A Hutterite colony was recently sued by the United States Fish and Wildlife Service (USFWS) for failing to follow a more than 30-year-old rule mandating that landowners retain wetland areas on their properties without changing their characteristics. The “mandate” was created when the Service purchased the land (easment agreement included) for $6,000 in 1978.
Due to the permanent nature of the easement, its restrictions were still in place when the Hutterites purchased it in 2005. Now the USFWS has gone to the courts to order the Hutterite Colony to restore wetlands on the colony’s property, which the Agency claims have been damaged by draining tiles placed on the property by the colony. The USFWS is accusing the Hutterites of “willfully” violating the agreement “by refusing to remove the drain tile and restore the wetlands.”
The Hutterite colony does not deny refusing the agency’s request, arguing that they only placed the tile in areas which “they do not consider wetlands.” The colony has offered to reassign the easement to other wetland areas on their property but the Service has so far refused. According to local sources, the drama played out over the easement is simply a microcosm of frustration felt by many in the community who feel that easements place too much restrictions on future land use.
Currently, easements put into place for the protection of wetlands last “perpetually,” meaning that no matter who owns the property, the easement remains. Another issue are the restrictions placed upon land use that are contained within the easement conditions.
Both issues have allegedly generated resentment among landowners and lawmakers alike in South Dakota, a majority of whom are said to fear being sued by the USFWS for violating wetland rules outlined in an agreement which they may have had no part in creating. Like the Hutterite colony, many state citizens do not seem to like the legal status-quo very much, though the colony’s outright refusal to recognize the law has not caught on amongst law’s dissenters.
However that does not meant that individuals are not actively trying to reform that status-quo. One lawmaker felt that having the easement last forever was “too long,” and that 99 years was a more appropriate time frame for such restrictions. Others in the state legislature agree it seems, and even attempted to change state law to modify the perpetual nature of such easements, but have failed to succeed in the face of fierce opposition by pro-wetland groups consisting of conservationists and government agencies.
Conservation groups have long maintained that such restrictions on land use and the “perpetual” character of such easements is the entire point of having them in the first place. They also protest the complaints made over the land use restrictions, highlighting the fact that the landowners usually retain most mineral and hunting rights within their property. The only restrictions pertain to draining, burning, or else otherwise modifying the ecological characteristics of the parcel (i.e. draining, burning, etc).
According to the USFWS, wetlands are extended special protection under law because they “benefit people as well as wildlife.” A single wetland can deter flooding, erosion, provide valuable habitat animals and insects alike, and filter sediment from water which can help improve the quality of water in downstream areas.
Of course the location of a wetland generally determines how effective the area is at providing those services to surrounding areas. That is why the the agency will only extend such easement agreements to those landowners who possess wetlands of high quality and also explains why they monitor the landowners’ activities so closely.
Any property owner who fails to comply with the terms of their easement is likely to be sued by the USFWS for violating the wetland rules contained within the easement agreement. This still applies even if they did not make the original easement conditions, a rule that the Hutterite colony is now learning the hard way.
Despite local resentment among certain stakeholders, the USFWS has refused to change or negotiate with the Hutterite colony over the easement. Their message is clear: stick to the terms of the original agreement or face legal action. The leader of the colony, Joe Waldner, has said that the solution presented by the agency is not “workable” and that he does not “want a lawsuit,” but will “go to court” if the situation demands it. However, as of today they have yet to respond to the agency’s notice.
By Andrew Waddell
Rapid City Journal
United States Fish and Wildlife Service: Realty Division