Ninth
Circuit Holds the United States Need Not Get
Approval from Landowner before Implementing a
Conservation Plan on Land Subject to a
Permanent Conservation Easement
BIG MEADOWS
GRAZING
ASSOCIATION, Plaintiff-Appellant, v. UNITED
STATES OF AMERICA, by and through; ANN M.
VENEMAN, in her capacity as Secretary of the
Department of Agriculture; SHIRLEY GAMMON, in
her capacity as State Conservationist (for the
State of Montana) with the Natural Resources and
Conservation Service, an agency of the
Department of Agriculture, Defendants-Appellees.
No. 02-35764
UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
344 F.3d 940; 2003 U.S. App. LEXIS 19002; 2003
Cal. Daily Op. Service 8392
August 6, 2003, Argued and Submitted, Seattle,
Washington
September 15, 2003, Filed
PRIOR HISTORY: [**1] Appeal from the
United States District Court for the District of
Montana. D.C. No. CV-01-00204-DWM. Donald W.
Molloy, District Judge, Presiding.
DISPOSITION: Affirmed.
COUNSEL: Kent P. Saxby, Johnson, Berg,
McEvoy & Bostock, PLLP, Kalispell, Montana, for
the plaintiff-appellant.
Robert R. Klotz, Appellate Section, Environment
& Natural Resources Division, United States
Department of Justice, Washington, D.C., for the
defendants-appellees.
JUDGES: Before: James R. Browning, Arthur
L. Alarcon, and Richard R. Clifton, Circuit
Judges. Opinion by Judge Clifton.
OPINIONBY: Richard R. Clifton
OPINION:
[*941] CLIFTON, Circuit Judge:
No less than half of the wetlands n1 in the
continental United States have been destroyed
since 1600. n2 To counter this trend, the
Natural Resource Conservation Service of the
Department of Agriculture established the
Wetlands Reserve Program (the "WRP") to provide
landowners an opportunity to protect, restore,
and enhance wetlands on their property." n3 Big
Meadows Grazing Association ("Big Meadows") sold
the United States a conservation easement so
that part of Big Meadows' property could be
enrolled in the WRP. When Big Meadows and the
United States subsequently disagreed on what
conservation[**2] activities would occur on the
property, the government began unilaterally
implementing its proposed conservation plan. Big
Meadows sued, seeking in pertinent part a
declaratory judgment that implementation of the
conservation plan without its approval would
violate 16 U.S.C. § 3837a. The district court
granted summary judgment for the government,
ruling that the government need not obtain Big
Meadows' approval before implementing the
conservation plan. Big Meadows [*942] timely
appealed. Because § 3837a neither requires Big
Meadows' assent to the conservation plan nor
requires that the agreement to implement a
conservation plan be made apart from the
easement, we affirm.
- - - - - - - - - - - - - - Footnotes - - - - -
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n1 Wetlands are home to nearly 5,000 species of
plant life and numerous species of animal life
(including such endangered species as the
whooping crane, bald eagle, red wolf, and
fatmucket mussel). See
http://www.nrcs.usda.gov/feature/highlights/wetlands/life.html
(last visited August 19, 2003). Wetlands also
help prevent floods, control erosion, protect
shorelines, and filter water pollutants. See
http://www.nrcs.usda.gov/feature/highlights/wetlands/places.html
(last visited August 19, 2003). [**3]
n2 See
http://h2osparc.wq.ncsu.edu/info/wetlands/intro.html
(last visited August 19, 2003).
n3 See
http://www.nrcs.usda.gov/programs/wrp/ (last
visited August 19, 2003); see also 16
U.S.C. § 3837(a) (2000) (the WRP was established
"to assist owners of eligible lands in restoring
and protecting wetlands").
- - - - - - - - - - - - End Footnotes- - - - - -
- - - - - - - -
I. BACKGROUND
Ever since December 1999, the government has
held a permanent conservation easement on
approximately 1,812 acres of land that Big
Meadows owns in Flathead County, Montana. The
government paid Big Meadows approximately $ 1.9
million for the easement, the purpose of which
is to "restore, manage, maintain, and enhance"
wetlands and to conserve "natural values."
Before the easement was conveyed, the government
allegedly informed Big Meadows that the
conservation plan would cost around $ 80,000 to
implement. However, the government's latest
conservation plan, from September 2001, is
projected to cost over $ 486,000. The government
did not provide Big Meadows with a Preliminary
Restoration Plan ("PRP") before obtaining the
easement.[**4]
Insisting that the latest conservation plan is
"radically different" from representations that
were made both before and after the easement was
conveyed, Big Meadows has refused to agree to
its implementation. Big Meadows disagrees with
the scope and type of restoration activities
that are to take place. For example, according
to Big Meadows, the conservation plan originally
envisioned restoring a streambed, but now
proposes impounding water via a dam, which Big
Meadows finds objectionable. Unable to obtain
Big Meadows' agreement, the government informed
Big Meadows that its agreement was not necessary
and began unilaterally implementing the
conservation plan in November 2001.
