JIM FUGLIE: View From The Prairie — Wayne Stenehjem: Public Lands Enemy No. 1

We’ve got a million acres of public land, most of it excellent wildlife habitat, in western North Dakota, owned and managed by the U.S. government, which means you and me. I know, you’ve read those words before in my writings. Sorry, but I’m going to keep talking about this UNTIL SOMEBODY LISTENS!

There’s a huge overlap between those public lands and North Dakota’s Bakken oil fields. In fact, about 96 percent of those public lands are open to oil development. And there will likely come a day, probably in the next 10 years, when there are oil wells on almost every single square mile of those public lands. I say “almost” every single square mile because there are about 40,000 acres out of that million acres — about 4 percent — that are protected from development. So far.  A few words about that — a lot of you already know this story.

In the depths of the Great Depression and Dust Bowl, the federal government came to the rescue of Great Plains farmers and ranchers facing foreclosure, many of them North Dakotans. The government bought parts of their operations, giving them much needed cash to make payments on their mortgages, and then leased it back to them for pennies on the dollar so they could continue farming it or grazing cattle on it. Much of it was grazing land, and in North Dakota, it became what is today the million-acre Little Missouri National Grassland. And many third- and fourth-generation ranchers in western North Dakota still run cows on that same land their grandparents did.

Along with the land, the government bought the minerals under that land, and no one anticipated there would be billions of barrels of black gold under that vast expanse of prairie. But the black gold was there, and today, the government receives billions of dollars in royalties from oil companies that lease the right to drill for oil under that land.

Because the government’s holdings are so vast, the U.S. Forest Service, which manages most of that land, writes a Management Plan from time to time — sometimes every 10 years, sometimes as long as 20 — which it shares with the ranchers who lease the surface, the oil companies who lease the minerals and the general public, those of us who use it for recreation uses and have conservation interests.

Management plans for North Dakota were written in 1974, in 1986 and in 2002. The one in 2002 set aside some 40,000 acres, which had not yet been developed for anything but cattle grazing, as “suitable for wilderness.” That meant that if the president and Congress decided they would like to permanently keep four little undeveloped islands in a great sea of oil, gas, coal and gravel development, they could designate that land as Wilderness with a capital W under the federal Wilderness Act of 1964.

Those four areas, Long X Divide, Twin Buttes, Kendley Plateau and Bullion Butte, shown on the map below, joined what we call two additional “roadless areas,” one near a landmark called Lone Butte west of the Killdeer Mountains in western North Dakota, and the other on the Sheyenne National Grasslands in eastern North Dakota, in being off-limits to development.

A small group of dedicated conservation-minded North Dakotans, members of Badlands Conservation Alliance, has presented a plan for Wilderness designation, called Prairie Legacy Wilderness, and they’ve recently found what could become an important ally, Backcountry Hunters and Anglers, which I wrote about here a couple of months ago, a sportsman’s organization dedicated to public land preservation. So far, the formal Wilderness plan hasn’t gotten any traction in Washington, but these are persistent folks.

The Forest Service continues to protect those areas, but there are increasing threats to that protection. A couple of years ago, I wrote here about a lawsuit filed by some western North Dakota county commissioners, aided by North Dakota Attorney General Wayne Stenehjem, to open those areas to roads and to the development which will accompany those roads.

The suit is approaching its sixth birthday now, and it’s costing the taxpayers of North Dakota a lot of money, since Stenehjem is essentially taking the lead in the case and picking up the tab for what a lot of people think is frivolous legal activity.

The case was filed in the fall of 2012. It asks the federal government to “quiet title” to the section lines through the roadless areas, giving the state and the counties the right to go in and build roads through what is now roadless, which would destroy the “suitable for wilderness” designation. It would also destroy the prized scenic and recreational values of the areas and wipe out critical habitat for wildlife.

These are the last truly undeveloped areas in all of North Dakota, and they make up less than 1 percent of our state’s total land area. I went to Stenehjem’s office to visit with him about this a couple of years ago. His argument: “Jim, it’s about state sovereignty. The people of North Dakota have a sovereign right to use those section lines.”

Well, Mr. Attorney General, I don’t think most of the people of North Dakota give a rat’s ass about sovereignty. What they do care about is the land — and the critters. Meadowlarks are disappearing from the prairie. Pronghorn and mule deer herds are stressed like they’ve never been before.

Actually, the lawsuit should be over now. Last summer, after five years of motions and arguments and court briefs, U. S. District Judge Daniel Hovland in Bismarck wisely dismissed the lawsuit and threw it out of his court, telling the North Dakota attorney general, in much kinder words than I’d have used, to go away from his courtroom and not darken his door again on this issue.

Hovland’s decision hinged on the fact that there’s a statute of limitations thing — a federal law that gives states 12 years to file a lawsuit against the federal government if they feel that the feds have unjustly taken something from the state — in this case the right to build roads on section lines on federally-protected  land.

Twelve years should have been plenty of time for the state to get its stuff together and challenge the Forest Service if it had wanted. The judge essentially said, “Hey, you’ve known about this protection for way more than 12 years, so you’re too late. The law is the law. Go away.”

So Stenehjem lost. Winners were mule deer, sharptail grouse, meadowlarks, pronghorns, coyotes, hunters, anglers, photographers, hikers, campers, birders and everyone else who just wants to WALK on that land without being interrupted by pickups and four-wheelers, or much worse, oil wells with hundreds of fracking trucks and noisy flares that light up the night sky and scare away the critters.

But that wasn’t good enough for Stenehjem. He’s filed a motion — another exercise in frivolity and futility, lawyer friends of mine say — asking Hovland to “reconsider.” No one I know could explain why the judge might be willing to reconsider his ruling, after doing hours and hours of research and writing a 72-page opinion explaining why he was dismissing Stenehjem’s lawsuit.

Worse, it’s not just the North Dakota taxpayers whose money is being wasted — the federal government’s lawyers had to go back to work as well, writing their own response, which essentially says “Hey, Stenehjem, WTF are you thinking? Get over it.” So we’re paying for that as well.

Hovland will hopefully rule on the motion to reconsider this summer. If he rejects it, we’ll see if Stenehjem decides to keep on spending our money by appealing to the 8th Circuit Court of Appeals. Don’t bet against that. It’s election year, and there’s nothing better for a politician in an election year to get headlines by taking on the big, bad federal government. He’d probably be making his arguments, and getting his headlines, in the months leading up to the election, but if he loses, which I hope is the eventual outcome, it won’t be until well after the election is over that we find out how much the whole fiasco cost the taxpayers.

There’s a danger, though, slight as it is, that the appeals court could overturn Judge Hovland. That would be a much bigger loss. Then get out of the way, cuz the dozers are coming.

Meanwhile the mule deer and the sharptails and the meadowlarks don’t read newspapers or magazines or websites, so they’ll go on enjoying their wilderness (with a small w, but maybe someday …), not knowing what’s being plotted in the attorney general’s office in the North Dakota Capitol. For now, let’s not tell them.

RON SCHALOW: Kevin Cramer’s Criminal Choice 

There are many public servants and oil executives to blame for their silence but only Kevin Cramer, Mr. North Dakota way, thinks he deserves a seat in the United States Senate. So, he has to answer for his failures.

“It took “more than 1,000 firefighters from 80 different municipalities in Quebec and from six counties in the state of Maine” to help with evacuations and fire-fighting efforts in the small town (Lac-Megantic) of only a few thousand people, according to a Transportation Safety Board of Canada report.” — Bellingham Herald

That was in was in July 2013. Forty-seven people died when a Bakken oil train careened off the tracks, which led to a series of violent explosions. Five victims were vaporized.

“(Congressman Kevin) Cramer said after 10 years (2003 to 2012) on North Dakota’s Public Service Commission, he was confident the state’s oil was safe.” —The Minot Daily News Sept. 12, 2014

I could go into why his statement to The Minot Daily News was so sociopathically dangerous and irresponsible because there were many more Bakken oil train disasters to come, but his inaction before and after one particular incident explains where his heart lies.

2008. Just outside of Luther, Okla., and 30 miles from Oklahoma City, the first train hauling Bakken crude derails and explodes. Big red flag.

