United States v. Kevin Mast

United States Court of Appeals
For the Eighth Circuit
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No. 20-2497
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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Kevin Jay Mast

lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Southern
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Submitted: February 19, 2021
Filed: June 7, 2021
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Before LOKEN, BENTON, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.

In 2018, a jury in the District of South Dakota convicted Kevin Mast of
disturbing, injuring, and destroying real property of the United States, see 16 U.S.C.
§ 668dd(c), (f)(2), after finding that he drained wetlands protected by a United States
Fish and Wildlife Service (FWS)1 conservation easement. We vacated Mast’s first
conviction because of an erroneous jury instruction. After a 2019 bench trial, the
district court2 found Mast guilty of the same offense. He now appeals, and we affirm.

I.

The Migratory Bird Hunting Stamp Act of 1934, as amended, authorizes the
Secretary of the Interior to acquire wetland conservation easements on private land
for the purpose of protecting migratory birds. See 16 U.S.C. § 718d(b)(3), (b)(4). In
1973, the FWS purchased an easement on two tracts of Richard and Dorothy Vostad’s
farmland. Kevin Mast bought those tracts from the Vostads in 1983. Because the
presence of wetlands on one of the tracts decreased the acreage available for farming,
in 2010 Mast resolved to install subsurface drain tile to divert excess water.

The Food Security Act of 1985 makes “a person determined to have converted
wetlands [into farmland] . . . ineligible to receive farm program payments from the
federal government.” Foster v. Vilsack, 820 F.3d 330, 332 (8th Cir. 2016) (cleaned
up) (quoting Clark v. U.S. Dep’t of Agric., 537 F.3d 934, 935 (8th Cir. 2008)). To
ensure installing drain tile would not make him ineligible for farm assistance
programs operated by the U.S. Department of Agriculture (USDA), Mast sought
approval for his project from the Natural Resources Conservation Service (NRCS),
an agency of the USDA.

1
The FWS is one of the eleven technical bureaus that falls under the umbrella
of the U.S. Department of the Interior. Bureaus & Offices, U.S. DEP’T OF THE
INTERIOR, https://www.doi.gov/bureaus.
2
The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.

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 On July 22, 2010, the NRCS notified Mast that the tract he sought to install
drain tile on was “either protected by a [FWS] easement or adjacent to such lands.”
To move forward with his plan, the agency explained, Mast would need approval
from the FWS in addition to the NRCS.

Mast contacted the FWS and provided an aerial photo of the tract. On the
photo, he had marked the places where he planned to install drain tile. Emily Fischer,
an FWS biological technician, set to work mapping the wetlands on the tract. Her
map identified seven different wetland areas. This led the FWS to send Mast a letter
dated October 11, 2010 warning of a “conflict” between his drainage plan and the
FWS’s assessment of “the approximate location, size and shape of all wetland basins
protected by the provisions of the easement.”

Meanwhile, the NRCS did not complete its own assessment of Mast’s plan for
another two years. On June 11, 2012, the agency sent Mast a Certified Wetland
Determination, which identified only three wetland areas on the tract where he
planned to install drain tile. The NRCS explained that it would permit Mast to install
drain tile at specified setback distances from the wetland areas, but that it was “[his]
responsibility to ensure that [his] actions d[id] not impact wetlands protected by a
[FWS] or any other conservation easement.”

In the fall of 2013, Mast installed drain tile on his land consistent with the
NRCS’s proposed setbacks, but inconsistent with the FWS’s assessment of wetland
areas on the tract.

After an investigation by the FWS, the government indicted Mast in 2017 and
charged that he “did knowingly disturb, injure, and destroy real property of the United
States in that he drained and caused to be drained . . . wetlands” covered by the
easement. See 16 U.S.C. § 668dd(c), (f)(1). In 2018, a jury convicted him of the
lesser included offense, id. § 668dd(c), (f)(2), which does not require proof of

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knowledge. Compare id. § 668dd(f)(1) (“Any person who knowingly violates or fails
to comply with any of the provisions of this Act . . . .”), with id. § 668dd(f)(2) (“Any
person who otherwise violates or fails to comply with any of the provisions of this
Act . . . .”). This was the conviction we vacated. See United States v. Mast, 938 F.3d
973 (8th Cir. 2019). Because the jury instruction error was dispositive of his appeal,
however, we did not rule on Mast’s challenges to evidentiary rulings the district court
made during the first trial.

