JIM FUGLIE: View From The Prairie — The Halcyon Days Are Gone

In the halcyon days of the 1970s in North Dakota, when the state was a quieter, kinder, friendlier, more thoughtful place, the Legislature passed a bill, and the governor signed it, designating the Little Missouri River as our state’s only official State Scenic River and creating a commission to look out for it.

The Little Missouri Scenic River Commission did its job through the administrations of four governors who cared about the Bad Lands and its river — Art Link, Allen Olson, George Sinner and Ed Schafer — two Democrats and two Republicans. It met regularly, rerouted proposed pipelines to protect trees, kept gravel miners, oil drillers, seismologists and road builders out of the river valley, made sure oil wells and tank batteries were above the bluff line well away from the river and even passed rules regulating barbed-wire fences across the river.

Then came the administrations of John “Good-Paying Jobs Uber Alles” Hoeven and Jack Dalrymple, and the commission faded into obscurity. It ceased to meet, and its rules ceased to be enforced, and soon the industrialization of the Little Missouri State Scenic River Valley began.

Oil wells started showing up on the riverbank, just yards from the river. The state engineer began issuing industrial water permits to take water from the river for fracking, in direct violation of the law (600 of them at last count). The roar of diesel trucks and jake brakes, and the steady thump, thump of one lung pumpjacks, echoed throughout the valley.

With the election of Doug Burgum, who was an easterner, but owned a Bad Lands ranch, there was some hope that the state’s only Scenic River might once again get some special attention at the highest levels of government. Didn’t happen. Oh, Burgum reformulated the commission, but then he asked it, as its first official act, to ratify a policy making it legal, for the first time in more than 40 years, to use Little Missouri State Scenic River water for industrial purposes — read: fracking. They did that this week.

The commission is an interesting mix of folks. By law, it is composed of six Bad Lands ranchers, one from each of the six Bad Lands counties, and three bureaucrats — the state engineer, the state health officer and the state parks director. For the first 25 years of its existence, it carried out its mission, with reasonable ranchers who really cared about the river valley, and dedicated state employees from the State Parks and Health Departments and state engineer’s office, teaming up to fulfill its mission, as outlined in Chapter 61-29 of the North Dakota Century Code: “to maintain the scenic, historic, and recreational qualities of the Little Missouri River and its tributary streams.”

The law also says the commission “shall also have the power and duties of promulgating management policies to coordinate all activities within the confines of the Little Missouri River when such action is deemed necessary.”

One of the things they did with that authority, to help “maintain the recreation quality” of the river, was to adopt a fencing policy, which said that fences across the river “must have a gated opening of at least 8 feet.” They adopted that policy at a meeting in April 1995.

Now, I’ve been canoeing the Little Missouri for more than 40 years, and for the first 35 years, I rarely encountered a fence across the river. Once or twice in all those years. But a few years ago, Lillian and I canoed from the Logging Camp Ranch, south of Medora, into Medora, a trip we’ve done probably half a dozen times. And in that 40 or so river miles, we encountered eight fences across the river, none of which had gates. We were forced to get out and portage around every one of them. On about fence No. 6, I angrily vowed to bring a wire cutter with me the next time I canoed that stretch of the river. I cooled down after a couple of beers in Medora, and instead just decided to never canoe that stretch of the river again. And I haven’t. Which is too bad, since it is the stretch that goes around Bullion Butte, one of the nicest places on the entire river. Entire planet, for that matter.

Later, I asked a rancher down in that country why there were so many fences all of a sudden. He said, “Jim, neighbors don’t get along like they used to.”

Well, he’s right, of course. In the halcyon days, cattle along that stretch ran free and were rounded up and sorted in the spring for branding. Now, fences keep everyone’s herds separate.

I’m writing all this on the heels of this week’s Scenic River Commission meeting in Dickinson, at which the commission was asked to weigh in on three issues.

The first was Burgum’s policy of allowing for industrial use of water from the river for fracking. The policy was adopted by the State Water Commission, which Burgum chairs, about a year ago, but the Scenic River Commission mulled it over for a while before finally giving it the okay this week.

So instead of looking out for the river, maintaining its “scenic, historic and recreational qualities,” the first official action of the newly formed commission was to give its blessing to the industrialization of the Little Missouri State Scenic River. There are already approved industrial water permits at 10 ranches on the river right now. Who knows how many there will be in a year, or five years.

The second was a request for support for the new bridge across the Little Missouri River north of Medora. The group discussed it for more than an hour before commission member Gene Allen from Beach made a motion to support the “no-build” alternative laid out in the Environmental Impact Statement, which would have put the commission on record as opposing the new bridge. That brought Billings County Commission chairman Jim Arthaud roaring from the audience to the front of the room, where he took over the meeting and said in no uncertain terms that Billings County needed and deserved the bridge.

Well, after more discussion, the motion failed on a 5-3 vote, with only Allen, Slope County rancher John Hanson and Parks Director Melissa Baker voting in favor of it.  Then there was silence while commission chairman Joe Schettler, Dunn County’s representative on the commission waited for a motion to support the bridge. No motion was forthcoming. So, after a long pause, Schettler recessed the meeting for a bathroom break. So the commission took no position on the bridge.

The third was a discussion of the illegal bridge already built over the river in Dunn County by Wylie Bice, which I wrote about the other day. After some discussion, the group decided that since the bridge is already there, not much can be done about it. So they gave it tacit approval.

But the discussion turned to the idea that it was actually the Corps of Engineers fault the bridge was there because they signed off on the bridge but hadn’t checked with the Bureau of Land Management, on whose land the bridge is located, to see if it was OK with them. So the group passed a motion to send a letter to the Corps asking them to please share information on things like this.

I found it a bit ironic that a bunch of conservative ranchers were urging the government agencies to share personal information with each other. Guess it depends on the situation.

So now, the commission moves on to other things — what other things I am not sure. It’s an interesting group. The county representatives are appointed by the county commissioners. They must be ranchers who live on the river, except for the Golden Valley County representative (lawyer Gene Allen from Beach). (Golden Valley is one of the Bad Lands counties even though the river doesn’t flow through it.)

A couple of them take their responsibility to protect the river seriously. More of them are there to protect their county’s economic interests by not letting environmental protection get in the way of the industry that fuels their county’s economy — oil. The chairman himself has an industrial water permit and sells water from the river to the frackers. To be fair, he hasn’t been voting on these things, saying he will only vote to break a tie.

State Parks director Melissa Baker is there to protect the river. State Engineer Garland Erbele is there to do what engineers do — build things. He’s no friend of the river. The Health Department is represented by Dave Glatt, head of the state’s Department of Environmental Quality. He’s a lackey for the energy industry, Burgum’s worst appointment to date, who can’t be trusted to stick up for the river. He voted FOR the industrial water permit policy and AGAINST the motion to oppose the new bridge in Billings County, even though it has the potential to be the worst environmental problem ever to face the river if the oil trucks start crossing through the valley by the hundreds, or thousands, as the county has predicted. I told him after Monday’s meeting that, as the state’s top environmental officer, he ought to be ashamed of himself.

So what we’ve got, I was moaning to a friend of mine who knows these issues, is what we asked for: an active Little Missouri Scenic River Commission. I guess we have to be more careful about what we ask for. It’s just a rubber stamp for the energy industry, I complained to my friend. And that is bad because their approval of things like industrial water permits and bridges (and who knows what else in the future) gives those who would abuse the Little Missouri State Scenic River the credibility of having been approved and endorsed by an official state government commission.

A couple of years ago I began writing about the need to reactivate the commission. I really, really wanted to bring it back and put it to work protecting the river from industrial development. I remember those halcyon days when the Little Missouri Scenic River Commission members really, really cared about the river. And I really, really long for those days again, I told my friend.

“Jim,” he said, “things are different now. You need to lower your expectations.”

I guess.

TONY J BENDER: That’s Life — GOP Needs To Change Mascots

Gov. Doug Burgum joined 30 other governors last week in support of Brett Kavanaugh as the next Supreme Court justice, which is — if you’re a Republican — about as shocking as going to a midsummer tent revival and proclaiming your love for Jesus. Even if you’re only there to pick up sweaty Baptist chicks.