(Would this spur you to action? https://www.youtube.com/watch?v=Ec1JtY5kfXE)

“Among 14 cars that derailed in mixed freight train, eight cars of crude oil derailed. All spilled their contents, three from large gashes in their shells. The spilled oil caught fire and caused a massive explosion that was captured by a local TV news crew in a helicopter. About 35 people were evacuated but returned to their homes the same day. Crude oil originated in Fairview, Mont., in the Bakken region. Incident could have been an early sign of Bakken oil’s flammability.” — McClatchey, Jan. 27, 2014

Fairview straddles the North Dakota, Mont., border, but if any train originating in the Bakken explodes, it would raise concerns with any regulator with a conscience. No worries there.

But oil trains had stopped exploding on impact many decades ago, right?

Yes, but it was hurry hurry in the Bakken. The oil barons deliberately chose not to remove the explosive heptane, pentane, methane, propane, butane, ethane, isobutane and so on from the crude oil before filling the tanker cars. It was a choice. Oil companies decided, and regulators, like Kevin, looked the other way.

“The oil industry says there is a ready market for the extracted gases in Texas, but none in North Dakota. Therefore, say the producers, the explosive gases are best shipped to refineries while still dissolved in the crude.” — Railway Age

Kevin Cramer knew what was in the liquid coming out of the ground, and he knew the concoction they poured into the tanker cars, which were designed  to haul corn syrup. And since trains have been derailing since they were invented, he knew what was likely to happen.

Unless Kevin was really bad at his job. It’s possible. Neither option is flattering.

Luther, Okla.; Lac-Megantic, Quebec; Aliceville, Ala.; Casselton, N.D.; Lynchburg, Va.; and more big booms, until Mosier, Ore., on June 3, 2016.

The fire chief of Mosier is still whiter than usual and shaking, just at the thought of what the damage would have been when a single sheared-off track bolt caused the derailment, fire and explosion of a Bakken oil train that would have burnt down the entire town had the wind been blowing like normal through the Columbia River Gorge. Spilled oil gummed up their sewage system, but none reached the river, so yay for abnormal weather conditions.

Trains are still making runs to the West Coast, and a facility was finally built in North Dakota to refine the explosive gases. All of the gases, for all of the wells? I don’t know.

On Sept. 23, 2014, the North Dakota Industrial Commission holds a hearing:

“They (oil execs) testified that the oil was already safe, that train accidents were few and far between, and that regulations would cost the industry a lot of money.” — Prairie Public

“Already safe.”

Kevin Cramer, the proud owner of an oddly configured brain, said it is “discriminatory” to call Bakken crude by it’s given name, in a feeble attempt to obscure the source of the danger from the rest of the continent.

His words: “Well, whenever they refer to it as Bakken crude, you have to conclude they are discriminating because crude is not categorized, or characterized by its origin, by its location, by it’s geography.

“It should be characterized by its characteristics, it’s scientific and chemical make-up, so I think the rhetoric gets a little reckless. It tends to favor a particular point of view, a bias in advance, and that’s what I want to do away with on the 9th.

“I don’t know whether that (stabilization) is necessary or not. That’s part of what we will be exploring in our hearing in the science committee, because is it scientifically possible to strip it out? Obviously, of course, it is … but when you apply not just that, but the economics, and remember, you can strip those light elements off of the crude, but that has to be shipped as well, so in many respects, filling a train with nothing but the light elements, the more explosive, if you will, elements, and making that a bullet train; I’m not sure that is the right answer, so scientifically can you do it, sure, but you have to look at it holistically and consider all of the other elements; including economics, and is the benefit of doing something like that trump other things like speed of trains, and what kind of cars. There are other things to consider. That’s why I think a congressional hearing is the next best step, dealing specifically with the science of the crude.” — Kevin Cramer

“There are some benefits frankly to the stabilization process and that is stripping some of the liquids, some of the other gases off and using them in the marketplace. That is a far better solution that just stripping it for the sake of stripping it.”  Kevin Cramer

Free market ideology over public safety.

And this Cramer gem: “When you strip it, you now have highly explosive gases that have to get to market somehow. They have to go into a pipeline, they have to go on the train, making it even more explosive.”

“RECKLESS ENDANGERMENT is a crime consisting of acts that create a substantial risk of serious physical injury to another person. The accused person isn’t required to intend the resulting or potential harm, but must have acted in a way that showed a disregard for the foreseeable consequences of the actions.”  USLegal.com

Is it any surprise that Harold Hamm is the Cramer campaign finance chair?

Kevin will do or say anything to protect his oil buds, even at the expense of human lives.

JIM FUGLIE: View From The Prairie — Another Set Of Eyes On Our Wild Bad Lands

North Dakota has more than a million acres of public land, most of it in western North Dakota, our Little Missouri National Grasslands, managed by the U.S. Forest Service.

Most of it is grazing land, although it’s grazed by more than cattle and sheep. Pretty much every creature that lives in North Dakota has a presence there. For some — mule deer, sharp-tailed grouse, sage grouse, prairie dogs, coyotes, bighorn sheep, pronghorn antelope and countless species of birds, including our state bird, the Western Meadowlark — it is critical habitat. Studies done by state and federal agencies and numerous wildlife organizations confirm that most of those species are stressed. Some are in danger.

As recently as 40 years ago, more than half of those million acres were wild lands, roadless, designated as “suitable for wilderness.” Countless species thrived there, and the human presence was infrequent and temporary, limited to those of us who wanted some form of wilderness recreation — hunting, birding, hiking, camping, canoeing, photography, or just sitting in the shade of a cottonwood tree watching fluffy white clouds float through a crystalline blue sky. And the ranchers and their cows, of course.

Then came oil. In two booms, the Billings Anticline boom of the 1970s, fueled by the creation of OPEC, and the Bakken Boom of the 21st century, a product of horizontal drilling and fracking. And there went our wilderness.

Eager to pour oil royalty dollars into the federal treasury, the government opened the grasslands to oil development, and today we have just 40,000 acres out of that million — about 4 per cent — available as “suitable for wilderness.” I’ve bemoaned these facts and numbers endlessly on this blog, and I won’t apologize because it is important to remember and realize what we have done — to the land and to the critters who live there — or used to.

So imagine my joy to hear that a new organization was making its way into North Dakota, an organization made up of people who really CARE about those public lands, and are doing things to preserve and protect them.

An e-mail from a friend in early January told me there was going to be an informational gathering — attractively called a “Pint Night,” and I know what pints are all about — in a downtown meeting room, sponsored by a group called Backcountry Hunters and Anglers. The group, my friend said, was interested in public lands in the western part of the United States and access to that land for hunting and fishing, as well as other outdoor activities.

“Oh, Damn!” I thought. Access. A bunch of crazy four-wheelers trying to find new ways to get their noisy machines into our roadless areas. I Googled them. Much to my surprise, it turns out just the opposite — the group wants to protect public lands and maintain habitat for the birds and animals who live there.

Keeping wild places like this wild is the goal of Backcountry Hunters and Anglers. (Photo by Bill Kingsbury)
Keeping wild places like this wild is the goal of Backcountry Hunters and Anglers. (Photo by Bill Kingsbury)

The “access” issue they’re talking about is dealing with the purchase of large tracts of private lands, blocking gateways into these public areas — a more and more common practice across America’s West these days. Well, I thought, hooray for them. At the appointed hour on the appointed night, I drove to downtown Bismarck to learn more about these people.

As I walked through the door and looked around the room, I got the feeling that about half of all the testosterone in North Dakota was gathered in one place. Perhaps 50 or 60 young men — big, strong, young men, most between the ages of 25 and 40, I’d guess, not the paunchy aging baby boomers we’re used to seeing at wildlife club meetings and DU banquets — had gathered to learn about these Backcountry Hunters and Anglers.

The uniform of the evening was plaid flannel shirts, jeans and well-worn boots, and most were wearing baseball caps (with the brims pointed forward), with a smattering of battered cowboy hats. And there were a few women, also dressed like they were ready to venture outdoors, with their husbands or boyfriends, or on their own.

The men and women were leaning casually against the walls of the room, almost all holding a bottle of beer, and a few sat at scattered tables, listening to a fellow,  dressed like they were, talking about organizing to influence public officials.

BHA’s trademark is these “Pint Nights,” a familiar scene in the 34 states and two Canadian provinces that already have their own chapters of the organization (including South Dakota), dedicated to the protection of public lands and waters and providing responsible access to those lands and waters for Americans who want to enjoy our country’s great outdoor resources.