In 2020, the government filed a superseding information largely identical to the
first indictment, this time charging Mast with the lesser included offense and omitting
the original indictment’s allegation of knowledge. See 16 U.S.C. § 668dd(c), (f)(2).
The parties again proceeded to trial, this time with the district court as the factfinder.
In advance of the bench trial, the parties stipulated that “all of the evidence, exhibits,
and testimony from the first trial,” including previous “motions in limine,”
“objections in court,” and the district court’s rulings on them, would become part of
the second trial record. The government declined to introduce any new evidence at
the second trial and instead relied entirely on the record it created during the first
trial. Mast called just one additional expert witness and otherwise relied on the
existing record. The district court convicted Mast. In this second appeal, Mast
challenges decisions the district court made during both his first and second trials.

II.

Mast contests a series of evidentiary rulings the district court made during the
first trial. We “afford the district court broad discretion in its evidentiary rulings, in
deference to [its] familiarity with the details of the case and its greater experience in
evidentiary matters.” Rodrick v. Wal-Mart Stores East, L.P., 666 F.3d 1093, 1096
(8th Cir. 2012) (cleaned up) (quoting Sprint/United Mgmt. Co. v. Mendelsohn, 552
U.S. 379, 384 (2008)). “We will reverse only if the district court’s ruling was based
on an erroneous view of the law or a clearly erroneous assessment of the evidence and

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affirmance would result in fundamental unfairness.” Id. (cleaned up) (quoting
Wegener v. Johnson, 527 F.3d 687, 690 (8th Cir. 2008)).

Although the district court made these rulings during the jury trial, Mast now
challenges them in the context of the bench trial verdict. As such, concerns about
shielding the jury from inadmissible or otherwise dubious evidence are no longer
relevant. “In bench trials, judges routinely hear inadmissible evidence that they are
presumed to ignore when making decisions.” Harris v. Rivera, 454 U.S. 339, 346
(1981) (per curiam). “[T]here is less need for the gatekeeper to keep the gate when
the gatekeeper is keeping the gate only for himself.” In re Zurn Pex Plumbing Prods.
Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011) (quoting United States v. Brown, 415
F.3d 1257, 1269 (11th Cir. 2005)). We review the district court’s evidentiary rulings
with this in mind.

A.

Mast argues that the district court improperly allowed Fischer, the FWS
biological technician, to testify as a lay witness about her process of mapping FWS
wetland easements, including the one at issue in this case. Mast asserts that Fischer’s
testimony exceeded the permissible scope for a lay witness and that she should have
been certified as an expert witness instead.

“Determining whether a witness is offering an expert or lay opinion requires
a case-by-case analysis of both the witness and the witness’s opinion.” United States
v. STABL, Inc., 800 F.3d 476, 486 (8th Cir. 2015). Under Rule 701, lay testimony
must be (1) “rationally based on the witness’s perception,” (2) “helpful to clearly
understanding the witness’s testimony or to determining a fact in issue,” and (3) “not
based on scientific, technical, or other specialized knowledge within the scope of
Rule 702.” Fed. R. Evid. 701.

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 The fact that Fischer had professional training and experience preparing FWS
easement maps did not, standing alone, render her testimony about the process of
creating those maps expert testimony. See Farner v. Paccar, Inc., 562 F.2d 518, 529
(8th Cir. 1977) (holding that a truck operator with 30 years of trucking experience
could testify as a lay witness about the proper use of safety chains installed to address
a potential design defect in his truck so long as his testimony was limited to “his own
knowledge and perception”); Burlington N. R.R. Co. v. Nebraska, 802 F.2d 994,
1004–05 (8th Cir. 1986) (ruling that it was an abuse of discretion not to consider lay
testimony by four railroad executives who testified, “based on knowledge derived
from supervising railroad operations, years of experience in the industry, and review
of employee accident reports,” that “trains with cabooses were no safer than
cabooseless trains”).

