United States v. Alvin Peterson

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, MICHAEL J. MELLOY and RAYMOND W. GRUENDER. Raymond W. Gruender, Authoring Judge (PUBLISHED) [3749237] [10-1577]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-1577
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United States of America,
Appellee,
v.
Alvin Peterson,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of North Dakota.
*
*
*
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Submitted: October 21, 2010
Filed: January 27, 2011
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Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Alvin Peterson (“Peterson”) was charged with two Class B misdemeanor
violations for draining wetlands on property encumbered by a federal wetlands
easement, in violation of 16 U.S.C. § 668dd(c), (f)(2). The first violation—number
W0900741—alleges Peterson drained wetlands 3, 5, and 8, subject to Walsh County
Easement 124X-1-3, on the west 1/2 of Section 15, Township 156N, Range 59W
(“Section 15”). The second violation—number W0900742—alleges Peterson drained
wetland 2, subject to Walsh County Easement 56X-2, on the north 1/2, southeast 1/4
of Section 16, Township 156N, Range 59W (“Section 16”). A magistrate

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judge1 found Peterson guilty of both violations, United States v. Peterson, 2008 WL
4922413 (D.N.D. Nov. 12, 2008), and sentenced him to 5 years’ probation and
imposed a $10,000 fine and $1,500 in restitution. Peterson appealed to the district
court, see Fed. R. Crim. P. 58(g)(2)(D), and the district court2 affirmed, United States
v. Peterson, No. 2:08-mj-16, (D.N.D. Mar. 1, 2010). On appeal to this court, Peterson
challenges the sufficiency of the evidence solely for his conviction on violation
number W0900741, the charge involving wetlands on Section 15. Because substantial
evidence supports Peterson’s conviction, we affirm.
I.

BACKGROUND

In 1966, Peterson’s parents, Joe Peterson (“Joe”) and Emma Peterson
(“Emma”), conveyed a wetlands easement (“1966 easement”) to the United States
Fish and Wildlife Service (“FWS”) in exchange for $4,700. As with many such
easements negotiated by FWS before 1976, FWS utilized a standard wetland
conveyance document that included the entire tract of land in its legal description. In
this case, the 1966 easement purported to grant wetlands protection to FWS for the
west 1/2 of Section 15 and for portions of six other sections of land. Although the
1966 easement refers to an attached map certified by the FWS Regional Director, no
such map was ever located, if it did exist. However, included with the 1966 easement
is an administrative easement summary that delineates the total “tract acreage”
(1510.49 acres) and the “wetlands acreage” (314 acres) covered by the easement.
Notably, the easement summary did not delineate how the wetlands acreage was
distributed among each of the seven sections.

1

The Honorable Alice R. Senechal, United States Magistrate Judge for the
District of North Dakota.
2

The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.
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Joe leased the farmland on the west 1/2 of Section 15 to Peterson beginning in
1954. In 1973, after a series of disagreements with Peterson regarding the easement’s
coverage, FWS purported to “renegotiate” the 1966 easement with Peterson by having
him execute, “for Joseph C. Peterson,” a hand-drawn map of Section 15 that
delineated the wetlands on the section covered by the easement (“1973 map”).
Although Joe and Emma remained the owners of the land at the time, they did not sign
the 1973 map, and they were not involved in its negotiation. Peterson inherited the
west 1/2 of Section 15 in 1975.
In 1999, and again in 2003, Peterson constructed ditches to drain water from
certain wetlands on Section 15. As a result, Peterson was convicted of draining
protected wetlands, in violation of 16 U.S.C. § 668dd(c), (f)(2).3 He was fined,
sentenced to probation, and ordered to comply with a wetlands restoration program.
Peterson appealed to this court, and we affirmed. See United States v. Peterson, 178
Fed. App’x 615, 616 (8th Cir. 2006) (unpublished per curiam) (“Peterson I”).
After the court-ordered restoration was completed in the fall of 2006, Peterson
hired a contractor to remove the man-made earthen “plugs” installed during the
restoration of wetlands 3, 5, and 8 on Section 15, resulting in more than an 87 percent
reduction in water level. FWS issued a violation notice, and the magistrate judge
again convicted Peterson of violating of 16 U.S.C. § 668dd(c), (f)(2), for draining
wetlands on property encumbered by a federal wetlands easement. The district court
affirmed, and this appeal followed.

