The Peterson family has been farming the same area of land in LaMoure County, North Dakota, for three generations. Like everything else that matters in rural America, the soil, the seasons, and the quiet perseverance needed to make a living off the land are all passed down through the family. No issues were inherited by Cody Peterson. He inherited a lifestyle. However, a federal agency decided at some point that it had a better idea of how to use that land.
The dispute at the heart of the Cody Peterson FWS lawsuit dates back to 1963, when the U.S. Fish and Wildlife Service purchased a wetland conservation easement from the previous landowners, Lyle and Vivian Trapp, for $630. The easement was a component of a larger federal initiative to protect prairie potholes, which are shallow, water-collecting depressions that were left behind by glaciers thousands of years ago and are scattered throughout the Upper Midwest. The agreement at the time specifically permitted conventional farming methods. For almost 200 years, farmers have used drainage tiles as a tool to remove excess water from the soil. The Trapps were not informed that would change in due course.
It’s important to consider how ambiguous the original easement was. Like the majority of easements obtained prior to 1976, Easement 69X never explicitly stated where it applied or which wetlands it covered, as the complaint filed in U.S. District Court in North Dakota makes evident. Potholes in the prairie move. In wet years, they grow, and in dry ones, they contract. The federal government simply decided not to put too much pressure on it for decades, but that ambiguity was always present. The FWS then sent Peterson a map in 2020.
The agency determined that 21 prairie potholes on the map were covered by the previous easement. In response, Peterson hired an environmental consulting company to review old aerial photos. The company discovered that when the easement was drafted in 1963, a number of the potholes shown on the 2020 map were nonexistent. After reviewing the objection, FWS made no changes. The map was formally upheld by the agency’s director by March 2021. What would ultimately turn into a federal lawsuit was started by that ruling.
Then 2024 arrived. A new rule was released by the FWS that establishes formal drain tile setback zones around prairie potholes. In certain instances, this rule prohibits farmers from being within a quarter-mile radius of potholes as small as a tenth of an acre. Peterson saw a startling practical outcome: 40% of his arable land was essentially taken off the table. Not through eminent domain. Not by means of any contract. through reinterpretation.
In this instance, there is a detail that seems especially difficult to reconcile with any rational interpretation of the initial agreement. Peterson’s property is situated next to a lake that is higher up than the town. To avoid flooding, the town pumps lake water on a regular basis. It would be more efficient to run that water through Peterson’s property, and he is willing to do so. However, he could face federal prosecution if he cooperates with the town under the current interpretation of Easement 69X. It’s the kind of scenario that seems almost too ridiculous to be true, but it is.
Peterson is being represented at no cost by Pacific Legal Foundation, a nonprofit legal organization that handles cases involving government overreach. The lawsuit was filed in the U.S. District Court of North Dakota on April 8, 2025, and it names Interior Secretary Doug Burgum and FWS officials as defendants. The legal approach focuses on quiet title, requesting that a court declare that FWS acted arbitrarily in both its 2020 mapping and its 2024 rule and to formally define what the easement covers and does not.
Beyond the circumstances of a single farmer, the result is significant. For many years, the Prairie Pothole region has seen similar conflicts. Between 2020 and 2022, bipartisan federal legislation was introduced and reintroduced in an attempt to provide landowners with a way to renegotiate or terminate perpetual easements granted by prior owners. It didn’t pass. As farmers become more unsure of what they can do on their own land, local companies like Ellingson Drainage, a Minnesota drain tile company, have already seen a decline in business. According to reports, a township in North Dakota was informed that it was not permitted to dig roadside ditches under the same regulation, but FWS was forced to back down after a different PLF lawsuit.
Potholes aren’t really at issue in the Cody Peterson FWS lawsuit. It concerns whether a federal agency can expand its authority at the expense of those who signed a decades-old contract by reinterpreting it in ways that were never agreed upon. The question is as old as farming itself, but in North Dakota, it rarely ends up in federal court.
