U.S. v. Vesterso

• Decision Date: 31 August 1987
• Docket Number: No. 86-5231,86-5231
• Citation: 828 F.2d 1234
• Parties: 18 Envtl. L. Rep. 20,183 UNITED STATES of America, Appellee, v. Kent Melvin VESTERSO, Warren August Anderson, Davis Leas, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1234

828 F.2d 1234

18 Envtl. L. Rep. 20,183

UNITED STATES of America, Appellee, v. Kent Melvin VESTERSO, Warren August Anderson, Davis Leas, Appellants.

No. 86-5231.

United States Court of Appeals Eighth Circuit.

Submitted March 9, 1987.

Decided Aug. 31, 1987.

Larry M. Baer, Cando, N.D., for appellants.

Lynn E. Crooks, Asst. U.S. Atty., Fargo, N.D., for appellee.

Before HEANEY and ARNOLD, Circuit Judges, and LARSON, ^* Senior District Judge.

HEANEY, Circuit Judge.

Appellants Kent Melvin Vesterso, Warren August Anderson, and David Leas appeal their convictions under 16 U.S.C. Sec. 668dd(c) for damaging property located in waterfowl production easements contained in the National Wildlife Refuge System. We affirm.

BACKGROUND

In 1964 and 1965, the United States purchased easements in Towner County, North Dakota, pursuant to section 4 of the Migratory Bird Hunting Stamp Act of March 16, 1934, 48 Stat. 451, as amended by section 3 of the Act of August 1, 1958, Pub.L. No. 85-585, 72 Stat. 486 (codified as amended at 16 U.S.C. Sec. 718d(c) (Stamp Act)). These easements contained wetlands which provided habitat for wildlife. See North Dakota v. United States, 460 U.S. 300, 302-03, 103 S.Ct. 1095, 1097-98, 75 L.Ed.2d 77 (1983). These easements are now a part of the National Wildlife Refuge System and are managed by the United States Fish and Wildlife Service. See 16 U.S.C. Sec. 668dd(a)(1) (Wildlife Refuge Act).

In 1983, the Towner County Water Resource District Board (County Water

Board), ¹ began considering two drainage projects. Appellants Anderson and Vesterso were members of the County Water Board at this time. One project affected two parcels of property, one owned by George Murdock and the other by William and Martha Brunnemeyer. The other project affected property owned by Marcel and Dessie Mantei. All three of these parcels of property were subject to federal easements protecting wetlands. ²

The appellants claim they considered undertaking the projects because a number of landowners complained of flooding as a result of a build-up of vegetation, rocks, and silt in the wetlands on the three parcels of property. This flooding affected other parcels of property not subject to federal easements.

In July of 1983, Water Board Chairman Anderson applied to the North Dakota Water Commission for permission to undertake the two projects. ³ In their applications the appellants asked the State Water Commission for a permit to "clean out" two "watercourses" which the appellants stated flowed through the Murdock and Brunnemeyer properties and the Mantei property respectively. The County Water Board informed the North Dakota State Water Commission that one of the federal easements might be affected by one of the projects. Although the North Dakota Water Commission granted a permit to the County Water Board to proceed without a hearing because the project was not of statewide significance, it also advised the County Water Board to review the federal easement affected by the project and to "abide by its conditions."

After receiving the permit, the County Water Board hired a surveyor to design and lay out the path and grade of two ditches which would allow water to flow through the two wetland areas. It was at this time that David Leas joined the County Water Board. A construction company performed the digging with a backhoe. Vesterso and Leas supervised the digging. The completed ditches were flat-bottomed, about fifteen feet wide, and meandered through various parcels of property including At no time before completion of the project was the United States Fish and Wildlife Service (Fish and Wildlife Service), which was in charge of managing the easements, see 16 U.S.C. Sec. 668dd(a)(1), notified of the projects. The Fish and Wildlife Service first discovered the ditches while on a routine observation flight on March 30, 1984. After inspecting the ditches from the ground, the Fish and Wildlife Service decided that a violation had occurred.

                the three tracts subject to the federal easements.  The ditches sloped slightly from beginning to end in order to permit water to flow through them.  According to the appellants, the ditches followed two recognized "watercourses."    According to the United States, the ditches followed "lineal wetlands."
                

The appellants were charged on December 19, 1985, with damaging federal easements, a petty offense. After a bench trial, the district court found the three appellants guilty. Each appellant was placed on probation for two years terminable upon restoration of the easements to their former condition.

