North Dakota farmer battles federal overreach in prairie pothole abuses

In the heart of North Dakota’s LaMoure County, Cody Peterson tends to the land his family has farmed for three generations. His farm sits in the “Prairie Pothole” region of the Upper Midwest dotted with isolated shallow divots—potholes—formed by ancient glaciers. 

Some of these potholes are always water-filled, while others are dry most of the year, but they’ve coexisted with resilient farmers and subsurface drainage—a common farming practice using drain tiles that allow water to drain into the water table. This prevents surface waterlogging, soil salination, and erosion and improves crops, farming efficiency, and water-land management

Now, however, Cody faces criminal prosecution for draining water that floods his farm fields. 

That’s because a long-simmering conflict pitting farmers, businesses, and local governments against federal regulators reached a boiling point with a new drain tile rule that threatens criminal punishment. The roots of this standoff trace back to the 1960s amid a farming industry downturn across the country. The U.S. Fish & Wildlife Service (FWS) took advantage of financially struggling farmers and acquired conservation easements over land with prairie potholes. 

These easements, however, were incredibly vague. They stated landowners’ cooperation with federal waterfowl management by not draining their land, but the easements did not describe where or what potholes they covered. That 1.5 million total acres were affected is known only because North Dakota’s governor had to sign off on the statute allowing the feds to acquire the easements. 

Importantly, the easements allowed normal farming practices on naturally dry land, which typically includes drainage that only minimally impacts the prairie potholes. 

Tile drainage is done by installing pipes underground that collect water in the soil and dissipate it to larger bodies of water and ultimately the water table. These drain tiles help keep the moisture content in the soil at consistent levels. That helps crops grow more efficiently and prevents the soil from being oversaturated. The practice is very common, especially in the Upper Midwest. 

In 2023, the FWS issued a new rule called the National Wildlife Refuge System; Drain Tile Setbacks. Among other things, the rule treats any use of drain tiles on easement lands as a crime, no matter how temporary the pothole is or how little it’s affected by drainage. But the impact of the rule hasn’t been limited to just drainage tiles. The service had prevented Northland Township from digging ditches along roads, citing the same rule, but backed down after facing a PLF lawsuit. 

With its new rule, the FWS has dramatically expanded its control over land with these conservation easements far beyond what was contemplated when they were created.  

In the meantime, Cody has been in a nightmarish limbo since 2021 when the FWS sent him a map identifying 21 protected prairie potholes covered by the six-decade-old easement. The agency also ordered no drain tiles could be used within 190 feet of any such wetland, slashing Cody’s farmable land by 40%. 

To make matters worse, Cody’s land is covered by part of a lake that sits at a higher elevation than the nearby town. The town must consistently pump out lake water to prevent flooding, a process that would be far more efficient going through Cody’s property. He is more than willing to allow it, but helping out the town is criminal under the easement. He has seen the United States routinely prosecute his fellow North Dakota farmers for allegedly draining potholes subject to these easements. 

The FWS cannot unreasonably reinterpret conservation easements—more than half a century after they were written—to expand its power at the expense of people living and working in rural communities. These easements never gave the FWS complete control over private property. And minor impacts on mostly dry prairie potholes were always permitted by the conservation easements. 

Cody is simply trying to make a living and support his family, but the federal government is making it impossible. Represented at no charge by Pacific Legal Foundation, he is fighting back in a federal lawsuit to defend the right of all property owners to make use of their land, and to ensure that federal government agencies keep their word.