JIM FUGLIE: View From The Prairie — Herb Meschke: A Brilliant Mind In A Broken Body

They’ll bury Herb Meschke later this week. I don’t know if it will be in the North Dakota Bad Lands, where he was born and raised, or in Minot, where he spent most of his life. Wherever it is, his presence will enhance the stature of the cemetery.

Herb Meschke
Herb Meschke

Herb was a cowboy, a lawyer, a legislator, a judge and a family man. He took all of those jobs seriously. And he was pretty good at them.

He died at home Friday. There’ll be a Methodist funeral for him Wednesday. His death marks the end of a life at the center of some of North Dakota’s most interesting political stories. I’m going to tell a couple. First, some background. I like revisiting old political stories, and Herb’s death gives me the opportunity to do that. I think he’d approve.

Because most people who knew Herb in the past 65 or 70 years of his remarkable 89-year life never saw him wearing anything but a suit and tie or a judicial robe, they don’t know about his cowboy background. He was born on a ranch north of Medora, N.D., and according to those who knew him, was a strapping young cowboy when he went off to college in the late 1940s.

It was sometime during his college or law school years, friends tell me, he was stricken with rheumatoid arthritis. Most of us who knew him as an adult never saw him stand erect. He walked hunched over, having to turn his head slightly to look up when he was having a standing conversation. That’s how we all remember him, short, hunched over, walking with a cane. All his adult life. Gary Williamson, his seatmate in the 1965 Legislature, said Herb kept a bottle of aspirin on his desk and would just pop a handful into his mouth from time to time to ease the pain of the arthritis.

That 1965 session was the beginning of one of the political stories of his life. In the 1964 election, the Johnson landslide, the last time a Democrat presidential candidate carried North Dakota, Herb, Gary and three other Young Turk Democrats — Larry Erickson, Bob Schoenwald and Wayne Sanstead — rode that landslide into the Legislature, defeating all the Republican incumbents except the venerable (even then) Brynhild Haugland.

According to Williamson, they arrived in Bismarck as “Brynhild’s Boys.” She was in charge of the Minot delegation from Day 1, determined not to let Minot suffer because it was represented by five young freshmen (even though the Democrats were in the majority). She found them seats, got them committee assignments beneficial to Minot and probably directed to some extent how they voted on the floor.

That was one of only two legislative sessions Democrats were the majority party. It’s fun to look at the list of House members that session whose names you might remember, in addition to Sanstead, who held statewide office longer than almost anyone in our state’s history (Can you say Ben Meier?), and Meschke, a Supreme Court justice for almost 15 years. It included Richard Backes, Lee Christensen, Oscar Solberg, Buckshot Hoffner, Treadwell Haugen, Tom Stallman, Clarence “Chief” Poling and Art Link, who was speaker of the House that session. Most of them were just getting their start on distinguished political careers in North Dakota.

An interesting side note: The only two years Democrats held the majority of seats in the North Dakota House, in 1965 and 1983, five men served in both those sessions: Sanstead, Backes, Hoffner, Solberg and Olaf Opedahl. The House was tied in the 1977 session, and Solberg served as Speaker by consensus of both parties, showing the respect he had from Republicans. In the days when Republicans and Democrats actually got along. Sigh.

But back to Herb Meschke. Herb served just that one term in the House (House terms were just two years back then) and the next year, he ran for and was elected to the state Senate. Only four Democrats were elected to the Senate that year, and they joined holdover George Rait as the smallest Democratic-NPL caucus ever (although modern day Democrats are headed that way, to challenge them — there were just nine this year).

Williamson and Sanstead were re-elected to the House, and after serving in the majority in 1965, were among just 14 Democratic-NPL House members out of 99 representatives that session. Democrats eclipsed that record this past session with just 13 out of 94.

Herb’s other memorable role was in January 1985, the time when North Dakota had two governors. I wrote about that a few years ago, and you can go back and read it if you want to by clicking here. But let me summarize and point out that I’ve actually learned (actually, remembered) a little more about that incident in the last few years since I wrote that post.

Sinner was elected governor in the November 1984 election. In those days governors legally took office Jan. 1, but traditionally waited until the first day of the Legislature, which was the first Tuesday after the first Monday of January. In 1985, that was Jan. 8. After this crisis, the Legislature changed the date of the new term to Dec. 15.

Between the tine of the election and Jan. 1, two vacancies occurred on the North Dakota Supreme Court — a justice died and another announced he was about to resign, which meant the governor got to appoint two Supreme Court Justices, surely plum appointments for any governor. Per North Dakota law, a Judicial Nominating Committee advertised for applicants, and receiving them, announced it would recommend candidates for the governor to choose from, on Jan. 4—whomever the governor was that day.

So Allen Olson, who had decided to stick around until the Legislature convened Jan. 8, as tradition held, was going to make two appointments before he left office. Sinner decided not to let that happen. Since legally he was entitled to take office Jan. 1, according to an opinion issued by Olson a few years earlier when he was attorney general, he did just that.

Olson objected and hunkered down in his office and refused to leave, now claiming that he could, by tradition, remain in office until the Legislature came to town. Sinner set up shop in the governor’s residence — remember, Olson had decided not to live there, remaining in his own house high atop a hill in north Bismarck, something a lot of people viewed as arrogance, probably contributing some to his defeat by Sinner.

So we had two governors for a few days, until the new attorney general, Nick Spaeth, convinced the Supreme Court to take the case immediately and decide who the governor was, and in a matter of hours, the court decided Sinner was entitled to the office. Note that all of the sitting justices except the chief justice recused themselves, and Chief Justice Ralph Erickstad appointed four district court judges and told them to get their tails to Bismarck and hear the case. So it was those four men — Maurice Hunke of Dickinson, A.C. Bakken of Grand Forks, Norman Backes of Fargo and  Benny Graf of Bismarck, who held the fate of the next two Supreme Court Justices in their hands.

Interestingly, Erickstad, a known Republican (he had served three sessions in the North Dakota Senate as a Republican before being elected to the court) appointed three pretty well-known Democrats — Bakken, Backes and Graf — to decide who the governor was, and who would make the next two Supreme Court appointments. And they chose Sinner, the Democrat. It really was a question of law, though, not politics, so there was nothing untoward in their decision, that I can tell.