I’ve been a member of a lot of conservation, sporting and outdoors organizations (and now a member of this one), but this was the first I had heard of BHA. Founded in 2004 by small group of Montanans who saw a lot of problems with the management of our nation’s wild places and public lands, they came up with an idea for addressing the problems. They set out to create a grass-roots organization focused not on protecting one specific species, river or hunting area but on ecosystem-wide conservation across the continent. They wanted to create a voice for the silent wilderness. A wilderness they enjoyed as hunters and anglers.

Today they have grown an organization approaching 20,000 members. BHA President and CEO Land Tawney (yes, that’s his real name), who was the one speaking that January night in Bismarck, and at subsequent gatherings in Fargo and Minot, to help launch a North Dakota BHA chapter, told me later that North Dakota’s been on his radar for a while, and now volunteers have stepped forward to help get it going.

South Dakota’s chapter was formed in 2017, rallying around the issue of stopping the transfer of Black Hills National Forest land to the state for creation of a park in Spearfish Canyon. So far, they’ve succeeded, but the issue is long from resolved. One of the chapter’s founders, Jessie Kurtenbach of Deadwood, S.D., said the group will continue to work to protect Spearfish Canyon and is also deeply involved in the South Dakota meandered lakes law controversy, as well as working to protect all of South Dakota’s 2.6 million acres of public land.

In North Dakota, two volunteer co-chairs, Russ Senske of Bismarck and Adam Leitschuh of Minot, have started organizing a chapter whose initial mission, Senske says, is to promote responsible use of North Dakota’s Little Missouri National Grasslands. The key word there is “responsible.”

Tawney and the North Dakota men, Senske and Leitschuh, are concerned about our federal roadless areas, and stress their importance to men and women who enjoy the outdoors.

“Theodore Roosevelt came here to find solace as a young man, and this is where he developed his conservation ethic,” Tawney told me. “He preserved a lot of wild lands. We’re not making wild lands any more. We need to protect what we have.”

Tawney, a native Montanan and wildlife biologist with a B.S. degree from the University of Montana (and, he says, a Ph.D. in Post Hole Digging while fencing in the family quarter horses and mules), is a veteran of the conservation battles, spending time with the Theodore Roosevelt Conservation Partnership and the National Wildlife Federation before coming to  BHA in 2013.

Both he and Senske stressed that stopping the illegal use of off-highway vehicles in the National Grasslands is a priority. Senske, a Wisconsin native and restoration ecologist by training who works as an environmental scientist for the North Dakota Department of Transportation, said increased signage in the grasslands is a high priority, with an eye to protecting sensitive wildlife habitat. Wetland wildlife habitat and enhancement of the PLOTS program will also be high on the priority list in North Dakota.

Additionally, at the federal level, Tawney says BHA maintains a presence in Washington, D.C. to keep an eye on outdoors issues, like monitoring attacks on the Clean Water Act and preserving and enhancing the Land and Water Conservation Fund, a key funding source for outdoor recreation and habitat improvement in both Dakotas.

All the organization’s leaders stressed the importance of keeping young people involved in issues concerning outdoor recreation. “We do reach out to a new generation of sportsmen and women, using a lot of social media,” Tawney said. “I think young people today like the fact we call it like we see it — we stand up for the resource.”

Senske said the North Dakota group will be submitting a formal letter of intent to form a BHA chapter here in April, and they hope to have an active chapter here soon after that.

Anyone looking for more information, or who wants to become a member (dues are just $25 per year and that include a subscription to a slick quarterly magazine), can look at the organization’s website, backcountryhunters.org (just click to go there). North Dakotans who want to talk to someone about being part of the new chapter can send an e-mail to backcountryhuntersnd@outlook.com.

The organization is a welcome addition to both the Dakotas. Our public lands need all the friends they can get. As Tawney says, they’re not making wild land any more.

JIM FUGLIE: View From The Prairie — Whither The Measure 6 Coalition?

Word comes this week that the organizing committee for a group of North Dakotans who want to raise North Dakota’s Oil Extraction Tax back to the level it was at before the Legislature cut it in 2015 has decided to postpone its initiated measure campaign. Postpone but not abandon. A wise choice, I’d say.

Although the group already has its petition language approved by the Secretary of State, signature-gathering time is short, and the task becomes even more difficult without the institutional support of organizations that were instrumental in the initial passage of the tax in 1980.

To review: We have an Oil Extraction Tax because of an initiated measure passed by the people of the state by a wide margin nearly 40 years ago. It came during our state’s first short-lived oil boom and was set at 6.5 percent of the price of a barrel of oil, which was added to an existing Oil Production Tax of 5 percent, giving us a total tax on oil of 11.5 percent. One of the highest, if not THE highest in the country.

The measure passed at a time when oil was gushing from the ground in western North Dakota and red ink was gushing from state coffers and agricultural balance sheets after the devastating hard times in agriculture in the 1970s.

The 11.5 percent tax stuck in the craw of the oil industry and Republican politicians for more than 30 years, although Republicans, who generally have governed the state since 1993, enjoyed the fruits of the income from the tax and the budgets it balanced for them.

But finally, in 2015, at the peak of the last oil boom when the state was flush with cash from the oil tax and a humming economy, Republicans mustered the courage to tackle the citizen-initiated tax and cut it from 6.5 percent to 5 percent. It was a devastating miscalculation. Within weeks of the governor signing the bill, oil prices began a death spiral, dropping from more than $60 per barrel to less than $30 (I don’t think there was any relationship between our tax cut and the price of oil, but still … ), and state budgets began bleeding red ink again.

It’s taken until now, more than two years later, for the price of oil to reach above $60 again. That combination of low oil prices and a lower oil tax means legislators have been forced to cut budgets, including some popular programs most North Dakotans like, such as property tax subsidies.

So sponsors of the current proposed initiated measure figured the time was right to go back to the people and ask them to raise the tax back to 6.5 percent. And they’re probably right. But there’s a difference between now and 1980. It’s the players.

Among political observers my age, we speak with reverence and awe of the “Measure 6 Coalition” — and those who organized it. It was probably the most powerful political coalition ever put together in North Dakota. It was the group that passed Measure 6, which created the 6.5 percent Oil Extraction Tax.

It was four organizations, led by four extraordinary men:

  • The North Dakota Farmers Union and its president, Stanley Moore.
  • The North Dakota Association of Rural Electric Cooperatives and its executive director, Chub Ulmer.
  • The North Dakota Education Association and its executive director, Adrian Dunn.
  • The North Dakota AFL-CIO and its president, Jim Gerl.

Those four organizations probably represented a third of North Dakota’s population. And their members were activists, willing to rally behind their leaders because of the enormous respect for those four men, longtime leaders, giants of their era. I knew each of them personally and treasured any time they would share with me, sitting at their feet, as I was just entering the world of liberal political activism.

The four were brought together by then-Tax Commissioner Byron Dorgan and two of his chief lieutenants, Kent Conrad and Jim Lange. Dorgan, who had led the successful fight in the 1970s for implementation of a severance tax on coal, was the face of the movement. Conrad was the strategist. Lange was the number cruncher who figured out how and where to get the votes to pass it.

Those were halcyon days for populist activism in North Dakota, but they were nearing their end. 1980 was the year of the Reagan landslide. It was a wave election for Republicans, nationwide and in North Dakota. Republicans won every statewide election here but two in 1980, including the governor’s race, which saw the defeat of incumbent Gov. Art Link by Attorney General Allen Olson.

The only two Democrats to survive that election were the two men who went out on the stump and tirelessly, relentlessly, advocated for the passage of Measure 6, the Oil Extraction Tax: Byron Dorgan and Kent Conrad. Dorgan was leaving his post to run for the U.S. Congress, a seat vacated by Mark Andrews, who was running for the U.S. Senate seat being vacated by the retiring Milton Young. Conrad was running for tax commissioner, to replace Dorgan in that office. Both won by wide margins.

The two were the only Democratic-NPL candidates to campaign on a tax increase in a year when the country was headed inevitably to the right behind Reagan —  the rest of the Democratic-NPL ticket shied away. But Dorgan and Conrad had set the stage earlier, with their successful coal tax effort in the mid-1970s. Dorgan had even held a series of debates around the state with then-Republican House Majority Leader Earl Strinden, the two arguing both sides of a coal severance tax. It was classic North Dakota politics, the kind we don’t see any more. And Conrad was Dorgan’s chief strategist, behind the scenes then.

The pair, Dorgan and Concrad, were classic populists, leading the charge first against Big Coal and then Big Oil — and the people embraced them.

