his] normal farming practices.” Letter from Kerry Johansen to Hoistad (Jan. 1, 1995) (Ex. D-120). In response, the FWS concurred that “your area has
As a result of their ditching, the Johansens were charged with draining wetlands covered by FWS easements in violation of
The government‘s prosecution of this case has been described by the Johansens as a shell game. We cannot disagree. The United States Attorney argues that prior decisions by this court have specifically interpreted the wetland easements to encompass all wetlands on the encumbered parcel. The government‘s argument, however, fails to acknowledge the ramifications of both the intervening Supreme Court decision in North Dakota, in which the Court adopted a more restricted interpretation of the wetland easements, and the representations made by the Solicitor General during that litigation.5 The broad interpretation now advanced by the United States Attorney is not only inconsistent with the representations made by other federal officials, it would also raise serious questions with respect to limitations imposed by the easement program‘s enabling statute. Moreover, the stringent posture assumed in this enforcement prosecution does not comport with the efforts toward a “cooperative and helpful relationship between North Dakota, its farmers and political subdivisions, and the U.S. Fish and Wildlife Service” which is fundamental to the success of conservation programs. See North Dakota and U.S. Fish and Wildlife Service Agreements 1 (July, 1993) (Ex. D-159).6
In essence, this case revolves around the interpretation of the wetland easements purchased by the federal government. State law will generally govern the interpretation of a real property conveyance instrument, either through direct application or through the “borrowing” principles of federal law, so long as it is neither aberrant nor hostile to federal property rights. See United States v. Little Lake Misere Land Co., 412 U.S. 580, 591-96 (1973); cf. United States v. Albrecht, 496 F.2d 906, 911 (8th Cir. 1974). Under North Dakota law, while the principles of contract law guide the inquiry, see
This suit, as well as numerous other suits involving wetland easements, arises in large part because prior to 1976, the FWS described wetland easements by referring to the entire tract of land rather than to the particular area of the covered wetlands. Since 1976, the FWS has recorded a map locating the covered wetland acres as part of every easement document. However, as a consequence of the former practice and the fact that prairie potholes, by nature, are ill-defined and subject to fluctuation, there has been a considerable amount of confusion regarding what the earlier wetland easements actually covered. See, e.g., Albrecht, 496 F.2d 906; United States v. Seest, 631 F.2d 107 (8th Cir. 1980); United States v. Welte, 635 F. Supp. 388 (D.N.D. 1982), aff‘d, 696 F.2d 999 (8th Cir. 1982).
The United States Attorney for North Dakota takes the position that all wetlands found on an encumbered tract at any given time are covered by the easement and cannot be drained in any fashion. In other words, there are no “uncovered wetlands” on the parcel
The United States Attorney rejects the Johansens’ reliance on the Easement Summaries for two reasons. First, the United States Attorney points out that the summary figures were not recorded as part of the easement document. This fact, however, is not necessarily preclusive. See Schulz v. Hauck, 312 N.W.2d 360, 363 (N.D. 1981) (holding that use of unrecorded, extrinsic evidence is permissible to interpret ambiguous grant language). Second, the United States Attorney contends that these summaries do not evidence the parties’ intent, but were merely “used by government negotiators as a yardstick of the purchase price.” Appellee‘s Br. at 10.
The government‘s interpretation is not unreasonable, given that the legal description of the easement includes the whole tract. More importantly, this interpretation has been given to the easements by this court in past decisions. See, e.g., Albrecht, 496 F.2d at 912 (holding that ditching encumbered parcel violated terms of easement); Seest, 631 F.2d at 108 (holding that ditching parcel, although not diminishing the surface water, altered the natural flow of surface and subsurface water, violating the terms of the easement); Welte, 635 F. Supp. at 389 (“Had the government obtained an easement on only 22 acres [the acreage identified in the Easement Summary], appellants would have a valid point. The
B. The Impact of United States v. North Dakota.
The interpretation given the easements by this court in the early 1980s was rejected by the Supreme Court. Starting in the 1970s, the cooperation that had marked the joint effort between the federal and state governments to provide waterfowl habitats began to break down. After North Dakota enacted a series of laws intended to restrain further federal purchase of wetlands, the United States brought suit seeking to have the laws declared invalid. One of the objections raised by North Dakota during the litigation was that the total area described by the wetland easements, 4,788,300 acres, exceeded the gubernatorial consents which had limited the FWS to 1.5 million wetland acres. This court held that the gubernatorial consents were not required for the acquisition of waterfowl production areas. United States v. North Dakota, 650 F.2d 911, 916 (8th Cir. 1981), aff‘d on other grounds, 460 U.S. 300 (1983). The Supreme Court rejected that view, acknowledging that “Congress has conditioned any such acquisition upon the United States’ obtaining the consent of the Governor of the State in which the land is located.” 460 U.S. at 310 & n.13.