I think Olson really didn’t want that confrontation, or to have his term in office end that way, but there must have been tremendous pressure on him from some in the Republican Party to claim those two Supreme Court seats. Rumors have floated around for years, but I’ve never been able to confirm them, so I won’t repeat them. I’m sure Mark Andrews would appreciate that.

There were known Republicans — Ward Kirby of Dickinson, Vern Neff of Williston and Rolf Sletten of Bismarck — on the Judicial Nominating Committee list submitted to Sinner, and some known Democrats — Herb Meschke and Jim Maxson of Minot and J. Philip Johnson of Fargo, and two suspected Democrats, Bill Neumann of Rugby and  Beryl Levine of Fargo.

Sinner chose Meschke and Levine. He and most North Dakota Democrats, probably would have liked to appoint Meschke and Maxson, but he just couldn’t appoint two from the same town. And he just couldn’t pass up an opportunity to appoint the first woman ever to the North Dakota Supreme Court.

That he chose Meschke over Maxson probably had something to do with a little leaning from Meschke’s old colleagues in the 1965 Legislature, Richard Backes and Larry Erickson, both of whom were close to Sinner and had helped in the Minot area on his campaign, and the fact Sinner had served across the hall in the state Senate from Meschke, and his House colleagues that session, Erickson, Backes, Williamson, Schoenwald and Sanstead. Meschke and Sinner also served together as delegates to the ill-fated 1972 North Dakota Constitutional Convention.

Maxson went on to his own political career, being elected to the state Senate in 1986 and again in 1990. He holds the distinction of being the only Democrat to serve four sessions in the North Dakota Legislature and never serve in the minority. Democrats had a majority in the Senate in 1987, ’89, ’91 and ’93 in 1994 (Yes, North Dakota Democrats, there once was a time, and a place called Camelot). In 1994, Maxson went back to Minot to resume his law practice full time.

Johnson and Neuman, by the way, did end up on the Supreme Court later, but no such luck for the three Republicans.

Herb’s appointment to the court in January was the subject of some controversy. Some Republicans dragged out old newspaper stories from the 1960s First Western Bank scandal, in which most of the Democratic-NPL crew from that 1965 legislative session — Backes, Erickson, Williamson and Meschke — were indicted for some alleged banking and campaign practice crimes.

Wanting to keep up with the Republicans in the financial world, they had started their own bank in Minot and were accused by Nixon-era prosecutors of playing a little fast and loose with banking and campaign regulations. All, including Meschke, their lawyer, were either acquitted or had charges dropped, but it sullied Meschke’s entrance into the judiciary. First Western Bank, ironically, is now owned by North Dakota Republican Sen. John Hoeven.

Herb was elected to a four-year term on the Court in 1986 and a full 10-year term in 1990, took early retirement in 1999, moved back to Minot and practiced law a little bit and did some writing. The last time I saw him was at Gov. Bill Guy’s funeral a few years ago. He was still this hunched-over little man, a brilliant mind trapped in broken body.

I loved that little man, mostly from afar, because of what he accomplished in spite of his physical handicap and the lifetime of pain he tolerated to be an active part of North Dakota history. And also partly because he was wise enough to marry a girl from my hometown, Shirley McNeil from Hettinger, N.D. Shirley survives him.  She spent a lifetime taking care of Herb. God bless her. I wish her all the best in the rest of her years.

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 — Body And Soul: A Mother’s Day Story

A rerun from four years ago. Because I can’t think of a better story to tell on Mother’s Day.  

I’m thinking of my mom on this Mother’s Day, as we all are. She’s been gone 3½ years now, but it seems like only yesterday I was making those semiweekly trips to Hettinger, N.D., to see her in the nursing home, each time stopping at the Albertson’s store in Dickinson to buy her a couple of bags of Snaps, her favorite snack (and mine — I usually bought three bags and gave her two).

About a year before she died, I wrote a little story about her and her favorite doctor, Dr. Joe Mattson, which the Bismarck Tribune published. I haven’t shared it here before, so I think I’ll do that this Mother’s Day.

Body and Soul

My 83-year-old mother is a resident of Western Horizons Care Center in Hettinger, N.D., population 1,307, 14 of them doctors serving a regional medical facility that cares for residents of a 5,000-square mile expanse of prairie at the intersection of North Dakota, South Dakota and Montana, where the population averages just over one person per square mile.

In her younger days, my mother worked as director of nursing at Western Horizons (then known as Hillcrest, for its location — only coincidentally, I think, on a hill across the highway from the Hettinger cemetery, where many of the residents can look down on the resting place of spouses and other loved ones) while she and my dad struggled to put seven kids through college. Today, she lives there and has most everything she needs, including her large circle of friends and, most importantly, for someone who suffers the normal aches and pains and medical crises of an 83-year-old, her old friend and longtime doctor, Joe Mattson.

I visited with Joe a while back at Hettinger’s hospital, where he had put my mom for a few days because an infection had sent her temperature soaring and he needed to get it under control. Joe’s a generous, kind-hearted country doctor who forsook big city riches in the 1960s for a chance for he and his wife Pat to raise their children — seven in all, three of their own and four adopted — on the prairie. He and a couple of other visionary doctors built this great medical center to bring health care to this sparsely populated area — a clinic, a hospital, a nursing home and an assisted living facility — and provide more than 200 jobs, perhaps a fourth of all the jobs in Hettinger today.

I confess I don’t know him well. He came to Hettinger after I left for college, and our acquaintance is a result of being unable to avoid bumping into each other in a small town on my visits home. I enjoy him immensely, a big bear of a man with a booming voice and unruly hair, and whose slightly rumpled and gruff appearance belies a bedside manner of Mother Theresa.

He visited my mother’s room late on a Friday afternoon, at the end of a long day in an even longer week, appearing untired at a time when most men well into their 60s would just be looking for a recliner and a little supper. He looked at the charts, puzzled over the temperature and infection and then plopped down in a chair and struck up a conversation, of grandkids and bad backs and summer vacations and the kind of thing old friends talk about.

