                             No. 95-3996


United States of America,          *
                                   *
                   Appellee,       *
                                   *   Appeal from the United States
         v.                        *   District Court for the
                                   *   District of North Dakota.
Kerry Johansen, Michael            *
Johansen,                          *
                                   *
                 Appellants.       *



                    Submitted:     June 11, 1996

                          Filed:   August 19, 1996


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


     *
      The Honorable Andrew W. Bogue, United States District Judge
for the District of South Dakota, sitting by designation.
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

        1
      Much of the State of North Dakota, as well as parts of the
Canadian Provinces of Manitoba, Saskatchewan, and Alberta,
constitutes what marine biologists call the northeastern drift
plain. As a prairie pothole region, each square mile of the drift
plain is dotted by as many as seventy to eighty potholes, three to
four feet deep, that retain water through July or August because of
the soil's poor drainage capacity. These geographical attributes
are of particular importance to certain migratory waterfowl that
prefer these potholes as a habitat to raise their young because
they provide isolated protection and a source of aquatic food.
    2
     North Dakota, the state in question here, gave its consent to
the acquisition by the United States of areas in the State of North
Dakota "as the United States may deem necessary for the
establishment of migratory bird reservations." 1931 ND Laws, ch
207, p. 360.

                                   2
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 (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:


                                 3
             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


    3
     The Johansens allege that in 1995 there were 83.8, 64.9, and
67.1 wetland acres on tracts 21X, 24X, and 30X, respectively.

                                4
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.




        4
         The extent and impact of the ditching have not been
determined by a trier of fact. It is undisputed that some wetlands
were drained as a result of the ditches.

                                5
                               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



    5
     Implicit within the figures quoted in the Solicitor General's
brief is the representation that the United States had acquired
title to thirty-three, thirty-three, and thirty-five acres on
tracts 21X, 24X, and 30X, respectively. See infra at 9-10. The
United States Attorney argues that "even if this Court would accept
an argument that the federal government must pick only 33 or 35
acres (as the case may be) in each tract to protect, what makes the
defendant think we would not pick the acreage they have drained?
Indeed, we have already done so by charging them with illegal
draining." Appellee's Br. at 11. Given the Johansens' attempts to
involve the federal government in the delineation of its rights to
the land, this declaration is repugnant to the notions of fair
notice.
    6
     This court notes that North Dakota has filed an amicus brief
on behalf of the Johansens.

                                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 (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. Easter
Seal Society for Crippled Children & Adults, Inc., 256 N.W.2d 542,
544 (N.D. 1977), the "primary purpose in construing a deed is to
ascertain and effectuate the intent of the grantor." Malloy v.
Boettcher, 334 N.W.2d 8, 9 (N.D. 1983).


     This suit, as well as numerous other suits involving wetland
easements, arises in large part because prior to 1976, the FWS
described wetland easements by referring to the entire tract of
land rather than to the particular area of the covered wetlands.
Since 1976, the FWS has recorded a map locating the covered wetland
acres as part of every easement document.           However, as a
consequence of the former practice and the fact that prairie
potholes, by nature, are ill-defined and subject to fluctuation,
there has been a considerable amount of confusion regarding what
the earlier wetland easements actually covered.         See, e.g.,
Albrecht, 496 F.2d 906; United States v. Seest, 631 F.2d 107 (8th
Cir. 1980); United States v. Welte, 635 F. Supp. 388 (D.N.D. 1982),
aff'd, 696 F.2d 999 (8th Cir. 1982).


     The United States Attorney for North Dakota takes the position
that all wetlands found on an encumbered tract at any given time
are covered by the easement and cannot be drained in any fashion.
In other words, there are no "uncovered wetlands" on the parcel

                                 7
described by the easement. The Johansens, however, claim that the
easements cover only a portion of their property and not every
wetland that might develop during any given year. In support of
their interpretation that only the potholes existing at the time of
the easement conveyance are covered by the easement's restrictions,
the Johansens point to the easement document language limiting
drainage of potholes "now existing or reoccurring due to natural
causes on the above-entitled land."       Primarily, however, the
Johansens rely on the Easement Summaries which indicate that
thirty-three wetland acres were purchased on tracts 21X and 24X and
thirty-five wetland acres were purchased on tract 30X.


