For many in the Upper Midwest, farming is a longtime family business. For three generations, Cody Peterson’s family has tilled the soil and grown crops in North Dakota’s LaMoure County. But like farming itself, the problems farmers face are multigenerational. Cody and other farmers like him are now locked in a battle with the U.S. Fish & Wildlife Service that goes back 60 years.
In the 1960s, the federal government cajoled struggling farmers into granting easements on their property in exchange for badly needed aid. The easements were poorly defined, and for years it was unclear what land the federal government actually had easement rights on. In North Dakota alone, the government claimed easements on some 1.5 million acres of private property.
The Midwest is dotted with shallow depressions created when glaciers melted thousands of years ago. Today water collects in these depressions, leaving some wet year-round and others only intermittently wet. The FWS’s easements cover these depressions, known as prairie potholes. Importantly, the easements explicitly allow “normal farming practices.”
One of those normal practices is the utilization of drainage tiles. For nearly 200 years, farmers have installed subsurface drainage that removes excess water from soil, allowing for better crop yields. But that option is off the table around the potholes now.
In 2023, the FWS reinterpreted the terms of its pothole easements, then created a rule establishing setback zones around them. The FWS now claims the authority to regulate potholes as small as one-tenth of one acre, and the setbacks keep farmers away from those small pieces of their own property. The setbacks can prevent farming within a quarter-mile of the potholes, cutting off huge swaths of farmers’ otherwise-usable land.
Now farmers and the businesses that serve them are fighting back in federal court. 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 Peterson v. U.S. Fish & Wildlife Service
In the heart of North Dakota’s LaMoure County, Cody Peterson tends to the land his family has farmed for three generations. But 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-decades-old easement. The agency also ordered no drain tiles could be used within 190 feet of any such pothole, 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.
Cody is simply trying to make a living and support his family, but the federal government is making it impossible.
Ellingson Drainage v. U.S. Fish & Wildlife Service
The new rule has also affected the businesses that serve farmers. Ellingson Drainage, a third-generation, family-owned company in Minnesota, provides consultation and drain tile installation services that farmers like Cody rely on to grow their crops. Ever since the new rule was implemented, the business has been threatened by it. Farmers have cancelled work, and new requests for installations have dropped.
Northland Township v. U.S. Fish &Wildlife Service
The impact of the FWS’s rule hasn’t been limited to just drainage tiles or farmers. The service had prevented Northland Township from digging ditches along roads, citing the same rule, but backed down after facing a PLF lawsuit.
What’s At Stake?
- Conservation easements do not give federal agencies complete control over private property. The U.S. Fish & Wildlife Service cannot reinterpret decades-old conservation easements to expand its own power at the expense of people living and working in rural communities.
- Farmers and businesses have a right to productively use their land as long as they do not unreasonably damage prairie potholes.