More than 15 minutes he sat there, reassuring me, and through me, my mom, that nothing abnormal is going on here in a body that’s just getting a little older and a little harder to manage some days. We’ll just send in some more antibiotics and get this thing fixed.

He talked of his two preschool grandkids who were staying with him and Pat while a daughter completed a move without them in her hair. He talked about his weekend schedule. He’s a deacon in the Catholic Church in Hettinger, and this coming weekend ,the priest at Reeder, 13 miles down the road, is on vacation, so Joe was going to run over there and give communion on Sunday. And then he left — a 20-minute hospital room call, and I suspect he had more before he went home to Pat and those grandkids.

Later, approaching dark, the nurse came back in and said Dr. Mattson had just called and thought maybe my mom should take one of these pills before she went to sleep. He’d been thinking about her, even at home hours later, and wanted her to be more comfortable through the night.

Mom slept well indeed, and Saturday morning felt good, so I went home, promising to call. We talked a couple of times Saturday, and again Sunday afternoon when she told me she probably would go home Monday.

“Has Dr. Mattson been in today?” I asked.

“Oh, yes, and he says my temperature is down and my blood test looks good, and I can go home tomorrow. And guess what? He had just come from Reeder when he stopped to check on me, and he said, ‘Phyllis, I bet you didn’t get communion this week, did you?’ ”

“And he reached into his pocket and pulled out his little gold box, and we said a prayer, and he gave me communion.”

Body and soul.

And we wonder why we live in North Dakota?

Footnote, Mother’s Day 2013

My mom died on early in the morning on a late September day, of old age. That’s what she wanted her death certificate to say, and that’s what it says. She had been hospitalized a few days with kidney failure, and when I arrived to see her at the hospital on a warm September day, her nurse had just issued a code, and everyone on the floor was scrambling to save her. Her blood pressure had dropped precipitously low, but she wasn’t quite ready to die, apparently, because she just slipped off to into unconsciousness, but lay there breathing on her own.

The hospital had her instructions not to resuscitate her. She had said for weeks she was tired and ready to go see dad. The doctor on the floor came and told me I better call my brothers and sisters because the end was near. She was going to get her wish. I did that, and in the next few hours, they began arriving. My youngest brother, Blake, was en route from Sioux Falls, S.D., and arrived about 9 p.m. Six of the seven of us were gathered around her bed — my brother Blair lives in Washington state and was unable to get there — when, about 10 p.m., she opened her eyes and looked at each one of us. She asked what time it was, and we told her about 10 p.m.

We’d been through this once before, earlier in the year, and that time when she awoke to see six of us around her bed, she said, with the hint of a smile, “Well, I must not be dying because Blair isn’t here. If I was dying, he’d be here, too.”

This time, she didn’t say that because, we’re all pretty sure, she knew better. Instead, she said, “I’ve been having an argument with God, and I won.” And she proceeded to tell each of us good-bye. And then she drifted back off to sleep.

About 3 a. m. her breathing became very shallow and irregular. The nurse told us it was time. She said she was going to call the priest. Well, who do you suppose showed up about half an hour later? Not the priest but Deacon/Dr. Joe Mattson. Shortly before 4 a.m. He did a quick examination, and then said, “Let’s pray,” and he led us in The Lord’s Prayer, said a short prayer over her, hugged each of us, and left. And shortly after that, she died. She won the argument with God.

It was so fitting, and so natural, that Joe Mattson, this elderly, mostly retired doctor, would climb from his bed in the middle of the night to be at her side — and our side — in her last hours. As I said, there’s a reason we live in North Dakota.

JIM FUGLIE: View From The Prairie — No Veto, But No More Industrial Permits, Either — At Least For A While; A Partial Victory For The Little Missouri River

North Dakota Gov. Doug Burgum may not have been in politics very long, but he has learned the No. 1 rule already: Politics is the art of compromise.

To that end, the governor DID NOT veto the section of North Dakota House Bill 1020, which now that it is law, legalizes the issuance of industrial water permits from the Little Missouri River, a practice which had been going on illegally for many years If you’re not familiar with that, read this).

But in signing the bill into law Tuesday, he issued what Donald Trump might wave in the air as an “executive order,” declaring that no new permits will be issued for nonagricultural use of water (fracking) until new rules are written governing those permits. Those new rules are likely to address use by counties to draw water to keep the dust down on gravel roads but hopefully will ban water for fracking. That’s probably OK. We’ll see what they say.

Generally, this is an acceptable compromise, I think, with those of us concerned about the industrialization of the Little Missouri River — with one exception — and it might turn out to be a pretty big one. The governor’s order applies to the Little Missouri between the South Dakota border and the Long X Bridge over the river at U.S. Highway 85, on the east end of the North Unit of Theodore Roosevelt National Park south of Watford City. That’s about 85 percent of the river’s 275-mile length in North Dakota.

But it doesn’t apply to the section of the river between the Long X Bridge and where it flows into Lake Sakakawea, a distance of about 40 miles, mostly in Dunn County, and that last 15 percent is in an area that has been the hot spot of oil activity in the Little Missouri Bad Lands.

My friends who keep their eyes on oil activity in threatened areas tell me there are a number of large applications in process or pending just east of the Long X Bridge, and there’s a lot of Forest Service and BLM land that could be affected if industrial activity is allowed, including some incredible landscapes and wildlife habitat, as well as multigenerational ranches.

So, we will need to keep a close eye on this process, which the governor is going to make easier for us because he has ordered the Water Commission staff to make “the process and requirements for future issuance of temporary use permits for nonagricultural uses” transparent. Believe me, we’ll be taking advantage of that order. Looking at every permit.

Further, he ordered the Water Commission staff to make public all available data on the temporary use permits issued since 1990 and to do a preliminary report on that within 60 days. By July 1. Maybe we’ll read in that about the rancher along the river who sold the water from his temporary use permit to an oil company for more than $700,000 back in 2012 and 2013.

And as for those 600-plus illegal water permits issued by the Water Commission the last few years, the governor explained it this way:

“Recently, a State Water Commission hydrologist uncovered the 1975 law. A decades-long lapse in awareness and in practice has brought us to today.”