     The United States Attorney rejects the Johansens' reliance on
the Easement Summaries for two reasons. First, the United States
Attorney points out that the summary figures were not recorded as
part of the easement document.       This fact, however, is not
necessarily preclusive. See Schulz v. Hauck, 312 N.W.2d 360, 363
(N.D. 1981) (holding that use of unrecorded, extrinsic evidence is
permissible to interpret ambiguous grant language). Second, the
United States Attorney contends that these summaries do not
evidence the parties' intent, but were merely "used by government
negotiators as a yardstick of the purchase price." Appellee's Br.
at 10.


     The government's interpretation is not unreasonable, given
that the legal description of the easement includes the whole
tract. More importantly, this interpretation has been given to the
easements by this court in past decisions. See, e.g., Albrecht,
496 F.2d at 912 (holding that ditching encumbered parcel violated
terms of easement); Seest, 631 F.2d at 108 (holding that ditching
parcel, although not diminishing the surface water, altered the
natural flow of surface and subsurface water, violating the terms
of the easement); Welte, 635 F. Supp. at 389 ("Had the government
obtained an easement on only 22 acres [the acreage identified in
the Easement Summary], appellants would have a valid point. The

                                8
government obtained its easement on all 160 acres [the entire
parcel], however."). Thus, at least as of the early 1980s, there
was considerable case law to support the government's position that
the easements prevented drainage on any portion of the described
parcel.


     B.   The Impact of United States v. North Dakota.

     The interpretation given the easements by this court in the
early 1980s was rejected by the Supreme Court. Starting in the
1970s, the cooperation that had marked the joint effort between the
federal and state governments to provide waterfowl habitats began
to break down.     After North Dakota enacted a series of laws
intended to restrain further federal purchase of wetlands, the
United States brought suit seeking to have the laws declared
invalid. One of the objections raised by North Dakota during the
litigation was that the total area described by the wetland
easements, 4,788,300 acres, exceeded the gubernatorial consents
which had limited the FWS to 1.5 million wetland acres. This court
held that the gubernatorial consents were not required for the
acquisition of waterfowl production areas. United States v. North
Dakota, 650 F.2d 911, 916 (8th Cir. 1981), aff'd on other grounds,
460 U.S. 300 (1983).     The Supreme Court rejected that view,
acknowledging that "Congress has conditioned any such acquisition
upon the United States' obtaining the consent of the Governor of
the State in which the land is located." 460 U.S. at 310 & n.13.


     While conceding that the limitations imposed by the
gubernatorial   consent  were   applicable,  the   United  States
represented that it had not exceeded the maximum wetland acreage.
In its brief to the Supreme Court, the United States contended:

     [W]hile the total gross area described in the easement
     documents is 4,788,300 acres, because the easement
     restrictions apply only to the wetlands acres North
     Dakota's contention that the United States already has

                                 9
     acquired more acreage than the gubernatorial approvals
     encompass is without merit.     By contrast, since the
     United States obtained gubernatorial consent to acquire
     easements over 1,517,437 acres of wetlands and has only
     acquired easements over 764,522 wetland acres, it is
     entitled to acquire [] additional [] acres . . . .

Brief for the United States at 19, North Dakota v. United States,
460 U.S. 300 (1983) (No. 81-773) (citations omitted) (North Dakota
Brief).   The latter figure, 764,522, was based on the acreage
figures provided in the Easement Summaries.7 In other words, for
the purposes of that litigation, the United States contended that
the wetland easement restrictions applied only to the thirty-three,
thirty-three, and thirty-five acres on the Johansens' tracts. The
Supreme Court accepted the federal government's interpretation of
the easement restrictions:

            North Dakota next argues that the gubernatorial
     consents, if valid, have already been exhausted by
     acquisitions prior to 1977. This argument stems from the
     practice of including within each easement agreement the
     legal description of the entire parcel on which the
     wetlands are located, rather than merely the wetland
     areas to which the easement restrictions apply. If the
     entire parcels are counted toward the acreage permitted
     by the gubernatorial consents, the United States already
     has acquired nearly 4.8 million acres, far more than the
     1.5 million acres authorized.     The United States has
     conceded as much in its answers to North Dakota's
     interrogatories. App. 49 ("The total acreage described
     in the permanent easements . . . is 4,788,300 acres
     . . . .").     As the easement agreements make clear,
     however, the restrictions apply only to wetland areas and
     not to the entire parcels. . . .      The fact that the

