Permanent control: Wetland Easements Causing Issues For North Dakota Farmers and Ranchers

by Lilly Platts

Landowners are often encouraged to participate in land and wildlife conservation programs, and when these programs are well designed the results can be beneficial for all parties involved. However, when the agreed upon terms don’t align decades down the road, issues will arise. In North Dakota, over 1.2 million acres of wetlands were obtained between 1961 and 1977 under the premise of waterfowl protection. Many North Dakota landowners are now claiming that the original agreements are not matching up with how the land is being managed today, and that the United States Fish and Wildlife Service (FWS) is mis-mapping the original easements. These easements are permanent, and continue even if land changes hands.

Beginning 60 years ago, the North Dakota FWS obtained permission from the state government to purchase permanent wetland easements. North Dakota landowners were encouraged to sell land into these easements, under the premise of protecting the state’s wetlands and waterfowl and in exchange for money. North Dakota is a part of the Prairie Pothole region, which has been identified as a vitally-important area for migratory birds and endangered species. Wetland areas are generally not productive for agriculture, so many landowners agreed to sell these areas into easements. Under the agreements, land within these easements cannot be filled, drained, or burned.

The wetland easement program is authorized by the Migratory Bird Conservation Act of 1929, and the Migratory Bird Hunting Stamp Act of 1934. Under this, the Secretary of the Interior may purchase or rent areas to be used as sanctuaries for migratory birds. Additionally, the state must approve this process, and the governor of the state must also approve the acquisitions, which the state of North Dakota did when these easements were originally purchased. The Migratory Hunting Stamp Act helped fund these purchases, and a 1958 amendment — the Small Wetlands Acquisition Program — gave the Secretary of the Interior permission to obtain land for waterfowl conservation and protection as well. The North Dakota Game and Fish Department also receives federal funds under the Wildlife Restoration Act.

Under these premises, North Dakota governors approved the acquisition of easements by FWS, and between 1961 and 1977 over 1.2 million acres of wetland acres were obtained.

Wetland areas are generally not productive, for agriculture and beyond, so why are these easements an issue today? Pre-1976 easements were not delineated, and the actual number of wetland acres protected under these easements is unclear. The easements described the entire tracts of land, instead of the wetland area specifically, and did not include an agreed-upon map showing the wetland area. Essentially, FWS and landowners had somewhat casual agreements, which eventually became an issue as drought and environment altered land, land changed hands, and other changes came about.

In 2019, the United States Department of the Interior issued guidance to prioritize mapping any easements settled before 1976. Mapping technology has of course improved, but the lack of detail in these pre-1976 easement agreements is causing disagreement between landowners and FWS.

To confront this issue, the North Dakota Legislative Council will be studying the fiscal and safety impacts of the FWS easements in North Dakota, under the directive of House resolution 3019. Representatives from the North Dakota Grain Growers Association (NDGGA), the North Dakota Farm Bureau, and the North Dakota Stockmen’s Association have testified in support of this study.

Dan Wogsland, Executive Director of NDGGA, explained that dealing with the issues caused by these easements is long overdue. “The easements impede orderly water management in North Dakota. It is the opinion of the NDGGA that it is past time that the North Dakota legislator know exactly what these permanent easements are costing, and it’s our opinion that until we get an answer to that question — what it’s costing North Dakota tax payers, the economy, and landowners — that we put the brakes on these permanent easements, and acquiring new easements,” Wogsland said.

Drought and other environmental factors can change wetland areas, which Wogsland said is a major part of the issue. Additionally, the new mapping of these areas is not aligning with what landowners believed was a part of the past easements, and Wogsland said his organization has seen instances of FWS spreading acreage out. For example, if a contiguous 50 acres of wetlands was sold into an easement, today the FWS may map the area so that the 50 acres is scattered across a larger acreage, which can stop a farmer or rancher from using an entire piece of productive land.

Wogsland said that in addition to putting a hold on easements until issues are settled, the NDGGA would also like to see an improved appeals process. He said that currently, if a landowner wants to appeal the FWS mapping of an easement, that appeal is going through the same agency. Without a neutral third party, issues are not being resolved.

There have previously been four legislative management studies of the FWS easements, the latest in 2017, none of which led to substantive change. The current legislative study is ongoing.

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