Well, OK. It just seems a little strange that the people who are responsible for issuing all the water permits in the state of North Dakota wouldn’t know the law, but that’s their story. I hope they are telling the truth and not covering up for some superior (prior to Burgum, maybe named John or Jack), who told them to go ahead and issue the permits in violation of the law — oil booms and all the money that accompanies them can cause people to do strange things.

But at the same time, if they are telling the truth, it’s kind of disappointing that they wouldn’t know the law they are charged with upholding and enforcing. The engineers responsible aren’t some rookies right out of college — they’ve been career employees and have risen to the positions of director and assistant director of a division of one of the most important agencies in state government. How could they not know the law? Well, anyway …

The best news of all from the governor this morning is that he has decided to revive the Little Missouri Scenic River Commission, the board created by the State Scenic River Act in 1975 to monitor development along the river. Some of us have been urging the governor to do that since we discovered a couple of years ago that it hasn’t met since 2007. You can read more about that here. If that board had been active the past 10 years, none of those illegal industrial permits would have been issued.

I consider the governor’s order a major victory for the Little Missouri State Scenic River. I’m going to the first meeting. Where hopefully they’ll be talking about the two proposed new bridges across the Little Missouri River. But that’s a story for another day.

So. The hundreds of people who contacted the governor and asked him to veto the law got half a loaf — maybe more. Now we will all know what has been going on, and we will have a chance for input and reaction to what goes on in the future (I just caught myself before I said “going forward” there, a phrase I hate). Constant vigilance will be necessary now. I think we’re up to it.

Gov. Burgum expressed concern for the Little Missouri River. Rightfully so. He owns ranchland on the river.

Gov. Doug Burgum expressed concern for the Little Missouri River. Rightfully so. He owns ranchland on the river.

Here’s the letter I got from the governor this morning, as did the others who contacted him about this:

Thank you for your input on House Bill 1020. I appreciate your concerns and would like to take this opportunity to explain why I have signed the bill into law.

As governor, a North Dakota resident and a property owner on the Little Missouri River, protecting our environment and being responsible stewards of our natural resources is a priority for me personally and for our administration.

The Legislature enacted a chapter of law called the Little Missouri State Scenic River Act (LMSSRA) in 1975 to preserve the Little Missouri River as nearly as possible in a free-flowing natural condition, and to establish the Little Missouri River (LMR) commission.

Records pertaining to LMSSRA indicate that it was enacted primarily because of concerns over several energy projects having interest in dams and diversions for purposes of coal gasification or electricity generation.

The legislation allowed for agricultural water permits but not for industrial uses. However, more than 600 temporary use permits have been issued for non-agricultural uses since 1990.

Recently, a State Water Commission (SWC) hydrologist uncovered the 1975 law. A decades-long lapse in awareness and in practice has brought us to today.

Currently, there are 35 temporary use water permits issued in the Little Missouri River basin. Of these, only two have been issued in the area from the North Unit of Theodore Roosevelt National Park (TRNP) to the South Dakota border, and neither of these is on the Little Missouri River proper (http://www.swc.nd.gov/pdfs/littlemo_temp_permits.pdf).

Given the importance of our Little Missouri River to our state, and as a course of action in response to the recent discovery of the SWC’s noncompliance with the 1975 law, I have:

1. Been assured by the State Engineer that no conditionalwater permits have ever been, or will be issued establishing industrial water rights from surface water in the Little Missouri River basin.

2. Asked the State Engineer to immediately suspend the issuance of any new temporary nonagricultural use permits in the Little Missouri River basin upstream from the Highway 85 bridge(known as the Long X Bridge), at the east end of the North Unit of TRNP. This area of new permit suspension stretches from the North Unit of TRNP, south along the river, through Medora, past Marmarth, N.D., all the way to the South Dakota border, and includes the entirety of the Maah Daah Hey Trail and both units of TRNP.

3. Initiated the reinstatement of the Little Missouri River Commission. We have searched archives and the last recorded meeting of this commission was held in Dickinson in 2007. Commission membership, by law, includes the Director of the North Dakota Parks and Recreation Department, the State Health Officer, and the Chief Engineer of the State Water Commission, or their designated representatives; and one member from each of the following counties, appointed by their respective county commission: McKenzie, Billings, Slope, Golden Valley, Dunn and Bowman. The county representatives must be resident landowners who live adjacent to the Little Missouri River, with the exception of the Golden Valley County representative. The governor’s office will work with the State Water Commission and the respective county commissions to re-establish an active Little Missouri River Commission.

4. Asked the State Engineer to immediately reviewmodify and make transparent the process and requirements for any future issuance of temporary use permits for non-agricultural uses, and to make public all the available data on the temporary permits that have been issued since 1990. The State Engineer will deliver a preliminary report within 60 days. Also, this report and its findings will be presented to the Little Missouri River Commission and the State Water Commission. No new temporary use permits will be issued upstream of the Long X Bridge until the new system for application and approval is created.

5. Asked the State Engineer to evaluate the future need for additional Little Missouri River stream gauges. Presently, the SWC continuously monitors stream gauge flows in the Little Missouri River at three locations: Marmarth, Medora and the Highway 85 bridge. Many letters expressed concerns about water depletion in the LMR due to the industrial permits. The initial review of the river flows indicates this is a false hypothesis.  In a typical year, there is over 300,000 acre-feet of LMR water flowing past the Long X bridge. The peak year was the big flood year of 2011, when it reached a modern record of 1.1 million acre-feet of flowage. The low year of flowage since electronic recordkeeping began at the SWC in 1990 was 49,000 acre-feet (1992). In 2012, the peak year for industrial use between the TRNP North Unit and the South Dakota border, total reported use was 47 acre-feet, and it accounted for less than one-tenth of 1 percent (0.1%) of the total stream gauge flow.  For comparison, agricultural use that year was 1,024 acre-feet, while the Bully Pulpit golf course at Medora typically draws 155 acre-feet from its conditional use permit.