    7
     In response to an interrogatory asking, "How was the `764,522
wetland acres' figure computed," the FWS stated, "[t]he 764,522
wetland acres is a summation of the wetland acres reported on the
Easement Summary Sheets for all waterfowl production area easements
acquired in North Dakota. The figure is used for record keeping
and reporting purposes."     Defendants' Response to Plaintiffs'
Request for Admissions, Interrogatories, and Demand for Production
to Defendants, filed on April 5, 1982, Answer to Interrogatory No.
40(a), in Board of Managers et al. v. Key, et al. (later changed to
North Dakota v. Butterbaugh), Civ. No. A2-81-178, on file in the
trial court. Exhibit D-115, at 23.

                                10
     easement agreements include descriptions of much larger
     parcels does not change the acreage of the wetlands over
     which the easements have been acquired.

North Dakota, 460 U.S. at 311 n.14.

     Although this interpretation of the easements, that the
restrictions "apply only to wetland areas and not to the entire
parcel," seems clearly at odds with this court's prior decisions
holding the contrary, the United States Attorney contends there is
no inconsistency:

     There is simply nothing inconsistent between the U.S.
     Fish and Wildlife Service conceding that only the
     wetlands within the larger tract [are] covered by the
     drainage limitations and therefore that only that acreage
     counted against the "county consents" and . . . at the
     same time contending that all wetlands within a
     particular easement tract are subject to its limitations.

Appellee's Reply Br. at 3. What the United States Attorney fails
to acknowledge, however, is that the Solicitor General's brief did
not claim that the United States had acquired an interest in all
wetlands on the parcel, but rather explicitly stated that the
United States "ha[d] only acquired easements over 764,522 wetland
acres," i.e., the Summary Acreage. North Dakota Brief at 19. The
implication of the United States' brief in North Dakota is clear:
the United States acquired easements over thirty-three acres on
tracts 21X and 24X and thirty-five acres on tract 30X.


     It is important to note, however, that although the Supreme
Court generally accepted the federal government's argument limiting
the easement restrictions to the encumbered parcels' wetlands, it
did not explicitly limit the wetland easement to the Summary
Acreage.   The Court merely stated that "[t]he fact that the
easement agreements include descriptions of much larger parcels
does not change the acreage of the wetlands over which the
easements have been acquired." North Dakota, 40 U.S. at 311 n.


                                11
14.8 Statements made by the Solicitor General in his North Dakota
brief and the FWS response to interrogatories are not a binding
statement of the rights of the United States. See Federal Crop
Ins. Corp. v. Merrill, 332 U.S. 380, 383-84 (1947).


     C.   Problems with a Fluctuating Easement.


     Although the Court's language in North Dakota permits an
interpretation of the easement to cover all wetlands on the
encumbered tract rather than limiting the easements' scope to the
Summary Acreage, doing so would create a host of problems. Under
this interpretation, the number of wetland acres subject to the
easement restrictions would fluctuate with the amount of rainfall.
Not only is this inconsistent with the FWS Annual Summaries of the
number of wetland acres under its control and traditional norms of
real property conveyance, see Restatement of Property § 451, cmt.
m (1944) (requiring definiteness), it would prohibit ditching on
the entire, legally-described parcel.          According to the
government's theory, any action that would inhibit the collection
of water in a particular depression would violate its interest in
existing and future wetlands.    Given that these properties are
pocketed by depressions of various depths, however, any ditching
will impact the formation of wetland. See Albrecht, 496 F.2d at
909 ("[A]n expert in water biology testified that the ditching had
the same effect as a drought . . . and that the usefulness of the
[] land as a waterfowl production area had been `significantly
reduced.'").    Thus, the wetland easements' restrictions, as
interpreted by the United States Attorney, would apply to the
entire parcel. This was clearly and explicitly rejected by the
Supreme Court in North Dakota.