DISCUSSION

The appellants make the following arguments for the overturning of their convictions: first, that the County Water Board, as a political subdivision of the State of North Dakota, had authority to dig the ditches because the ditches followed watercourses in which the State had an ownership interest or over which the State had regulatory authority; second, that the United States had not properly delineated the wetlands restricted by federal easements and shown that the appellants in fact damaged federal property; third, that the appellants, as members of the County Water Board, were not "persons" within the meaning of 16 U.S.C. Sec. 668dd(c); fourth, that the evidence submitted at trial does not support their conviction.

1. Authority to Dig the Ditches Pursuant to State Law

The appellants advance two arguments in support of their authority to dig the ditches through the federal easements. First, the State of North Dakota has an ownership interest in all watercourses in the State. Because the United States only purchased an interest from private landowners, the State's property interest in the watercourse remained intact and, therefore, the appellants could not have harmed federal property in digging the ditches. Second, the National Wildlife Refuge Act explicitly stated that it had no effect on North Dakota water law. Because state water law permitted the County Water Board to take the actions it did, the County Water Board members did not violate federal law.

a. The State's Property Interest in Watercourses

The district court concluded that it did not have to consider whether the ditches which were dug followed watercourses as defined by state law. It concluded that the State had no authority to alter the natural topography of the wetlands contained in the easements owned by the Fish and Wildlife Service, even though the State may have had a limited power to clean out the watercourses. Because the district court made no finding regarding the status of the ditches, we assume the appellants are correct in classifying them as watercourses.

We believe that the district court's interpretation comports with federal and state law. Under North Dakota constitutional and statutory law, the State of North Dakota does seem to have at least a limited property interest in either the water in or the "integrity" of watercourses. Article XI, Section 3, of the North Dakota Constitution states that "[a]ll flowing streams and natural watercourses shall forever remain the property of the State for mining, irrigating, and manufacturing purposes." This section, although "not framed to divest the rights of riparian owners in the waters and bed of all natural water courses in the state," was intended to place "the integrity of our water courses beyond the control of individual owners." State v. Brace, 76 N.D. 314, 36 N.W.2d 330, 335 Furthermore, N.D.Cent.Code section 61-01-01 states that "[w]aters on the surface of the earth excluding diffused surface waters but including surface waters whether flowing in well defined channels or flowing through lakes, ponds, or marshes which constitute integral parts of a stream system, or waters in lakes * * * belong to the public." This section, the North Dakota Supreme Court stated, expresses the public trust doctrine, which, in North Dakota, "permits alienation and allocation of such precious state [water] resources only after an analysis of the present supply and future need." United Plainsmen v. North Dakota Water Conservation Comm'n, 247 N.W.2d 457, 462-63 (N.D.1976). But cf. Summa Corp. v. California ex rel Land Comm'n, 466 U.S. 198, 104 S.Ct. 1751, 80 L.Ed.2d 237 (1984) (explaining limitation on California public trust doctrine).

(1949) (quoting Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, 573 (1896)).

There are, however, clear limitations on the State's interests in watercourses. As the North Dakota Supreme Court has recognized, "[t]he ownership of beds of streams and lakes is quite a different matter from the right to control waters." North Dakota State Water Comm'n v. Board of Managers, 332 N.W.2d 254, 258 (N.D.1983) (quoting State v. Adams, 251 Minn. 521, 546, 89 N.W.2d 661, 678 (1957), cert. denied, 358 U.S. 826, 79 S.Ct. 45, 3 L.Ed.2d 67 (1958)) (emphasis added). While North Dakota may own the beds under navigable streams and lakes, see United Plainsmen, 247 N.W.2d at 461, its ownership has not been interpreted to extend to beds of nonnavigable watercourses. See Ozark-Mahoning Co. v. State, 76 N.D. 464, 37 N.W.2d 488, 493 (1949) (section 210 of the North Dakota Constitution, currently Article XI, section 3, "has application only to the waters of flowing streams and natural water courses and not to lands underlying non-navigable streams and water courses"); see also North Dakota State Water Comm'n v. Board of Managers, 332 N.W.2d at 257-58; Beck & Hart, The Nature and Extent of Rights in Water in North Dakota, 51 N.D.L.Rev. 249, 262 (1974). Thus, unless otherwise conveyed, the watercourse bed remains the property of the landowner.

As stated in its easement agreements, the United States purchased from the landowner the right to prevent the draining of "any surface water including lakes, ponds, marshes, sloughs, swales, swamps, or potholes, now existing or reoccurring due to natural causes" on the easement tract. Although the...