In addition to the above action steps, I thought you might find the following information useful:

Most temporary use permits are issued for periods of three to six months with a maximum of 12 months. All temporary permits are subject to cancellation by the State Engineer at any time, including for any violations in use, or when necessitated by drought conditions.

Temporary use permits cannot be renewed. A new application is required upon the term ending for the temporary use.

Many of temporary use permits (265 of 600) issued between 1990 and today were to support construction projects, including using water for dust control or as part of road/highway construction.

“Temporary use permits are strictly regulated by the State Engineer. Sample conditions can be found  at http://www.swc.nd.gov/pdfs/temp_permits_sample_conditions.pdf

Temporary use permits provide many benefits, including:

  • Limiting the impact on depletable water sources such as aquifers and artesian springs, a real concern in the area of the Fox Hills aquifer.
  • Avoiding the need to haul water across long distances, thereby reducing truck traffic and dust that impact wildlife, livestock, vegetation and human health. Eliminating temporary use permits would directly and substantially increase truck traffic within the LMR basin.
  • Reducing the risk of human injury from truck-vehicle collisions that may result from increased traffic congestion, as well as reducing the risk to wildlife. Truck vehicle miles traveled in North Dakota increased 88 percent from 2007 to 2015, and traffic crash fatalities increased from 104 in 2008 to 170 in 2012.
  • Reducing costs associated with building and maintaining roads due to increased heavy truck traffic.

If you desire additional technical information, or information on river flow, please contact Garland Erbele, State Engineer for the Office of the State Engineer at (701) 328-4940 or swc@nd.gov.

Our rivers, streams, lakes, aquifers and artesian springs provide a resource that supports our diverse economy, including the tourism/recreation, agriculture and energy sectors.

Thank you for your passion, concern and engagement in the public discourse about our conservation heritage and legacy.

Regards,

Doug Burgum
Governor

JIM FUGLIE: View From The Prairie — An Open Letter To Governor Doug Burgum, On The Occasion Of The Greatest Threat Ever To The Little Missouri State Scenic River

Dear Gov. Burgum,

Let me quote from the conservation easement you signed for some ranchland you and your friends own in southwest North Dakota’s Bad Lands six years ago:

“The Protected Property possesses agricultural, scenic, and historic, and cultural values. The Protected Property is located in the heart of the only Ponderosa pine forest in North Dakota, south of Teddy Roosevelt’s historic Maltese Cross Ranch. This area is rich in history and is deep in the North Dakota Badlands. The scenic Little Missouri River runs directly through the Protected Property and is the only state-designated scenic river in North Dakota. (emphasis added)

“The Little Missouri National Grasslands … offer significant open space and scenic values to local residents and the general public. In addition, the integrity of the Little Missouri River corridor is significant to the entire state, region and nation in the context of its historic and cultural role in the Native American history of the Upper Great Plains …” (emphasis added)

“Preservation of the Protected Property as an undeveloped area will provide significant public benefit via the tremendous scenic qualities and visual access the Protected Property possesses.” (emphasis added)

“These Conservation Values are of great importance to the Grantor, Grantee, and the people of the state of North Dakota. In addition, these values are vitally important to the people of the nation due to the significant relationship to the river corridor and the need to preserve the view along the Little Missouri River in this specific area.” (emphasis added)

That was YOU, Gov. Burgum six years ago, writing about YOUR ranch in the southern Bad Lands. A document filed in the Slope County Court House in Amidon, N.D.

Well, Governor, that was when you were just a ranch owner and only concerned about protecting your little piece of the Little Missouri River. Concerned enough to try to put a perpetual conservation easement on that land so it could never be developed. So that there could never, ever, be anything more than a gravel road leading to the river bottom. So that commercial and industrial development, like water depots and truck refueling stations, would be forbidden on that piece of the Little Missouri River. FOREVER.

Again, from your document:

“The purpose of these Covenants is to preserve and protect in perpetuity the Conservation Values of the Protected Property … in accordance with (Section) 170(h) of the Internal Revenue Code.”

I don’t know if you were successful, since perpetual easements are illegal in North Dakota. I don’t know if you were seeking, or received, federal tax breaks for putting this easement on your property because Section 170(h) of the Internal Revenue Code, which your refer to several more times in your easement document, specifically says, “A contribution shall not be treated as exclusively for conservation purposes unless the conservation purpose is protected in perpetuity.” And easements of this sort in North Dakota are limited to 99 years. Which is certainly not “perpetuity.”

Well, anyway. That was then, when you were responsible and concerned for just your little chunk of the Little Missouri River, and no one doubts that your motives were anything less that sincere about protecting the Little Missouri State Scenic River valley.

But now, Gov. Burgum, you’re governor of the whole state and responsible for protecting the entire Little Missouri River, “the only state-designated scenic river in North Dakota,” as you so ably pointed out in your easement papers.

That State Scenic River designation is part of our state’s laws, in Chapter 61-29 of the North Dakota Century Code, which says:

“Channelization, reservoir construction, or diversion other than for agricultural or recreational purposes and the dredging of waters within the confines of the Little Missouri scenic river and all Little Missouri River tributary streams are expressly prohibited. “ (emphasis added)

The only water that can come out of that river is water to be used for “agricultural or recreational purposes.” Because the North Dakota Legislature said, in writing this law in 1975, that the Little Missouri State Scenic River is too valuable to the state to allow industrialization of the river to take place.

At least, that is what it says today. But now there’s a new law in front of you, Governor, awaiting your signature (or your veto?) passed by the 2017 Legislature, which changes all that. For the past 10 years or so, your State Water Commission, of which you, now, as governor, are the chairman of, has been violating that law and issuing permits for industrial use of Little Missouri State Scenic River water. This year, your staff over there at the Water Commission has decided to come clean and ask that those permits be made legal. Mind you, they didn’t cancel the permits when we found out they were issuing them illegally. They just decided to change the law to make them legal. With the help of oil industry lobbyists and friendly Republican legislators. No doubt those oil industry lobbyists are perched outside your office right now, waiting to encourage you to sign the bill into law and give them, legally, million of gallons of Little Missouri State Scenic River water.

And that’s what the bill in front of you, HB1020 passed this week by the 65th North Dakota Legislative Assembly, does. And those legislators are asking you to sign it into law. So that their friends (and more and more, it’s starting to look like your friends, too) in the oil industry can continue to get that water.

