Cody Peterson’s farmland ordeal is entirely attributable to government overreach, he insists. Crops drowning, soil fouling, and unable to adequately drain his rows, Peterson is suing U.S. Fish and Wildlife Service (FWS).
“It’s federal abuse and it’s at an all-time high,” says the North Dakota grower. “Government officials have no sense of reason when it comes to farmland. They use a wedge on a small piece of land and then take control of everything you have.”
Caught in the expanding regulation of a conservation easement, Peterson faces the potential of prosecution if he drains his fields.
“I’m just one guy, but there are thousands of irate farmers like me with the same bureaucratic problems on their land. We’re steady losing money and struggling while FWS comes up with more ridiculous rules. We’re sick of Washington, D.C.”
Fixed Game?
In southeast North Dakota’s LaMoure County, Peterson grows corn and soybeans, along with wheat and edible beans.
In February 2020, FWS snail-mailed Peterson a map identifying 21 prairie potholes—wet and dry—within a 140-acre field subject to an FWS conservation easement signed in 1963 by a previous owner. FWS told Peterson that drain tile installation within 190’ of any of 21 wetlands was forbidden. The federal directive shrank Peterson’s farmable acres in the field by at least 40%.
(Citing “active litigation,” FWS declined Farm Journal interview requests regarding Peterson’s farmland.)
“They knocked out up to 60-70 acres of my field,” Peterson notes. “They identified about 12 wetland acres that went way beyond original easement history and designated new wetland spots that weren’t even there in the 1960s. No matter what I said or showed them, they knew better. I can’t describe the FWS officials except to say in my experience they’re arrogant in attitude and ignorant about basic farming.”
Peterson hired an engineering firm, Wenck Associates, to conduct an analysis of FWS claims. Wenck found FWS’ wetlands delineations inaccurate and recommended revisions. Bolstered by Wenck’s review, Peterson appealed to the FWS regional director: No dice and no reversal. Peterson then appealed to the FWS director, who upheld the FWS map: Again, no changes allowed. (Peterson’s appeals were in-house, i.e., both of his appeals regarding FWS actions were judged by FWS officials—a circular process characterizing almost all federal agencies.)
“It’s a fixed game where facts don’t mean anything, but the regulations mean everything,” Peterson says. “I’m supposed to be fine with losing money while trying to keep my ground from going to complete s***. Last year, I had overall 185-bushel corn and 45-bushel soybeans, very good crops for our area, but my yields in that 140-acre field were slashed in half because of salty soil and water from a bad-timed rain that I’m not allowed to drain.”
Located approximately 1,400 miles west of FWS headquarters in Washington, D.C., Peterson contends landowner distrust of federal officials is remarkably high. “There is a huge sense of frustration and desperation. Ask almost anyone who farms out here and they’ll tell the truth: FWS bureaucrats genuinely believe they know more about agriculture than the American farmer.”
That Was Then, This Is Now
No one would have signed on the dotted line, Peterson contends. Not a single farmer, he says.
In the 1960s, FWS purchased easements (99-year leases) to protect the vast Prairie Pothole region—a network of ecologically rich wetlands covering 100,000 square miles in the Dakotas, Iowa, Minnesota, and Montana. (The region also extends 200,000 square miles into Canada.)
Farmers who sold easements agreed not to drain prairie potholes under federal assurance that normal management practices—including drain tile—would continue.
That was then, this is now, says Peterson.
“When these easements were signed, farmers were looking for anything to make a dollar and get by, but they had no clue what they were getting into,” he describes. “They thought they were signing to maintain duck holes, and they didn’t know FWS steadily would change the rules.”
FWS has moved the goalposts on the original easements, according to Peterson’s attorney, Jeff McCoy, Pacific Legal Foundation (PLF). “The original language of the easements was vague and didn’t specify which potholes were included or the extent of coverage, and over time FWS has asserted more and more power to expand the scope, including bringing criminal cases against farmers for violating the easements,” McCoy asserts.
“Originally, the easement standard for farmers was to not unreasonably hurt a wetland. Over time, FWS added wetland spots that weren’t even present during the 1960s.”
In 2023, FWS tightened government control of Prairie Pothole acreage with a new rule covering millions of acres of farmland in the Upper Midwest, written and approved by the agency itself: National Wildlife Refuge System; Drain Tile Setbacks. In a nutshell, the new rule was an updated interpretation of the easements and made any amount—big or small—of drainage impact on a prairie pothole illegal.
“There’s one certainty in all of this,” Peterson says. “They will keep on tightening the regulations unless someone stops them in court and everyone wakes up to what has happened.”
In April 2025, represented by PLF, Peterson sued FWS.
Basic Reason
Peterson’s lawsuit highlights a glaring question: In the 1960s, would farmers have granted 99-year easements to the federal government if the agreements stipulated the loss of basic agriculture practices?
The question answers itself, explains PLF attorney McCoy: “None of those producers would have surrendered their right to use the land as reasonably needed if they’d known what was coming down the line.”
“In Cody’s case, FWS took a 12-acre wetland and then added tiny holes, mainly dry all year, and placed those all around the property,” McCoy continues. “Now, he can’t install drain tiles that would lower the water table within a certain distance of all those potholes. That was a loss of close to half the field. No matter what he showed with satellite imagery evidence produced by a consulting firm, FWS rejected basic reason.”
“We’ve filed a challenge on several things. Among those, one, the easement standard should be to not unreasonably hurt a wetland. Two, FWS has labeled things on Cody’s ground as wetlands that simply are not. Three, FWS’ new rule is an illegal expansion.”
(In addition to Peterson’s lawsuit, the company he wanted to hire to install drain tile, Ellingson Drainage, also is suing FWS for lost business stemming from FWS’ new drainage rule.)
For now, Peterson can only watch as the salt content increases in his field and drain tiles remain forbidden: “The government has created an atmosphere where private landowners are out of their minds to let FWS officers, or any other federal officials, on their land. The officials are liable to spot a common stock pond and threaten a farmer with disturbing the environment.”
“I love to hunt and fish, and I love being in nature, but I’ve got to make a living and work my farmland with common sense,” Peterson concludes. “That’s all me and the other landowners around have asked for. But that’s the core of the problem, as I see it: Common sense is at a zero-level with our government officials.”
For more from Chris Bennett (@ChrisBennettMS or cbennett@farmjournal.com or 662-592-1106), see:
Stealing the Farm: China Continues Raid of US Agriculture by Theft and Agroterror
Corn and Cocaine: Roger Reaves and the Most Incredible Farm Story Never Told
How the Deep State Tried, and Failed, to Crush an American Farmer
Game of Horns: Iowa Poacher’s Antler Addiction Leads to Historic Bust
Ghost Cattle: $650M Ponzi Rocks Livestock Industry, Money Still Missing
Georgia Watermelon Heist Explodes into Epic Night of Pandemonium
Sisters of Farm Fraud: How 4 Siblings Fleeced USDA for $10M
When Conservation Backfires: Landowner Defeats Feds in Mindboggling Private Property Case
Cold-Busted: Frozen Deer Decoy Nabs Poachers and Cocaine in Spectacular Sting
Sticky Fingers: USDA Fraudster Steals $200M in Stunning Scam
