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United States v. Vesterso

ELR Citation: 18 ELR 20183
Nos. No. 86-5231, 828 F.2d 1234/(8th Cir., 08/31/1987)

The court upholds the convictions of three county water resource district board members for damaging federal waterfowl easements in North Dakota in violation of the National Wildlife Refuge Act (NWR Act). The water board conducted two drainage projects in which it dug ditches through wetlands subject to federal National Wildlife Refuge System easements. The court, assuming that the ditches followed recognized watercourses, holds that North Dakota's limited constitutional and statutory property interests in its watercourses are not superior to the easements of the United States. North Dakota's interests do not extend to the beds underlying nonnavigable watercourses, while the United States has a property interest in the maintenance of the beds and banks of the wetlands to which it owns easements. The court holds that the water board's drainage projects damaged federal wetland property, since significant changes were made to the watercourses' natural topography. The court holds that North Dakota did not have regulatory authority to conduct the drainage projects. Although the NWR Act states that its terms constitute neither a claim nor a denial of federal exemption of state water laws, the purpose of this provision is to prevent a general preemption of state water laws as they affect federal easements, and conflicts with state law must be addressed on a case-by-case basis. Any state regulatory authority that might permit the draining of wetlands on federal easements would violate the essence of the wetlands protection provisions of the NWR Act, Migratory Bird Hunting and Conservation Stamp Act, and the easements themselves.

The court holds that the United States has sufficiently demonstrated that the wetlands damaged in this case were covered by federal easements. Although the Stamp Act limits the total acreage that may be subject to federal easements and requires gubernatorial consent for the purchase of such easements by the federal government, alleged irregularities cannot be raised when gubernatorial consent has already been given and the United States has presented a recorded easement agreement describing the wetlands in clear terms.

The court holds that the defendant water resource board members acting in their official capacity were "persons" under the provision of the NWR Act that prohibits interference with federal property. The Act clearly uses the term "person" so as to include public officials, and there is no evidence of contrary legislative intent. Case law demonstrates that federal criminal statutes generally have not made a distinction between acts done by public officials in their official and unofficial capacities. In addition, although state legislators or legislative officials are immune from federal civil suit, they are not immune from federal criminal prosecution. Application of the NWR Act's prohibition on the damaging of federal property is in accord with one purpose of the Act: to protect wetlands on federal easements. Finally, the court holds that there was sufficient evidence that each defendant knowingly did the proscribed acts.

Counsel for Appellants
Larry M. Baer
Ackre & Baer
517 Main St., Cando ND 58324
(701) 968-3324

Counsel for Appellee
Lynn E. Crooks, Ass't U.S. Attorney
P.O. Box 2505, Fargo ND 58108
(701) 237-5771

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