And if you and the Legislature make it legal, the oil industry will probably want way more than they’ve been getting so far, from those 600 illegal water permits they were issued by your Water Commission staff over the past 10 years. They won’t have to worry about any penalties for breaking the law any more.

So are you going to sign it, Gov. Burgum? Are you going to legalize the industrialization of the Little Missouri State Scenic River valley? Or are you going to remember what you wrote six years ago about your little piece of the Little Missouri State Scenic River valley:

“The integrity of the Little Missouri River corridor is significant to the entire state, region and nation in the context of its historic and cultural role in the Native American history of the Upper Great Plains …” and an “undeveloped area will provide significant public benefit via the tremendous scenic qualities …”

Water tanker trucks and dry riverbeds don’t contribute much to the “integrity” or “scenic qualities” of the Little Missouri State Scenic River Valley. Are you going to let that happen? Or are you going to accept your responsibility as governor of the WHOLE state, and the WHOLE Little Missouri State Scenic River, and veto the section of HB1020 that opens up the river valley to industrialization by the oil industry? The Little Missouri State Scenic River is counting on you, Gov. Burgum. You decide.

Gov. Burgum, please read, and contemplate a little bit, this poem from my dear friend, Debra Marquart, written before the bust. Debra is a native North Dakotan who, like you, cares deeply about her state, Gov. Burgum. Read this and maybe you’ll give that veto power just a little more consideration.

LAMENT

By Debra Marquart

(c) 2015

north dakota,   I’m worried about you

the company you keep   all these new friends   north dakota

beyond the boom, beyond the extraction  of precious resources

do you think they care what becomes of you

 

north dakota, you used to be the shy one

enchanted secret land only by a few   north dakota

 

when I traveled away and told people I  belonged to you   north dakota

your name rolled awkwardly from their tongues

a mouth full of rocks, the name of a foreign country

 

north dakota   you were the blushing wallflower

the natural beauty, nearly invisible, always on the periphery

north dakota   the least visited state in the union

 

now everyone knows your name   north dakota

the blogs and all the papers are talking about you   even 60 minutes

 

I’m collecting your clippings   north dakota

the pictures of you from space

the flare ups in your northern corner

like an exploding super nova

a massive city where no city exists

a giant red blight upon the land

 

and those puncture wounds   north dakota   take care of yourself

the injection sites   i see them on the maps

eleven thousand active wells    one every two miles

 

all your indicators are up   north dakota

four hundred billion barrels, some estimates say

more oil than we have water to extract

more oil than we have air to burn

 

north dakota   you could run the table right now   you could write your own ticket

so, how can I tell you this?   north dakota, your politicians

 

are co-opted (or cowards or bought-out or honest and thwarted)

they’re lowering the tax rate for oil companies

they’re greasing the wheels that need no greasing

they’re practically giving the water away

they’ve opened you up and said, take everything

 

north dakota   dear sleeping beauty   please, wake up

 

what will become of your sacred places,

what will become of the prairie dog

the wolf, the wild horses, the eagle

the meadowlark, the fox, the elk

the pronghorn antelope, the rare mountain lion

the roads, the air, the topsoil

your people, your people,

what will become of the water?

 

north dakota   who will ever be able to live with you

once this is all over   I’m speaking to you now

as one wildcat girl   to another   be careful    north Dakota

JIM FUGLIE: View From The Prairie — Act Today To Protect The Little Missouri State Scenic River

There are two or three days left in the legislative session. A lot of bad things are going to happen to North Dakota in that short period of time. I’ve been watching every legislative session since 1975, and this one is by far the most irresponsible I’ve seen.

One of the worst things that could happen this week is the industrialization of the Little Missouri State Scenic River. I wrote about this last week. I won’t go back into it here. Instead, I’m asking you to help stop something bad from happening.

Below is an email I sent to Gov. Doug  Burgum this morning. In it, I am asking him to instruct his state engineer to withdraw the amendment to the Little Missouri Scenic River Act that he has requested in House bill 1020. You can read it here. It is on page 8, about halfway down the page. The words “temporary use,” which they are adding to the Act, are code words for Industrial Water Permits. The Water Commission’s own engineers told me that last week.

Please consider emailing Gov. Burgum by going to this link on his web page and ask him to have his state engineer withdraw his request for changes to the Little Missouri State Scenic River Act in HB1020. Please do it today. Tomorrow is probably too late. Thank you for your help.

Here’s the email I sent this morning.

Dear Gov. Burgum,

In 1975, the Legislature acted to protect the Little Missouri State Scenic River (its full and appropriate title) from industrial development by passing the Little Missouri State Scenic River Act, now Section 61-29 of the North Dakota Century Code.  Many of my friends and I were involved in that effort to protect the Little Missouri River, as the state faced a request from Tenneco to build a coal gasification plant in western North Dakota, using water from a dam on a tributary of the Little Missouri. The act specifically said “No water for industrial use from the Little Missouri or its tributaries.” That law has withstood the test of time, except that the State Water Commission has been violating it for years by giving out illegal industrial use water permits from the Little Missouri, by their own accounting more than 600 of them, to the oil and gas industry. Now the Water Commission has asked that an amendment to 61-29 be approved to allow them to legally give out industrial water permits. They have done so in an amendment to House Bill 1020, a Water Commission appropriations bill. I am writing to ask you to instruct the State Engineer to ask the Legislature to remove that amendment from HB 1020 today. You and I both know that the Little Missouri is too valuable to be used as an industrial water source. That’s why it has been named the state’s only State Scenic River, and is the only river protected from development by state law. Please act today to preserve that law, and our precious Little Missouri State Scenic River.

JIM FUGLIE: View From The Prairie — More About Gout And Canada Drugs

Well, Thursday and today I have learned I did not ask enough questions of my doctors about treating gout. Partly my fault — the specialist is a very busy guy, and I did not think to go back to my family physician and find out about ongoing inexpensive meds to keep the gout at bay once I have whipped it with the expensive drugs. I am off to get some Allopurinol and canned cherries in a few minutes.