Burgum, Sen. John Hoeven and Senate candidate Kevin Cramer dutifully followed the followers with their endorsements of Kavanaugh. The Party of Trump isn’t exactly overloaded with independent thinkers these days. They all choose the chicken at the Group Think Banquet.

There are just two Mavericks left in this world. One is fading in Arizona; the other believes in Xenu and will be on the big screen again soon in a fighter jet dueling someone other than the Russians.

Despite the fact that Trump’s Supreme Court nominee doesn’t even know how to spell his own name, which according to my sources is spelled M-E-R-R-I-C-K  G-A-R-L-A-N-D, I’m willing to reserve judgment until the confirmation process is actually under way. Wacky, leftist thinking, I know.

I hesitate to toss under the bus every politician who has blindly pledged allegiance to a president so bereft of ethics. For one thing, there aren’t enough buses. For another, it’s difficult to lift the spineless. It’s like trying to throw soup.

I do have empathy for Republicans in this obvious hostage situation, however. How pathetic to live in fear of something called a tweet. It ranks up there with althaiophobia — the fear of marshmallows. It’s a real thing but probably not covered under any Republican health care proposal.

Most Republicans remained silent as their very stable genius sold out the American intelligence community and the Department of Justice in Helsinki, and it is obvious that his campaign at the very least attempted to collude with Russia. (The NRA sure did.) They’ve ignored payoffs to porn stars. They’ve accepted lies that fall from his lips faster than North Dakota hail stones. They’ve denied that Trump’s trade war has anything to do with soybeans being at a 10-year-low, but if there’s no self-induced crisis, why champion a $12 billion bailout? We don’t want to be drama queens. I guess subsidies are fine as long as they aren’t for something as frivolous as health care.

Higher steel costs are killing manufacturers. Will they get handouts, too? Newsprint, imported from our mortal enemy, Canada, is up 30 to 40 percent and has newspapers reeling, but you know we’re not getting a bail out. We couldn’t pass the mandatory drug test, anyway. The good news is, less fake news. There’s more than one way to skin a First Amendment.

While everyone was cheering a solid 4.1 bump in GDP and good second quarter employment numbers, few were discussing the looming $1 trillion deficit and a national debt that has quickly ballooned to $21 trillion. After priming a pump that was already pumping, the prerecession tax cut has given us a 75-year-low in corporate tax receipts as a share of the economy. When reality hits the fan, you can expect Republicans to point the finger of blame for their fiscal malfeasance at Medicare, Medicaid and Social Security beneficiaries. Why don’t you old sick people get a job?

Yes, there are still a few (silent) conservatives who still care about American families. Trumpians call them RINOS. But at some point, Patty Hearst stopped being a hostage and became an accomplice. What is the going rate for one’s soul these days? In Bismarck, it’s chicken wings and a beer.

The Democratic Party is not particularly focused or always coherent these days, but every lasting benefit working families and farmers have ever received, from FDR to LBJ, has come from Democrats. Look it up on the Google. Al Gore invented that, too. And while you’re at it, fact check Benghazi, would you? Spoiler alert: Vince Foster did it.

Perhaps Republicans should change their mascot from an elephant to a cowardly lion or possibly a fainting goat. In November, do what Republicans are doing now, look out for your own self interest. Vote for someone who doesn’t slither.

© Tony Bender, 2018

JIM FUGLIE: View From The Prairie — Who Wants To Invest In A Refinery? Here’s How You Can Do It

I wrote here a couple of weeks go about the beginning of Theodore Roosevelt National Park, created by Congress in 1947, and about the proposed oil refinery that threatens it, a refinery that has now been issued a permit by the state of North Dakota to build the dang thing.

It’s been 70 years since Congress declared that this place in the North Dakota Bad Lands should be protected forever as a national park. Now this California company, Meridian Energy Group Inc., a startup company with no experience building or running a refinery, says it’s going to build a refinery just three miles from the park, alongside the road that runs into Medora.

I want to look at this more carefully. I don’t trust them.

On Jan. 27, 2017, Meridian Energy Group Inc. issued what it called a “Confidential Private Placement Offering” which began:

“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.”

Don’t be fooled by the “South Dakota” in there. They might be incorporated there for tax purposes, but these guys are from Texas and California. And pay special attention to the number 55,000. That’s important. I’ll talk about that in a minute.

And don’t be fooled by the words “Confidential Private Placement Offering” label on the prospectus. I went digging around the Internet and found it for myself, although I bet Meridian is not happy about that, and it may disappear pretty soon, unless the word “confidential” is just another sham put out there by this sleazy company — more about shams in a minute, too.

The first thing you notice in the prospectus, right there in the third line, is that Merdian is selling stock in a refinery that is going to process 55,000 barrels of oil per day. Somebody at Meridian didn’t do their homework. When North Dakota Public Service Commissioner Julie Fedorchak and her fellow commissioners heard about this, they said, “Wait a minute. North Dakota state law says if you are going to process more than 50,000 barrels per day, you have to come to us and let us do a comprehensive site review to determine if that is really a good place to put an oil refinery.”

“Oh, dang,” Meridian responded. “That was a mistake. We didn’t mean 55,000. We meant 49,500 barrels per day. That’s our story, and we’re sticking to it.”

Except that the prospectus is still there, online, selling stock in a refinery that Meridian says is going to process 55,000 barrels per day.

So in spite of that, as I pointed out here a week or so ago, there will be no site review (as of now), which if one took place, would probably determine that this is NOT a good place to put a refinery.

Dang!

Our Health Department has decided that the unproven technology planned for this refinery might — just might because there’s no way to know until it is built and operating — meet federal air quality standards (this is North Dakota, after all, and we’ll plant big wet kisses on the ass of any oil company executive who shows up here with a fat checkbook). So I guess there’s nothing left to do but watch a refinery go up beside Theodore Roosevelt National Park.

Except there is one other possibility. I said earlier I don’t trust Meridian. And I’m not alone. I’ve had more than one person mention in casual conversations, including some people in pretty high positions, that this whole deal sounds suspicious. The project has a price tag of close to a billion dollars, but the stock offering is for only $30 million. Now that Meridian has the permit, it has to find a bank willing to lend it at least three-quarters of a billion dollars. Again, as I mentioned, on unproven technology. Would a bank really do that? What’s the collateral on that if this falls through? A refinery that doesn’t work?

I asked Gov. Doug Burgum if he wouldn’t mind asking his State Securities commissioner, Karen Tyler, to take a look at the prospectus and see if they think this is all on the up and up. I mean, the state does have some responsibility to help protect investors in big deals like this in our state. Apparently he did that. Here’s what his spokesman Mike Nowatzki told me the other day:

“Commissioner Tyler informs me that Meridian is utilizing a federal securities registration exemption under Regulation D Rule 506(c) of the 33 Act. This federal exemption requires that they only accept investments from Accredited Investor — income of $200,000 to $300,000 or net worth of $1 million excluding primary residence.  The exemption largely pre-empts state securities regulatory authority. The Securities Department can require that Meridian put the department on notice that it is soliciting and selling in the state (Note: Meridian has done that), and Securities’ anti-fraud authority is preserved, but it does not have the authority to opine upon and set requirements for their offering documents.”  (emphasis added)

Well, how convenient. Is there any loophole in the law this sleazy company won’t find?

Would I be surprised if I learned down the road, in a few months, that this company never really intended to build an oil refinery here? No, I would not. In fact, I’d be willing to bet all my shares in the company that there’s at least a 50-50 chance this whole thing is a big stock scam designed to make some quick bucks for a few executives and board members.

On the very first page of the “confidential” prospectus, there’s a line that says the total stock offering is for $30 million, but up to 25 percent — $7.5 million — can be used for “cost of issuance,” including “compensation paid to employees of Meridian.” From what I can tell from its website, that might be about a dozen or so people on the “management team” and a few clerical staff dividing up $7.5 million dollars.

But then it also says, “Management’s Discretionary Control over Proceeds — Although the Company anticipates that it will apply the net proceeds of its financing as described herein, Management will have complete discretionary control over the utilization of the funds and there can be no assurance as to the manner or time in which said funds will be utilized.”

So that management team can pay themselves way more than $7.5 million. It can use it all. Good grief. Who would invest in a company like this? Ummmm, maybe somebody looking for a tax write-off?