But in the end, it was Gerl, Ulmer, Moore and Dunn, the four coalition leaders, and their members, who swept the new oil tax into state law. And that’s what’s missing today. Those organizations, and their leaders.

To be fair, I can’t say whether the four leaders of those organizations today have the leadership capabilities to undertake such an effort, but what is obvious from the words of today’s organizing committee for the new initiated measure, is they are not yet all on board. Nor is there a Byron Dorgan or a Kent Conrad at the ready to lead them.

In the words of the organizing committee’s leaders, which I received in an e-mail today, “What we lack is endorsement from groups and organizations and their communication channels and infrastructure, all of which we need to get our message out to voters.”

Well. That could not be more clear. So they’ve made a timely, wise decision.

The strategy shifts now to the introduction of a measure in the 2019 Legislature to raise the Oil Extraction Tax back to 6.5 percent — an effort not likely to succeed, given the makeup of the Legislature. That’s what the Measure 6 Coalition understood back in 1980, and why they went directly to the people. Still, a concerted effort in the Legislature could attract a lot of attention and set the stage for an initiated measure in 2020.

But the Measure 6 Coalition does not exist today. A new coalition, with new leaders, must be assembled. Of the four leaders from 1980, only Jim Gerl is still alive. I think he’s approaching 80 and spends much time in Florida. But maybe we could get him back here to consult a bit.

I hope that the organizing committee for this effort can succeed in putting a new-old coalition back together. For in that effort lies success.

JIM FUGLIE: View From The Prairie — Some Questions For The Refinery People

NDCC 49-22.1-02:  “Statement of policy. The legislative assembly finds the construction of energy conversion facilities … affects the environment and the welfare of the citizens of this state. It is necessary to ensure the location, construction and operation of energy conversion facilities … will produce minimal adverse effects on the environment and the welfare of the citizens of this state by prohibiting energy conversion facilities … from being located, constructed, or operated within this state without a certificate of site compatibility … The policy of this state is to site energy conversion facilities … in an orderly manner compatible with environmental preservation and the efficient use of resources. Sites and routes must be selected to minimize adverse human and environmental impact  … ”  (emphasis added)

That’s the section of North Dakota’s Century Code — our state laws — as it applies to the construction of oil refineries in our state. Unfortunately, the law goes on to say that the only  “energy conversion facilities” to which this law applies are those refining more than 50,000 barrels of oil per day. That’s a lot.

And there’s the rub.

The North Dakota Public Service Commission is meeting at 9 a.m. this morning on the 12th floor of the State Capitol Building with the CEO of the company that wants to build a refinery three miles from Theodore Roosevelt National Park, and which now says it plans to refine only 49,500 barrels per day — 500 barrels under the limit which would require them to get a “certificate of site compatibility” from the PSC. Well, as the Church Lady on Saturday Night Live used to say, “How conveeeeeeeenient!”

Our Public Service commissioners don’t like people playing games with our state laws, so they have asked to meet with the company Tuesday morning. To their credit, the company agreed to come in and talk. And answer some questions.

You can be there, too. Thanks to North Dakota’s Open Meetings Law, these kinds of things are open to the public. Not that the PSC gave any consideration to closing them, to my knowledge. You won’t be allowed to participate, though. Just watch and listen. I wish we could participate, because I have a few questions. I have a couple of new friends, named Laura and Pat, who live within a couple of miles of the proposed refinery, and they’ve been sending me information about the project.

For instance, they tell me that Tesoro, which owns the refinery down the railroad by Dickinson, N.D., just bought all the gathering pipelines in the area, and my friends are wondering if that means there won’t be any crude oil delivered to this new refinery by pipeline. They’re thinking, and I think they’re right, that Tesoro is not going to be too eager to share a pipeline with a rival refinery. Tesoro, by the way, has changed the name of its company to Andeavor. I think it’s trying to get us to forget it was a Tesoro pipeline that spilled almost a million gallons of oil up in northwest North Dakota four years ago, oil that is still not completely cleaned up.

If that’s the case, the only way the refinery will get 49,500 barrels (a little more than 2 million gallons) of crude oil to refine every day is by truck. That’s a lot of trucks. A tanker truck can hold up to 9,000 gallons. That would be more than 225 trucks per day. If they won’t have the capacity to unload 10 trucks per hour at the new refinery, imagine how long those lines are going to be idling at the refinery gate. 24/7.

My friends pointed out that the refinery says on its website, “Davis will ship high-value products to local & regional markets — not all products go to the same place. Some markets are close enough for local truck delivery, others will be served by accessing product pipelines.” Well, that’s a few more trucks every day, this time going out, instead of in.

And that brings back the pipeline question — whose pipeline will they be using to ship that refined product out, the stuff that doesn’t go by truck? There’s no mention of shipping by railroad, which would seem to make sense, since the BNSF main line runs right past the refinery. Are there any plans to ship by rail? (My friends out west tell me the latest design plan for the refinery doesn’t show a railroad spur.)

My friends also pointed out that the company’s website says, “Flare stacks will be equipped with air-assisted blowers to help ensure cleaner complete combustion of flare gas and smokeless operation. Flare emissions will be analyzed by monitoring equipment.”

Huh? Flare stacks? Let’s hear a little more about those. How many? How tall? How will they compare with oil well flares we’re all familiar with, which light up the countryside all over western North Dakota? They are really, really noisy, much like the sound of a jet engine. And bright. Candles in the wind.

And then my friends pointed out that the company’s website says it is “negotiating options on additional property that would increase the size of the Site to nearly 2,000 contiguous acres. The refinery will not be the only facility operating on the site.” A little more explanation of that would be welcome, too.  What else is planned?

My friends and I are just asking those kinds of questions because it would seem to us that the answers might have some impact on those “adverse human and environmental impacts” that Section 49-22.1-02 of the North Dakota Century Code refers to. Especially for those people that live within a mile or two of the refinery. I guess we hope the Public Service commissioners will ask those kinds of questions at today’s meeting.

There’s one more thing my friends pointed out in the company’s stock offering that bothers me. The stock offering says “the company intends to achieve a liquidity event either by a public listing of the shares, such as through an IPO, or by sale of the company, following the start-up and full production of the refinery, projected to be within three to five years.”

Now I’m an English major and don’t know a lot about the world of high finance, but I read that to mean that the refinery will be built on borrowed funds and that the company might have to sell the refinery to get out of debt. Well, that ought to make lenders a little nervous. I wonder if any North Dakota banks are involved in financing this operation. Our bankers here are pretty shrewd. Want to take bets on that?

Tuesday, December 19, 9 a.m., 12th Floor, North Dakota Capitol Building.

JIM FUGLIE: View From The Prairie — Refinery Near National Park Gets Preliminary OK

Tuesday’s announcement by the North Dakota Department of Health that it is preparing to issue an Air Quality Permit to Meridian Energy to build the Davis Oil Refinery three miles from Theodore Roosevelt National Park should come as no surprise.

Once again, the state of North Dakota rolls over to the energy industry, but this time it’s threatening more than just North Dakota’s environment. This time it is threatening a national park. This time, maybe, the state has rolled too far.

The Health Department would seem to have a narrow focus — numbers — but the documents it released Tuesday to back up those numbers are rife with judgments. There’s never been a refinery built like this one, the company brags in its public relations efforts, so there’s really nothing to compare it to in arriving at those numbers.

But there are a lot of people concerned about a lot more than just some numbers that purport to show that pollution from the refinery will not cause deterioration of the park’s Class I Air Quality Status.

In its announcement Tuesday, the Health Department said, “A complete review of the proposed project indicates that the facility is expected to comply with the applicable federal and state air pollution rules and regulations.”

Good. That means if the scientists at the Health Department are right, no matter where the refinery is located, in their judgment, it will not pollute North Dakota air.

But this is about more than air pollution. This is about putting a major industrial complex with stacks emitting big white plumes on the entrance road to the gate of a national park named for America’s greatest conservation president.

What are we thinking?

Part of the Health Department’s decision to issue a permit for the plant is based on the fact that Meridian is claiming to be a “minor source” of pollution, rather than a “major source.” I can’t go into a bunch of details about that, but basically it means that because the Department accepts that claim, the refinery is subject to different rules when it comes to determining if it will affect the park’s Class I Air Quality status. Less stringent rules.

That’s the first sham the refinery folks are pulling.

The second is, Meridian are avoiding having to get a siting permit from the Public Service Commission because it says it are going to build a refinery smaller than what it earlier applied for to the Health Department and the State Water Commission.

