In the name of wetlands regulation, would the government punish a rural town of 56 people for draining water off a road to ensure ambulance and fire truck access for its residents?
In 2023, after snowmelt flooded a gravel road in Northland Township, North Dakota, supervisor Mike Thoreson cut a ditch and drained several feet of high water from the surrounding wetland, easing pressure on several isolated families, including an elderly couple.
Fish and Wildlife Service (FWS) responded: Fill it in or face penalties.
Thoresen held his ground: “No way was I backing down. We were protecting our citizens’ access to emergency services. What if that was your family? I didn’t care how much FWS fined us. I was beyond pissed and ready for a legal fight.”
“It appeared FWS was going to strongarm the town,” says attorney Jeff McCoy, Pacific Legal Foundation. “It showed how federal agencies often refuse to consider common sense.”
“We weren’t asking for the world—just to take care of a gravel road,” Thoreson adds. “Only in government’s eyes are human lives worth less than ducks.”
1,400 Miles East
Tucked in the southeast corner of North Dakota, Ransom County is home to Northland Township and its 56-strong populace of farmers and small business owners, i.e., rural America.
The grain-heavy county (corn, soybeans, and wheat dominate) is part of the vast Prairie Pothole Region, a network of ecologically rich, depressional wetlands covering 100,000 square miles in the Dakotas, Iowa, Minnesota, and Montana. (The region further extends 200,000 square miles into Canada.)
In the 1960s, FWS purchased easements to protect Prairie Pothole wetlands—including those inside Ransom County. “Farmers sold those easements, but were told they could continue normal farming operations,” McCoy notes. “Also, the existing rights of way for roads took precedent over the easements. There’s been consistent confusion ever since over what even counts as a wetland. The easement standard was to not unreasonably interfere in drainage.”
Headquartered 1,400 miles east of Northland Township in Washington, D.C., FWS significantly expanded control of Prairie Pothole acreage via a new rule in 2023: National Wildlife Refuge System; Drain Tile Setbacks. In a nutshell: Big or small, any amount of drainage was a major violation.
“In a sense, FWS flexed,” McCoy explains. “Basically, the agency wrote and approved its own rules: Whether minor or major drainage, it was then all illegal.”
Enter Mike Thoreson’s backbone and a rural road in use since at least the 1940s.
Fill It In, Pronto
Depending on snowmelt, water rises on both sides of 59th Street Southeast—a gravel road in Northland Township with five families along its path—one way in, one way out.
“Most years, the road becomes impassable, or barely passable, and often washes out—sometimes $30,000 in repair expenses for our community with limited funds,” Thoreson describes. “It gets to a point where there’s no way to get an ambulance in, but there’s an elderly couple in their eighties living along the road that can’t do much on their own. It’d take at least $100,000 to raise the road and that’s money we don’t have in our tiny township. This situation has been building since the 1970s, and FWS wanted us to endure it all in the name of conservation, whatever the consequences.”
In spring 2024, concerned over a perennial problem, the Northland Township board authorized Thoreson to control the persistent flooding by draining the surrounding wetland. “I talked to Farm Service Agency and they gave me permission,” Thoreson contends. “I talked to the farmer who rents the land and he gave me a green light. I called an excavator and we got it done.”
Via a trench, Thoreson moved roughly 4’ of water from one watershed to another.
“Plain truth, I did FWS a favor by controlling their water at our expense,” he adds. “There are wildlife easements to the north and that’s how the water naturally drains. I transferred the water from a waterfall production area on the south side to a wildlife easement on the north side. That’s where FWS wants the water to begin with. There were no ducks on north side where there was no water; just cattail slough.”
(FWS declined interview requests from Farm Journal regarding Northland Township.)
From Thoreson’s perspective, problem solved as Northland Township ensured road access and FWS received water and wildlife. “We got our road back and it worked for everyone.”