In our view, Fischer’s testimony was limited to her firsthand knowledge and
personal experience mapping wetlands covered by FWS easements. She explained
how she uploaded aerial photos of the tract at issue into a geographic information
system (GIS), a tool for capturing and analyzing geographic data, and used a
touchscreen pen to draw an outline around any evidence of wetland areas she
observed on each photo. Fischer testified that she then layered the marked-up photos
on top of one another, “similar to like taking a transparency and drawing over
something” and then “stacking those transparencies on top of each other.” She drew
an outline around evidence of different wetland areas that she identified “over and
over again in the different photos” and, using GIS, turned those multiple layers into
a single map. Although Fischer explained how she used this same process to create
a map of the wetland areas on Mast’s property, she did not offer any opinion about
what portions of Mast’s land the easement covered, nor did she otherwise opine about
whether the government had proved the elements of the offense. Because Fischer’s
testimony was limited to narrating her process of mapping wetland easements and
was not rooted in “scientific, technical, or other specialized knowledge,” Fed. R.

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Evid. 702(a), the district court did not abuse its discretion by allowing her to testify
as a lay witness.

B.

Mast also challenges the denial of his motion in limine to exclude testimony
by the government’s expert witness, Charles Loesch, an FWS wildlife biologist. At
trial, Loesch testified that the wetland areas depicted in aerial photographs of Mast’s
property would be suitable for waterfowl production. The district court ruled his
testimony admissible because it was relevant to “whether [the drain tile had] an
impact on the ability of [the wetland areas] to serve as a waterfowl production area.”
Mast maintains that Loesch’s testimony about the importance of wetland areas to
waterfowl production was emotionally charged and thus was more prejudicial than
probative.

A district court may exclude evidence under Rule 403 of the Federal Rules of
Evidence “if its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” It is undisputed that to convict Mast the government had to prove beyond
a reasonable doubt that his installation of drain tile “caused surface and/or subsurface
damage that injured, disturbed, or destroyed one or more of the wetlands.” United
States v. Mast, No. 4:17-CR-40078-01, 2020 WL 2574634, at *13 (D.S.D. May 21,
2020); see United States v. Peterson, 632 F.3d 1038, 1041 (8th Cir. 2011) (“To
convict Peterson of the violation, the United States must prove beyond a reasonable
doubt that identifiable covered wetlands . . . were damaged.” (cleaned up) (quoting
United States v. Johansen, 93 F.3d 459, 467 (8th Cir. 1996)). Loesch’s testimony was
relevant to determining whether Mast’s actions damaged the wetland areas on his
property. Although his testimony strayed at times beyond the simple question of
whether the installation of drain tile damaged each of the wetland areas at issue and
into an explanation of the importance of wetlands to waterfowl production, we see no

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abuse of discretion in the district court’s decision to deny Mast’s motion to exclude
Loesch’s testimony in its entirety.

III.

To convict Mast, the government had to prove beyond a reasonable doubt that
the wetland areas he drained were identifiable wetlands covered by the easement. See
Peterson, 632 F.3d at 1041. As is the case with many wetland easements the FWS
acquired prior to 1976, the easement at issue here describes only the tracts of land it
encompasses, without specifying where the covered wetlands are located within those
tracts. See Johansen, 93 F.3d at 463. Because of this omission, the parties dispute
which areas of Mast’s property he needed permission from the FWS to drain.

Mast argues that the district court should have looked to the definition of
“wetlands” contained in 7 C.F.R. § 12.2(a), a USDA regulation promulgated to
enforce the Food Security Act of 1985, to determine which portions of the tract
comprised wetlands covered by the easement. See United States v. Tebeau, 713 F.3d
955, 959 (8th Cir. 2013) (providing for de novo review). But our precedent is clear
that we look to the language of the easement itself, and to the FWS’s easement
summary3—not federal regulations—to determine the easement’s scope. In Peterson,
we responded to the defendant’s argument that some of the wetlands on his tract,
including wetlands he drained, were not covered by the easement conveyed to the
FWS. 632 F.3d at 1041. In doing so we looked to the text of the easement, which
prohibited “draining . . . 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.” Id. at 1042 (cleaned up). We said that when the easement in

3
An easement summary is a document created by the FWS to record the total
acreage of the tract of land as well as the total acreage of the wetlands within that
tract covered by an FWS easement. See Peterson, 632 F.3d at 1040.

