United States v. Ripplinger

No. 00-2532 (8th Cir. July 11, 2001)

The court affirms a district court grant of summary judgment to the government in an action brought to enforce a wetlands easement the government held on an individual's property. The government purchased the perpetual easement in 1967 for waterfowl management, and the individual acquired title to the tract covered by the easement in 1990. Subsequently, the individual's U.S. Department of Agriculture benefits were revoked when it was determined that he had violated the Swampbusters Act by converting protected wetlands by adding fill. The individual entered a Wetlands Restoration Agreement to obtain reinstatement of his benefits, but he failed to restore the wetlands as promised in the agreement. The government brought suit to enforce the easement, the district court granted summary judgment to the government, and the individual appealed.

The court first holds that the individual's claim that the district court granted summary judgment on a basis not argued by the parties need not be addressed because summary judgment was proper regardless. Uncontroverted evidence showed that the property was a naturally occurring wetland, and the individual offered no evidence that the easement prevented only complete filling or that the area still functions as a waterfowl production area. The court also holds that the easement did not permit the individual to deposit fill in the wetland before cutting hay. The easement permitted farming practices such as cutting hay but only when the wetlands were dry from natural causes.

Counsel for Appellee
Lynn Crooks, Ass't U.S. Attorney
U.S. Attorney's Office
655 First Ave. N., Fargo ND 58102
(701) 239-5671

Counsel for Appellant
Robert V. Bolinske
Law Offices of Robert V. Bolinske
515 N. 4th St., Bismarck ND 58501
(701) 222-2035

Before Hansen, Arnold, and Bye, JJ.

[31 ELR 20828]

Per curiam (before Hansen, Arnold, and Bye, JJ.):

Stephen Ripplinger appeals the district court's¹ adverse grant of summary judgment in this action brought by the United States to enforce a wetlands easement. We affirm.

Briefly, the facts are as follows. In 1967, the government purchased a perpetual easement for waterfowl management purposes covering two lots in Pierce County, North Dakota. The easement contained limitations on drainage, filling, and burning of the wetlands within the tract. Ripplinger acquired title to the tract in 1990, and in 1996 he added fill to certain property believed to be covered by the easement. His United States Department of Agriculture benefits were revoked based on a determination that he had converted protected wetland in violation of the Swampbusters Act, 16 U.S.C. §§ 3821-3823, and he entered into a Wetland Restoration Agreement in March 1997 to obtain reinstatement of the benefits. When he failed to restore the wetland as promised in the agreement, the government brought the instant suit in equity to enforce the easement. The district court granted the government's motion for summary judgment, concluding that under the restoration agreement Ripplinger had promised to remove the fill and had received program payments in exchange for his promise, and the court refused to revisit the parties' rights and obligations because they had merged into the agreement.

We review de novo the grant of summary judgment. See Cooper v. Olin Corp., 246 F.3d 1083, 1087 (8th Cir. 2001) (standard of review). We need not decide—as Ripplinger argues—whether the district court erred in granting summary judgment on a basis not argued by the parties, because we conclude summary judgment was proper regardless. See Miller v. Benson, 51 F.3d 166, 170 (8th Cir. 1995) (this court may affirm district court's judgment on any ground supported by record).

Specifically, we find that the uncontroverted evidence (i.e., two biologists' opinions) showed the subject property was a naturally occurring wetland as described in the easement. Cf. United States v. S. Inv. Co., 876 F.2d 606, 612 [19 ELR 21276] (8th Cir. 1989) (accepting expert's opinion that area was wetlands where opinion was based on aerial photographs, documentation of river gauge, and personal observation). We also find that Ripplinger offered nothing to support either his assertion that the easement prevented only "complete" filling, or his contention that the filled area still functions as a waterfowl production area. See Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994) (nonmoving party's allegations must be supported by probative evidence; mere scintilla of evidence is insufficient to avoid summary judgment).

Finally, we reject Ripplinger's argument that the easement permitted him to deposit fill in the wetland before cutting hay. The easement permitted landowners to engage in "farming practices such as grazing, hay cutting, plowing, working and cropping wetlands," but only "when the same are dry of natural causes" and only if these activities do not involve filling.

Accordingly, we affirm the judgment of the district court.

1. The Honorable Patrick A. Conmy, United States District Judge for the District of North Dakota.