In North Dakota, a refinery planning to process more than 50,000 barrels of oil per day must go through a stringent siting process to determine the impact of such a facility on the surrounding area, such as a national park. Meridian’s applications to the Health Department, for an Air Quality Permit, and to the North Dakota Water Commission, for a water permit, are for a 55,000 barrels per day refinery. The siting permit process goes beyond just a numbers game. Let me quote from the PSC’s website:

“The purpose of the Siting Act is to ensure that the location, construction and operation of energy conversion facilities and transmission facilities will produce minimal adverse effects on the environment and upon the welfare of the citizens of this state by providing that no energy conversion facility or transmission facility shall be located, constructed and operated within this state without a certificate of site compatibility or a route permit issued by the Commission.

“The Legislature stated that it is the policy of this state to site energy conversion facilities and to route transmission facilities in an orderly manner compatible with environmental preservation and the efficient use of resources. Site and routes should be chosen to minimize adverse human and environmental impact while ensuring continuing system reliability and integrity and ensuring that energy needs are met and fulfilled in an orderly and timely fashion.”

Well, good for the Legislature! I think that law dates back to 1977. It’s a pretty safe bet it wasn’t passed any time in the last 10 years.

Again, the trigger for requiring a siting permit is 50,000 barrels per day. But now, Meridian now has changed its story and says it is only going to process 49,500 barrels per day, sneaking in under the 50,000 barrel limit and avoiding the siting process.

To her credit, Public Service Commissioner Julie Fedorchak said Tuesday she wants to meet with Meridian officials to discuss the proposed location. She’s not been happy with the refinery company’s shenanigans. She’s going to meet with Meridian CEO Bill Prentice on Dec. 19. I think I’m going to be there, too.

I’ve asked Fedorchak to get the governor involved in this process as well. Between them maybe they could convince the refinery people to move the plant 10 miles east, maybe even 20. There’s another refinery already located just west of Dickinson, N.D., about 20 miles east of the proposed location of this one. And it sits next to a transload facility with the capacity to move hundreds of tank cars of refined products a day to Eastern markets. I’d think that is a good location for another refinery.

But back to the Health Department. For now, the Health Department says Meridian complies with Chapter 33-15-14 of the North Dakota Administrative Code, which requires the facility to obtain a Permit to Construct and a Permit to Operate. In other words, the Health Department believes the pollution projections given to them by Meridian. Here are their words:

“The facility has met all requirements necessary to obtain a Permit to Construct. Once the Davis Refinery completes construction and meets the permit to construct requirements, a facility inspection will be performed by the Department. Upon a satisfactory inspection and performance testing, the Davis Refinery will be issued a Permit to Operate.”

Damn!

Here are a couple other excerpts from Tuesday’s announcement by the Health Department:

“Chapter 33-15-15 — Prevention of Significant Deterioration of Air Quality. This chapter adopts the federal provisions of the prevention of significant deterioration of air quality (PSD) program. A facility is subject to PSD review if it is classified as a “major stationary source” under Chapter 33-15-15. The Davis Refinery will be subject to federally enforceable emission limitations via a synthetic minor permit to construct to remain below “major source thresholds” and therefore is not subject to PSD review under this chapter.” (Note there the significance of being classified as a minor source rather than a major source.)

“Chapter 33-15-16 — Restriction of Odorous Air Contaminants. This chapter restricts the discharge of objectionable odorous air contaminants which measures seven odor concentration units or greater outside the property boundary. Based on Department experience with sources having similar emissions, the facility is expected to comply with this chapter.” (Basing this decision on possible sources with similar emissions, this does not pass the smell test, in my humble opinion. They ever been in Mandan when the wind is from the northeast?)

“Chapter 33-15-19 — Visibility Protection. This chapter applies to major stationary sources as defined in section 33-15-15-01. The facility will not be a major stationary source and therefore is not subject to the requirements of this chapter. Given the minor source levels of the visibility impairing air pollutants, such as NOx, SO2, and PM2.5, it is expected that the Davis Refinery will not adversely contribute to visibility impairment within the three units of the Theodore Roosevelt National Park (nearest federal Class I areas).” (Note again the different standards for major and minor sources. And what about the plume rising hundreds of feet high above the park?)

Finally, here’s the summary at the end of today’s announcement:

“Summary: A complete review of the proposed project indicates that the facility is expected to comply with the applicable federal and state air pollution rules and regulations. Therefore, Meridian Energy Group Inc. has met all the requirements for obtaining a Permit to Construct and a draft Permit to Construct will be made available for public comment. Given the level of public interest, a 30-day public comment period (PCP) and concurrent 30-day EPA review period is required prior to permit issuance. In addition, the Department will hold a public meeting followed by a public hearing in Dickinson, N.D., for interested parties. Upon completion of the PCP, the Department will address all comments applicable to the state and federal air quality rules and regulations and make a final determination regarding the issuance of a Permit to Construct for the Davis Refinery.”

The public comment period begins Friday and runs through Jan. 26, 2018. Sharpen your pencils. Written comments should be sent to the North Dakota Department of Health, Division of Air Quality, 918 East Divide Ave, 2nd Floor, Bismarck, ND 58501-1947. Or e-mailed to AirQuality@nd.gov.

Mark your calendars now to attend the public hearing on the refinery at 5:30 p.m. (MST) Jan. 17 in Dorothy Stickney Auditorium in May Hall at Dickinson State University. That’s a big room. Let’s fill it up.

Here’s Tuesday’s announcement, if you want to take a look. It’s a few hundred pages.

I am reminded that President John F. Kennedy kept a small wooden plaque on his desk in the Oval Office for days like this. It read, “Oh, God, thy sea is so great and my boat is so small.”

Indeed, Big Oil and North Dakota government rule a mighty sea.

JIM FUGLIE: View From The Prairie — Halek Sentence: Probation And A Halfway House

My old friend, Darrell Dorgan, and I decided to sit in on the sentencing hearing for Jason Halek on Monday morning. A couple of old, retired newsmen, we both went there thinking we were going to see the full measure of the law applied to a Texas con man responsible for one of the biggest pollution violations in North Dakota history. You read about that in the story and timeline I posted Sunday night. Here’s how I started that story:

“If everything goes as planned Monday morning (which would be unusual — nothing much has gone as planned in this case), Jason Halek will walk into the federal courthouse in Bismarck tomorrow morning as a free man, and walk out — figuratively, if not literally — in handcuffs, headed for a federal prison.”

Yep. Things are still not going as planned. I’m going to let Darrell tell the story. Here’s how he wrote it down a couple of hours after we left the hearing in disgust, not even sticking around to see what happened to Halek’s co–conspirator, Nathan Garber, whose sentencing was scheduled right after Halek’s.

Here’s Darrell’s summary of what happened:

“Santa arrived in Bismarck today. Dismissing recommendations from federal prosecutors, and a defendant’s guilty plea, Federal Judge Daniel Hovland handed down a sentence for a Texas businessman that includes no jail time, just three years probation and six months in a halfway house.

“Jason Halek, of Southlake, Texas, was also ordered to make $71 million dollars in restitution for the environmental problems caused by his North Dakota disposal well and the fraudulent sale of investments in Texas oil and gas projects. Following the hearing, his attorney admitted there was no way Halek could ever make restitution of that amount.

“Halek has also been accused of hiding information in a previous bankruptcy and pollution violations in the State of Texas.

“Halek, who has been selling used cars since the charges were filed, is now in business maintaining stripper wells in Texas. He says his income is about $8,000 a month.

“Federal prosecutors had asked for a sentence of up to 30 months in a federal prison, but Hovland said he was not convinced prison would be beneficial, noting it would not allow Halek to work and try to make restitution.

“Halek was charged with violating the Federal Safe Drinking Water Act. The case dated back to 2012, after Halek was found operating a saltwater disposal well in Stark County. Injection of wastewater from oil wells was ordered halted because of violations of environmental rules, and 800,000 gallons of saltwater is now in the well site in question, and poses a risk to the City of Dickinson’s water supply.

“Halek pleaded guilty to violating the rules and to having safety devices tampered with, in an attempt to deceive inspectors. However, Judge Hovland said, “If the state was concerned about leakage at the site, they could have checked, and no check was done.”

“The state of North Dakota, following its long practice of not filing criminal violations in oil field pollution cases, fined Halek more than $1.5 million dollars. That is part of the $71 million his attorney now admits will never be collected.