Litigation ensued. Big Meadows sought in
district court a declaratory judgment that the
government had violated § 3837a by attempting to
implement a conservation plan without Big
Meadows' agreement, and an injunction preventing
the government from performing any restoration
activities until Big Meadows approved of a
conservation plan. The district court denied Big
Meadows' requests for a temporary restraining
order and for a preliminary injunction. The
government then moved to dismiss for failure to
state[**5] a claim, arguing in relevant part
that § 3837a had not been violated. Construing
the motion as one for summary judgment, the
district court granted summary judgment for the
government, holding that § 3837a did not require
the government to obtain Big Meadows' agreement
before implementing the conservation plan. Big
Meadows timely appealed from that decision.
II. DISCUSSION
A. Section 3837a Does Not Require the Government
to Obtain Big Meadows' Agreement to the Terms of
the Conservation Plan.
Leaning on § 3837a, Big Meadows argues that
the government may not implement on the easement
property a conservation plan to which Big
Meadows has not assented. The statute provides
in relevant part:
(a) In general. 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 . . . .
- 16 U.S.C. § 3837a(a) (2000).
- There is no dispute that subpart (1) has
been satisfied. Big Meadows argues, [**6]
[*943] however, that subpart (2) has not been
met. Big Meadows reads subpart (2) as
requiring the government to obtain Big
Meadows' assent to the particular conservation
plan to be implemented. We find no support for
this construction in the statute. The language
of subpart (2) plainly does not require
agreement on the specific terms of the
conservation plan. All subpart (2) requires is
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.
Scrutiny of the particular terms of this
easement reveals that Big Meadows agreed to the
implementation of a wetland easement
conservation plan. Specifically, Big Meadows
relinquished all rights not expressly reserved
in Part II of the easement:
- The 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[**7] of the Landowner to convey and
relinquish any and all other property rights
not so reserved.
- Part II expressly reserved in Big Meadows
only record title, the right of quiet
enjoyment, the right to prevent trespass and
control public access, the right to
undeveloped recreational uses, and the right
to subsurface resources. Big Meadows did not
reserve, for instance, the right to veto the
conservation plan.
Expressly 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." (Emphasis added.) 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 "entered into
an agreement with the Secretary . . . to
implement a wetland easement conservation[**8]
plan." n4 16 U.S.C. § 3837a(a) (2000).
- - - - - - - - - - - - - - Footnotes - - - - -
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n4 Although the easement does express an "intent
of [the United States] to give the Landowner the
opportunity to participate in the restoration
and management activities on the easement area,"
it nowhere grants Big Meadows the power to veto
a conservation plan of which it disapproves.
- - - - - - - - - - - - End Footnotes- - - - - -
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Notably, § 3837a(c) reserves no role for the
landowner in developing a conservation plan,
supporting our conclusion that Big Meadows'
approval is not required:
- (c) Restoration plans. The development of
a restoration plan, including any compatible
use, under this section shall be made through
the local Natural Resources Conservation
Service representative, in consultation with
the State technical committee.
Guidance in support of the government's
position is further provided by § 3837a(b),
which reads in pertinent part:
(b) Terms of easement. An owner granting an
easement under subsection (a) of this section
shall be required to provide for[**9] the
restoration and protection of the functional
values of wetland [*944] pursuant to a wetland
easement conservation plan that --
***
- (4) includes such additional provisions as
the Secretary determines are desirable to
carry out this subpart or to facilitate the
practical administration thereof.
- Subpart (b)(4) vests in the Secretary
discretion to include any desirable provisions
in the conservation plan. It does not require
the Secretary to obtain Big Meadows' assent.
- Nor must the conservation agreement be
made separate and apart from the easement.
While § 3837a(a) requires that Big Meadows
both agree to grant an easement and agree to
the implementation of a conservation plan, it
nowhere prohibits the latter agreement from
being contained in the easement. Section
3837a(b) suggests no such prohibition either.
Big Meadows relies on the portion of that
section stating, "An owner granting an
easement under [ § 3837a(a)] shall be required
to provide for the restoration and protection
of the functional values of wetland pursuant
to a wetland easement conservation plan . . .
." 16 U.S.C. § 3837a(b) (2000). But that
language nowhere indicates that[**10]
agreement to the conservation plan cannot be
contained in the easement. In fact, § 3837a(b)
is titled "Terms of easement," suggesting that
the agreement to implement a conservation plan
may well be part of the easement.
