Bismarck, ND; February 12, 2025: Cody Peterson — a third-generation farmer in North Dakota — filed a federal lawsuit to stop the U.S. Fish and Wildlife Service (FWS) from reinterpreting decades-old conservation easements to expand its power and prohibit common farming techniques on millions of acres of farmland in the upper Midwest.
Back in the 1960s, Cody’s family farm — like many others — entered into conservation easements with the federal government, agreeing to protect prairie potholes, shallow depressions in the land formed by ancient glaciers, on their land. However, these easements were left incredibly vague, with landowners agreeing not to drain the potholes but not specifying where exactly they were or what areas were protected or the extent of the restrictions.
In 2023, the Fish and Wildlife Service (FWS) took advantage of the vagueness and issued a new rule called the National Wildlife Refuge System; Drain Tile Setbacks, expanding federal control over land use. This rule treats any drainage of land covered by an easement as a crime, regardless of how little the potholes are affected by it. As a result, Cody can no longer use 40 percent of his farmable land, drastically impeding his ability to make a living — an overreach far beyond anything the original conservation easement never intended.
“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. “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.”
The FWS cannot reinterpret conservation easements that have existed for more than 50 years, seeking total control over private property in violation of the original agreement. Cody is fighting back to ensure the federal government keeps its word and honors the conservation easement terms.
Cody Peterson is represented for free by Pacific Legal Foundation. The case is Peterson vs. United States, filed in the U.S. District Court for the District of North Dakota.