A North Dakota farmer has filed a lawsuit against the U.S. Fish and Wildlife Service and the Department of the Interior to stop FWS from reinterpreting the terms of a more than 60-year-old wetlands easement on land he owns and rents in LaMoure County.
The lawsuit, filed April 8 in the U.S. District Court of North Dakota by farmer Cody Peterson, also names Paul Souza, regional director of FWS’s Pacific Southwest Region and acting FWS director, Matt Hogan, regional director of FWS’s Mountain-Prairie Region, and Doug Burgum, the secretary of Interior and former North Dakota governor, as defendants.
Elizabeth Peace, a senior public affairs specialist for the office of the secretary of the Department of the Interior, said department policy is to not comment on pending litigation.
Pacific Legal Foundation, a nonprofit law firm that "defends Americans threatened by government overreach and abuse," is representing Peterson for free in the case.
The lawsuit is specifically over “Easement 69X” — a wetland conservation easement that FWS acquired in 1963 on a half section of land from the landowners at that time, Lyle and Vivian Trapp. Peterson now owns a quarter section of the land and rents the other quarter section from his parents, Patty and Leonard Peterson, who have the land in trust.
The complaint in the case alleges the 1963 easement had vague terms that did not specify exact locations of wetlands or the extent of restrictions on what could be done in those areas. It also alleges that FWS in recent years has indicated the easement covers potholes that were not in existence in the 1960s, according to historical photographs.
“When parties enter into a legal agreement, they must honor its terms unless they mutually agree to change them,” said Jeffery McCoy, an attorney at Pacific Legal Foundation, in a statement. “The Fish and Wildlife Service vastly expanded its control over our client’s private land, impeding his ability to make a living and violating the terms of their agreement. The agency must keep its word and honor the original agreement.”
While the lawsuit is specific to Peterson’s situation, changing interpretation of wetlands easements has been a broader issue throughout the Prairie Pothole region that has inspired bipartisan federal legislation in past years to try to allow landowners to get out of perpetual easements authorized by former landowners.
Easement history
The complaint in the Peterson case explains FWS has used funds from the sale of Federal Duck Stamps — authorized under the Migratory Bird Hunting Stamp Act of March 16, 1934 — to purchase wetland easements from private property owners in the upper Midwest.
McCoy said the Trapps sold the easement for $630 on Nov. 15, 1963, which was accepted by the U.S. government on April 22, 1964. Court documents say the easement referred to 42 wetland acres. But the complaint says Easement 69X, like all easements acquired before 1976, “did not describe where they applied or what ‘wetlands’ they covered.” Because “prairie potholes, by nature, are ill-defined and subject to fluctuation, there has been a considerable amount of confusion regarding what the earlier wetland easements actually covered,” the complaint said.
In 2020, in response to the uncertainty among property owners, FWS issued a guidance memo, titled, “Drain Tile Setbacks and Legal Action on U.S. Fish and Wildlife Services Wetlands Easements.” The memo indicated that FWS would issue estimates of what it believed to be the scope of existing wetland easements and calculate where farmers could install drain tile on their “encumbered properties.”
On Feb. 18, 2020, Wetland District Manager Wayne Henderson sent Peterson a letter with a map that laid out the “sizes, shapes and locations” of the wetland areas that FWS considered part of the 69X easement and offered a way for Peterson to object to the map and appeal it.
Peterson sent a letter on April 3, 2020, objecting to the map. In this letter, he included a “Wetland Easement Review” completed by Wenck Associates Inc. Wenck Associates had completed a historic aerial photograph review of the property and concluded the 2020 map did not accurately reflect the wetlands that existed in 1963 and “recommended specifics on how the 2020 map should be revised.” FWS made no changes after the objection, so Peterson appealed to the FWS regional director and later to the director of FWS. On March 25, 2021, the FWS director affirmed previous decisions and upheld the 2020 map — the final agency action.
Similar issues impacted many farmers in the Prairie Pothole region. In 2020, then U.S. Reps. Collin Peterson, D-Minn., and Kelly Armstrong, R-N.D., introduced the Landowner Easement Rights Act, which would prohibit FWS from entering into a conservation easement with a term of more than 50 years and would give owners of existing easements the option to renegotiate, renew, or buy out the easement. The legislation was reintroduced in 2022 by U.S. Rep. Michelle Fischbach, and in the Senate by Sens. Kevin Cramer, R-N.D., John Hoeven, R-N.D., and Mike Rounds, R-S.D. The legislation was never passed.
In 2024, FWS issued a final rule, entitled “National Wildlife Refuge System; Drain Tile Setbacks.” Peterson’s lawsuit alleges the rule was inconsistent with the 2020 guidance and also stricter than the earlier guidance and stricter than the Swampbuster provisions of the 1985 farm bill.
Pacific Legal Foundation in a statement said the actions by FWS are an overreach beyond the original easement's intentions and mean Peterson "can no longer use 40% of his farmable land, drastically impeding his ability to making a living."
Aim of the lawsuit
Peterson’s lawsuit says the 2024 FWS rule “unlawfully expands the scope of the easement beyond what was granted in the deed.” He is seeking to establish the easement’s scope through quiet title — an action used to resolve disputes or uncertainties about property ownership.
“Mr. Peterson is thus entitled to a judgment quieting title to the properties at issue with respect to Easement 69X that confirms that the easement does not require Mr. Peterson to use property he owns or leases in a way that results in ‘no effect’ to any wetlands on the property,” the complaint said. “Mr. Peterson is also entitled to a judgment quieting title to the properties at issue with respect to Easement 69X that confirms that Defendants may not cause unreasonable damage to his property or unreasonably interfere with Mr. Peterson’s use and enjoyment of the property he owns or leases.”
Peterson is seeking to confirm that FWS only has an easement over wetlands that existed at the time the easement was granted. The complaint also asks for orders declaring that FWS “acted arbitrarily, capriciously, abused their discretion, or otherwise failed to act in accordance with the law,” in regard to its 2020 map of Easement 69X and the 2024 rule. Further orders sought by the lawsuit would declare that FWS must set aside its 2024 rule and that FWS may not interpret wetlands easements in a manner that causes “unreasonable damage to servient estate or interferes unreasonably with its enjoyment” and that “requires the servient estate to act in a way that results in ‘no effect’ to any wetlands on the property.”