While conceding that the limitations imposed by the gubernatorial consent were applicable, the United States represented that it had not exceeded the maximum wetland acreage. In its brief to the Supreme Court, the United States contended:
[W]hile the total gross area described in the easement documents is 4,788,300 acres, because the easement restrictions apply only to the wetlands acres North Dakota‘s contention that the United States already has
acquired more acreage than the gubernatorial approvals encompass is without merit. By contrast, since the United States obtained gubernatorial consent to acquire easements over 1,517,437 acres of wetlands and has only acquired easements over 764,522 wetland acres, it is entitled to acquire [] additional [] acres . . . .
Brief for the United States at 19, North Dakota v. United States, 460 U.S. 300 (1983) (No. 81-773) (citations omitted) (North Dakota Brief). The latter figure, 764,522, was based on the acreage figures provided in the Easement Summaries.7 In other words, for the purposes of that litigation, the United States contended that the wetland easement restrictions applied only to the thirty-three, thirty-three, and thirty-five acres on the Johansens’ tracts. The Supreme Court accepted the federal government‘s interpretation of the easement restrictions:
North Dakota next argues that the gubernatorial consents, if valid, have already been exhausted by acquisitions prior to 1977. This argument stems from the practice of including within each easement agreement the legal description of the entire parcel on which the wetlands are located, rather than merely the wetland areas to which the easement restrictions apply. If the entire parcels are counted toward the acreage permitted by the gubernatorial consents, the United States already has acquired nearly 4.8 million acres, far more than the 1.5 million acres authorized. The United States has conceded as much in its answers to North Dakota‘s interrogatories. App. 49 (“The total acreage described in the permanent easements . . . is 4,788,300 acres . . . .“). As the easement agreements make clear, however, the restrictions apply only to wetland areas and not to the entire parcels. . . . The fact that the
easement agreements include descriptions of much larger parcels does not change the acreage of the wetlands over which the easements have been acquired.
North Dakota, 460 U.S. at 311 n.14.
Although this interpretation of the easements, that the restrictions “apply only to wetland areas and not to the entire parcel,” seems clearly at odds with this court‘s prior decisions holding the contrary, the United States Attorney contends there is no inconsistency:
There is simply nothing inconsistent between the U.S. Fish and Wildlife Service conceding that only the wetlands within the larger tract [are] covered by the drainage limitations and therefore that only that acreage counted against the “county consents” and . . . at the same time contending that all wetlands within a particular easement tract are subject to its limitations.
Appellee‘s Reply Br. at 3. What the United States Attorney fails to acknowledge, however, is that the Solicitor General‘s brief did not claim that the United States had acquired an interest in all wetlands on the parcel, but rather explicitly stated that the United States “ha[d] only acquired easements over 764,522 wetland acres,” i.e., the Summary Acreage. North Dakota Brief at 19. The implication of the United States’ brief in North Dakota is clear: the United States acquired easements over thirty-three acres on tracts 21X and 24X and thirty-five acres on tract 30X.
It is important to note, however, that although the Supreme Court generally accepted the federal government‘s argument limiting the easement restrictions to the encumbered parcels’ wetlands, it did not explicitly limit the wetland easement to the Summary Acreage. The Court merely stated that “[t]he fact that the easement agreements include descriptions of much larger parcels does not change the acreage of the wetlands over which the easements have been acquired.” North Dakota, 460 U.S. at 311 n.14.8
C. Problems with a Fluctuating Easement.
Although the Court‘s language in North Dakota permits an interpretation of the easement to cover all wetlands on the encumbered tract rather than limiting the easements’ scope to the Summary Acreage, doing so would create a host of problems. Under this interpretation, the number of wetland acres subject to the easement restrictions would fluctuate with the amount of rainfall. Not only is this inconsistent with the FWS Annual Summaries of the number of wetland acres under its control and traditional norms of real property conveyance, see Restatement of Property § 451, cmt. m (1944) (requiring definiteness), it would prohibit ditching on the entire, legally-described parcel. According to the government‘s theory, any action that would inhibit the collection of water in a particular depression would violate its interest in existing and future wetlands. Given that these properties are pocketed by depressions of various depths, however, any ditching will impact the formation of wetland. See Albrecht, 496 F.2d at 909 (“[A]n expert in water biology testified that the ditching had the same effect as a drought . . . and that the usefulness of the [] land as a waterfowl production area had been `significantly reduced.‘“). Thus, the wetland easements’ restrictions, as interpreted by the United States Attorney, would apply to the entire parcel. This was clearly and explicitly rejected by the Supreme Court in North Dakota.
In the unlikely event the State could prove that the total wetland acres under easement in a particular county, when at maximum fill, exceeded the gubernatorial consents previously given, such an assumption might give rise to a right to bring a declaratory judgment or contract action against the federal government. What such a suit might yield is unclear, but what is clear is
that it would not void all easements taken in that county or confer upon either the State or the landowners the right to choose which wetlands within each easement the federal government gets to keep.