Well, if it’s a scam, too bad for the investors, but good for us. Except I’m not willing to take a chance. I’m going to keep talking and writing about it. Because if Meridian is serious, and we fail to stop it, shame on us. It will the most egregious example of failed leadership in the history of our state.

I hope Gov. Burgum doesn’t want that to be his legacy.

P.S. Here’s an “Important Notice” from page 3 of Meridian’s “confidential” offering:

“This memorandum contains certain information of a highly confidential and proprietary nature. The receipt of this memorandum constitutes an agreement on the part of the recipient hereof to maintain the confidentiality of the information contained herein or any additional information subsequently delivered in connection herewith. Prospective investors who accept this memorandum or become aware of the information contained herein must understand and comply with the extensive federal and state securities law restrictions placed upon their ability to disclose information contained herein to others or to participate in or otherwise effect or facilitate any transactions relating to any securities of the company. Prospective investors who cannot comply fully with such restrictions should not review the information contained herein and should immedialtely (sic) return this memorandum to the offeror.”

Yikes! Well, golly, I’m not a prospective investor, so I guess I can share that much with you, but I won’t tell you anything else that’s in it because I don’t want to take a chance on going to the pokey. But if you’re interested, and maybe want to invest a buck or two (and if you make 300 grand a year and have a million bucks in the bank you’d like to gamble), just click here and you can read it yourself. Oh, and if it’s disappeared by the time you read this, don’t worry — I’ve got a PDF. Just send me an e-mail and I’ll send it to you.

This story is an edited version of a story that appears in the July 2018 issue of Dakota Country magazine.  It’s a magazine you should be reading. You can subscribe here.

JIM FUGLIE: View From The Prairie — Republicans Raising Taxes In North Dakota? Yep, They Did That

Wait a minute.

Wait A Minute!

WAIT A MINUTE!

What the heck is going on here?

The North Dakota Legislature raised your taxes, and everybody’s cheering!

The cheerleaders?

Republicans: Gov. Doug Burgum, Attorney General Wayne Stenehjem, Tax Commissioner Ryan Rauschenberger.

Democrats: Sen.. Heidi Heitkamp, Tax Commissioner candidate Kylie Overson.

The chant: “A victory for North Dakota’s retailers!”

Screw that.

OK, I’m going off on a rant here.

I’m talking about last week’s U.S. Supreme Court ruling that states (including North Dakota) can collect sales taxes from Internet retailers. So now, states that have a law in place can immediately begin collecting sales tax on the books we purchase from used booksellers, or shoes we buy from Zappo’s, or a CD from Amazon, or printer ink cartridges we buy from Canon, or refrigerator filters we buy from Sears.

North Dakota has such a law. It’s a pretty new one, thanks to the passage of Senate Bill 2298 in the 2017 Legislature, which said that if the Supreme Court should ever rule in favor of allowing states to collect sales taxes on Internet purchases, North Dakota will do it.

In the North Dakota Senate, all 47 senators — 38 Republicans and nine Democrats — voted for it. In the House, 56 Republicans and 12 Democrats voted for it, while 22 Republicans and one Democrat voted against it. Republican Gov. Doug Burgum signed it into law. That’s the law that just raised your taxes.

A major tax increase passed with not so much as a whimper. Of course, the tax increase had a “trigger” (sound familiar?): it only took effect if the Supreme Court justices said it could. They did. Last week.

The decision was hailed nationally as a “victory for brick-and-mortar businesses that have been complaining for years that they are at a disadvantage by having to charge sales taxes while their online competitors don’t.”

And the states complained they were missing out on billions of dollars in revenue. One of the newspaper stories I read about this past week quoted a fellow from something called the Institute on Taxation and Economic Policy as saying, “State and local governments have really been dealing with a nightmare scenario for several years now.”

Oh cry me a river. No one is going to change their shopping habits because they have to pay sales tax — an extra 5 percent or so.

People shop online because they can get exactly what they want, which is not always the case locally, usually at a substantially lower price than if they bought it locally, and have it delivered to their door, in a matter of days.

Paying an extra 5 percent sales tax, when they’re saving 20 to 30 percent — or more — is not going to deter them.

What all these politicians who are raving about this as being a huge boon to their state’s treasuries fail to mention is that it is not big online retailers who pay these taxes.

IT’S US!

We pay them.

“This is a long overdue victory for our local retailers,” says Gov. Burgum.

“I’m absolutely thrilled,” says Heidi Heitkamp, a former North Dakota tax commissioner and attorney general.

“I’m glad the Supreme Court was able to recognize the unfair advantage online retailers have,” said Rauschenberger.

Well, I call bullshit!

This is nothing more than an increase in the most unfair tax we pay, and it hits lower and middle-income families the hardest. Low-income families spend most of their paychecks, and yes, if they can buy products cheaper online than in local stores they do that. (Note: A lot of us old folks who don’t like driving in traffic or parking at the mall do it, too.)

But they’re not doing it because they don’t get charged taxes. You bought ink for your home printer lately? Eighty dollars at Staples or Best Buy. Twenty dollars online. That’s why people shop online. They’re not disloyal to their hometown merchants. They’re simply trying to make ends meet.

On top of all that, the North Dakota Legislature has been cutting taxes on big corporations and has slashed billions in revenue from oil companies in the past four years. That new sales tax law passed in 2017 means that a family scraping by on $40,000 a year — and there are lots of them in North Dakota — gets a tax increase. Meanwhile, that same North Dakota Legislature gave Harold Hamm’s oil company a multimillion dollar tax cut.

I’ve been arguing for years with my Democratic-NPL friends in the Legislature, to no avail, that with all the oil tax revenue we could collect, they should be introducing bills to CUT sales taxes.

“We need the revenue for schools and Medicaid,” they counter. Well, yeah, but how about getting it from big corporations and oil companies and not from poor families in the checkout line?

C’mon, Democrats. Introduce a bill to cut sales taxes. There are only 22 of you in the whole damn Legislature — and 119 Republicans. Make them vote against cutting taxes. Maybe, just maybe, they’ll be too embarrassed — or even principled — to do that.

We’ve got $7 billion or $8 billion in the bank. We’re not poor. Use oil taxes to pay for schools instead of raising taxes on moms and dads working two jobs to just put shoes on their kids’ feet.

I talked to one of the legislators who voted against SB 2298. He agreed that the sales tax hits the working class families the hardest. And he also pointed out that we have a lot of our own online retailers right here in North Dakota, and this could be a nightmare for them.

Our law says they have to collect sales taxes if they conduct more than 200 transactions a year, or have sales of more than $100,000. Well, that puts our online retailers between a rock and a hard place. First, they’re going to have to spend some money ramping up to collect the taxes and send them to the state. Then, let’s say they figure there’s no way they’re going to exceed $100,000 in sales, so they don’t charge the tax, and then right at the end of the year, they have a Christmas rush in sales and end up with 210 customers, or someone comes along and makes a big purchase, pushing them over $100,000. Now what?

Or let’s say they expect to have a pretty good year, so they charge the tax, and then end up not reaching 200 sales, or $100,000. Now what?

This whole deal just sucks. The Supreme Court decision doesn’t mandate states collect the tax. It just allows them to collect the tax. I think North Dakota shouldn’t do it. We’re already one of the richest states in the country. If we need more money, the only tax we should be raising is the tax on oil. Not a consumer tax.

Rauschenberger says he’ll collect up to $30 million a year under the new law. But not from online companies — from us. We’ll be paying it. Although those retailers are going to have to do a lot more technology and paperwork, which might mean they have to raise the prices on stuff we buy. A double whammy on consumers.

By the way, that $30 million would be 5 percent of online sales. That means North Dakotans must be spending $600 million a year online. I’m having a hard time wrapping my head around that. I’m wondering if the tax commissioner didn’t just make something up, pull a number out of his ass. There’s been a lot of that going around lately.

Anyway, if my choice is to pay $20 for ink for my printer online, or $80 here in town, that 5 percent tax doesn’t make a bit of difference to me. I’ll still order it online. So tell me how this ruling helps local retailers. Does that make any sense to anyone?

Well, anyone except greedy government officials, who just can’t see a downside to this?

I read somewhere that the cuts the Republicans made to the oil tax in 2015 are costing the state something like $15 million a month. So we cut taxes for those who can most afford them and increase taxes on those who can least afford them.

