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. 

1The 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.

2The 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

3An 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 abovedescribed 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 impermissible 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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