“After the state declined to press criminal charges in the case, the Environmental protection agency did, and Halek pleaded guilty.”

Well, Darrell summed it up pretty well. That’s what happened. Confirms what we know. You can do pretty much anything in the North Dakota oil patch with little or no consequence. So, he’s Texas’ problem now. Wonder if their environmental enforcement is any better than ours.

End of Jason Halek story. For now, at least. We’ll have a party when the state gets its check for a million and a half dollars. Uh huh.

JIM FUGLIE: View From The Prairie — Maybe The Halek Case Is Over; Maybe

If everything goes as planned Monday morning (which would be unusual — nothing much has gone as planned in this case) Jason Halek will walk into the federal courthouse in Bismarck tomorrow morning as a free man, and walk out— figuratively, if not literally — in handcuffs, headed for a federal prison.

You’ve read about Halek here many times before. He’s the guy who dumped 800,000 gallons of poisonous saltwater down an abandoned oil well south of Dickinson about six years ago and is finally going to be sentenced for Federal Safe Drinking Water Act violations tomorrow morning.

Those crimes are going to send him to the pokey, and his co-conspirator, Nathan Garber, who provided enough telling evidence against Halek to put him in the pokey, and save his own hide, will hear his sentence from Judge Daniel Hovland as well. But if he cut a good enough deal fingering Halek, he will go back to Montana on probation.

It’s been a long, drawn-out case, with two darned good defense lawyers, Alex Reichert of Grand Forks and Monte Rogneby of Bismarck, doing their jobs well, although they were surely aided by the incompetence of lawyers for the state of North Dakota, or the unwillingness of their bosses to actually prosecute someone in the oil industry for messing with our environment.

You can read the whole story about this case in a blog I wrote back in August, or if you’d rather, take a glance through this timeline I put together today, just to refresh my memory about this guy Halek, and his former buddy, Garber. They’re quite a pair. But y’know, some of the stuff they did was just typical of the kind of crowd an oil boom can deliver to your backyard. Take a look:

  • 1998 — Jason Halek moves from Minnesota to Texas to get into the oil business.
  • 2002 — Halek goes into business in Texas as Halek’s Truck LLC, later changing the name to Halek’s Enterprises LLC. Used car business, mostly.
  • 2007-2009 — Halek and an associate raise $22 million to drill oil and gas wells west of Fort Worth, Texas. Among those who lost their entire investment was a 24-year-old blind man from Southern California named Anthony Michael Ramsey. He’d handed over $140,000 of the $400,000 trust set up to support him after the motorcycle accident that blinded him, based on big promises from Halek.
  • 2008 — Halek Enterprises LLC, becomes Halek Energy LLC
  • 2008 — Halek Energy puts down at least $15,000 on a luxury suite in Cowboys Stadium in Dallas, has a 2006 Hummer for a company car and hires a “personal assistant” for Halek to handle his email and drive him out to the oil field.
  • 2010 — Halek moves to North Dakota and forms a new company, Halek Operating ND.
  • July 21, 2010 — Halek Operating ND begins seeking oil well permits from North Dakota officials, for wells near Dickinson. Two permits are granted, and Halek raises $3 million from investors.
  • Sept. 1, 2010 — The Securities and Exchange Commission files a lawsuit alleging that Halek and two Texas companies he owns—Halek Energy and CBO Energy—fraudulently sold investments in oil and gas projects, raising about $22 million from at least 300 investors. Halek settles the case with the SEC later that year by agreeing to a $50,000 fine and to repay “ill-gotten gains.”
  • April 6, 2011 — The pit at one of the company’s two wells near Dickinson overflows from snowmelt. The liquid, with a sheen of oil on top, flows into a drainage. Halek Operating ND faces more than $588,000 in potential fines, but the company catches a break from state officials. All but about 10 percent of the fine is suspended. However, the company has to put up a $20,000 cash bond against potential future contamination.
  • April 11, 2011 — Halek Energy LLC, address Southlake. Texas, an affluent suburb of Fort Worth, whose CEO was Jason Halek, files for bankruptcy.
  • October 2011 — Halek writes to assure North Dakota state officials that after unsatisfactory dealings with a local contractor at the oil pit that overflowed, “we sent our own group from Texas, led by Nathan Garber, to make some final adjustments.” He adds, “Nathan is now in charge of the North Dakota projects.”
  • January-February 2012 — Halek Operating illegally dumps 800,000 gallons of saltwater down a dry hole oil well, converted to a disposal well, near Dickinson.
  • Jan. 23, 2012 — Halek transfers ownership of the disposal well to Executive Drilling LLC, whose owner is listed as Nathan Garber.
  • Feb. 27, 2012 — State oil and gas officials approve the transfer of the well from Halek Operating ND to Executive Drilling. The approval came even though state inspectors have found that the company had continued to inject wastewater, despite orders not to do so.
  • April 2012 — Halek signs over his Texas company, Halek Energy to some of the Texas fraud victims.
  • April 2012 — Halek signs over control of Halek Operating ND to someone named Corey Hunt. Halek says Hunt is a small investor in the North Dakota project, as are some of Hunt’s family members. Hunt says in written comments to the state that he got involved to “protect the investors.” No one has heard from Hunt since. Not sure if he is part of the Hunt Oil family.
  • June 2012 — North Dakota officials, including the Bureau of Criminal Investigation, step up their investigation of a defective disposal well for oil field waste at one of Halek’s well sites near Dickinson.
  • July 2012 — After an investigation of the disposal well, North Dakota Industrial Commission fines Halek $1.5 million, which makes big headlines in the state’s newspapers. Oil and Gas Division director Lynn Helms turns the penalty over to the state court system to collect the money. No one has heard from the court system about the fine since.
  • July 27, 2012 — BCI files criminal charges against Garber.
  • Aug. 1, 2013 — Halek admits to four counts of violating the North Dakota Administrative Code by illegally dumping saltwater down the disposal well. Charges later dropped when federal investigators take over.
  • Aug. 5, 2013 — The United States Court of Appeals for the Fifth Circuit issues an opinion Halek is responsible for repaying more than $26 million in fraudulent investments and interest to victims in his Texas oil scheme.
  • Sept. 22, 2013 — Nathan Garber submits an Alford plea in state court in North Dakota and receives a two-year suspended sentence and a $2,500 fine. Garber heads back home to Montana to serve his two-year nonsupervised probation period.
  • Nov. 20, 2013 — North Dakota’s U.S. Attorney Tim Purdon decides state officials, including the North Dakota Industrial Commission staff and commission members Jack Dalrymple, Doug Goehring and Wayne Stenehjem, who is also the state’s top law enforcement officer, are doing a pretty shitty job (my word, not his) of enforcing the law and protecting the state’s environment, and calls in the feds. The U.S. Environmental Protection Agency’s Criminal Investigation Division executes a search warrant at the well site and finds evidence there were at least five violations of the U.S. Safe Drinking Water Act and a conspiracy to cover them up, charges much more serious than the state’s flimsy “violations of the administrative code” charges. Garber quickly pleads guilty to a total of 11 federal charges and faces a 50-year prison sentence.
  • Feb. 19, 2014 — Halek Energy, LLC, emerges from bankruptcy. Notably absent, however, is the company’s founder and namesake, Jason Halek. Texas law firms representing investors continue efforts to recover victims’ money.
  • Nov. 29, 2014 — Halek forfeits a $40,000 bond against his $1.5 million fine. State officials acknowledge they are likely never going to collect the $1.5 million fine, because there is no money.
  • September 2015 — More of Purdon’s work: a federal grand jury returns a 28-page indictment against Halek, with 13 felony charges, including, like Garber’s, violations of the Safe Drinking Water Act, as well as four counts of providing false information to the North Dakota Industrial Commission. Those charges were the result of poring through Industrial Commission documents and interviewing staff and finding violations Stenehjem had declined to uncover or pursue.
  • October 2015 — Presentence investigation on Garber is complete, but no date set for sentencing because prosecutors want to wait and see if he will testify against Halek. Halek trial, originally scheduled for Oct. 27, 2015, postponed until at least mid-2016.
  • Feb. 21, 2017 — Halek agrees to plead guilty to three Safe Drinking Water Act violations.
  • April 13, 2017 — Halek enters a formal guilty plea in U.S. District Court in Bismarck. Sentencing is set for July 31, 2017.
  • July 19, 2017 — Halek’s attorney, Alex Reichert, files a motion for an extension of time to object to the presentence investigation report. U.S. District Judge Daniel Hovland grants the request and sets sentencing for Oct. 11, 2017.
  • Oct. 11, 2017 — Sentencing date comes and goes. Sentencing for both Halek and Garber rescheduled for Nov. 27, 2017.
  • Oct. 27, 2017 — Speculation: Garber agreed to testify against Halek if there was to be a trial, leading to Halek’s guilty plea. Halek was the guy the feds really wanted. My guess is Garber will walk out of court with another suspended sentence and probation period and maybe a fine to cover all the costs of the investigation and prosecution. I don’t know if Garber has any money, but the feds do. And I’d guess Halek will get 24 to 28 months in a federal prison. That would be a pretty steep sentence for a Safe Drinking Water Act violation. Offenders don’t often get prison time for that. And there could be a hefty fine.