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Peterson was “read together with the easement summary,” which identified the total
number of wetland acres covered by the easement, “it [was] clear that the 1966
easement cover[ed] all wetlands then existing on the [tract].” Id.; see Johansen, 93
F.3d at 463 (explaining 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”); United States
v. Vesterso, 828 F.2d 1234, 1242 (8th Cir. 1987) (“The presence of the recorded
easement agreements describing wetlands in clear terms and the existence of
identifiable wetlands on the parcel are sufficient proof that the United States has a
property interest in the wetlands on the parcel.”).

We look to the same documents here. The easement at issue in this case
provides for a permanent wetland easement on two sections of Mast’s property to
ensure their “maintenance . . . as a waterfowl production area.” The easement states
that the landowner and their successors “will cooperate in the maintenance of the
aforesaid lands as a waterfowl production area by not draining or permitting the
draining . . . of any surface water including lakes, ponds, marshes, sloughs, swales,
swamps, or potholes, now existing or recurring due to natural causes on the above-
described tract, by ditching or any other means.” (emphasis added). This language
describes what is covered by the easement. See Vesterso, 828 F.2d at 1241–42 & n.6
(stating that an identically worded wetland easement “describ[ed] wetlands in clear
terms” and explaining that the meaning of the words “lakes, ponds, marshes, sloughs,
swales, swamps and potholes . . . is clear to ordinary people” (cleaned up)).

Turning to the easement summary, it describes 196 acres of land, 33 of which
are wetlands. The easement therefore covers 33 acres of “surface water including
lakes, ponds, marshes, sloughs, swales, swamps, or potholes.” This is consistent with
the FWS’s assessment that there are 28.4 acres of wetlands on the two tracts of land
covered by the easement. Mast cites to no case in which this or any other court has
looked instead to USDA regulations to determine the scope of an FWS easement, and

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we know of none. The district court did not err in declining to consult 7 C.F.R.
§ 12.2(a)’s definition of wetlands to determine the scope of the easement or in
excluding from trial any reference to the definition of wetlands or the criteria for
delineating wetlands as set forth in the USDA regulations.

IV.

Next, Mast argues that even if the USDA regulations do not apply, the
government nevertheless presented insufficient evidence to support a finding that the
wetland areas existed on the tract and were identifiable as wetlands at the time of the
easement’s 1973 conveyance, a required element of the offense. See Peterson, 632
F.3d at 1041. Mast contends that only one of the seven wetland areas meets these
criteria. “We review the sufficiency of the evidence after a bench trial in the light
most favorable to the verdict, upholding the verdict if a reasonable factfinder could
find the offense proved beyond a reasonable doubt.” United States v. Iqbal, 869 F.3d
627, 629–30 (8th Cir. 2017).

We considered a similar challenge to the sufficiency of the government’s
evidence in Peterson. In that case, the government introduced into evidence a 1962
aerial photo of the tract at issue taken four years before the easement’s conveyance.
632 F.3d 1041. An FWS wildlife biologist who testified as an expert explained that
the wetlands visible in the 1962 aerial photo “were of the same approximate size,
shape, and location as the drained wetlands.” Id. We found that testimony, together
with the government’s photographic evidence and maps, amounted to “substantial
evidence that the drained wetlands . . . existed at the time of the easement’s
conveyance in 1966.” Id.