     8
      The Court's treatment of this argument implicitly suggests,
however, that the "acreage" is a set figure and not subject to
fluctuation.

                                12
     This interpretation also presents problems with respect to the
gubernatorial-consent component of the program's authorizing
statute. If the easement restrictions expanded with the amount of
wetland present on a parcel at any particular time, the acreage of
federal wetlands counted against the gubernatorial limitation would
fluctuate as well. This figure would also need to be kept current
to ensure compliance with the gubernatorial consents, something
that the federal government has been reluctant to do in the past.
See Vesterso, 828 F.2d at 1242.      The United States Attorney's
suggestion that the Easement Summary figures may be used to compile
a total of wetland acreage to be applied against the gubernatorial
consents, but need not relate to the potholes actually covered by
the restrictions, Appellee's Reply Br. at 2, can be rejected out of
hand. Clearly, in order for the gubernatorial consent provision of
the enabling statute to be meaningful, there must be a direct
correlation between the figure of federal wetland acres applied
against the consents and the actual acreage restricted by the
wetland easements. Even were the federal government to assume the
task of maintaining an accurate and current tally of the existing
wetlands, that fluctuating figure could conceivably exceed the
gubernatorial limitation during a wet year, thereby violating the
terms of the easement program's enabling statute.9 In its reply
brief, the United States    Attorney's   Office   responds   to   this
possibility as follows:

     In the unlikely event the State could prove that the
     total wetland acres under easement in a particular
     county, when at maximum fill, exceeded the gubernatorial
     consents previously given, such an assumption might give
     rise to a right to bring a declaratory judgment or
     contract action against the federal government.     What
     such a suit might yield is unclear, but what is clear is

      9
       This court has not received any assurances that there is
enough room under the cap to make this possibility unlikely. Given
that a wet year is likely to impact the water levels of an entire
county similarly and that the gubernatorial limitations are imposed
on a county-by-county basis, the possibility of exceeding the
gubernatorial consents' acreage limitation could not be discounted.

                                13
     that it would not void all easements taken in that county
     or confer upon either the State or the landowners the
     right to choose which wetlands within each easement the
     federal government gets to keep.

Appellee's Reply Br. at 4 (emphasis added). We decline to follow
the "cross-that-bridge-when-you-get-to-it" approach espoused by the
United States Attorney's Office. Given the choice, we believe it
more prudent to avoid this possibility by interpreting the
easements' scope in a manner that fixes the federal acreage counted
against the gubernatorial consent limitation.


     Therefore, we hold that the federal wetland easements are
limited to the acreage provided in the Easement Summaries. This
approach has the additional advantage of consistency with prior
representations by the federal government of its interest in the
properties, including the FWS Annual Survey and the Solicitor
General's position in the North Dakota litigation.


     D.   Post-North Dakota Case Law.


     In its motion in limine to the district court, the United
States Attorney argued that this court's decision in United States
v. Vesterso, 828 F.2d 1234 (8th Cir. 1987), rejected limiting the
federal wetland easements to the Summary Acreage. In Vesterso,
this court considered a case in which a North Dakota county water
board had undertaken two drainage projects on properties subject to
federal wetland easements. Id. at 1237. Despite being advised of
the federal easements by the state water commission, the county
water board completed the projects without conferring with or
notifying the FWS. Id. at 1238.


     In affirming the convictions, we wrote, "it is sufficient for
the United States to prove beyond a reasonable doubt that
identifiable wetlands were damaged and that those wetlands were
within parcels subject to federal easements." Id. at 1242. The

                                14
United States Attorney interprets this language to mean that the
drainage of any wetlands on a burdened parcel violates section
668dd.   This language, however, must be understood within its
context in the opinion: rejecting the defendants' assertion that
the federal government had not ensured compliance with the
gubernatorial limitation by identifying all wetlands covered by the
federal easements. Id. at 1241. In the same section, we wrote:

     Before the United States can prove a person damaged
     federal property as prohibited by section 668dd(c), it
     does not have to describe legally each wetland to which
     the restrictions apply and further determine whether the
     total wetland acreage exceeds the limits imposed by the
     gubernatorial consent for the county.