But first, I want to share with you a comment that came to my blog from a fellow in Canada today who works for Canada Drugs. I am so pleased he took the time to write. He explains the conspiracies under way to keep Canadian drugs out of the U.S. For example, why we have to send a check instead of using a credit card, and why it takes two weeks to get things shipped to us. I am glad to know this, but it really torks me off to know it. Here’s his comment.

“Jim, first of all, OUCH TO THE GOUT! As a sufferer of gout, my stomach (and joints more specifically) knotted up right away reading your post, I literally feel for you and all us other gout-ers! Second, I must come clean and say that I work for Canada Drugs. I just stumbled across your post when a google news alert pointed me to your article. Third, I’m not here to sell anyone on us. To answer a couple of quick questions you had in your post:

“1. Cheques — my oh my would we love to accept credit cards like all normal business have been doing for decades. Unfortunately U.S.-based special-interest groups have spent many years and millions of dollars campaigning companies like Visa, MasterCard, banks, payment processors and anyone else they can throw propaganda at to deny credit card processing services to LICENSED pharmacies that choose to engage in assisting patients in countries all around the world access CHOICE and AFFORDABLE medications when faced with prices that are simply too high locally. As a result, we have had to go back in time somewhat. But no matter what, we believe in a fundamental human right that all people should have access to the medications and medical care necessary to live a healthy and productive life. I’ve been working with Canadian mail-order pharmacies since the industry started back in 2001, and I can tell you that slowly but surely Big Pharma, with the help of their not so secretly funded special interest groups are doing a great job of making it increasingly difficult for people to be able to follow their doctor prescribed therapy.

“2. Speed of Delivery — much like above, special-interest groups working on behalf of Big Pharma work wonders to scare off the likes of DHL, UPS, FedEx or others from helping patients access their needed medications. As such, we’re left with a few, slow, but reliable, methods of shipping products to patients. It takes time, but it gets there, and we go the extra mile to ensure that if for whatever reason the medication doesn’t make it there (like when a volcano in Iceland years ago disrupted mail systems for months because of the ash clouds blocking flight paths of the most active air cargo routes), the pharmacy will re-ship the medication at no charge.

“Every day is an uphill battle. Every day, we see articles always talking about the scary rogue pharmacies out there that are unsafe … AND THEY ARE UNSAFE AND SCARY … BUT … but those same articles almost never actually offer solutions, or point people to SAFE options like licensed, inspected, regulated, mail-order pharmacies, until such time as the U.S. government addresses the problem permanently by in some way putting the health of people, the health of its citizens, ahead of gross corporate profiteering. The pharmaceutical companies MUST profit, they MUST have financial incentives to innovate and push at the boundaries of science and technology, BUT there MUST be a balance that recognizes the rights of all people to health and wellness equally.

“Fight the good fight Jim. I hope you are able to keep your gout as managed as possible while still enjoying all the culinary delights that make you happy. As a father to three beautiful girls, with whom I love baking and cooking, and then consuming our creations, just as above, I seek balance between what I love (food) and what I need (to not be debilitated by gout).

“All the best, from myself and the other 200 people in Winnipeg who take your calls, work in the pharmacy, pick, pack, and dispense the medications you need.”

Wasn’t that nice of him to write? God, I love Canadians.

Old joke: How did Canada get its name?? Well, they put all the letters of the alphabet into a hat, and started drawing.  C, eh? N, eh? D, eh?  Done. (It loses something when you write it, better out loud.

OH, CANADA!

JIM FUGLIE: View From The Prairie — Growing Old Is Not For Weenies; It’s Good To Have A Friend In Canada

I got gout.

Of all things, after a long winter in which I survived two spine surgeries to relieve pressure from a herniated disc on my sciatic nerve, I woke up one morning in early March with excruciating pain in the big toe on my left foot.

My first thought was an ingrown toenail, so I went to my doctor and he carved me up a bit and sent me home, with instructions to take some of the opioids I had been taking for my back problem for a couple of days, until my toe quit hurting.

It didn’t quit. So he referred me to a podiatrist, who said I probably had gout. He wasn’t quite sure but gave me a prescription for gout pills. It’s called Colchicine, and it makes your big toe feel better. Not 100 percent better, but a whole lot better.

He said he would give me a prescription for 30 pills, but I should quit taking them when my toe quits hurting. Shouldn’t take more than a few days, he said. I should keep the rest for flare-ups, which happen occasionally.

So I traipsed up to the pharmacy to pick up my Colchicine. And the druggist said “Just so you know, before I fill this, it’s $190 for these 30 pills.”

Whoa, I thought to myself. How bad does that toe really hurt? A hundred and ninety bucks worth?

So, recalling the words of the doctor who said he was giving me more than I needed right now, I asked “How much for 12?”

“That would be $80,” was the reply. I thought for a minute, and said “OK, give me 12.”

Now keep in mind I have prescription drug insurance, so that was just my co-payment cost.

I guess drug companies believe that old saw about gout being a “rich man’s disease” and figure they can get away with outrageous prices.

Well, gout’s not only a rich man’s disease, it’s an old man’s disease. I’m old, but I’m not rich. I took my 12 pills and went home. I took them. The gout went away. Pretty much. A twinge once in a while, but easy to live with.

The problem is, there are things you are not supposed to consume when you have gout. Good things. Things I really like. Things like red meat, scallops, asparagus and beer. Some of my favorite things.

So, for 10 days I avoided those things. And took my pills. And I felt pretty darn good.

But I got to thinking. The doctor said I “probably” have gout, but he wasn’t sure. What if I had another problem with my big toe, not gout, and it had just gone away on its own? I didn’t want to quit eating things I really like if it really wasn’t necessary. So I decided to do a field test. Scallops. God, they were good. And yep, I have gout.

I limped around for a couple of days and the pain subsided. And for a couple of weeks, I felt pretty good. Until last weekend. At a nice restaurant Saturday night, I perused the menu and decided to forego the red meat, and I ordered the tuna. Turns out I hadn’t read far enough down the list of foods not to eat — I had gotten discouraged at scallops. Tuna was on there. And I am paying a price for that, yet today.

