Victory for small North Dakota township after Fish & Wildlife Service backs down
Good news for North Dakota’s Northland Township this month, as it appears its case against the federal government will come to an end before it even began. Represented by Pacific Legal Foundation, the small town of just 56 people was gearing up to take on the U.S. Fish & Wildlife Service (FWS) over its regulatory abuse of what is known as a “prairie pothole.”
Northland is a farming community in southeast North Dakota and 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.
But the FWS threatened to punish the Township officials for draining the water that often floods one of the Township’s primary roads in and out. The flooding on the road poses a huge problem as it leaves the people who live in the township isolated. Township officials fear that the flooded road could leave ambulances unable to reach the elderly members of the community in the event of an emergency—a concern to which the FWS paid no mind.
This long-simmering conflict that has been 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 took advantage of financially struggling farmers and acquired conservation easements over land with prairie potholes.
These easements, however, were incredibly vague, stating landowners would cooperate with federal waterfowl management by not draining their land, but not where or what prairie 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 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 or how little it’s affected by drainage. But the impact of the rule hasn’t been limited to just drainage tiles. The service has also prevented areas like Northland Township from digging ditches along roads, citing the same rule.
By 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.
This didn’t sit well with Mike Thorson, who serves as the Township’s road supervisor. Mike and his wife bought a homestead in the township about three years ago, where they enjoy their quiet, small-town life. As an elected official, it’s Mike’s job to keep the roads safe and accessible for his constituents. This job has become increasingly hard with the FWS breathing down the Township’s necks, and it’s costing the town tens of thousands of dollars.
Not only are some of the township’s families essentially trapped when the water is high, but the town had to spend $26,000 to move gravel and rock on the roads just so people could go to work every day—that’s a hefty amount for a tiny town to pay. Mike tried to explain this to the agency, but his explanations fell on deaf ears.
Mike has been put in an unfortunate position where faithfully executing his duties to his neighbors means facing criminal penalties. Not to mention, the rules he’s being asked to follow make zero sense and are blatantly unconstitutional.
“Conservation easements do not grant the federal government total control over land,” said Jeffrey McCoy, a senior attorney at Pacific Legal Foundation. “Northland Township needs to keep the roads open for its residents and emergency services. The Fish & Wildlife Service cannot reinterpret conservation easements agreed on decades prior, especially at the cost of the town’s ability to protect its residents.”
Mike and the Township officials were prepared to fight back. Thankfully, they don’t have to. The FWS backed down and will allow the Township to manage the road, at least for now.