A victory for North Dakota retailers? Bullshit. It’s a $30 million loss for North Dakota consumers. And it really pisses me off.

NANCY EDMONDS HANSON: After Thought — In Search Of The Phantom Workforce

The governor and the Greater North Dakota Chamber of Commerce are spending $4,000 this month to ask 1,000 businesses what they need to grow and prosper. I wish they’d talked to me first. I know they’re awfully keen to pinch those budgetary pennies. I’d have been happy to tell them for the price of a cup of coffee:

People. North Dakota needs people. Lots of people. Without them, the booming growth curve stalls.

Like their neighbors in Minnesota, North Dakota businesses are feeling the squeeze big time … not for lack of ideas, grit or even sometimes money, but the aching shortage of humans to do actual work. North Dakota Job Service lists 14,400 spots that are wide-open. The director estimates the actual number is significantly larger, since many openings don’t ever make it to the statewide employment listings. Not only that: Economic developers expect the need to not only persist but double in just a few years.

Meanwhile, the U.S. Labor Department confirms the whole nation is hurting for help. For the first time in the history of statistics, it reports more job openings nationwide than there are unemployed workers to fill them.

What a shortsighted time to close the doors to eager immigrants!

Gov. Doug Burgum cites North Dakota’s undersized workforce as its single biggest barrier to economic growth. “We need a new way of finding solutions to this critical challenge,” he’s told the media. He touts the employer survey as a “unique approach” based on “priorities derived from detailed data and evidence-based research.”

Don’t expect any stunning revelations. The survey — take it yourself at https://www.surveymonkey.com/r/NDWF2018Survey —will undoubtedly turn up the kind of so-called “insights” that have been ridiculously obvious since at least the 1990s. Back then, economic development professionals were already predicting a shortage of the kind of smart, knowledgeable workers who are in short supply today … as well as a drought of workers with lower levels of skills needed to keep the wheels of our daily lives turning.

We desperately need more warm bodies here in the underpopulated heart of America. “Help wanted” pleas ring out from the Bakken to the Minnesota border — and not only in the slightly urban oases out here on the prairie. A good share issue out in the vast lands dismissed just 25 years ago as desolate Buffalo Commons. Census figures celebrate growth in the largest communities, but their explosive growth is offset by the sobering rest of the story — the rest of the state, where the population is draining away or, at best, static. Plenty of ideas have been sparked to bring life back to the withering. What they need now are willing hands to put to work. Ironically, as small towns shrink, their need for solutions grows — right along with the aching demand for living, breathing humans to make them happen.

Bitter but true: There just aren’t enough home-grown humans here to fill the roaring demand. Isn’t it weird, then, that so many on the pro-business, pro-growth side of the aisle are trying so hard to keep willing — no, desperately eager — workers out?

True, we already recognize some partial solutions. We can ramp up vocational and professional training, targeting the industries starving for that talent. Economic developers and educators have been recommending that since at least the early 1990s. Are we there yet?

But in a labor market as tight as today’s — 2.6 percent unemployment in North Dakota, 3 percent in Minnesota — retraining less-skilled workers, at best, pushes the shortage downward, where it’s already acute. Newly trained and promoted employees leave behind the less well-paid slots where we found them. Those empty positions, not as glamorous but equally essential in their way — will need to be filled, too.

We need workers of all skill levels, top to bottom. Service businesses, retail, food service, manufacturing, farming … they need people, too. If we can’t grow enough of our own, transplants are the only alternative.

Growing our own — well, that’s a long-term strategy. The drift of young Dakotans from their rural roots toward brighter lights is a family tradition. Better opportunities and more attractive communities can bring some of them back. Witness the holiday job fairs that economic developers have been sponsoring over the past 20 years: Snag their attention when they come home from the Big City to visit the folks at Christmas. But success comes by the dozens. Employers are hungry for thousands.

What’s the alternative? Transplants. The governor suggests looking beyond our borders. Perhaps North Dakota can seduce talent from other corners of the U.S. Artisan breweries, hip boutiques and downtown lofts may appeal to some for whom we’re competing. Two challenges make their large-scale recruitment a long shot. The rest of America is on the hunt for those same promising imports. And the good life on the prairie, no matter how chill, is never going to fully mask the bitter pill in the booming banquet of semi-urban goodies: Winter.

But, nevertheless, there’s hope in sight. Let’s look to history, for we’ve been in this spot before.

Hopeful humans follow the scent of opportunity from distant, less blessed shores. They’re the very folks whom the current regime is working so ferociously to drive away.

Immigrants are the heroes of our nation’s past. Each emerging labor gap — the factories, the fields, the intercontinental railroads – has been filled by waves of newcomers in search of better lives. Seldom greeted with open arms, often reviled by those who got here first, we’ve persisted to build the world’s greatest economy.

Yes, “we.” You and I are here today thanks to an endless supply of forebears who left home in search of nothing more than an opportunity to work hard and raise their kids in safety. But talk about shooting yourself in the foot! On the one hand, ICE agents round up, detain and deport undocumented workers right out of the fields and off the packing plant floor. They deport longtime productive citizens and strive to deny the DREAMers, prime young adults who were brought here as children. They’re trying to shrink the numbers of legal immigrants. They’re whipping up blind nationalistic fervor that blames outsiders for all of America’s largely imagined ills.

And then our leaders claim to be shocked — shocked! — by the desperate shortage of labor that’s crippling sectors of our economy.

Immigrants now, as ever, are willing to start at the bottom. Historically, they’ve labored in sweatshops, cleaned houses, worked the line in canneries, hoed beets, slaughtered hogs and built the great railroads. When old Americans didn’t want the work, new Americans did — and do.

America has always counted on the people whom the Statue of Liberty beckons to do the hard work of building a successful nation. Those tired, those poor, those huddled masses yearning to breathe free have bent to the task to earn their keep and support their families. Let’s not kid ourselves: Virtually all of us come from that same tradition. All of my own great-grandparents, less one, crossed borders to get here. Most of them did it freely, since passports and border control were rare before World War I.

All of my great-greats came from elsewhere — Norway, Germany and Canada — with one exception. My maternal grandfather boarded a Norwegian freighter alone at 14 and disembarked in Canada, then walked south along the Red River. In today’s heated parlance, Grandpa was an undocumented, unaccompanied minor.

Talk to some of the new Americans around us now … and listen closely. You’ll hear gratitude for the land of the free, where they can live in peace, educate their kids and labor as hard as humanly possible to build new, safe, productive lives. As immigrants have always been, they’re willing to start with the kinds of lowly tasks that homegrown incumbents often view with disdain.

The governor’s workforce survey will undoubtedly come up with laser-sharp needs and result in erudite recommendations. Yes, let’s empower today’s underemployed North Dakotans and Minnesotans. Let’s get them the education and training they need. (Sorry to ruin the suspense. That’s guaranteed to be the big takeaway.)

But, at the same time, let’s open our doors wide to ambitious, eager transplants who are actually anxious to join us. Let’s welcome them. Let’s offer them a productive path to citizenship, just as our own families achieved not all that long ago.

They’re longing for a fresh start on the ground floor. The jobs are waiting. Why not let them?

JIM FUGLIE: View From The Prairie — ‘I So Declare It!’

My day started out OK this morning. My pillbox told me it was Thursday — it’s always nice to know what day of the week it is right away in the morning. I had a pretty good bowel movement — for you young readers, that‘s pretty important for someone my age. I got my belt through every belt loop but one and got my shoes on without untying them.

And then it all went to hell, when I opened the paper to see the headline screaming from the front page: “Davis Refinery permit approved.”

Yikes!

I turned the paper face down on the kitchen counter so it wouldn’t be the first thing Lillian saw before she even had a sip of coffee. And then I went and sat down on the patio and sipped my coffee and looked at the beautiful, clear blue sky over North Dakota and thought to myself, “What kind of monsters would want to do this — put an oil refinery right next to Theodore Roosevelt National Park? And what kind of state regulators would permit that to happen?”

And who, at the highest level of North Dakota state government, will step in and say, “No. We’re not going to let you do that.”

Surely, Doug Burgum, you have a soul. Surely you won’t let this happen on your watch. Surely, you don’t want this to be your legacy.

