U.S. v. Johansen

• Decision Date: 19 August 1996
• Docket Number: No. 95-3996,95-3996
• Parties: 26 Envtl. L. Rep. 21,644 UNITED STATES of America, Appellee, v. Kerry JOHANSEN, Michael Johansen, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 459

93 F.3d 459

26 Envtl. L. Rep. 21,644

UNITED STATES of America, Appellee, v. Kerry JOHANSEN, Michael Johansen, Appellants.

No. 95-3996.

United States Court of Appeals Eighth Circuit.

Submitted June 11, 1996.

Decided Aug. 19, 1996.

Michael D. Nelson, Fargo, ND, argued (Donald R. Becker, on the brief), for Appellants.

Charles M. Carvell, Atty. Gen., Bismarck, ND, argued, for amicus curiae State of N.D.

Lynn E. Crooks, U.S. Atty., Fargo, ND, argued, for Appellee.

Before BEAM and HEANEY, Circuit Judges, and BOGUE, ^* District Judge.

HEANEY, Circuit 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 16 U.S.C. § 668dd (1994). In response to a motion in limine by the United States Attorney, the United States District Court for North Dakota prohibited the Johansens from arguing that the federal wetland easements covered only 105 acres on the three tracts and that more than that number of wetland acres remained intact after the draining. After entering a conditional guilty plea, the Johansens now appeal that order. We reverse.

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 16 U.S.C. § 715 et. seq. (1994)). Recognizing the importance of preserving potholes for migratory waterfowl, ¹ the Act authorized the Secretary of the Interior to acquire lands to be used for migratory bird sanctuaries. 16 U.S.C. § 715d. Acquisition was made subject to the consent of the state in which the land was located. 16 U.S.C. § 715f. ² The Migratory Bird Hunting and Conservation Stamp Act was passed in 1934 to fund the acquisition of bird sanctuaries. 48 Stat. 451 (1934) (codified as 16 U.S.C. § 718 et seq. (1994)). Subsequently, the conservation effort's strategy shifted away from the creation of large bird sanctuaries toward the preservation of wetlands on private property. Accordingly, federal law was amended in 1958 to permit the acquisition of wetland easements on individual parcels which were designated "Waterfowl Production Areas." Pub.L. 85-585, § 3, 72 Stat. 487 (1958) (codified as 16 U.S.C. § 718d(c) (1994)). The source of funding was later increased, but the acquisition of the wetland easements was conditioned on the consent of the governor of the state (as opposed to the state legislature as under the Migratory Bird Conservation Act). The Wetlands Act of 1961, Pub.L. 87-383, § 3, 75 Stat. 813 (codified as 16 U.S.C. § 715k-5 (1994)). From 1961 to 1977, the governors of North Dakota consented to the acquisition of easements covering 1.5 million acres of wetland. See North Dakota v. United States, 460 U.S. 300, 311, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983). These consents further specified the maximum acreage that could be acquired in each county of North Dakota.

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....

Along with the recorded easement conveyance, the FWS prepared an Easement Summary which provided information including the tract description, the tract acreage, the wetland acreage, and the cost of the wetland per acre. According to each of the summaries, the wetland acres purportedly purchased were thirty-three acres in both tract 21X and tract 24X and thirty-five acres in tract 30X (Summary Acreage). The FWS has subsequently published annual reports in which it continues to represent that it controls thirty-three, thirty-three, and thirty-five acres of wetland on the tracts in question. See, e.g., Annual Report of Lands Under Control of the U.S. Fish and Wildlife Service (Sept. 30, 1980) (Ex. D-154); U.S. Fish and Wildlife Service, Acreage Summary Record for Steele County Waterfowl Production Area (Ex. D-157).

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 been hard hit in the last two years.... This particular tract of land has a high number of basins on it. This, I'm sure, combined with the high rain amounts has caused you some difficulty farming in the past year." Letter from Hoistad to Kerry Johansen (Mar. 17, 1995) (Ex. D-121). Despite its sympathy for the Johansens' difficulty, however, the FWS concluded: "The only provisions of the easement that allow for drainage are when [there] are safety or health concerns involved. Another way of saying this is unless your roads or farmstead is in danger of being flooded, no drainage can take place." Id. In spite of this admonition, the Johansens dug ditches on the tracts to contain the water. ⁴

As a result of their ditching, the Johansens were charged with draining wetlands covered by FWS easements in violation of 16 U.S.C. § 668dd (1994). In their defense, the Johansens planned to introduce the Easement Summaries and proof that each parcel, after the draining, contained wetland acreage in excess of the acreage provided for in the Easement Summaries. The United States, in a motion in limine, sought to exclude the evidence as irrelevant, arguing that the Easement Summaries were not part of the recorded easement and that defense theories claiming any limitation of the wetland easements had been rejected by this court. Relying on this court's decision in United States v. Vesterso, 828 F.2d 1234 (8th Cir.1987) (Heaney, J.), the district court held the defense was improper and excluded the proffered evidence. The Johansens then entered conditional guilty pleas, subject to the outcome of this appeal, from that pretrial order.

II.

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

A. Interpretation of the Wetland Easements.

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, 93 S.Ct. 2389, 2396-99, 37 L.Ed.2d 187 (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 N.D. Cent.Code § 47-09-11 (1978); Royse v....