Federal agencies aren’t above the law
Cody Peterson is a third-generation farmer in eastern North Dakota. For decades, his family has been committed to growing food for other families. But recent actions by the U.S. Fish & Wildlife Service threaten Cody’s ability to make a living from farming.
The problem comes from the Service’s new interpretation of decades-old easements the agency has on farmland throughout the “prairie-pothole” region of the upper Midwest. The potholes in these areas are depressions that were formed by ancient glacial melt, dotting the landscape with thousands of the small depressions.
Some of these depressions are what one typically thinks of when thinking of a wetland—water year-round, cattails, animals swimming in the pool. But many of these depressions are small holes that do not have water in them for most of the year.
In the 1960s, the Fish & Wildlife Service used funds from the sale of duck stamps to purchase easements from farmers to protect wetlands. The goal was to preserve waterfowl habitat. Farmers, who were facing an economic downturn at the time, sold these easements to make some money from areas that they could not farm anyway.
Unfortunately, these easements were ambiguous and did not include a map or any other description that laid out what wetlands they covered. In the ensuing decades, the Service began to expand its interpretation of these easements and over the years argued that the easements covered more and more farmland.
The uncertainty over what these easements covered was not a minor inconvenience, the Fish & Wildlife Service even brought criminal prosecutions against farmers when the agency believed farmers’ work affected wetlands—even if the impact was minor.
Starting in 2020, Fish & Wildlife finally began notifying farmers of the areas on their farmland the agency thought the easement covered. But this only made matters worse. These maps began labeling small depressions—some as little as one-hundredth of an acre—that are dry nearly the entire year as wetlands covered by the easements.
And although the easements can only cover a limited number of acres per farm, these maps labeled dozens of small areas across farms, making a significant portion of the farmland unusable. In Cody’s case, the Fish & Wildlife Service’s map prevents him from farming nearly half of his farmland.
Then, in 2024, the Service adopted a regulation that formally adopted its interpretation that any impact—no matter how minor—to a supposed wetland violated the terms of the easement. The Service’s interpretation is more strict than other federal agencies’ rules meant to protect wetlands. Those other agencies recognize that a farmer can farm in ways that may minimally affect wetlands but do not threaten the wetlands themselves.
The Fish & Wildlife Service interprets its easement unlike any other easement in the country. Ordinarily, when two people agree to an easement—for example, so one person can build a road across another person’s land—the agreement recognizes that both people can use the land in a cooperative way, so long as the purpose of the easement can be achieved. But in the Fish & Wildlife Service’s case, the agency believes that it can use its easement to prevent farmers from farming—even if that farming does not threaten the wetlands.
The federal government does not get to apply special rules to its agreements. And that is why Cody Peterson has filed a lawsuit against the Service’s illegal use of its easements.
Cody is joined in his fight by Ellingson Companies, a family-owned company that provides construction planning, design, and installation services to farmers. Ellingson wants to help Cody by installing drainage systems that make the land more farmable while also preserving the water in the wetlands on his property. But because of the Fish & Wildlife Service’s easements, neither Cody nor Ellingson can work on most of Cody’s farm.
Pacific Legal Foundation is representing both Cody and Ellingson Companies free of charge, to ensure that the federal government honors its agreements with farmers, and to allow farmers to reasonably use their land to grow food for the country.
