JIM FUGLIE: View From The Prairie — Refinery Company To PSC: ‘Screw You’

Of all the sleazy companies to show up in North Dakota’s oil patch in the nearly 10 years since the Bakken Boom began, the sleaziest of them all has to be Meridian Energy, the company proposing to build an oil refinery called the Davis Refinery just three miles from Theodore Roosevelt National Park.  Here’s why I say that.

Normally, when a company wants to build a large energy plant, like a refinery, it applies for a siting permit from the North Dakota Public Service Commission.  Most good companies do that. It’s the law. In the case of oil refineries, if the refinery is going to be capable of processing more than 50,000 barrels of oil per day, they have to obtain a site compatibility permit from the PSC.

Here’s Section 49-22 of the North Dakota Century Code:

“The legislative assembly finds that the construction of energy conversion facilities and transmission facilities affects the environment and the welfare of the citizens of this state. Therefore, it is necessary 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 acquired pursuant to this chapter. The legislative assembly hereby declares it to be 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. In accordance with this policy, sites and routes shall be chosen which 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.” (My emphasis added.)

Well, that’s reasonable enough, I guess. Take care of the people and their environment while providing the energy we need. The two should be compatible. You’d think that it might also keep a refinery away from the boundary of a national park.

The proposed Meridian refinery is a 55,000-bpd facility. The Davis Refinery stock offering from January 2017 says: “Meridian Energy Group Inc. (“Meridian” or the “Company”) is a closely held South Dakota corporation that will construct and operate the Davis Refinery, a 55,000 barrel per day high conversion crude oil refinery on a 715-acre site in Billings County, near Belfield, North Dakota, in the heart of the Bakken formation.”

In its application for a state water permit, Meridian is requesting enough water — 645 acre feet per year — to supply a refinery processing 55,000 barrels of oil per day.

In its application for an air quality permit from the North Dakota Health Department, the company makes its projections on how much pollution they will be producing based on a 55,000 barrel per day refinery.

Well, OK then, it’s going to build a refinery processing more than 50,000 bpd. So the company has to get a siting permit from the PSC, right? Well, not according to the company’s lawyer, Lawrence Bender (I’m going to stop just short of calling him sleazy, too, but I will say the sleazy company found the right lawyer).

Bender wrote a letter to the PSC in which he says, “Please be advised that at this time, Meridian is designing its refinery to be capable of refining twenty seven thousand five hundred (27,500) barrels per day. Further, at this time, there is no design in existence nor plans to propose a design for more than 27,500 barrels.”

Huh? The company had told two other state agencies and all potential investors that the refinery is going to process 55,000 bpd. Oh, he does go on to say, “Though Meridian does not presently have any designs or plans to propose a Refinery with capacity beyond 27,500 barrels of oil per day, Meridian considers it a possibility that such addition could be made at a later date.”

Good grief. A “possibility?” Somebody better tell those investors looking at the stock prospectus for Meridian Energy that the refinery they’re investing in is only a “possibility.”

The PSC members and their staff ain’t stupid. They took note of that and wrote back, “The Commission has received information that Meridian’s application to the State Water Commission for a Water Appropriation Permit is based on a facility capable of refining 55,000 barrels per day. Further, Meridian’s applications to the North Dakota Department of Health for the construction of a new crude oil refinery are based on a facility with a nominal processing capability of fifty five thousand (55,000) barrels per day.”

The letter went on, “Since Meridian is filing applications with other state agencies for permits based on a facility that can refine up to 55,000 barrels per day of oil, and since an oil refinery of that capacity is jurisdictional to the Commission for siting under North Dakota Century Code chapter 49-22, it appears that the proposed refinery is jurisdictional under the siting law. Please let us know whether Meridian agrees, and if so, when we can expect an application.”

Well, good for Patrick Fahn, director of the PSC’s Public Utilities Division, who wrote that letter. He sent it March 1. It took lawyer Bender about three weeks to respond. He said, basically, “Screw you, PSC.”

Explaining the water permit request, Bender reiterated that Meridian only planned to build a 27,500 bpd, but again said again “it is a possibility” that the plan could expand in the future. And in response to the question on the air quality permit, he said basically, “the Health Department made us do it.” Well, of course, they did. They knew what Meridian was up to. They ain’t stupid either.

Bender then went on to say that under an old attorney general’s opinion, issued in 1976 by then-Attorney General Allen Olson, “applications to different state agencies concerning the same energy conversion facility need not be identical.”  What? That made no sense to me, so I went and read that opinion, and didn’t quite read it that way, but then I’m not a lawyer. I know former Attorney General (and Governor) Olson reads this blog. Maybe he’ll remember. Attorney General’s Opinion 76-130.

Bender’s conclusion: Meridian doesn’t believe those two applications trigger a site compatibility review by the PSC, and it will not seek a certificate of site compatibility. So it plans to just go ahead and start building a refinery, without PSC permission.

