Summary of a Recent
Judicial Development in
Farm Programs

Landowner's Assent Not Required
for Implementation of Wetland
Reserve Program Conservation Plan

John D. Mead
National AgLaw Center Research Fellow

A landowner who conveyed an easement to the United States in accordance with the Wetlands Reserve Program sought a declaratory judgment that the government improperly implemented a conservation plan on his land without his approval. Big Meadows Grazing Ass'n v. U.S. ex rel. Veneman, 340 F.3d 940 (9th Cir. 2003). The United States Court of Appeals for the Ninth Circuit rejected the landowner's claims, holding that the statute governing the Wetlands Reserve Program did not require the landowner to assent to a conservation plan in order for that plan to be implemented. See id. at 942-45.

The Wetlands Reserve Program provides landowners "an opportunity to protect, restore, and enhance wetlands on their property" and is administered by the Natural Resources Conservation Service, an agency within the USDA. Id. at 941. In December 1999, Big Meadows Grazing Association ("Big Meadows") sold a permanent conservation easement covering approximately 1,800 acres of land to the Natural Resource Conservation Service (hereinafter "government") for approximately $1.9 million so that the property could be enrolled in the WRP. See id. at 942. The purpose of the easement was to "'restore, manage, maintain, and enhance'" wetlands on Big Meadows' property. Id.

Big Meadows alleged that the before the easement was conveyed, the government informed it that the conservation plan would cost approximately $80,000.00. See id. The most recent conservation plan, issued in September 2001, was estimated by the government to cost over $486,000.00. See id. Asserting that the September 2001, plan was "'radically different' from representations that were made both before and after the easement was conveyed," Big Meadows refused to agree to the implementation of the plan. See id. The government notified Big Meadows that its assent was not necessary for the plan to be implemented and "began unilaterally implementing the conservation plan in November 2001." Id.

Big Meadows brought an action seeking a declaratory judgment that the government violated 16 U.S.C. § 3837a "by attempting to implement a conservation plan without Big Meadows' agreement. . . ." Id. Big Meadows also sought an injunction to prevent the government from undertaking any restoration activities until it had given its assent to a conservation plan.

The district court denied Big Meadows' requests and granted summary judgment in favor of the government, holding that the government was not required under § 3837a to obtain Big Meadows' assent prior to implementing the 2001 conservation plan. See id. Big Meadows appealed the district court's decision to the Ninth Circuit. See id.

Big Meadows argued that § 3837a prohibited the government from implementing the 2001 conservation plan without its assent. See id. Section 3837a(a) provides, in pertinent part, the following:

(a) . . . To be eligible to place land into the wetland reserve under this subpart, the owner of such land shall enter into an agreement with the Secretary -

(1) to grant an easement on such land to the Secretary; [and]

(2) to implement a wetland easement conservation plan as provided for in this section. . . .

Id. (quoting 16 U.S.C. § 3837a(a)). Specifically, Big Meadows interpreted § 3837a(a)(2) to mean that the government was required to obtain its assent to a conservation plan affecting its land before it could be implemented. See id. at 942-43.

The court rejected this interpretation, stating that the language of § 3837a(a)(2) "plainly does not require agreement on the specific terms of the conservation plan." Id. at 943. It held that § 3837a(a)(2) only requires "that Big Meadows enter into an agreement 'to implement a wetland easement conservation plan' of some kind. Big Meadows did that when it conveyed the conservation easement here." Id.

The court added that Big Meadows relinquished all rights that were not expressly reserved in the easement agreement. See id. The pertinent language of the easement agreement stated the following:

[T]he Grantor(s), hereby grants and conveys with general warranty of title to the UNITED STATES OF AMERICA and its assigns . . . forever, all rights, title and interest in the lands comprising the easement area . . . and appurtenant rights of access to the easement area, but reserving to the Landowner only those rights, title and interest expressly enumerated in Part II. It is the intention of the Landowner to convey and relinquish any and all other property rights not so reserved.

Id.

The court noted that Part II of the easement agreement expressly reserved to Big Meadows certain rights, such as maintaining record title and the right to subsurface resources but did not reserve the right to veto the conservation plan. See id. It added that

[e]xpressly granted, in fact, was the right for the government to undertake "any" restoration activities: "The United States shall have the right to enter unto the easement area to undertake . . . any activities to restore, protect, manage, maintain, enhance, and monitor the wetland and other natural values of the easement area." The purpose of the easement was to "restore, protect, manage, maintain, and enhance the functional values of wetlands," and the easement expressly recognized that "restoration and management activities on the easement area" would occur. This language demonstrates that, in conveying the easement and pursuant to its terms, Big Meadows "enter[ed] into an agreement with the Secretary . . . to implement a wetland easement conservation plan."

Id. (quoting 16 U.S.C. § 3837a(a)).

The court concluded that

In sum, the plain language of § 3738a (with which the underlying regulations are consistent) does not require that Big Meadows assent to a conservation plan before it may be implemented. Nor does it require that the agreement to implement a conservation plan be made separate and apart from the easement. All it requires is that Big Meadows agree to the implementation of a wetland easement conservation plan. Big Meadows did so under the specific terms of the easement it conveyed to the government. . . . Because the plain language of the statute unambiguously forecloses Big Meadows' argument, our inquiry ends here.

Id. at 944-45 (citation omitted).

The case was decided on Aug. 6, 2003; this summary was posted Dec. 23, 2003.