Let me ask you this, Gov. Burgum:

  • Would the state of Wyoming allow an oil refinery to be built three miles from Old Faithful in Yellowstone National Park?
  • Would Montana put a refinery three miles from the Going To The Sun Highway in Glacier National Park?
  • Would Alaska permit a refinery at the base of Mount Denali? Well, maybe, Alaska is an even bigger whore to the oil industry than North Dakota. But let’s not give them any ideas.

These places — Yellowstone, Glacier, Denali, and yes, Theodore Roosevelt — these national parks are our national treasures. There are only 59 of them. The federal government — our elected Congress members and senators — agreed to protect these most spectacular places in our states, passing laws that said, “We’ll take care of what’s inside these park boundaries. Now you, people of these states, you take care to not let anything mess them up from the outside.”

Theodore Roosevelt National Park is the only national park in America named for a president of the United States — in fact the only national park named for a person. That’s how revered Theodore Roosevelt is. He was afforded this honor because of his great conservation record, which includes setting aside more than 230 million acres of public land during his presidency from 1901 to 1909.

He didn’t set aside the land where Theodore Roosevelt National Park is today. That was done by Congress in 1947, to honor him. But he lived and ranched there and developed his strong conservation ethic there and said if it was not for the time he spent in the North Dakota Badlands, he never would have been president of the United States.

The National Parks Conservation Association, a national parks watchdog group, has suggested that the Health Department attach a condition to the permit — perfectly allowable in the law — requiring the refinery to undergo a PSC site review. Here’s a story with some background on that.

I asked an official with the Health Department a couple of weeks ago if they were considering attaching such a condition. He responded, “We will address the PSC siting review issue in our response to comments, which will be made available upon completion of the document.”

They did that. In response to comments requesting them to attach the condition of a site review by the PSC (you can take a look at the Health Department’s response here–look at Comment 3), the Health Department said:

“Imposing a condition in the permit to construct requiring PSC siting would not be reasonable because a permit to construct is intended to address air pollution-related issues, not siting issues. See N.D.A.C. § 33-15-14-02(9) (authorizing the Department to impose “reasonable conditions” in a permit to construct). Concerns regarding the PSC’s requirements must be addressed to the PSC.”

Well, that’s complete and total bullshit.

I did go “see N.D.A.C. § 33-15-14-02(9).” It says:

“The department may impose any reasonable conditions upon a permit to construct, including …” and then it goes on to list various things, like

  • 1. Sampling, testing, and monitoring of the facilities or the ambient air or both.
  • 2. Trial operation and performance testing.
  • 3. Prevention and abatement of nuisance conditions caused by operation of the facility.
  • 4. Recordkeeping and reporting.
  • 5. Compliance with applicable rules and regulations in accordance with a compliance schedule.
  • 6. Limitation on hours of operation, production rate, processing rate, or fuel usage when necessary to assure compliance with this article.

Well, I guess I could make a pretty good case that any refinery operating beside a national park could create “nuisance conditions,” for the park, but that should not be necessary. There’s nothing in 33-15-02(9) that says they cannot require a PSC review. They could certainly attach that condition and let Meridian challenge it in court, if they want to.

I am reminded of a story about Theodore Roosevelt. When he heard that yachtsmen in Palm Beach, Fla., were shooting brown pelicans for sport as the ponderous birds flew to their nests on a small island not far away, Roosevelt asked an aide, “Is there any law that will prevent me from declaring Pelican Island a federal bird reservation?”

“No,” the aide replied. “The island is federal property.”

“Very well, then, I so declare it.”

And that was the birth of our National Wildlife Refuge system.

If there’s nothing in state law preventing the Health Department from attaching specific conditions to a construction permit, then it should “so declare it.”

Or, if Meridian wants to be a good North Dakota corporate citizen (yeah right) they could simply comply and go through a site review, like every other major energy conversion facility in our state has done, and using the best legal and scientific methods, find out if this is really a good place for a refinery.

That’s what should happen, Gov. Burgum. Those folks over at the Health Department work for you. Call them up and insist that they attach a condition for building that refinery next to our national park requiring Meridian to go through a PSC site review. As I have written here before, there is precedent for that.

Way back in 1974, in the face of a massive development of coal gasification facilities and coal-fired electricity generating plants, with the state lacking laws to regulate things like pollution and mined-land reclamation, Gov. Art Link and his state Water Commission attached a set of conditions to water permits granted to Michigan Wisconsin Pipeline Co. and a pair of Minnesota electric cooperatives, United Power Association (UPA) and Cooperative Power Association requiring them to take substantive measures to guard against pollution and land destruction. Those conditions, later adopted by the Legislature, became what are still today, I think, the strictest land reclamation laws in the country.

The companies, of course, challenged the Water Commission’s right to attach the conditions. On behalf of the Link administration, then-State Tax Commissioner Byron Dorgan asked Attorney General Allen Olson for an attorney general’s opinion on whether such conditions were legal. Dorgan wrote:

“I know that the Water Commission and the Governor are attaching these conditions in order to provide the best possible protection for North Dakotans as a result of the approval of these projects.

“The conditions are designed to make certain that developments of the type that were approved are subject to very stringent regulations in order to protect North Dakota’s quality of life.

“However, if these conditions should not be able to stand the test of a court challenge, then we are all living with a false sense of security about these conditions.

“For this reason, I believe that the Water Commission and more importantly, the people of North Dakota, should have the opinion of the Attorney General whether the imposition of conditions attached to water permits is legally binding action that the Water Commission has the authority to take.”

Olson wrote in his opinion:

“It is our opinion that the conditions on the Michigan-Wisconsin Pipeline Company and United Power Association/Cooperative Power Association Conditional Water Permits granted by the State Engineer and approved by the State Water Commission are basically valid.”

Olson then went on to say “However, as in all such cases, the courts would make the final dispositive determination as a validity.” You can look at the full exchange here.

In the end, the courts did that. Link won his battle “to protect North Dakota’s quality of life.”

North Dakota’s leaders had balls in those days. It took a special kind of courage for Art Link and Byron Dorgan and Allen Olson to stand up to the industrial giants of their day and say “Not so fast. Let’s take a good look at this and make sure we’re doing it right.”

In the end, we got a coal gasification plant, and some power plants, built under specific conditions that protected the environment. That’s the model Gov. Burgum needs to take a good hard look at.

We can have a refinery here if we want one. And I think we do. But we can put it somewhere else, down the road, not beside the national park named for the greatest conservation politician in the history of our country.

Let’s do that.

One more thing: Shortly before 7 a.m. this morning .I sent an e-mail to Mike Nowatzki, the governor’s press person, asking for 10 minutes with the governor today to talk about this. Here’s his response:

“The Governor is completely booked today with things that can’t be changed and is not available for an interview. Below is a quote you can attribute to him.

“The North Dakota Department of Health has determined that this project is expected to comply with all applicable federal and state air pollution rules and regulations and meets the requirements for a permit to construct. The project is going through the proper regulatory authorities as prescribed in North Dakota state law, and the Governor’s Office will continue to stay apprised of its progress.”

I wonder how Art Link,  Byron Dorgan and Allen Olson would feel about a response like that.

Finally, the entire document allowing Meridian Energy Group to build a refinery next to Theodore Roosevelt National Park is available online. You can go here to look at it.

You can also take a look at Meridian’s response to the public comments received by the Health Department in this document. Pay particular attention to its response to comment 4(e). The company has the nerve to say that there is more pollution from the cars visiting Theodore Roosevelt National Park each year than there will be from the refinery. They even built a fancy chart purportedly showing how much tailpipe emissions are coming from the cars visiting the park.

Great! There’s a way to protect the park. Keep everyone out.

JIM FUGLIE: View From The Prairie — Should A Governor Take Free Super Bowl Tickets?

I just read on The Forum’s website that Gov. Doug Burgum is taking free tickets to the Super Bowl. “Burgum and first lady, Kathryn Helgaas Burgum, will be attending the game at the U.S. Bank Stadium in Minneapolis as guests of Xcel Energy, which leases a suite at the venue, Burgum spokesman Mike Nowatzki said.”

“’So they are not paying for their tickets,’ he said.”

Really? Burgum’s going to do that?

Now I understand why there is a petition being circulated to create a North Dakota Ethics Commission. I’ve been skeptical of that idea. No more.