So we’ve got a standoff right now.

I’ve talked to two of the three PSC members about this, and they’re mulling it over. They gave it a run, and the company told them to get lost. So until Meridian puts a shovel in the ground, there’s not much the PSC can do. It’s pretty obvious that the reason Meridian doesn’t want to apply for a site compatibility permit  is that it believes the PSC might NOT issue a permit for this location if it applied for one. Well, that seems pretty stupid. Now Meridian has really pissed off the PSC. We’ll see how this plays out.

Meanwhile, Garland Erbele, the state engineer over at the Water Commission, did take some action, announcing he was granting a water permit for only 90 percent of the water Meridian had applied for. His logic: If he only gives Meridian enough water to build a refinery capable of processing 49,999 barrels of oil per day, then Meridian can’t build its 55,000 BPD refinery. There, take that, Meridian!

Cute. Real cute And pure pap. You don’t think Meridian might have a “fudge factor” of 10 percent or so in its request?

And what was Meridian’s reaction to that? Hey, no problem. Here’s a statement from their press release to potential investors: “William Prentice, Meridian CEO, commented on the Allocation Draft Permit, ‘We thank the Water Commission for the thoroughness and fairness of their review. While the recommended allocation is slightly less than we requested, I’m confident that we will employ our resources and determine how to make the Davis Refinery even more efficient, like we’ve done in so many areas thus far.’”

And the company’s engineer, Dan Hedrington, said in the same press release, “The Recommended Decision is the draft permit the Engineer’s Office has been working toward. The document appears very thorough and complete …”

In other words, Thanks, Mr. Erbele. That’ll be just fine.

Really, Erbele’s little stunt is beneath the dignity of a state government agency. That’s playing Meridian’s game. You want to send Meridian a REAL message, Mr. Erbele? Grant them a permit for enough water to process the 27,500 barrels per day.

Meridian says it “might” come back later and decide to expand its refinery capacity to 55,000 bpd, but right now, it’s at 27,500. So give them that much. And tell them if they decide to expand, you “might” give them more water.

There’s precedent for that. Way back in 1974, one of Erbele’s predecessors, Vern Fahy, who worked for Gov. Art Link and Agriculture Commissioner Myron Just (the two elected officials on the State Water Commission), got an application from Michigan Wisconsin Pipeline Co. for water to build a whole bunch of coal gasification plants in western North Dakota. The company requested 68,000 acre feet (Yeah, kind of makes that refinery look like small change, doesn’t it?) and the Water Commission granted them just 17,000 acre feet — a fourth of what they wanted. Wise men, Link and Just. In the end, they didn’t even need that much for the one plant they built — which, by the way, is still in operation today.

Further, they attached a whole list of conditions to the permit. At the time, North Dakota didn’t have much in the way of mined-land reclamation or air pollution laws, so they wrote some, and attached them as conditions to a water permit. Most of those conditions were eventually enacted by the Legislature and became law.

An aside — that water permit and its conditions became the entry point for then Tax Commissioner Byron Dorgan’s involvement in North Dakota environmental matters. Just and Link had Dorgan ask Attorney General Allen Olson if those conditions could stand the test of law. Olson opined that he thought they could, and so they were valid. Credit those four men for leading the way to protecting North Dakota’s environment. We could use four more of them today. Link’s gone, but the other three are still around. Wonder if they’re busy — today’s government leaders could use some advice about what to do with a rogue company like Meridian.

Meanwhile, today’s leaders need to do what those four great leaders did in the 1970s — circle the wagons and sit down and figure out what to do about this sleazy company. Gov. Doug Burgum and Public Service Commission president Julie Fedorchak need to display some leadership here. They need to get all the players in the room — the PSC, the Water Commission, the Health Department, and maybe even the State Securities commissioner (don’t be surprised if THAT office needs to engage at some point) — and figure out how to get this company in line. Surely, Dorgan, Link, Just and Olson would not allow a company such as this to build a refinery three miles from the national park named for our country’s greatest conservation president.

An oil refinery and a national park are not compatible. And we can’t move the national park.  we can move the proposed refinery. That’s why we have Section 49-22.1 of the North Dakota Century Code. Let’s enforce it.

Pretty much everybody would agree that building a refinery in North Dakota is a good idea. Pretty much everybody would agree that three miles from a national park  is the wrong place to build it (except for three people — the Billings County commissioners, who get to collect massive property taxes from it).

There’s going to be lots more to this story. I’ll try to keep you posted.

Meanwhile, there is now a 30-day comment period for people who commented on the application last year to submit more comments. Seems like a goofy law — anybody should be able to comment on action of a governmental body, any time. But then I was one of those who commented last year, so I get to comment again. Here’s my letter.