Not so fast. In summer 2024, FWS personnel flew over the site. Shortly thereafter, Thoreson got a phone call: Fill it in, pronto.
Line In The Sand
Thoreson dug in his heels. “I told FWS, ‘We live here. We’ve got people whose lives affected by your regulations.’ But no, they wouldn’t move a step away from their rules.”
“This road gets so tight that multiple vehicles can’t even meet most of the time; farmers can’t even get up and down the road. Not to mention emergency vehicles in case someone’s health is on the line. But what matters? The regulations.”
In September, according to Thoreson, FWS drew a line in the sand: Remove the trench by November 15, dependent on crop harvest.
“By insisting on the deadline no matter what, FWS showed that ducks and regulations were more important than human life. I told them, “Okay, I’ll fill it in like you demand. But as soon as water gets by the road, I’m draining again. They just got madder.”
“I pleaded to let us put in a pipe so we could drain as needed. No, again. There was only one answer that satisfied them—follow the regulations.”
“Something Is Wrong”
When Pacific Legal Foundation and attorney Jeff McCoy got in Northland Township’s corner at no charge, the dynamic shifted.
“First, this was a road that had existed for over 80 years and clearly had legal precedence over any easement,” McCoy says. “Second, Northland Township was only performing minor work to drain as necessary to keep their citizens safe. Third, the water was only lowered beside the road—the refuge system still contained the same amount of water.”
Didn’t matter, per FWS’ position: Fill it or face the consequences. And what were the potential penalties?
“FWS was vague, but they cited fines and other action,” McCoy says. “No question, if this had been a single farmer, FWS would have sought criminal action. If Northland Township hadn’t of had representation, they likely were going to face fines at a minimum, but eventually something more serious.”
Thoresen believes FWS did not want publicity. “This had dragged on since the 1970s, but when PLF got involved, FWS was suddenly willing to sit down and talk? I suspect FWS was embarrassed to have the public know they put people’s lives at risk and refused to give five families a way in and out of a road for decades by preventing us from draining a few feet of water. Just my opinion, but that’s how I see it.”
When McCoy met with FWS officials, an agreement was reached. After moving a portion of the drainage work, Northland Township is now allowed to lower water to ensure 59th Street Southeast is passable.
“The case is over,” McCoy says. “Having representation and letting FWS know we were willing to go to court made them back off. If FWS changes its position or goes back on the agreement, we are willing to fight this in court.”
“It took PLF getting involved and threats of litigation to get this solved,” McCoy says. “It ended so much sooner than many of our cases, but unfortunately, it’s representative of federal agencies refusing to consider a common-sense solution.”
McCoy has deep experience with government overreach litigation. He was part of the PLF team that prevailed in Sackett v. EPA, a historic 2023 Supreme Court case that put a check on federal regulatory expansion.
“The Sacketts were a northeast Idaho family who wanted to build a single home in a subdivision near Priest Lake,” McCoy details. “Their neighbors in adjoining lots had built houses and there was a road, and several more houses before you reached Priest Lake. EPA ordered them to stop building and deemed their lot a wetland, even though it was a third to a half-mile from the water. EPA threatened thousands of dollars of fines per day if the Sacketts didn’t stop building and restore the wetland. We represented them for eight years and eventually won. That was another example of a breach of common sense. Typically, these agencies decide policy or action and fight to the bitter end, no matter what.”
As for Northland Township, 59th Street Southeast is open, Thoreson says. “When you have to fight the federal government to make sure your own road is accessible for the safety of your own rural people, something is wrong.”
For more from Chris Bennett (@ChrisBennettMS or cbennett@farmjournal.com or 662-592-1106), see:
Corn and Cocaine: Roger Reaves and the Most Incredible Farm Story Never Told
Cottonmouth Farmer: The Insane Tale of a Buck-Wild Scheme to Corner the Snake Venom Market
Priceless Pistol Found After Decades Lost in Farmhouse Attic