Appellee‘s Reply Br. at 4 (emphasis added). We decline to follow the “cross-that-bridge-when-you-get-to-it” approach espoused by the United States Attorney‘s Office. Given the choice, we believe it more prudent to avoid this possibility by interpreting the easements’ scope in a manner that fixes the federal acreage counted against the gubernatorial consent limitation.
Therefore, we hold that the federal wetland easements are limited to the acreage provided in the Easement Summaries. This approach has the additional advantage of consistency with prior representations by the federal government of its interest in the properties, including the FWS Annual Survey and the Solicitor General‘s position in the North Dakota litigation.
D. Post-North Dakota Case Law.
In its motion in limine to the district court, the United States Attorney argued that this court‘s decision in United States v. Vesterso, 828 F.2d 1234 (8th Cir. 1987), rejected limiting the federal wetland easements to the Summary Acreage. In Vesterso, this court considered a case in which a North Dakota county water board had undertaken two drainage projects on properties subject to federal wetland easements. Id. at 1237. Despite being advised of the federal easements by the state water commission, the county water board completed the projects without conferring with or notifying the FWS. Id. at 1238.
In affirming the convictions, we wrote, “it is sufficient for the United States to prove beyond a reasonable doubt that identifiable wetlands were damaged and that those wetlands were within parcels subject to federal easements.” Id. at 1242. The
Before the United States can prove a person damaged federal property as prohibited by section 668dd(c), it does not have to describe legally each wetland to which the restrictions apply and further determine whether the total wetland acreage exceeds the limits imposed by the gubernatorial consent for the county.
Id. at 1242. In this context, our discussion is simply understood to mean that the government did not need to legally describe the confines of each covered wetland under the pre-1976 easements to ensure compliance with the gubernatorial consent limitation, a question already answered by the Supreme Court in North Dakota.
The language in Vesterso regarding what the United States must prove is better understood to mean that the United States must prove beyond a reasonable doubt that identifiable, covered wetlands (as existing at the time of the easement‘s conveyance and described in the Easement Summary) were damaged and that the defendant knew that the parcel was subject to a federal easement. See Vesterso, 828 F.2d at 1244 (holding that defendants, who knew that the parcel was encumbered by a wetland easement, cannot claim that they did not know a particular wetland was covered by the easement because such a lack of knowledge would be caused by “willful blindness.“). This meaning is made clearer later in Vesterso when we concluded:
We realize that the federal wetland easements in North Dakota have generated controversy and, in some instances, frustration for landowners. We point out, however, that the State of North Dakota and landowners are not without recourse if the easements cause flooding, for example, which results from nonnatural obstructions
to water flow. The prudent course in any event requires consultation with the Fish and Wildlife Service before undertaking drainage on parcels covered by easements. . . . There is no evidence in the record indicating that [] cooperation would not have been forthcoming in this case. Instead of seeking cooperation, the appellants acted on their own by digging a ditch approximately three feet deep and fifteen feet wide across the easement in clear violation of the Wildlife Refuge Act.
Id. at 1245 (emphasis added). Having been so advised by this court, the Johansens sought cooperation from the FWS to contain the flooding that emersed their farmland. Unfortunately, the cooperation to which we alluded was not forthcoming.
Our decision in United States v. Schoenborn, 860 F.2d 1448 (8th Cir. 1987), reiterates this court‘s revised interpretation of the wetland easements. In that case, we reviewed the district court‘s finding that a Minnesota farmer had violated a wetland easement. Specifically, Schoenborn‘s violations consisted of draining four basins (as potholes are known in Minnesota) and filling nine ditches. On review of each individual alleged violation, this court examined evidence that the specific potholes existed at the time of the easement conveyance, a clear departure from our prior practice focusing on any ditching of the burdened parcel, cf. Albrecht, 496 F.2d at 911, as well as the state of the basin at trial. Thus, Schoenborn implicitly acknowledged the limited scope of the wetland easements.
E. The District Court‘s Pretrial Order.
In this case, the district court‘s decision was predicated on a fundamental (albeit understandable) misinterpretation of this circuit‘s case law with respect to the scope of federal wetland easements. Therefore, we review the district court‘s pretrial order excluding evidence de novo. See United States v. Singer Mfg. Co., 374 U.S. 174, 192-93 (1963). We hold that the United States’ wetland easements acquired title on the acreage specified in the
III. CONCLUSION
The wetland acquisition program was conceived of as a partnership between the federal government, the states, and individual property owners. As with any partnership, success requires good faith and reasonability. Although the United States Attorney pays lip service to the program‘s goal of co-existence between Waterfowl Production Areas and “normal farming practices,” the government ignores the obvious potential consequence of its interpretation: the reduction of cultivable land on tract 21X by over sixteen percent would be a significant economic impediment to the continued viability of normal farming practices. It strikes this court as contrary to the program‘s goal of reasonable cooperation to refuse a request to identify the scope of the federal government‘s interest in a property and then prosecute the property owner for making his best efforts to contain surplus water to the protected federal wetlands. Therefore, we remand this case to the district court for action consistent with this opinion.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.