Garland Erbele, State Engineer

900 East Boulevard

Bismarck, ND 58505-0850

July 13, 2017

Dear Mr. Erbele,

As a follow-up to my earlier 2016 comments on the application of Meridian Energy for a water permit for 645.2 acre feet of water per year (enough to process 550,000 barrels of oil per day) for its proposed Davis Refinery, I want to tell you what I think of your decision to only grant them a permit for 90 percent of the water they requested.

It is pure pap. That’s what I think of your decision. It’s a cute little gambit that’s just as transparent as their request. Government shouldn’t be cute. Government should just stick to the numbers. Here are the numbers:

Meridian says it is going to build a 27,500 barrel per day refinery. In a letter to the PSC, the firm’s attorney states unequivocally, “Please be advised that at this time, Meridian is designing its refinery to be capable of refining twenty seven thousand five hundred (27,500) barrels per day. Further, at this time, there is no design in existence nor plans to propose a design for more than 27,500 barrels.”

So, Mr. Erbele, if that’s their plan “at the present time,” I suggest you give them enough water “at the present time” to operate a refinery capable of processing 27,500 barrels per day. If, as they also say in their letter, they may “sometime in the future” propose an addition to the refinery to process more than the 50,000 barrels per day which would trigger a site review, then they can come back to you “sometime in the future” and ask for more water.

Do you really believe that cutting their request by 10 percent will keep them from achieving the full potential of their proposed 55,000 barrels per day facility? No responsible engineer on their end would cut an estimate that close on a refinery not even completely designed yet. Surely they have built in a “fudge factor” in case their original water use estimates are too low. Just take a look at the press release they sent out to their investors — 90 percent will be just fine, thank you.

We all know the game Meridian is playing with North Dakota state agencies to avoid having to undergo an environmental assessment and plant siting review by the PSC. For a state agency, the North Dakota Water Commission, to join them in their game is beneath the dignity of government regulators.

Respectfully,

Jim Fuglie

JIM FUGLIE: View From The Prairie — Who’s Looking Out For The Little Missouri State Scenic River — Redux

I’ve given some more thought to the issue of Little Missouri River water permits since I last wrote about it May 3.

I reported then that Gov. Doug  Burgum had signed into law an amendment to the Little Missouri State Scenic River Act, making industrial use of Little Missouri water legal for the first time since the act was passed in 1975. But at the same time he sent word over to the State Water Commission, which issues water permits in our state, not to issue any of those permits in the upstream reaches of the river — between the North Dakota-South Dakota border and the Long-X Bridge at the north Unit of Theodore Roosevelt National Park.

Quick geography lesson for those not familiar with the Little Missouri: It rises in the hills north of Devils Tower in Wyoming and flows north through Montana and South Dakota, entering North Dakota in the extreme southwest part of the state, and flows north and east into Lake Sakakawea east of Killdeer. Carving the North Dakota Bad Lands, home to Theodore Roosevelt National Park, along the way.

It’s that stretch between the North Unit of the National Park and the big lake that Burgum has left open for industrial development. It’s no coincidence that the focus of oil development along the river is along that stretch.

That’s his concession to the oil industry. In fact, his own Water Commission staff admitted to a reporter for The Dickinson Press the other day that “That’s where most of the oil industry activity has been.” Commission engineer Jon Patch said “They’ve been using local supplies that then pipe the water to nearby wells that are ready to be fracked.”

Using that water illegally, until now, it should be pointed out. There’s still the issue of those 600 permits that were granted by Patch and his staff, illegally, over the past 10 years or so. It appears that nothing is going to be done about that. As far as the state is concerned, that’s water under the bridge, so to speak.

I asked the governor’s spokesman, Mike Nowatzki, if there were going to be any repercussions for the noncompliance with state law by the Water Commission staff. You’ll recall from an earlier story I wrote the staff said they were “unaware” of the law that prohibited them from issuing industrial water permits from the State Scenic River. I pointed out to Nowatzki that, generally, ignorance of the law is no excuse.

Nowatzki wrote back, “As for the “noncompliance” issue, I’m not aware of any related legal actions/proceedings and I’m unable to provide any legal opinions.”

Well, he’s right, but there is someone who can provide legal opinions — the attorney general. So I fired off an e-mail to Liz Brocker, Wayne Stenehjem’s spokesperson: What is going to be done about the “noncompliance” with the law by the State Water Commission staff for the past 10 years?”

Liz answered politely: “With regard to the questions … whether there is a criminal violation of a statute would be under the jurisdiction of the county state’s attorney who would make a determination based on the evidence following an investigation. The Water Commission is a state agency headed by the governor, so any determination on whether further action is necessary or appropriate would properly need to be addressed there.”

Well, I thought her response was pretty nifty, in tossing the ball in two different directions: It’s the governor’s job to determine if he wants to fire someone, and it’s the local state’s attorney who would have to investigate and file any charges for violating the law.

