Jayne Esch

Jayne Esch

ST. CLOUD, Minn. – Many farmers have Fish and Wildlife Service wetland easements on their property, and for some of those easements, there has been confusion as to the location and boundaries of the wetland areas protected under the easement. At this year’s Central Minnesota Farm Show, these easements will take center stage as the Department of Interior issued a new directive that can help farmers.

“I've been involved in a number of cases, all of them criminal, for violating these Fish and Wildlife Service wetland easements,” said Jayne Esch, attorney at Rinke Noonan.

Esch will be talking at the farm show about these easements and the new directive that requires Fish and Wildlife Services to generate more detailed maps of pre-1976 wetland easements. Her presentation is scheduled for Feb. 25 at 9 a.m.

“A lot of these Fish and Wildlife Service wetland easements were entered into between landowners and U.S. Fish and Wildlife Service in the 1960s and 1970s,” Esch said. “They really tried to target the prairie pothole region, which is western Minnesota and into North Dakota and South Dakota.”

The easements were attractive to many landowners back then because they received money for land that they could not farm. But these Fish and Wildlife Service easements exist forever, even if the land changes hands, and the government maintains rights to the wetlands on the property in perpetuity.

Fish and Wildlife Service wetland easements created today and in the recent past all come with maps that clearly define the location and boundaries of the protected wetlands on the property. Easements created prior to 1976, however, do not have contemporaneous maps between the Fish and Wildlife Service and the landowner that show the agreed-upon areas protected by the easement.

“Prior to the Supreme Court case of North Dakota v. United States in 1983, it was generally accepted that because of the lack of easement maps and the fluctuating nature of wetlands, Fish and Wildlife Service could essentially control whatever the landowner did on the entire property,” Esch said.

This case rejected Fish and Wildlife Service’s position that they controlled all areas on the property, including wetlands that develop or expand on the property after the easement is conveyed. It was determined that Fish and Wildlife Service only bought the wetlands on the property at the time the easement was entered into, not the entire parcel and not after-expanded wetlands.

“Obviously, landowners can't drain those protected wetlands, disturb them, fill them, or anything like that,” she said. “But, as to the rest of the property, the landowners can do what they want so long as their actions don’t impact the protected wetlands.”

With no agreed-upon maps that show the extent of the easement, the location and boundaries of the protected wetlands are essentially wherever Fish and Wildlife Service says they are.

“On Dec. 23, 2019, the Department of Interior issued a directive that applies to any pre-1976 Fish and Wildlife Service wetland easement,” she said. “The directive states that Fish and Wildlife Service has to provide any landowners with a pre-1976 wetland easement a new map of what areas Fish and Wildlife Service believes are protected under the easement.”

Included in that directive are appeal rights, giving landowners the chance to appeal Fish and Wildlife Service’s mapping determination within 40 days after receiving the new map. If the landowner disagrees with the location and boundaries depicted on Fish and Wildlife Service’s new map, the landowner should appeal because the map becomes final if not appealed.

Esch’s presentation will focus more on how the appeal process works, where landowners can go for more resources and answering any questions attendees might have regarding these easements.

 

PS. Jayne Esch.jpeg: Jayne Esch, attorney at Rinke Noonan, will be presenting on the new directives regarding Fish and Wildlife Wetland Easements at the 2020 Central Minnesota Farm Show.