During all of this, Halek has gotten back into the used car business in Texas. Maybe there are some assets there. Maybe the North Dakota Industrial Commission could even get a few used cars as part of its $1.5 million fine. I’ve spent a lot of hours writing about this case, Maybe I could get one of those cars. Meanwhile, the Industrial Commission is in the legal process of claiming ownership of the tainted well south of Dickinson. Just what the state needs: an abandoned oil well full of 800,000 gallons of poisonous salt water. Which they then get to clean up. Maybe they could send Garber and Halek out there with some siphon hoses …

We’ll see what happens in the morning. I’ll be in the front row Judge Hovland’s courtroom. Come and join me. It could be quite a show.

Oh, and one last note: I’ve been talking today via text message with Halek’s first girlfriend, Stephanie, with whom he broke up in 1994. She’s predicting the sentencing will be postponed again. “He seems to get out of everything.”

JIM FUGLIE: View From The Prairie — Crying Over Spilt Oil — And Brine

OK, when technology fails you, sometimes you just have to do things the old fashioned way.

I wrote a couple of weeks ago about the North Dakota Department of Health’s Environmental Incident database and how difficult it is to track the performance of various oil companies. I haven’t heard back from the governor yet, and being an impatient Norwegian, I decided not to wait for them to upgrade it because they might never do that. And being retired with not a lot to do on cold days, I decided to become a human search engine.

So I went and physically called up, on the website, the actual Environmental Incident Reports for the 100 worst oil spills — and the 100 worst saltwater spill — in the Oil Patch since the Bakken Boom began. I know. I need to get a life. But it really was pretty interesting.

What I found out is there are some pretty bad actors out there. The five companies with the most spills, combined, accounted for 30 percent of the 200 worst Oilfield Incidents.

The 200 worst spills were committed by a total of 87 different companies. Most had one or two, although there were a good number that had three or four.

But the bad ones spilled a lot. Remember, I’ve pointed out here just from memory of news reports that Oasis Petroleum, Continental Resources and Denbury Onshore must be among the spill leaders. Well, they were.

Oasis, which just announced it’s producing about 70,000 barrels of oil per day and had third quarter earnings of $180 million, led the pack with 15 total spills out of the top 200.

Continental, owned by Harold Hamm, the “Father of Fracking,” and Donald Trump’s No. 1 energy adviser, had 13.

Denbury had nine.

Joining them in the top 5 were Petro Hunt (the famous Hunt brothers) with 13 and Whiting, a company with almost half a million leased mineral acres in the Bakken, with 10.

Those five have a total of 60 spills among them, almost 30 percent of the top 200 (there are actually a few more than 200 in the top 200 because of ties).

I didn’t add up all the barrels of oil and saltwater they’ve spilled, but I’m pretty sure they don’t match a couple of other companies with really, really big spills. You’ve probably heard about them.

Back in 2013, Tesoro (you’ve heard of them, eh?) dumped more than 20,000 barrels — the actual total was 865,000 gallons — of oil on a farmer’s field up on the Mountrail-Williams county line.

And just about a year ago, Belle Fourche Pipeline Co., a subsidiary of True Oil Co. from Wyoming, dumped 12,615 (more or less) barrels of oil — more than half a million gallons — into Ash Coulee Creek in Billings County, north of Belfield. So far, Tesoro and Belle Fourche are the two big winners in the North Dakota Oil Spill Lottery.

I did do some math on the total amount of oil and saltwater spilled in the 200 biggest spills in North Dakota since the Bakken Boom began. Get ready for this. In the top 100 oil spills, companies dumped 107,122 barrels of oil onto the ground and into rivers, creeks, lakes and other wetlands. That’s 4.5 million gallons of oil from just those 100 spills.

Compared to saltwater spills, which most environmental scientists tell us are worse than oil spills, that’s nuthin’. The top 100 saltwater spills recorded with the North Dakota Health Department came to 247,704 barrels — 10.5 million gallons of poisonous brine that kills everything it comes into contact with and renders soil pretty much permanently sterile and unusable. When you read the incident reports on these saltwater spills, you learn that if the spill is on land, they just dig up all the dirt and haul it to a landfill. But it is different when it spills into a creek.

There was a big one up north of Williston a couple of years ago. A pipeline owned by a company called Summit Midstream ruptured in the dead of winter and almost 3 million gallons of brine flowed into Blacktail Creek, which runs into the Little Muddy River, which runs into the Missouri River, which runs into Lake Sakakawea. That was a real mess. Dams were built to stop it from reaching the lake. Much of it froze in the creek, and then they cut it into big chunks of ice and hauled it away to a landfill. Can’t even imagine what happened in the spring when the ice melted. The incident report on this mess is 63 pages long. Take a look.

The spill happened in 2015, but samples are still being taken from the water up there, the last one as recently as two weeks ago. We don’t know what they’re finding because the results of the samples are not shared in the incident reports. Memo to Jim:  Ask for the results.

In the case of the Tesoro oil spill, they’re still cleaning up the site, almost four years after the spill. First they set fire to the oil on the surface of the field and burned it. Then cleanup involves digging up the soil impacted by the oil and treating it. At last report the pit where they were digging was 40 feet deep. Here’s that Incident Report.

And the Belle Fourche Pipeline story isn’t over yet, either. Last month, almost a full year after the spill, a Health Department Inspector visited Ash Coulee Creek and wrote this on the Incident Report:

“Sampling Date: 10/11/2017 Ash Coulee Creek was sampled at 11 locations for DRO and BTEX. Those samples were brought to the lab on Friday the 13th. Some locations produced a sheen when the stream sediments were disturbed.”

Obviously there’s still oil in the creek. A year later.

So what happens to these companies that carelessly destroy the countryside? Do they get fined? I’ve been curious about that. So I decided to try to find out. You won’t learn anything by reading the incident reports. Those are written by the scientists on the ground, whose job is cleanup. These guys work ridiculously long hours, away from home, in all kinds of weather, trying their darnedest to get these companies to clean up their messes. Unsung heroes.

Punishment, if any is meted out, goes to a higher level at the Health Department. I’m not sure how high, but I decided to ask one of the good guys at the Health Department, a fellow named Bill Suess, who supervises the scientists. Here’s the e-mail I sent Bill this morning:

Dear Bill,

I have been looking at your Environmental Incident Reports, specifically the largest spill reports of both oil and other liquids such as brine. From what I can tell, looking at the 100 largest oil spills and the 100 largest brine spills, there are five companies who have a substantial number of large spills. They are Oasis, Continental, Petro-Hunt, Whiting and Denbury Onshore.

I’d like to know how many of each company’s spills resulted in fines, and the amount of those fines. I’d also like to know if all of those fines have been paid. If not, how many have been paid, how many remain uncollected, and how much money has not been collected, and what steps are being taken to collect them. I’d also like to know if additional fines are being contemplated or pending in any of those cases, and if so, which cases.

I’ve also taken note of two very large spills, the Tesoro spill in Mountrail County in September of 2013 (EIR2056), and the Belle Fourche Pipeline spill in Billings County in December of 2016 (EIR5282). I would like to know if those companies have been fined, or if fines are contemplated and pending, and how much those fines are, and whether they have been paid, and if not, how much remains to be collected, and what steps are being taken to collect them.

I know your staff is very busy keeping up with all these spills, but I feel the public has a right to know which companies are the biggest violators and how those companies are being treated.

Thank you in advance for your help. I look forward to receiving this information.

Jim

I’ll let you know when I hear back from Bill.

And that’s about as many numbers as an English major can handle in one day. I hope I did the math right. Happy Thanksgiving.