3

The applicable statute provides that “[n]o person shall disturb, injure, cut,
burn, remove, destroy, or possess any real or personal property of the United States,
including natural growth, in any area of the [National Wildlife Refuge] System.” 16
U.S.C. § 668dd(c).
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II.

DISCUSSION

On appeal, Peterson claims the Government’s evidence was insufficient to
prove that the drained wetlands on Section 15 existed at the time of the 1966
easement’s conveyance, that the drained wetlands are covered by the 1966 easement,
and that Peterson had the requisite knowledge. He also argues that his actions
amounted to a permissible clearing of natural waterways that had become overgrown
and silted.
“In passing upon the sufficiency of the evidence to sustain an ultimate finding
of guilt following a bench trial, we apply the same standard of review that is applied
where a defendant has been found guilty by a jury; that is to say, the finding must be
sustained if it is supported by substantial evidence.” United States v. Erhart, 415 F.3d
965, 969 (8th Cir. 2005) (quoting United States v. Barletta, 565 F.2d 985, 991 (8th
Cir. 1977)). “On review, we will consider the evidence in the light most favorable to
the guilty verdict.” Id. To convict Peterson of the violation, “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.” United States v. Johansen, 93 F.3d 459, 467 (8th Cir. 1996) (emphasis
and parenthesis in the original) (citing United States v. Vesterso, 828 F.2d 1234, 1244
(8th Cir. 1987)).
First, Peterson argues that the Government failed to show that the drained
wetlands existed at the time of the easement’s conveyance in 1966. We disagree. The
Government introduced an aerial photograph of Section 15 taken in 1962, four years
before the easement was conveyed. FWS wildlife biologist Mike Estey testified that
the wetlands depicted in the 1962 aerial photograph were of the same approximate
size, shape, and location as the drained wetlands. Moreover, the wetlands depicted in
the 1962 aerial photograph align closely with the wetlands depicted in the 1973 map.
After reviewing the record, we conclude that the photographic evidence, maps, and
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expert testimony taken together amount to substantial evidence that the drained
wetlands on Section 15 existed at the time of the easement’s conveyance in 1966.
Second, Peterson argues that the Government has failed to show that the
specific wetlands he drained on Section 15 were covered by the 1966 easement. He
asserts that the 1966 easement, which extends over the west 1/2 of Section 15 and six
other sections of land, is “not specific enough to provide adequate notice and a legal
encumbrance on Alvin Peterson’s use of his land” because it lacks a
contemporaneously-filed map or a section-by-section delineation of covered wetlands
acreage. In the absence of a map or a section-by-section delineation of wetlands
acreage, Peterson argues that the Government cannot prove which wetlands were
included in the 314-acre total and which wetlands may not have been covered by the
easement. The Government argues that “[t]he [drained] wetlands were ‘now existing’
in 1966, and therefore covered by the terms of the easement.”4
The Government does “not need to legally describe the confines of each
covered wetland under the pre-1976 easements.” Johansen, 93 F.3d at 467. However,
because “federal wetland easements are limited to the acreage provided in the
Easement Summaries,” id. at 466, it is insufficient to show only that the drained
wetlands were in existence at the time of the conveyance of the easement. Without
the aid of a map filed with the easement or some other method of identifying the
4