Xcel Energy, one of the biggest corporations in one of the most highly regulated industries in North Dakota, is paying for tickets for the Super Bowl for not just our state’s top elected official, but also HIS WIFE.

Well isn’t that special. Y’know, there ought to be a law. Especially when it involves Xcel. The company has long been in a dispute with North Dakota regulators — read governors — over whether North Dakota customers should have to pay higher rates for electricity because Xcel is moving more of its power generation in Minnesota to higher cost renewable sources. The conflict has been in and out of court for many years, as well as the subject of discussion between Xcel and our regulators — read, the governor.

So Sunday, in a fancy suite overlooking the biggest sporting event of the year, Xcel executives are going to say “Now, now, Gov. Burgum, don’t you worry your pretty little head about those electricity rates. You don’t live in Fargo any more, you’re out in Bismarck, in MDU territory now, so it doesn’t affect you anymore. Here have some more champagne and cheer for your favorite team today. Wait! What? You’re cheering for the Eagles?”

I am reminded of the summer of 1991, when Tracy Potter and I were working for the North Dakota Tourism office, and our ad agency called and said they had two tickets for the U.S. Open Golf Tournament that was being played in Minneapolis, and they wanted us to use them. They knew Tracy and I were golf nuts and that we would really like to go to see all the famous golfers playing in the biggest golf tournament of the year in America.

Well, I was pretty nervous about taking them. So I called the attorney general, Nick Spaeth, and asked him if it was OK to do that. Nick said it was a bad idea. We could take them, he said, but we should pay for them, to avoid any appearance of impropriety.

Well, we did that. They weren’t cheap, but Tracy and I figured that opportunities like this don’t come along very often, so we splurged, paid the ad agency what they had paid for the tickets and went to the tournament. And we paid our own expenses. And we felt good about that, and we never regretted doing that.

(Aside — we were walking alongside one of the fairways and spotted none other than Nick Spaeth in one of the corporate booths, stocked with fine food and drinks. We never did ask Nick if he paid for his tickets, but I can guarantee you Tracy and I paid for our own beer and burgers.)

So this Sunday our governor is going to the Super Bowl, free, courtesy of one of the most highly regulated companies in North Dakota, and I’m guessing he’ll be sitting with the lobbyists who work the North Dakota Capitol on a regular basis. Damn, that looks bad. It looks cheap. It looks shady. I’m really disappointed in him. I mean, it’s not like he can’t afford to pay for his own tickets …

Oh, and by the way, the governor is throwing in some official business while he’s there — lunch with Minnesota’s governor, to discuss state-to-state business — so I wonder if the taxpayers of North Dakota will be picking up the expenses for the trip. And if he’ll be flying down there in the state-owned airplane, at state expense.

Minnesota’s governor, Mark Dayton, by the way, paid for his own ticket to the Super Bowl, according to The Forum’s website. Dayton said he paid $6,000 for his ticket. (Don’t worry, he can afford them too.) So Xcel’s cost for Burgum’ tickets, and his wife’s, might be as much as $12,000. Plus chips and dip. And maybe some wings. And a beer or two. You can read the whole story here if you want to.

The initiated measure, which will be gathering signatures any day now, deals directly with this kind of thing. It reads, in part, “The ethics commission may …adopt ethics rules, including rules on disclosure, campaign finance, conflict of interest, lobbying, use of position, government contracts, gifts to public officials …”

So I guess if I was one of the sponsors of that petition drive to create a North Dakota Ethics Commission, I might now have a really good reason for why we need one. A $12,000 reason. With chips and dip. And wings.

JIM FUGLIE: View From The Prairie — Charlie Creek To Belfield — A History Lesson

The last major threat to the visual integrity of Theodore Roosevelt National Park, at least that I can recall — though there have been many skirmishes with the oil industry — was in 1989, when the Western Area Power Administration came really close to putting a huge transmission line along the east boundary of the South Unit of the Park.

I’m reminded of that in the context of the Meridian Energy Group’s horrible idea to put their proposed Davis Oil Refinery in about the same place, along the east edge of the park.

In the 1960s, WAPA, one of four federal power marketing administrations that serves our part of the United States, determined there was going to be a need for more electricity in part of its region in the future, and Basin Electric, headquartered in Bismarck, had surplus power to sell. All that was needed was a way for Basin to get its power into the WAPA system.

They determined that the best way was to build a transmission line — one with those big metal towers — from Basin’s Charlie Creek substation in McKenzie County, near the junction of state Highway 200 and U.S. Highway 85, to tie into an east-west WAPA power line near Belfield, N.D., about 40 miles south. WAPA commenced a federal Environmental Impact Statement process to find the best location for the line and its towers (unlike Meridian, which refuses to even submit to a state site review process) in 1969, and issued a draft EIS.

Some 20 years later, when demand reached the point that WAPA decided it needed the extra power, it commenced a review process with a public comment period and public hearings on the project. The review process focused on two identified corridors for the power line: a western line, called W1-1, which was four miles shorter and a million dollars cheaper than one farther east, called E-4-1R. WAPA recommended using the shortest, cheapest route, W-1-1.

Unfortunately, that route ran beside the eastern boundary of Theodore Roosevelt National Park and would have been visible from most high places in the park. The eastern route ran alongside Highway 85, five miles or so east of the park, and out of sight from the park.

So in the spring of 1988, WAPA published a notice of its intent to build the line next to the park and opened a public comment period. Tracy Potter and I were running the State Tourism Office at the time, and if WAPA could have picked any two people on the planet it did not want in THAT office at THAT time, it would have been the two of us. Our boss, Gov. George Sinner, turned us loose to organize against building the line next to the park.

In advance of the public hearings, which were to be held in Belfield and Grassy Butte, N.D., on July 26-27, 1988, we got on the phone and began rounding up supporters to send letters to WAPA, asking it to move the line east, to the highway, out of sight of the park. We did a pretty good job.

U.S. Sen. Quentin Burdick wrote:

“In recent days, I have received a number of letters from concerned citizens who believe that the route recommended for the Western Area Power Administration (WAPA) will have long term negative effects on the Theodore Roosevelt National Park. As well, the North Dakota Tourism Office and the State Highway Department have also expressed opposition to the recommended route.

“It seems clear from the concerns raised by the opponents that WAPA should reconsider the options and seek a more acceptable routing for the line. Granted, the additional $1 million in construction costs must be an item of consideration. However, when viewed in the context, it seems the additional $1 million is not too large a price to pay to protect such a national treasure as Theodore Roosevelt Park.”

How about that! Why don’t we have U. S. senators like that anymore?

And Congressman Byron Dorgan wrote:

“The visual impact (on Theodore Roosevelt National Park) is unacceptable. I hope you will hear the concerns of myself and of many others who are committed to protecting the natural, scenic beauty of the Badlands.”

I know that our newest senator at the time, Kent Conrad, weighed in on this as well, but I can’t find his letter.

Even our boss, Gov. Sinner, and his lieutenant governor, Lloyd Omdahl, sent a jointly signed letter (although I think Tracy probably wrote it for them):

“North Dakotans have jealously guarded the Badlands scenic areas from avoidable intrusions. Consequently the Park today still provides awesome views of natural beauty unmarred by artificial structures. Whether or not future generations will be able to share this beauty will be determined by this generation and the decisions it makes about development in the area. We must proceed cautiously in the consideration of proposals to change the landscape.”

Other letters came from concerned citizens, and the usual suspects — the National Parks Conservation Association, the Sierra Club, the Theodore Roosevelt Nature and History Association and others, many of whom are now involved, 30 years later, in the current fight to move the Davis refinery away from the park.

Tracy led the testimony at the public hearing in Belfield, followed by TRNP’s Chief Ranger Bob Powell, Gary Redmann from the State Highway Department representing then-Commissioner Walt Hjelle, Wally Owen from Medora, who ran the horse concession in the park, and finally, batting cleanup, Medora Mayor and President of the Theodore Roosevelt Medora Foundation Rod Tjaden, who I think was also state chairman of the Greater North Dakota Association, the state’s chamber of commerce, at the time. (Humorous aside: Tjaden, not known for hanging out with the environmental crowd, sent me a note a few months later that said “Dammit, Fuglie, I’m getting mail from the Sierra Club, and it’s YOUR FAULT!”)