Nowatzki had sort of already indicated that the governor was not interested in punishing the Water Commission staff. I thought about contacting the Burleigh County State’s Attorney and asking him if he was going to pursue this, but we’ve been in the middle of crime wave here since the oil boom began, and he has enough stuff on his plate right now without chasing after some doofus state employee who claims he didn’t know about the law that regulates his job.

I asked a former Water Commission staff member this week whether it was really possible that the engineers didn’t know they were breaking the law. The response was, yes, it’s possible. But it was also possible that they were operating under orders from above to help out the oil industry regardless of the law. Not much happened at the Water Commission during the Dalrymple years without clearance from the governor’s office. One of the most important things the governor could do to enable the oil boom was to make sure they had water for fracking. Without water, there’s no fracking. Without fracking, there’s no oil boom.

So that’s where things stand for now, at least as long as Burgum is governor. He has shown some concern for the Little Missouri State Scenic River but has also accommodated the oil industry. We’ll keep an eye on the process. We’ll see how many industrial water permits get issued. And we’ll certainly ask anyone who decides to run for governor in the future whether they’ll keep Burgum’s restrictions in place.

THE GOOD NEWS

Now, then I want to also revisit a piece of good news about the Little Missouri. Last December, just as the governor was taking office, I took advantage of an old friendship with his new chief of staff (I think he calls her the CEO), Jodi Uecker, and urged her to ask her boss to please revive what I have always considered an important board, the Little Missouri Scenic River Commission. I had written a couple of blog pieces about it earlier last year and placed articles in a couple of other publications I write for, and I shared those with her. You can read them here and here.

Well, Jodi listened. And her boss listened to her. And a couple of weeks ago, he instructed the state engineer, who heads the Water Commission staff, to do just that. It might take a while to get going. It has met only once since 2001 (only coincidentally, the year Ed Schafer, the last North Dakota governor to give a rat’s ass about the Bad Lands and the Little Missouri, left office and turned the governor’s office over to the Hoeven/Dalrymple administration).

The way it works is, as outlined in the Little Missouri Scenic River Act of 1975, Section 61-29 of the North Dakota Century Code, each county commission in the six Bad Lands counties appoints one member, who must be a rancher who owns property adjacent to the Little Missouri River, and those six serve with the state engineer, the State Parks and Recreation director and the director of the State Health Department on the nine-member commission. The six ranchers elect a chairman from among their ranks, and the Parks director serves as the recording secretary for the commission.

Officially, it is the duty of the chairman to call meetings, but unofficially, it has been the Parks director who really gets it done (the current chairman, Alvin Nelson of Grassy Butte, has been dead for several years). I went on a search for meeting minutes about a year ago, and what I learned is that the only meeting held since 2001 was actually called in response to a request from the KLJ Engineering firm, to seek the commission’s blessing for a proposed new river crossing in Billings County. That was August 29, 2007. Nearly 10 years ago.

At that meeting, KLJ, working for the Billings County Commission (Medora is the county seat, in case you’re wondering where Billings County is) said as soon as it had prepared the Environmental Impact Statement for the project, it would get back in touch with the commission to present its findings and seek permission to go ahead with the project.

Here are a couple of excerpts from the meeting minutes:

“The specific purpose of requesting the meeting, KLJ noted, is to seek guidance from the Little Missouri Scenic River Commission, if the river crossing structure alternatives comply with the Little Missouri State Scenic River Act … KLJ concluded their presentation and asked whether any of these types of river crossings (low water crossings or bridges) would be in violation of the Little Missouri River Act.”

“The Commission noted as this project progresses and specific alternatives are recommended for both structure type and location, the commission will need to be presented with detailed information fully addressing the scope and impact of this project to the Little Missouri River. Only then will the commission consider the project for compliance with NDCC 61-29.”

Well, how about that. Now, 10 years later, after numerous delays, KLJ is just weeks, maybe days, away from releasing that EIS. And it is pretty obvious, from those minutes, that both the engineering firm and the state of North Dakota took the responsibility of the commission pretty seriously back in 2007. I hope they still do.

KLJ will be coming looking for the Little Missouri Scenic River Commission to present it to. I hope the state engineer, who has been tasked with reviving it, can get it done in time to weigh in on the project because it has the potential to be the worst environmental disaster ever to hit the Bad Lands.

You see, there was no oil boom — not even a hint of an oil boom to come — back in 2007, so this was a pretty routine request. A new bridge for the ranchers and tourists to use. No one envisioned a miles-long caravan of trucks kicking up thousands of tons of dust a day and scaring off every type of wildlife within eyesight and earshot, while using this crossing of the Little Missouri River to move their water, sand and oil.