JIM FUGLIE: View From The Prairie — A Simple Request To The Governor: Let’s Get Technical

Dear Gov. Burgum,

I am writing to you today about transparency. Transparency in government. Transparency in North Dakota government. Transparency in North Dakota government as it relates to our environment and environmental protection. You’ve said often you believe in transparency. Here’s a chance to prove it.

You’re a new governor this year, and you come from the world of high technology. You’ve got a couple of agencies that are operating at low technology. I’d like you to get them fixed. Because I’m not sure they aren’t trying to hide something from us by keeping their technology low. So I’m making two requests, Governor, to do a little technology upgrade.

The first is at the State Health Department. My friend, Darrell Dorgan, has been regularly critical of them for being too interested in the welfare of industry (read: Big Oil), at the expense of the environment. If you look at some of the stuff they do, you might think that’s the case. I’ve thought for a long time there are good people there who were being leaned on by Govs. Hoeven and Dalrymple to be friendly to Big Oil because that industry, with its boom, was punching their meal tickets during much of their administrations.

The jury’s still out on you, Doug Burgum. Will you let this agency operate as it should? Officially, they are our state’s representatives and enforcers for the United States Environmental Protection Agency, charged with enforcing federal and state environmental regulations. But those regulations sometimes get in the way of the oil industry, and Hoeven and Dalrymple didn’t like that. I don’t know about you yet, Governor. You’re of their political party, but I don’t know if you’re of their ilk. I’ll know better if you respond to my two technology upgrade requests.

Here’s the first one.

The Health Department maintains a website database of what they call “Oilfield Environmental Incidents” in the oil patch. That’s bureaucratese for “spills.” It’s a big database, with records of more than 10,500 spills since Jan. 1, 2008. Quick math — an average of a little over a thousand spills a year for the last 10 years. Here’s the link to the website, so you can take a look for yourself.

If you go there, you’ll see a menu that lets you click on spills in the past 12 months, or spills occurring before that. If you go to one of those databases, you can click on the categories at the top, like the amount of oil spilled in each incident, or the amount of saltwater spilled, from the biggest spills to the smallest (you might have to click twice — they’re pretty cagey). You can click on the county link and find out how many of those incidents occurred in Billings County, or Williams County.

But what you can’t find out is how many of those spills were committed by a particular company. Because there’s no category for that. In order to find out who committed each spill, you have to click on every one of the 10,500 incident reports to find out what company is responsible for each spill.

I know from experience, for example, that there are a couple of companies, Oasis and Denbury, which have been particularly bad violators. In fact, I once wrote on this blog that it was time to kick Denbury out of the state because it was so bad and careless. That was four years ago — Denbury is still here. Its most recent spill was Oct. 5 of this year, when oil and saltwater spilled onto a pasture near Bowman. Denbury still shows up in the database on a pretty regular basis. But you have to look at every incident report to find it. Eight hundred twenty-three incidents this year. So far.

The thing is, there’s really no way of knowing, without looking at all 10,000 incident reports, who the really bad operators are. And that’s the way the industry wants it. Finding out that Denbury or Oasis or Continental (seems to be the most recent bad company) has a hundred or 200 or more spills would just not be good publicity.

And the Health Department has acquiesced to their wishes. Or, more likely, someone in Gov. Hoeven or Gov. Dalrymple’s offices had sent word down to just leave that database the way it is. I talked off the record to a Health Department employee about a year ago and asked about this. He told me they wanted to fix it, and were going to ask for money from the Legislature in 2017 to make the database searchable. Obviously, that didn’t happen.

But now we’ve got a new governor, and he’s a techie! I bet, Governor, if you sent one of your former Microsoft programmers over to the Health Department, they could make that database searchable in 15 minutes. If that’s something you wanted done.

So that’s my first request, Gov. Burgum. Send someone to the Health Department and fix that database. They’re right over there on the second floor of the Judicial Wing of the Capitol Building. Heck, I bet they wouldn’t even have to go over there — they could probably do it from your office. Or from home.

So next time I write a story reporting that Belle Fourche Pipeline Co. is still trying to clean up its 175,000 gallon spill into Ash Coulee Creek last December, I can also find out how many other spills it made since then. Oops, bad example. That one’s not in the database.

See, sometimes whoever happens to be in charge at the moment in the Health Department will, instead of creating an incident report in the oilfield spills database for a particularly egregious spill, like the Ash Coulee one last winter, they’ll instead put it over into a DIFFERENT database, called “General Environmental Incidents.”

I’ve never been able to figure out why they did that for Ash Coulee because it was surely an “Oilfield Environmental Incident,” just like the one by Tesoro a couple of years ago, which spilled 20,600 barrels — 865,000 gallons — up in Mountrail County. The only thing I can figure out is that Tesoro only reported it spilled 750 barrels, so it got listed as an oilfield incident, until a Health Department official discovered two months later that it was really more than 20,000 barrels. Oops. I guess 750 barrel spills get logged in as oilfield incidents, and spills like the Ash Coulee one, at 4,200 barrels, don’t.

It sure is harder to keep track of those things when you have to look through different databases. Oh, yeah. I get it.

Anyway, Gov. Burgum, please put your programmer to work. Oh, and there’s one more thing I’d like you to take care of, while you’ve got your programmer available. That’s over at the State Water Commission website.

Since you’ve just signed a bill allowing industrial use of water from the Little Missouri State Scenic River (if you haven’t already done so, you could read Amy Dalrymple’s (no relation to Jack) story about this in the Bismarck Tribune by clicking here), and because there are a lot of us who love that river and are concerned about it, we would kind of like to be able to keep track of how many water permits are being issued to take fracking water from the river, and where they are, and how much water they are taking.

Well, the Water Commission, like the Health Department, also maintains a database on its website, called “Water Permits Database” (you can find it here — down toward the bottom of the page), and, in theory, you could get that information from that database. Except you can’t. Because those water permits are not in the database. I know because I know some of the people and companies who have been issued water permits, and they are not in the database.

Oh, the Water Commission does have a double-secret way to find out who has industrial water permits, but you have to be a pretty good detective to find it. Well, I did a little detective work, with some urging from Jan Swenson, executive director of Badlands Conservation Alliance, who kept telling me, “They don’t put it in the database, but it’s on the site, you just have to learn how to use the maps.”

Learn how to use the maps. Old dog, new trick. But I did it. It took me a few hours because it is well-hidden, so if you are nosy like me, I’m just going to give you a direct link (sort of) to go and look. Click here, and then go down to the bottom of the page and click on the artwork that says “Water Depots.” (Don’t click on the link that says Water Permits — you won’t find all the Little Missouri water permits there — only some of them.)

Once you’ve clicked on Water Depots, you have to figure out how to use the maps and the embedded database in them. First, you take a tutorial and learn to click on the little bar on the side of the page that says, “Show layers,” and then about half an hour or so later, you’ll find, for example, that a company named Streamline Water Services LLC has a permit to draw 233 million gallons of water (yes, you read that right) from the Little Missouri State Scenic River, on land owned by a rancher named Joe Schettler, between last December and next August. Your state engineer, Governor, has authorized one company to take more than 200 million gallons of water from the Little Missouri State Scenic River. Is there even that much water in the river, ever? Geez.

Joe Schettler’s Water Depot, in the center of the photo, hard against the Little Missouri State Scenic River at the top of the photo, courtesy of Google Earth. From here, the big trucks take water to the fracking sites.
Joe Schettler’s Water Depot, in the center of the photo, hard against the Little Missouri State Scenic River at the top of the photo, courtesy of Google Earth. From here, the big trucks take water to the fracking sites.

Streamline has built a big water depot on Schettler’s land, alongside the Little Missouri. Joe also just happens to be Dunn County’s representative on the Little Missouri State Scenic River Commission. I’m not sure if Schettler is a partner in the company, but one way or another, he’s making a lot of money from that water, which he gets pretty much for free — I think the water permit costs a couple hundred dollars.

But anyway, back to matters at hand. It would be pretty easy, Governor, for your Microsoft programmer to run those permits hidden on the map pages into the Water Permit Database, so we could keep track of them, instead of having to wander around that incredibly confusing map system. (I’m guessing, by the way, that the engineers over at the Water Commission are pretty disappointed that an English major like me could figure out how to get this information.)

So that’s my second request, Governor. As soon as you’ve got that Health Department database cleaned up, how about fixing the Water Commission database, too?

Thanks, in advance.

Jim