After the public hearings, WAPA went into hibernation for about six months, and in early 1989 released its final EIS, with its final recommendation on a route for their transmission line, which concluded with this statement:

“Through public comment, it was determined that visibility of the line from residences, local urban areas and TRNP was of significant importance. In particular, a large number of comments expressed concern for the visibility of the proposed line from TRNP. It was determined that the agency-preferred route would be changed from W1-1, as specified in the DEIS, to E4-1R (the environmentally preferred route).”

A loud cheer could be heard throughout western North Dakota. The system worked. The park was protected.

Well, that’s our history lesson for today. Sadly, history doesn’t often repeat itself. A month or so ago, I sent letters to our current governor, Doug Burgum, and to our congressional delegation, asking them to meet with the Meridian people and ask them to move the proposed refinery away from the park. I got a couple of responses.

This in an e-mail from Jodee Hanson in the governor/s office:

“The Governor respects the public comment period, which is still ongoing, and is staying apprised of the Department of Health’s permitting process being conducted within the boundaries of the law.”

To which I responded:

“Thanks for the note Jodee. Relay to everyone there that the ‘boundaries of the law’ are the minimum standard for action by public officials. There is much more that can, and should, be done. Like a one-on-one between Burgum and Prentice, heart to heart, CEO to CEO. I am inspired by Julie Fedorchak and Connie Triplett seeking a PSC review. The governor could make that happen by putting the hammer down on Prentice: “Y’know, Bill, we’re in this together for the long haul. We’re going to be looking at each other and talking to each other for a long time. Let’s be responsible and see what a PSC site review tells us.”

I also got an e-mail from a staffer for Congressman Kevn Cramer:

“Congressman Cramer has been in contact with both the N.D. Department of Health and EPA ensuring the project meets human health and environmental requirements.”

To which I responded:

“Relay to everyone there that meeting the “human health and environmental requirements” is not enough in this case. There is much more that can, and should, be done. As a former State Tourism director, Kevin understands the impact on our National Park. I’d suggest a one-on-one between the congressman and Meridian CEO Bill Prentice, heart to heart. I am inspired by Julie Fedorchak and Connie Triplett seeking a PSC review. The Congressman could help make that happen by meeting with Prentice:”

I’ve not heard anything from our two senators. I’m going to send them, along with Cramer and Burgum, a copy of this blog post to remind them of what can be done if everyone pulls their own weight.

Maybe. Just maybe …

JIM FUGLIE: View From The Prairie — Of Refineries And The Public Trust Doctrine

The official comment period has passed on that sleazy company Meridian Energy’s request for an Air Pollution Permit for an oil refinery beside Theodore Roosevelt National Park. I’m guessing the State Health Department got an earful.

Mandan’s Tesoro Refinery. They all pretty much look alike. That white stuff is what you’ll see from Theodore Roosevelt National Park.
Mandan’s Tesoro Refinery. They all pretty much look alike. That white stuff is what you’ll see from Theodore Roosevelt National Park.

Friday, on the last day of comments, my friend,Sarah Vogel, our former state agriculture commissioner and one of the state’s best attorneys, sent me a copy of what she sent to the Health Department. It’s so good, I just have to share it. If the Health Department can issue a permit after reading this, everyone there should be sent packing. And if the governor doesn’t step in after reading this, he should be sent back to Cass County.

Here’s what Sarah wrote:

“The Health Department is well aware of the views of the three statewide-elected officials who serve on the Public Service Commission. They have been clear that they believe that this project should not go forward without a ‘big picture’ overview that would come with a site review by the PSC. See, Bismarck Tribune, ‘Commission urges refinery developers to apply for siting permit,’ December 19, 2017. The majority of the persons testifying at the Health Department’s hearing in mid-January 2018 were opposed to the issuance of the air quality permit by the Health Department, and many urged that the Health Department not grant the permit until such time as a site review by the PSC was completed.

“It appears that the Health Department is evaluating comments on some type of a ‘bright line’ separation between its own concerns, and the concerns by other state agencies such as the PSC, and that it believes it lacks authority to look at any factors other than those strictly dealing with the air quality permit requirements set forth in Health Department regulations.

“Yet, the Department of Health is the lead environmental agency of the State of North Dakota! See N.D.C.C. Section 23-01-01.2 (‘The state department of health is the primary state environmental agency.’) Because of its additional role as the primary environmental agency, the Health Department should take a broader view consistent with the Public Trust Doctrine that underlies the duties and operations of all state agencies, including the Department of Health.

“As explained by the North Dakota Supreme Court, the Public Trust Doctrine is part of the common law of this state and overlays and informs the actions of the state as those actions affect the citizens of North Dakota’s critical reliance on clean water and other resources such as clean air. See, e.g., United Plainsmen Association v. North Dakota Water Conservation Commission, 247 N.W.2d 457, at 460-464 (ND 1976). See, also, State ex rel. Sprynczynatyk v. Mills, 523 NW 2d 537, at 540 ND 1974) (‘North Dakota could not totally abdicate its interest to private parties because it held that interest, by virtue of its sovereignty, in trust for the public.’)

“The Public Trust Doctrine is part of the overarching principles that should govern North Dakota governmental officials and especially those at the Department of Health See N.D.C.C. Section 23-01-01.2, supra.

“I recommend that the Health Department consider the Public Trust Doctrine in determining whether it, as the primary environmental agency, has a duty on behalf of the citizens of North Dakota to coordinate with the PSC to insure that all environmental factors are appropriately considered at the appropriate time and in the appropriate sequence.

“The Legislature’s use of the word ‘primary’ necessarily implies a leadership role with other secondary agencies for environmental issues. Here the PSC is pleading for the opportunity to do its job, and review the site of a project that will have a huge effect on western North Dakota in advance of issuance of a permit. The stakes are even higher since North Dakota’s premier attraction, the Theodore Roosevelt National Park, is extremely close to the site for the proposed refinery. Surely, the Health Department has the discretion to defer its decision on an air quality permit for Meridian’s proposed refinery until the PSC has the opportunity to do a thorough and thoughtful determination of the suitability of the site in keeping with state government’s duty to protect the public’s interest.

“The idea that a Meridian claim of a 500 barrel disparity in anticipated production could prevent this critical and essential review is a weak rationale to avoid PSC review. To illustrate, why should the Department of Health take at face value Meridian’s current assertion that it will produce 500 barrels of oil less than the cutoff for mandatory PSC review? As the Department of Health is well aware, Meridian has a history of changing its numbers based upon the audience it is addressing. One set of numbers is provided on Wall Street for potential investors and stockholders; another set of numbers is provided to officials of the State of North Dakota. The latest illustration of the unreliability of Meridian’s public statements is its recent press release on the Health Department’s January hearing which asserted that most of the people testifying were in favor of the project. In contrast, the Bismarck Tribune’s story by Amy Dalrymple said exactly the opposite.

“In conclusion, the permit should be denied or the application should be held in suspense until a proper site review is conducted by the PSC.”

Well. Thank you, Sarah.

I have no doubt the Public Service Commissioners will read this and agree with Sarah. But as long as the Faustian refinery developers hold to their estimate of 49,500 barrels per day (99 percent of the 50,000 bpd that triggers a site review), the PSC is helpless.

But are you reading this, Doug Burgum? Because, ultimately, you’re the man responsible for upholding the Public Trust Doctrine, on behalf of the citizens of your state. The Health Department works for you. You’re the governor. You asked for the job. Now do your job. The Supreme Court has already upheld the Public Trust Doctrine. Do you really want to be on the same side — the wrong side — of a lawsuit with Meridian Energy, governor, and on the opposite side of your own Public Service Commission, when someone files suit to force you to uphold the Public Trust Doctrine?

JIM FUGLIE: View From The Prairie — The Refinery Needs A Site Review

A pair of former Democratic-NPL state senators challenged the North Dakota Health Department to demand a site review by the State’s Public Service Commission before issuing an air pollution permit allowing Meridian Energy Group to build a refinery three miles from Theodore Roosevelt National Park at a marathon public hearing by the Department Wednesday night.

Former Sen. Connie Triplett of Grand Forks told Health Department administrators near the end of a four-hour public meeting in Dickinson that they should attach a condition to the permit if they issued it, stating that the permit to build the Davis refinery would only be valid if the company submitted to a full site review by the PSC. And former Sen. Tracy Potter of Bismarck went a step further, saying the Health Department should just put the permit application on hold, and not consider it, until the PSC reviews the site.