So while Gov. Burgum is willing to sell off the northernmost portion of the river, which makes me nervous because it contains Little Missouri State Park, arguably the state’s most fragile and scenic park, which means we’re going to have to keep a close eye on water permit requests for that stretch of the river, he seems committed to offer some protection for the upstream parts of the river.

I hope he kicks the state engineer in the ass and has him get this done right damn now. The oil industry, the Billings County Commission and the bridges they want, wait for no man. The Little Missouri State Scenic River needs all the oversight it can get. That was the intent of the 1975 Legislature. I’ll report back when the EIS is released.

JIM FUGLIE: View From The Prairie — So, Who’s Going To Pay For The New Bridge Over The Little Missouri River?

I need to clarify a few things and bring you up to date on the ongoing saga of the proposed new bridge across the Little Missouri River north of Medora, N.D.

The bridge is a project — if completed — could be an environmental disaster for the North Dakota Bad Lands. That’s why I keep writing about it.

To review, Billings County wants to build a bridge and improve roads to move traffic between U.S. Highway 85 and state Highway 16. To set the scene, Highway 16 is a narrow two-lane road running along the extreme western edge of North Dakota, going north of Interstate 94 from Beach to, well, almost nowhere, except the oilfields of McKenzie County, west of Watford City. Highway 85 goes north from Belfield to Williston and is soon to be a four-lane divided highway.

Here are two numbers to remember:

  • It’s about 40 miles, as the crow flies, between Highway 85 and Highway 16. So if a new bridge is built, and oil trucks or ranchers or tourists want to use the new bridge to get from one highway to the other, it would involve driving 35 mph (the expected speed limit) for at least 40 miles on gravel roads. Actually, more like 50 miles because there is no straight shot east and west up in the Badlands — you have to wind around buttes and canyons. This is some pretty rugged country.
  • The distance between existing bridges over the Little Missouri River is 70 miles. There’s a bridge south of Watford City on Highway 85, where the Little Missouri passes through the North Unit of Theodore Roosevelt National Park, and two bridges at Medora, one in town and one out on I-94 a mile north of town.

The county argues that the 70-mile distance between existing bridges justifies a new bridge. Although the county has claimed the bridge is for ranchers who live there and emergency services, a new bridge would in reality just make life easier for the oil industry.

When this idea first surfaced back in 2008, the plan was to put the bridge about halfway between the existing bridges, hard up against the Elkhorn Ranch site, home to Theodore Roosevelt, now maintained by the National Park Service as a unit of Theodore Roosevelt National Park. The huge public outcry sidelined that proposal.

Now, a new Environmental Impact Statement is about to be released, and that new document, written by KLJ, the county’s engineering firm, has determined the best place to put the bridge is about five miles south of the Elkhorn, where the Little Missouri passes through the historic Short Ranch, once home to another colorful and historic North Dakota politician, former U.S. Congressman Donald Levingston Short.

OK, that much we talked about in earlier blog posts. Here are a couple things we haven’t discussed yet.

WHO PAYS?

Billings County is paying for the EIS and has spent more than $2 million so far. The bridge itself, with associated improvements to roads leading to it, is listed in North Dakota’s State Transportation Improvement Program for 2016-2019 as a $15 million dollar project. Of that, the STIP says, about $12.1 million would be expected to be federal funds and $2.9 million local funds, a standard 80-20 match formula that the state and federal transportation departments use on projects like these.

Except that the state DOT made a surprise announcement in March: There is no plan to give federal funds to this project. A North Dakota DOT spokesman told me that there never was any intent that federal funds would be used for the project — it’s always been assumed (by the state DOT, anyway) that the county would pay the whole cost.

Well, excuse me, but it’s always been assumed by everyone else except the DOT that this would be a federally funded project. In fact, I asked the KLJ people at the meeting in 2012 who would be paying for the bridge, and this was their response: “Well, it’s different for different phases. So for the environmental study that we’re in right now, Billings County is paying for that. Once it goes to construction, that could be partially federal funding, partially Billings County funding or a variety of the two, depending on what kind of federal funding is available at the time.”

I pressed for more information, asking a representative of the Federal Highway Administration who was at the meeting who would be paying for the project. Her response: “The design and construction, that is dependent upon, I would say, the federal highway bill.”

An equally nebulous response. These folks are really good at not really answering the questions. But let me outline the process that would be involved if the federal government did agree to pay for a share of the project, maybe even 80 percent of it.

Each year, the state of North Dakota and its 49 sister states get hundreds of millions of dollars from the federal government to build and maintain highways, streets and bridges. This is money from the federal gas tax, returned to the state in which it is collected. In the upcoming biennium, I think the state will get more than half a billion dollars. In the old days, prior to 2010, there were funds set aside and “earmarked” in Washington for specific projects. It was the way congressmen and senators got themselves re-elected, by delivering the goods to their home states.

