What are the boundaries of federal easements acquired over "any water" under the Migratory Bird Conservation Act? U.S. v. Johansen, 93 F.3d 459 (8th Cir. 1996) In the early 1960's, the federal government purchased easements on the North Dakota farms of the Johansens for the purpose of maintaining waterfowl preservation areas under the Migratory Bird Conservation Act (codified as 16 U.S.C. 715 et seq. (1994)). The easements required that the owners not drain "any water, including lakes, ponds, marshes, swales, swamps, or potholes, now existing or reoccurring due to natural causes . . . by ditching or any other means[.]" The state of North Dakota consented to the acquisition of similar easements covering 1.5 million acres of farmland. After two particularly wet years, the Johansens requested that the Fish and Wildlife Service (FWS) delineate the extent of its wetland easements. The FWS refused to delineate the boundary of its easement, arguing that any and all wetlands, including those developing during wet years, are subject to the easements. The Johansens proceeded to drain portions of their flooded farmlands in spite of the FWS position, and the U.S. Attorney charged them with draining a wetland in a Waterfowl Protection Area, a violation of 16 U.S.C. § 668dd(1994). The Johansens entered a conditional guilty plea and appealed. Looking to the foundations of the wetland acquisitions program as it was conceived, the 8th Circuit Court of Appeals found that the program was designed to operate as a partnership between the federal government, the states, and individual farmers. The court interpreted the government's refusal to delineate the extent of its easements, combined with its subsequent prosecution of the farmers attempting to drain the surplus water, as evidence of the government's failure to act in the spirit of a partnership. The court rejected the Fish and Wildlife Service's position that the easements were essentially boundary-less, holding that federal wetlands easements are limited to the acreage provided in the Easement Summaries. This meant that the land which the Johansen's drained was not in a Waterfowl Protection Area. As a result, the court found for the Johansens, overturning their lower court conviction.
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