U.S. appeals court upholds 2020 conviction of Volga farmer for drain-tiling wetlands easement

Capitol News Bureau
KELO Court Gavel

VOLGA, S.D. (KELO) — A three-judge federal panel has ruled against a South Dakota farmer who appealed his criminal conviction for disturbing protected wetlands of the United States.

The U.S. Eighth Circuit Court of Appeals had overturned the 2018 conviction of Kevin Jay Mast of Volga in federal court on a similar charge.

But last summer U.S. District Judge Karen Schreier found Mast guilty after a second trial, sentenced him to one year of probation and ordered that he restore wetlands that he illegally drain-tiled.

The U.S. Fish and Wildlife Service purchased a conservation easement from the previous owners on two tracts in 1973. Mast bought the tracts in 1983.

In 2010 he sought permission from the U.S. Natural Resources Conservation Service to install drain tile. NRCS said he also needed clearance from the Fish and Wildlife Service because of the conservation easement.

Fish and Wildlife Service told Mast there would be a conflict. NRCS told Mast he could proceed on three of the seven wetlands if he followed setbacks. In 2013 he installed drain tile on six. The U.S. government indicted him in 2017.

Mast appealed elements from the 2018 and 2020 trials. But the appeals court, in a Monday decision, sided with U.S. District Judge Karen Schreier on various evidence and witness issues.

The appeals court also found Judge Schreier didn’t err in ordering Mast to “restore the one wetland area (the court) acknowledged there was no evidence he installed drain tile in.”

Wrote U.S. Circuit Judge Jane Kelly:

“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 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.”

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