No more. Earmarks are a thing of the past, and now states just get a chunk of money, and governors and legislators decide where and how it will be spent. So the Little Missouri Crossing project is listed in the STIP for the 2016-2019 time period. If there are to be federal funds used to build it, Billings County will have to come hat in hand to Bismarck and ask for the $12.1 million.

But state DOT officials who dole out the federal dollars say they have no plan to give Billings County the money. Never have. That leaves me scratching my head.

Was it necessary for Billings County to spend more than $2 million dollars on an EIS, if all along, it has been planning to shell out the whole $15 million? I’m pretty sure the county has that much in the bank — it is one of the richest, if not the richest, county in the state. Last year, Billings County collected nearly $11 million in various oil and other mineral interest royalties and taxes. And it has been doing that for years. In a county with just 783 people, according to the 2010 census. That’s income of almost $14,000 for every man, woman and child in the county. Could the county afford to pay for the bridge? Probably.

I asked officials at both the state and federal highway agencies why the county would choose to do an expensive EIS, and why it’s the Federal Highway Administration that gets final sign-off on the project before it is built, if there’s no intent to get federal funds.

And why would they agree to put the bridge somewhere nobody really wants it, causing hard feelings and lawsuits between neighbors, in a small county with fewer than 800 residents, all of whom know each other? Why have they gone through this five-year delay process? Why didn’t they just go build a bridge when the boom was on, when they really could make a case for needing it? And why didn’t they build it where they wanted it?

The answer was the same from both the state and federal spokespersons: “Well, just in case they DO decide to seek federal funds, they have to have an EIS.”

Uh huh. Just in case.

Anybody want to make bets on that?

STILL COMING CLOSE TO THE ELKHORN

Here’s something else nobody is talking about yet. Because of the way roads wind through the Bad Lands to accommodate the terrain, access to the bridge from Highway 85 will take those thousand trucks, or however many show up on a given day, within about a mile of the Elkhorn Ranch site.

That’s because the route proposed by KLJ uses Blacktail Road and East River Road to get to the bridge from Highway 85, and the junction of those roads sits atop the high ridge looking down into the Little Missouri River Valley, directly above the Elkhorn Ranch site, which is just across the river, a little over a mile to the west. In fact, you can almost see the ranch site from there, looking down from the cab of a big truck.

Lush prairie grasses and sages blanket the ground where the Elkhorn Ranch house once stood (within the fenced off area) beneath the towering cottonwood trees. Roosevelt, sitting on his porch, would have seen the swift water of the Little Missouri River rush by just beyond those trees (since T.R.’s time, the river has meandered further from the trees.)
Lush prairie grasses and sages blanket the ground where the Elkhorn Ranch house once stood (within the fenced off area) beneath the towering cottonwood trees. Roosevelt, sitting on his porch, would have seen the swift water of the Little Missouri River rush by just beyond those trees (since T.R.’s time, the river has meandered further from the trees.)

So what’s been feared the most by the National Park Service, the National Trust for Historic Preservation, the Friends of Theodore Roosevelt National Park, the Boone and Crockett Club and the many people who visit the ranch site on occasion just to sit in silence under the same cottonwoods that were there when Roosevelt lived there—the cacophony of noise from all those trucks, and the clouds of dust they’ll kick up—may come to pass after all.

It’s not as bad as if the trucks are going to go roaring down the hill to a crossing beside the Elkhorn, but it’s gonna be pretty noisy and pretty dusty. It’s possible Billings County will avoid that by building a new road farther south, as I mentioned in my last blog, but I think that creates some problems with sensitive wildlife areas, and it adds substantially to the cost of the project. It also would likely lead to revisiting the EIS. So we’ll have to ask some questions at the public meetings about the best road between Highway 85 and the bridge.

FOUR LANES ON HIGHWAY 85

I want to add one more reminder to this. Soon we’ll be getting a look at the draft EIS on the Highway 85 project between Watford City and Belfield. That project is likely to call for a four-lane highway through the eastern edge of the North Unit of Theodore Roosevelt National Park and either two new bridges over the Little Missouri River or one really wide bridge.

How the state and federal highway departments deal with that is going to be the topic of some discussion. There are some very thoughtful minds at work, trying to figure out how to cause the least disruption of wildlife and scenery, as well as avoid negative impacts on the national park. I’ll try to keep you posted on this project as well.

JIM FUGLIE: View From The Prairie — New Little Missouri Bridge Site Selected — And No One’s Going To Be Happy

The engineering firm drafting the Environmental Impact Statement for Billings County’s request to put a new bridge across the Little Missouri River north of Medora, N.D., has determined the best place to put the bridge is just 17 miles north of Medora, about a third of the way — as the crow flies — between the two current bridges near Medora and Watford City.

Billings County wants to build the bridge “to provide the public with a centrally accessible, safe, efficient and reliable link between state Highway 16 and U.S. Highway 85,” according to the county’s website.