We look only to the 1966 easement and easement summary, and not to the
1973 map, to determine whether the drained wetlands were covered by the 1966
easement. Although the Government occasionally refers to the 1973 map as a
“renegotiation” of the 1966 easement, it conceded that the 1973 map did not change
the terms and scope the 1966 easement: “[i]t . . . does not make any difference
whether [Alvin] Peterson did or did not have the authority to sign the 1973
renegotiated map. The easement was recorded in 1966 and the legal rights of the
United States stem from the 1966 easement.” To be sure, the 1973 map is evidence
that Peterson knew that his property was encumbered by an easement, but this does
not influence our inquiry into whether the drained wetlands actually were covered by
the 1966 easement.
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specific wetlands covered by the easement, however, the Government still can prevail
by proving that the easement encumbers all wetlands on the tract that were in
existence at the time of the conveyance.
Implicit within Peterson’s argument, however, is the assertion that some
wetlands acreage on the seven sections—including Section 15—was not covered by
the 1966 easement. In contrast, the Government argues that the 1966 easement
encumbers all wetlands existing in 1966 on the seven sections, including Section 15.
The text of the 1966 easement supports the Government’s argument. The easement
prohibits “draining or permitting the draining, through the transfer of appurtenant
water rights or otherwise, of any surface water including lakes, ponds, marshes,
sloughs, swales, swamps, or potholes, now existing or reoccurring due to natural
causes on the above-described tract” (emphasis added). When the 1966 easement is
read together with the easement summary, it is clear that the 1966 easement covers all
wetlands then existing on the seven sections—including Section 15—and that those
wetlands total 314 acres, as described in the easement summary.
The 1966 easement included an additional clause that could potentially exclude
some wetlands: “Excepted are certain drainage ditches which the parties of the first
part [Joe and Emma] may maintain and/or wetlands which are deleted from the
provisions of this easement. The above exceptions are shown on a map certified by
the Regional Director at the time of acceptance.” The magistrate judge, however,
noted that no such map was submitted in evidence and found that the record lacked
any evidence to indicate that this clause served to exclude any wetlands in existence
in 1966. Peterson, 2008 WL 4922413, at *2. Moreover, before the magistrate judge,
Peterson’s counsel characterized this provision as pertaining only to ditches, not
wetlands: “it essentially says that if there are ditches or drainages that are maintained
prior to 1966 they can continue being maintained.” Likewise, Peterson does not argue
in his briefs on appeal that this clause removed certain wetlands from the scope of the
easement; his briefs mention this clause only within a discussion of Peterson’s
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knowledge of the easement’s scope. Therefore, Peterson has “waived his
argument . . . because the issue was not developed in his briefs as required.” Rotskoff
v. Cooley, 438 F.3d 852, 854 (8th Cir. 2006). Even if we were to overlook this
waiver, we find no evidence in the record that refutes the magistrate judge’s
conclusions that this clause did not exclude any wetlands from the 1966 easement and
that all wetlands on the seven sections in existence in 1966 were encumbered by the
1966 easement.
Therefore, because the drained wetlands were in existence at the time of the
conveyance, and because the 1966 easement covers all wetlands that were in existence
at the time of the conveyance, substantial evidence supports the district court’s
conclusion that the wetlands Peterson drained on Section 15 were covered by the
easement—despite the easement’s failure to include a contemporaneously-filed map
or provide a section-by-section breakdown of the wetlands acreage.
Third, Peterson argues that the Government failed to show that he knew the
scope of the 1966 easement. Peterson overstates the degree of knowledge required by
our precedent: the Government need only prove that Peterson “knew that the parcel
was subject to a federal easement.” Johansen, 93 F.3d at 467. The 1973 map, signed
by Peterson, clearly establishes that Peterson knew that Section 15 was subject to a
federal easement. Even if we were to look past the 1973 map, Peterson’s previous
conviction involving the drainage of the very wetlands at issue in this prosecution
provided sufficient notice that the parcel was subject to a federal easement. See
Peterson I, 178 Fed. App’x at 616. Accordingly, substantial evidence supports the
conclusion that Peterson knew that Section 15 was subject to a federal easement.
Finally, Peterson argues that his actions amounted only to a permissible clearing
of natural waterways that had become overgrown and filled with silt. We disagree,
as the record evidence demonstrates that Peterson’s work exceeded this description.
The contractor hired by Peterson did not merely clean out ditches or natural
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waterways. At Peterson’s direction, the contractor removed the man-made earthen
plugs—installed as restorative measures required by his previous conviction—and
breached the basins of wetlands 3, 5, and 8, resulting in at least an 87 percent
reduction in water level. Accordingly, Peterson’s argument is without merit.
III.

CONCLUSION
For the foregoing reasons, we affirm Peterson’s conviction.
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