Id. at 1242. In this context, our discussion is simply understood
to mean that the government did not need to legally describe the
confines of each covered wetland under the pre-1976 easements to
ensure compliance with the gubernatorial consent limitation, a
question already answered by the Supreme Court in North Dakota.


     The language in Vesterso regarding what the United States must
prove is better understood to mean that the United States must
prove beyond a reasonable doubt that identifiable, covered wetlands
(as existing at the time of the easement's conveyance and described
in the Easement Summary) were damaged and that the defendant knew
that the parcel was subject to a federal easement. See Vesterso,
828 F.2d at 1244 (holding that defendants, who knew that the parcel
was encumbered by a wetland easement, cannot claim that they did
not know a particular wetland was covered by the easement because
such a lack of knowledge would be caused by "willful blindness.").
This meaning is made clearer later in Vesterso when we concluded:

           We realize that the federal wetland easements in
     North Dakota have generated controversy and, in some
     instances, frustration for landowners.     We point out,
     however, that the State of North Dakota and landowners
     are not without recourse if the easements cause flooding,
     for example, which results from nonnatural obstructions

                                15
     to water flow. The prudent course in any event requires
     consultation with the Fish and Wildlife Service before
     undertaking drainage on parcels covered by easements. .
     . . There is no evidence in the record indicating that
     [] cooperation would not have been forthcoming in this
     case.   Instead of seeking cooperation, the appellants
     acted on their own by digging a ditch approximately three
     feet deep and fifteen feet wide across the easement in
     clear violation of the Wildlife Refuge Act.

Id. at 1245 (emphasis added).     Having been so advised by this
court, the Johansens sought cooperation from the FWS to contain the
flooding that emersed their farmland.          Unfortunately, the
cooperation to which we alluded was not forthcoming.


     Our decision in United States v. Schoenborn, 860 F.2d 1448
(8th Cir. 1987), reiterates this court's revised interpretation of
the wetland easements.    In that case, we reviewed the district
court's finding that a Minnesota farmer had violated a wetland
easement.    Specifically, Schoenborn's violations consisted of
draining four basins (as potholes are known in Minnesota) and
filling nine ditches.     On review of each individual alleged
violation, this court examined evidence that the specific potholes
existed at the time of the easement conveyance, a clear departure
from our prior practice focusing on any ditching of the burdened
parcel, cf. Albrecht, 496 F.2d at 911, as well as the state of the
basin at trial.     Thus, Schoenborn implicitly acknowledged the
limited scope of the wetland easements.


     E. The District Court's Pretrial Order.


     In this case, the district court's decision was predicated on
a fundamental (albeit understandable) misinterpretation of this
circuit's case law with respect to the scope of federal wetland
easements.   Therefore, we review the district court's pretrial
order excluding evidence de novo. See United States v. Singer Mfg.
Co., 374 U.S. 174, 192-93 (1963). We hold that the United States'
wetland easements acquired title on the acreage specified in the

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Easement Summaries. Although the mens rea element of this crime is
fulfilled by proof that the defendant knew the parcel was subject
to a wetland easement, see Vesterso, 828 F.2d at 1244, the
government must still prove that the defendant drained the Summary
Acreage covered by the federal wetland easement. The converse is
also true: a defendant must be permitted to introduce evidence
proving that they did not drain the Summary Acreage.


                         III.   CONCLUSION


     The wetland acquisition program was conceived of as a
partnership between the federal government, the states, and
individual property owners.     As with any partnership, success
requires good faith and reasonability. Although the United States
Attorney pays lip service to the program's goal of co-existence
between Waterfowl Production Areas and "normal farming practices,"
the government ignores the obvious potential consequence of its
interpretation: the reduction of cultivable land on tract 21X by
over sixteen percent would be a significant economic impediment to
the continued viability of normal farming practices. It strikes
this court as contrary to the program's goal of reasonable
cooperation to refuse a request to identify the scope of the
federal government's interest in a property and then prosecute the
property owner for making his best efforts to contain surplus water
to the protected federal wetlands. Therefore, we remand this case
to the district court for action consistent with this opinion.


     A true copy.


        Attest:


             CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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