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United States v. Johansen

ELR Citation: 26 ELR 21644
Nos. 95-3996, 93 F.3d 459/(8th Cir., 08/19/1996)

The court holds that federal wetland easements that the United States acquired through its Waterfowl Production Area program apply only to the amount of acreage specified in the easement summaries that accompany the easement conveyance instruments. The United States purchased wetland easements on 1,033.26 acres of appellants' land, which the conveyance instruments described in its entirety, while the accompanying easement summaries described 101 acres of wetlands on the encumbered tracts. When appellants drained some land on the tracts in an unusually wet year, the United States prosecuted them, arguing that all wetlands found on an encumbered tract at any given time are covered by the easement and cannot be drained in any fashion. The court finds that the U.S. position is inconsistent with the representations made by other federal officials and would raise serious questions with respect to limitations imposed by the easement program's enabling statute. Further, in North Dakota v. United States, 13 ELR 20312 (U.S. 1983), the U.S. Supreme Court held that wetland easements apply only to the wetlands described in the easement summaries, not to the entire encumbered parcels. Although the Supreme Court did not explicitly limit the wetland easement to the summary acreage, the court notes that it is prudent to interpret the easements' scope in a manner that fixes the acreage counted toward the total amount of acreage in North Dakota over which the governor has consented to federal easements. Thus, the court holds that the federal wetland easements are limited to the acreage provided in the easement summaries. The court also holds that the district court erred in excluding the easement summaries, because appellants must be permitted to introduce evidence proving that they did not drain the summary acreage.

Counsel for Appellee
Lynn E. Crooks, U.S. Attorney
U.S. Attorney's Office
P.O. Box 2505, Fargo ND 58108
(701) 239-5671

Counsel for Appellants
Michael D. Nelson
Ohnstad & Twichell
15 Broadway, Ste. 202, Fargo ND 58102
(701) 280-5801

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