To set the scene, Highway 16 is a narrow two-lane road running along the extreme western edge of North Dakota, going north of Interstate 94 from Beach to well, almost nowhere, except the oilfields of McKenzie County, southwest of Watford City. Highway 85 goes north from Belfield to Williston and is soon to be a four-lane divided highway.

The county argues that the 70-mile distance — by highway — between existing bridges at Medora and south of Watford City justifies a new bridge. The new bridge, and one has to assume some new or improved roads leading to the two highways, would in theory make life easier for the oil industry. Here’s a link to a blog I wrote almost five years ago, explaining the project and its problems.

KLJ Engineering of Bismarck, hired by Billings County to conduct the Environmental Impact Statement for the project, required because the county wants federal funds to build it, and because it is crossing a navigable river under the jurisdiction of  the U.S. Army Corps of Engineers, is recommending that the new river crossing be located where the Little Missouri passes through the historic Short Ranch — as the crow flies, about five miles south of the Elkhorn  Ranch Unit of Theodore Roosevelt National Park.

Jennifer Turnbow, spokesperson for KLJ, said the draft of the final EIS itself will be released in the next two or three months, and public hearings on it will be held at that time. A long-awaited draft, and long-awaited public hearings. Long-awaited, as in nine years.

The first public hearings on the project were held in July 2008. At that time, the idea was to put the bridge within spitting distance of the Elkhorn. After getting the crap beat out of them at the public meetings, and after outrage expressed in the news media by almost everyone for encroachment on Theodore Roosevelt’s home, “the cradle of conservation,” Billings County Commissioners retrenched and went looking for a new location for the bridge.

A second round of public hearings were held in 2012, and not long after that, the engineering firm narrowed the choices to the Short Ranch, five miles south of the Elkhorn, and the Goldsberry Ranch, five miles north of the Elknorn. This map shows the locations.

And then, the project went dark for more than four years. Although KLJ claimed it was collecting data on the two locations, and promised an early 2015 arrival of a new EIS, the 2015 date kept getting set back with no explanation from the engineering firm. Finally, KLJ set a “Summer 2016” release date for the EIS. That came and went as well. Finally, rumors began trickling out to the public, likely from some of the cooperating federal agencies, and last week, on Feb. 27 and 28, I had the following e-mail exchange with KLJ’s project spokesperson, Jennifer Turnbow:

Hello, Jennifer,

I am hearing talk that you have selected a site for the Little Missouri Crossing. What’s up? Have you chosen a site for the Little Missouri Crossing? What is the status of the project? Will there be any public announcements on the project in the near future?

Thanks.

Jim

 Jim,

 We are working with the lead agencies on the review of the Draft EIS. The Draft EIS has identified a preferred alternative, along with analyzing all the build and no-build alternatives. We will be sending out a notice of availability for the Draft EIS and public hearing within two to three months.

Thank you,

Jen

 Dear Jen,

Well, thanks. I’ve been told that Alternative K, Option 1, is the preferred alternative. And that you have shared that with other people. Can you confirm that? That would be easier than me sending FOIA requests to everyone.

Thank you.

Jim

 Jim,

The preferred alternative is Alternative K, Option 1.

Jen

Well, OK then. Alternative K is the Short Ranch. KLJ was actually studying three different options on the Short Ranch. Option 1 puts the bridge about half a mile from the Shorts’ ranch headquarters.

To be honest, that news surprised almost everyone who has been following the project. I really thought the spot that made the most sense — from the perspective of those who wanted a bridge — was the crossing north of the Elkhorn, which would have been about halfway between the bridges on I-94 at Medora and U.S. 85 south of Watford City. Besides, there were pretty direct routes out to Highway 16 on the west and Highway 85 on the east from that spot.

The crossing at the Short Ranch is just about 15 miles north of Medora, and there is no direct route to either Highway 16 or 85 from there. To get to Highway 85 involves going northeast and then back southeast in a big, 12-mile loop, before heading east to the highway. To get to Highway 16 from the crossing, you have to go south within seven miles of I-94 before going west. In my opinion, the whole idea is just goofy.

I’m not the only one to point that out. As far back as 2008, members of the Short family were making that point and expressing their opposition to the crossing and high-traffic road in the middle of their ranch — or anywhere, for that matter.

A bit about the Short family. They’ve been on the ranch for more than 100 years and have been one of the most respected families in the Bad Lands. The scion of the family, Don Short, served as a U.S. Congressman in the 1950s and ’60s. His son, Con, took over the ranch and was active in the operation until his passing last summer. His son, David, now operates the ranch.

Con was a straight-shootin’, plain-talkin’ Bad Lands cowboy. Billings County Commissioners are lucky he’s gone. His battered old cowboy hat would have gone through the roof when he heard this news. Still, he got in his shots. He registered his opposition to the project early and often during previous rounds of discussion. Here he is at a public meeting held by KLJ in 2008:

“I want to register my opinion of being against the whole damn thing. I just think North Dakota will benefit, and Medora and the Badlands will benefit, if we didn’t do it.