- Federal regulations prompt no different
result. Seven C.F.R. § 1467.4(a) (2003) states
in pertinent part, "To participate in WRP, a
landowner will agree to the implementation of
a Wetlands Reserve Plan of Operations (WRPO) .
. . ." Like 16 U.S.C. § 3837(a), this
regulation requires only that Big Meadows
agree to the implementation of a conservation
plan. It does not require that Big Meadows
assent to the terms of the particular
conservation plan chosen.
Neither does 7 C.F.R. § 1467.10(d) (2003),
which provides in relevant part (emphasis
added):
(d) The landowner shall:
(1) Comply with the terms of the easement;
- (2) Comply with all terms and
conditions of any associated contract;
- ***
- (4) Agree to the long-term restoration,
protection, enhancement, maintenance, and
management of the easement in accordance with
the terms of the easement and related
agreements. . . .
- Far from[**11] indicating that a separate
agreement is required, the emphasized portions
actually suggest the contrary. Subpart
(d)(2)'s reference to "any associated
contract" indicates that a separate contract
may, but need not, exist. Subpart (d)(4)'s
reference to "related agreements" does not
indicate that separate related agreements must
exist, but merely acknowledges that they may.
Finally, we turn to 7 C.F.R. § 1467.12(b)
(2003), which specifies in relevant part,
"Modifications to the WRPO which are substantial
and affect provisions of the easement will
require agreement from the landowner and require
execution of an amended easement." At most, this
regulation may suggest that the conservation
plan (the WRPO) is to exist apart from the
easement (though we offer no opinion on this
matter). It nowhere indicates that the
agreement to implement a conservation plan
must exist apart from the easement.
In sum, the plain language of § 3837a (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 [*945] it require that the agreement to
implement a conservation plan be made[**12]
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.
We do not hold that the conveyance of an
easement pursuant to § 3837a(a)(1) obviates the
requirement of § 3837a(a)(2) that there be an
agreement "to implement a wetland easement
conservation plan." Rather, our holding is that
when, as here, the particular terms of the
easement demonstrate an agreement to implement a
wetland easement conservation plan, subpart
(a)(2) is met. Subpart (a)(2) neither requires
the agreement to be made separate and apart from
the easement, nor does it require agreement on
the specific terms of the conservation plan.
Because the plain language of the statute
unambiguously forecloses Big Meadows' argument,
our inquiry ends here. See Cal. Franchise Tax
Bd. v. Jackson (In re Jackson), 184 F.3d
1046, 1051 (9th Cir. 1999) ("When the statutory
language is clear and consistent with the
statutory scheme at issue, the statute's plain
language is conclusive and this Court need not
inquire beyond the plain language[**13] of the
statute.").
B. We Decline to Review Big Meadows'
Allegations of Noncompliance with the Manual.
Big Meadows also argues that its assent to
the conservation plan is required by the Manual.
n5 Yet Big Meadows concedes that the Manual
cannot bind the government because it is neither
substantive in nature nor was promulgated
according to the Administrative Procedure Act.
See W. Radio Serv. Co. v. Espy, 79 F.3d
896, 902 (9th Cir. 1996) (requiring "agency
rules to be substantive and to be promulgated
according to certain procedural requirements
before they can bind an agency"). Because the
Manual is nonbinding, we do not review Big
Meadows' allegations of noncompliance. See
79 F.3d at 900 ("We will not review
allegations of noncompliance with an agency
statement that is not binding on the agency.").
- - - - - - - - - - - - - - Footnotes - - - - -
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n5 Big Meadows raised this argument in its brief
before the district court. We therefore decline
the government's invitation to disregard the
argument on the ground that it was raised for
the first time on appeal. See United States
v. Oregon, 769 F.2d 1410, 1414 (9th Cir.
1985)("The rule is well-established that absent
exceptional circumstances, an issue not raised
below will not be considered on appeal.").
- - - - - - - - - - - - End Footnotes- - - - - -
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[**14]
III. CONCLUSION
For the foregoing reasons, the judgment of
the district court is AFFIRMED.
"The establishment of
an American Soviet government will involve the
confiscation of large landed estates in town and
country, and also, the whole body of forests,
mineral deposits, lakes, rivers and so on." -
William Z. Foster, National Chairman of the
Communist Party USA, 1932
"The shepherd drives the wolf from the
sheep's throat, for which the sheep thanks the
shepherd as a liberator, while the wolf
denounces him for the same act as the destroyer
of liberty." Abraham Lincoln's analogy of
liberty
The inherent vice of capitalism is the unequal
sharing of the blessings. The inherent blessing
of socialism is the equal sharing of misery. --
Winston Churchill