The district court relied on similar evidence to reach its verdict in Mast’s case.
During the first trial, the government introduced into evidence several aerial photos
of the disputed wetland areas that predate the 1973 easement, including photos taken

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in 1940, 1951, 1952, 1956, 1964, 1970, and 1972, as well as several photos that
postdate the easement’s conveyance. An FWS wildlife biologist—the same one who
testified at the Peterson trial—then pointed out visual indicators of seven different
wetland areas on photos taken before and after the 1973 easement conveyance. He
explained that the seven wetland areas were “persistent” and remained “in the same
place” on each photo, though in some years they “g[o]t a little smaller or bigger” or
appeared “dry or farmed.” The district court credited this expert testimony and the
photographic evidence to conclude that the government proved beyond a reasonable
doubt that all seven of the wetland areas at issue in this case existed at the time the
easement was conveyed in 1973.

Mast’s main argument on appeal is that both the government’s witnesses and
the district court improperly relied on a 2010 map prepared by the FWS, which the
district court had ruled inadmissible for purposes of proving the existence of wetlands
at the time of the easement. But as the district court explained, the 2010 map was
used at trial solely “as a guide to identify each wetland by a number.” After
reviewing the record, we see no indication that the 2010 map was used for impermis-
sible purposes at trial. Viewing the evidence in the light most favorable to the guilty
verdict, we conclude this verdict was supported by substantial evidence.

V.

Finally, Mast seeks modification of the Wetland Restoration Plan the district
court ordered him to comply with as restitution. He asserts it was error for the district
court to order that he restore the one wetland area it acknowledged there was no
evidence he installed drain tile in. We review the district court’s decision to award
restitution for an abuse of discretion. United States v. Gammell, 932 F.3d 1175, 1180
(8th Cir. 2019). District courts have “wide discretion in ordering restitution,” United
States v. Reichow, 416 F.3d 802, 804–05 (8th Cir. 2005), though restitution is

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generally limited to damages the victim suffered as a result of the defendant’s offense
of conviction. See Hughey v. United States, 495 U.S. 411, 416 (1990).

The district court found beyond a reasonable doubt that Mast installed drain tile
in only six of the seven wetland areas protected by the easement. Because the
government did not present evidence that Mast installed drain tile in the wetland area
referred to as wetland area 5, the district court determined it “ha[d] not shown beyond
a reasonable doubt that Mast engaged in prohibited activity wetland in area 5.” The
court nonetheless concluded that the instillation of drain tile in the other six wetland
areas “damaged the surface or subsurface of each of the 7 wetlands.” In making this
finding, the court relied on photographic evidence and testimony from Loesch, who
explained that “draining the surface water of one wetland area not only eliminates that
specific area’s suitability for waterfowl production, but can reduce the suitability of
the waterfowl production of other wetlands within the wetland complex as a whole.”
Mast does not appeal the district court’s finding that “evidence of surface or
subsurface damage on each of the 7 protected wetland areas was established beyond
a reasonable doubt.” Rather, he argues only that the district court could not order him
to restore a wetland area it did not find he had directly disturbed, injured, or
destroyed.

The “primary and overarching goal” of the Mandatory Victims Restitution Act
of 1996, 18 U.S.C. § 3663A, “is to make victims of crime whole, to fully compensate
these victims for their losses and to restore these victims to their original state of
well-being.” United States v. Statman, 604 F.3d 529, 538 (8th Cir. 2010) (quoting
United States v. Balentine, 569 F.3d 801, 806 (8th Cir. 2009)). Certainly, the
restitution awarded cannot “exceed the actual, provable loss caused by the offense.”
United States v. Fonseca, 790 F.3d 852, 854 (8th Cir. 2015). But in this case the
district court found beyond a reasonable doubt that Mast’s actions “damaged the
surface or subsurface of each of the 7 wetlands.” It therefore ordered that Mast
“restore the ponding capability” of the wetland areas, including wetland area 5, by

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excavating and removing some portions of drain tile and plugging others pursuant to
the Wetland Restoration Plan. Although Mast may have damaged wetland area 5
only indirectly, he does not contest the district court’s determination that his
instillation of tile in the other wetland areas damaged the surface or subsurface of
wetland area 5. It was not error for the district court to order him to restore wetland
area 5.

VI.

The district court’s judgment is affirmed.
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