“The river bottom that they’re crossing is pristine. In my lifetime, there has been no roads on it, it has never been farmed, there’s never been a cottonwood tree cut down. I consider this one of the best mule deer country — or the best mule deer country in the Badlands. My family and I are a hundred percent against this project. We will use all of our resources in fighting this. Thank you.”

Again in 2012, at a public meeting in Medora, Con, hunched over by either arthritis or too many years breaking broncs, or both, got to his feet in front of a crowd of about 100 at a public meeting and said:

“I’m sorry, I don’t stand up very well. I’m Con Short. Some of this family is mine. To be really honest, we’re proud of being ranchers in Billings County. We’re proud of the friends we have here. We love the Badlands. I have been involved before on stopping more bridges and more roads up through the Badlands, and I’m amazed at how much help we have getting them stopped, and we will get this project stopped, too. Mr. Arthaud (Jim Arthaud, Billings County Commission chairman and champion of the bridge project) might not know that. But I’m telling him now we’ll get it stopped. We’ll take it to the courts or whatever we have to do.

“I am amazed — I am amazed that a county commissioner from Billings County wants this to happen in this county. All you have to do is take one look at that map up there. The roads are already in place. Improve them. You do not need a bridge across the Little Missouri River except for your own ego. You don’t need it. The tourists and everything else. We appreciate your time. I appreciate my family coming here. We’ve been here since 1902. Some of them obviously haven’t been here as long as I have. Billings County is the prettiest place in North Dakota or within a few inches of being the prettiest place. Why ruin it with more roads and more bridges? Thank you.”

When Billings County Sheriff Pat Rummel got up to argue that the county needed this bridge for ambulance and fire emergencies, Con challenged him. This is from the transcript of the meeting:

CON SHORT: You surely haven’t crossed our place with a fire truck, ever, physically.

RUMMEL: Probably not. That’s what I say.

CON SHORT: And you never needed to.

RUMMEL: That’s what I’m saying, I don’t remember ever a life-threatening situation. But there’s going to be someday.

CON SHORT: Do you know who I am?

RUMMEL: Yes, I know who you are.

CON SHORT: I started the Beach ambulance squad. We never needed to.

RUMMEL: I’m saying someday there’s going to be a need for a life-threatening –

CON SHORT: Japan might go to war again, too.

Well, Con’s gone, but the family stands united against the project — not just on their place, but anywhere. And they’ve got a pretty big hammer. The proposal puts the bridge and accompanying road, with a 500-foot easement, on their private property. And they’re not likely to give permission to do that. So, the county is going to have to use eminent domain. That will be a court fight for the ages.

In addition, since the day this project started being discussed, Commission Chairman Arthaud has said it would be done on public property — Forest Service land, not private land. Now, his engineering firm is telling him it should be on private land. I’m not sure how that’s going to sit with him, or with the other commissioners.

Arthaud told National Public Radio reporter John McChesney in an interview a few years ago, “We know damn well where that bridge belongs,” says Jim Arthaud, chairman of the Billings County Board of Commissioners. “On federal ground, about three miles north (of the Elkhorn).”

And at the public meeting in Medora in 2012, Arthaud, sensing Con Short had the crowd with him, did this little dance:

“Yeah, we think we probably have a better handle on it than most people, but to sit there and say we want it to go across the Shorts’ place, we didn’t pick that crossing. This is part of the process. We didn’t pick the crossing up at Magpie Creek, either. We don’t think that that’s a place for a crossing for Billings County, either. So don’t — don’t sit here and think that Billings County commissioners have decided to do that. And we have never been able to answer that question until — if you get chosen as that spot to be, then it’s a question that we’re going to have to sit down and answer amongst ourselves, and we’ll definitely take the input of the people that are there. But we think it should be on public land where all the public owns the land. I hope that helps.”

On public land. Arthaud’s been pretty consistent in saying, the last few years, almost guaranteeing, that the bridge will go on public land. So how’s he going to react to the recommendation of the engineering firm to put it on private land — an engineering firm that’s billed his county somewhere around a million dollars so far on this project?

David Short said it best in 2012, at the very end of the very last public meeting on the bridge: “We’re against every river crossing because we love the Bad Lands and we love the Little Missouri River.”

David Short’s got a lot of people who agree with him.

Now, there will be more public meetings. In “two or three months.” Almost exactly five years after the last one. Con Short’s gone, but he left a big family. With a lot of supporters. I guess we’ll find out just how badly Billings County’s commissioners really want a bridge.

Footnote: You can learn more about the project at Billings County’s website, or a couple of earlier blog posts, here and here.