Damn, I wish I could get rid of the word “former” in front of those two senators’ names. Out of the 40 or so people testifying on issuing an air pollution permit to the company at Wednesday’s public hearing, their Legislative experience showed their understanding of the government processes that could be brought into play before a refinery is built on the national park’s border.

To review: North Dakota has a law that says any energy conversion facility, such as a refinery, that is going to process more than 50,000 barrels of oil per day (bpd) needs to undergo a site review by the Public Service Commission 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 …”

Further, it says “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)

To get around that requirement, Meridian now says it is going to process only 49,500 barrels per day, a sleazy, transparent move to avoid having the PSC tell them it this is a lousy place for a refinery and that Meridian should put it somewhere else where it won’t detract from our national park.

Meridian’s number of 49,500 bpd is 99 percent of the PSC’s jurisdiction limit of 50,000 bpd. Fifty thousand barrels is 2.1 million gallons. 49,500 barrels is 2.079 million, just 21,000 gallons less than the threshold for regulation. So Meridian’s tactic is to stay just 1 percent under the threshold for regulation. It would be a laughable move by the refinery people if it weren’t for the fact that by staying just barely under the threshold, THERE IS NOTHING STOPPING MERIDIAN FROM PUTTING AN OIL REFINERY BESIDE THEODORE ROOSEVELT NATIONAL PARK.

I can’t shout that loud enough. Nothing stopping them except, of course, issuance of an air pollution permit, which was the matter at hand at Wednesday night’s public hearing. And that’s why Triplett and Potter’s requests are so important. Because in its initial review, the Health Department says it thinks that the refinery could come in under the pollution limits allowed by the federal Clean Air Act to protect the Class I Air Quality Status of a nearby national park.

Now whether we believe that — the Meridian people haven’t said much that is believable so far in this process — Triplett and Potter pointed out that this is just one very narrow — albeit very important — look at whether the refinery should be built there. North Dakota state government needs to take a holistic approach to siting something as big as this — and there’s no doubt this is big, the biggest industrial plant to be built in our state since the Great Plains Coal Gasification Plant near Beulah 35 years ago, which at the time, was labeled the largest construction project in North America.

That’s what the PSC siting process brings. A look at the big picture.  And then once the PSC has completed its site review, the Health Department, the Water Commission, the Game and Fish Department, the State Parks Department, the Agriculture commissioner, the Tourism director, the Transportation director, maybe some other directors and, most importantly, the governor need to sit down around a table and decide what’s really good for the state, and  if this is really the best place to put an oil refinery. That’s how state government should work, whether we trust all those people or not. I guess we have to trust them, since they’re in charge here right now.

I don’t think anybody’s questioning whether we should have an oil refinery in North Dakota. Of course we should. As Triplett has pointed out, it is certainly more environmentally — and economically, I’ll add — desirable to refine oil here and ship a finished product out in a pipeline than it is to ship out raw crude in a pipeline and then ship refined gasoline and diesel fuel back here in trucks or another pipeline.

So the only real question is, where should the refinery be? Public Service Commissioners Julie Fedorchak and Brian Kroshus pushed hard at Meridian officials at a meeting last month to get them to consider other locations away from the park but to no avail. Barring that, they asked politely to be allowed to conduct a formal site review to “ensure the location, construction and operation of the refinery… will produce minimal adverse effects on the environment and the welfare of the citizens of this state …”

Meridian officials told them to stuff it. The 49,500 bpd refinery is under the threshold for a site review, they said, and they are complying with the law. Well, yeah 1 percent under the threshold, and in terms of impact on the environment and the welfare of our citizens, that’s a pretty slim — and sleazy — standard they set for themselves.

In fact, it prompted PSC Chairman Randy Christmann to tell me and a few others after the meeting that he won’t be surprised if some legislator introduces a bill in the next legislative session to get rid of the threshold altogether and make all energy conversion facilities of any size subject to a site review. Good for him. Christmann is not a big government regulation guy, but I think he’d like that. In the case of Meridian, that would be closing the barn door after the cows are out, but it certainly would keep this from happening again in the future.

Shortly after that meeting between Meridian and the PSC, when Meridian snubbed its nose at three elected officials, I sent a letter to Gov. Doug Burgum asking him to call Meridian CEO William Prentice into his office and ask him politely — CEO to CEO — to move the refinery away from the park. I think I’ll just put my letter at the end of this post because it’s been a month now, and I’ve not had a response from the governor.

I’m disappointed in that. It used to be in North Dakota, when you wrote a letter to an elected official, you got a response in a pretty timely manner. I worked for a governor for eight years, and I don’t recall a constituent letter ever going unanswered. Especially on a matter as important as this. I’ll write a little more about that subject in a few days.

Meanwhile, subsequent to Wednesday’s Health Department hearing, a public comment period on this issue remains open until Jan. 26. Then the Health Department will read all the public comments and respond to them, I think. Often the response is just to thank you for commenting and telling you they are taking your comments into consideration, but at least you know your comments have been read by someone. I submitted mine a few weeks ago and shared them with you in this space. You can read them by going to my old blog. I urge you to join me in commenting. I’m putting the address for your comments at the end of this post, too.

I’m adding to mine by strongly urging the Health Department to take the advice of Sens. Potter and Triplett and attach conditions to any permit, requiring Meridian to undergo a site review. Triplett, an environmental attorney, knows North Dakota law, and she says they can attach conditions to a permit. There’s precedent for that, even.

Way back in the 1970s, when a company named Michigan Wisconsin Pipeline Co. asked for a state water permit to construct some coal gasification plants here (one of which ended up being the Great Plains Synfuels Plant I mentioned earlier), the North Dakota Water Commission attached a series of conditions to the permit, which ended up being the beginning of North Dakota’s Mined Land Reclamation Laws, now the strictest reclamation laws in the country.

I think the conditions were challenged in court, and they held up. We’re all winners because of that. Strict regulations were followed, the coal gasification plant got built, and it’s still operating successfully today.

And I’m going to go a step further and ask the governor to strongly advise the Health Department — they work for him, after all — to attach the condition of a site review to the permit, if they issue one. Or to just tell the company they’re holding the permit until a site review is done. If Meridian is confident they’ve got the right project in the right place, they won’t have any problem undergoing a site review.

Let me repeat that.

If Meridian is confident it has got the right project in the right place, it won’t have any problem undergoing a site review.

One more time.

If Meridian is confident it has got the right project in the right place, it won’t have any problem undergoing a site review.

Here’s the address for your comments, to be submitted to the Health Department by Jan. 26. You might want to use the line “If Meridian is confident they’ve got the right project in the right place, they won’t have any problem undergoing a site review.”

Terry O’Clair, P.E., Director

Division of Air Quality

ND Dept. of Health

918 E. Divide Ave.

Bismarck,ND 58501-1947

And here’s my letter to the governor:

 December 21, 2017

Dear Gov. Burgum,

Late in the afternoon on this shortest day of the year, my mood is as dark as the 5 p.m. sky. I close my eyes and think back to the meeting between the PSC and William Prentice from Meridian Energy Group the other day, and I see him smirking as he says “We are going to comply with the law.”

So that’s what it’s come to for Meridian. It’s about the law. It’s not at all about anything North Dakotans might feel about having a refinery smack up against their national park. A national park named for our Greatest Conservation President.

“If these stupid North Dakota hicks are willing to put that kind of a loophole in their siting law, I’m going to use it,” the snarky Californian says.

So now, Governor, it’s up to you. You need to get that asshole in your office and tell him he needs to move that refinery. You can do that. He’ll respect you, a fellow businessman and North Dakota’s CEO.

Randy and Julie and Brian did their best, but they carried no authority. They’re not used to dealing with this kind of character. “I don’t see why you don’t just go through the siting process” won’t work with this guy. It’s kind of like the salesman who says “I don’t suppose you’d like to buy some insurance, would you?”

Please, Governor, call this guy up and get him in your office. And tell him to move the damn refinery.

Please let me know if you are willing to do this, so I can stop writing about it (and you) for a while. Even if it does no good, I need to know that at least you were willing to try.

Thanks.

Sincerely,

Jim Fuglie