So I decided to get some more of those nifty little pills that take the pain away. But at $80 for 12 — more than $6.50 a pop — I had to weigh the possibility this would go away on its own.  It hasn’t, as of Thursday afternoon.

So I decided to check the Canada Drugs website to see what they were selling for in Winnipeg. Now, I wrote about Canada Drugs a few months ago, but the next day, I found a bad math error, and I wasn’t sure if I could even get it corrected, so I just yanked the post from my blog. I never did get around to ordering anything from them. Until this week.

I went to their website and typed in Colchicine. Popped right up.

$83.04.

For 100.

83 cents each. As opposed to $6.66 each at my pharmacy a month ago.

And the company was a joy to deal with. I needed to call its toll-free number to get a password to be able to order from the website, and the nice customer service lady who answered said, “As long as you’re on the phone, let me just take your order now, and then I’ll give you a password to use online next time.”

The lady was in Winnipeg, so we’re practically neighbors. She took my order and I asked her if she wanted my credit card number to pay for them. She said that sometimes there are problems with credit cards across international lines, with currency exchange fees and such, and to save me money, how about if I just send her a check?

Really? When was the last time somebody asked you to send them a check? She said I should just send the check right away, and she would go ahead and process the order while the check was in the mail. I felt like I had stepped back in time. Gotta love those Canadians.

I had to get a written prescription, and then scan it, and e-mail it to them.

It took a few minutes for me to explain to my doctor and his nurse why I wanted 100 of those little buggers — that was the smallest quantity Canada Drugs wanted to send me — and they seemed a little nervous that I might be abusing them or something. But when I told them the pills were coming from Canada, they were quick to write out the prescription. I expect they’ve dealt with this before.

The only down side is it’s still going to take a couple of weeks for the pills to get here, by the time the order works its way through their system and then through the Canadian and U. S. mail systems. I hope by the time it gets here I don’t need them. Then again, I might just go out and have a scallops appetizer, some asparagus and a tuna steak. And a beer to wash it down. Just to be sure I really have gout.

Oh, and here’s the website. CanadaDrugs.com

JIM FUGLIE: View From The Prairie — State Agency Breaks The Law 600 Times; How Much Jail Time Do You Get For That?

The North Dakota State Water Commission has violated state law more than 600 times in recent years, by issuing permits for industrial use of water (read: fracking oil wells) from the Little Missouri State Scenic River. Employees there claim they didn’t know they weren’t supposed to do that. I believe them. But that’s no excuse. More on that in a minute. First, a little history lesson.

Let’s travel back in time 42 years. The 1975 North Dakota Legislature passed a bill that started with the words “This chapter may be cited as the Little Missouri State Scenic River Act.” And that’s how we came to have the Little Missouri State Scenic River, North Dakota’s only designated State Scenic River.

Bills become laws. Here are two chapters of this bill as it was written into the North Dakota Century Code after it was approved by a large bipartisan majority and was signed by Gov. Art Link. The law remains there, untouched, 42 years later. Until now.

“The purpose of this chapter shall be to preserve the Little Missouri River as nearly as possible in its present state, which shall mean that the river will be maintained in a free-flowing natural condition, and to establish a Little Missouri River commission.” — North Dakota Century Code 61-29-02

“Management. Channelization, reservoir construction, or diversion other than for agricultural or recreational purposes and the dredging of waters within the confines of the Little Missouri scenic river and all Little Missouri River tributary streams are expressly prohibited.” — North Dakota Century Code 61-29-06

That’s still the law, 42 years later. You can’t build dams on the Little Missouri River or any of its tributaries. Neither can you take any water from the river or its tributaries for any use other than irrigation or recreation.

Back in 1975, we decided the Little Missouri was special, and we decided to protect it from industrial use. And, you know, we observed that law for more than 30 years. Until someone invented fracking. Fracking takes millions of gallons of water to make an oil well operate in the Bakken. Some estimates run as high as ten million gallons per well.

And so, oil companies began looking for some serious water supplies. And they saw that pretty little river running through the Bad Lands and thought that might be a good place to get some. So they went to the Water Appropriations Division of the State Water Commission and asked, “Hey, could we have some of that water?” And the engineers at the Water Commission office said, “Sure.”

They said “sure” more than 600 times. And each time, they claim they did not know they were breaking the law. Chapter 61-29 of the North Dakota Century Code. Which specifically says they couldn’t do that.

And so those big old trucks backed up to the Little Missouri State Scenic River and sucked the water out to fill their tanks, and took it over to a well site and  mixed it with some sand and chemicals and pumped it down a well hole to break up the shale holding the black gold below.

The engineers at the Water Commission told me this week they weren’t worried about running the river dry because the Little Missouri has plenty of water. Uh, huh. Tell that to canoeists (like me) who know they only have a three- to four-week window each year when there’s enough water to float a canoe. Or to the hikers and bicyclists who regularly ride or hike across the river on the Maah Daah Hey trail without getting their knickers wet.

I had an old Bad Lands rancher tell me not so many years ago that nine years out of 10 you could canoe the Little Missouri River on Memorial Day weekend. Now it’s more like two or three out of ten. Just sayin’ …

Well, all this came to light last week when I was looking at the appropriations bill in the Legislature for the State Water Commission. Tucked away in that bill, down at the bottom of page 8 of a 13-page bill, is this:

“SECTION 16. AMENDMENT. Section 61-29-06 of the North Dakota Century Code is amended and re-enacted as follows: 61-29-06. Management. Channelization, reservoir construction, or diversion other than for agricultural or, recreational, or temporary use purposes and the dredging of waters within the confines of the Little Missouri scenic river and all Little Missouri River tributary streams are expressly prohibited. Flood control dikes may be constructed within the flood plain of the Little Missouri River. Diking and riprapping for bank erosion control shall be permitted within the confines of the Little Missouri scenic river. The construction of impoundments for any purpose on the Little Missouri mainstream shall be prohibited. This chapter shall in no way affect or diminish the rights of owners of the land bordering the river to use the waters for domestic purposes, including livestock watering, or any other rights of riparian landowners.”

Notice those three underlined words, “or temporary use.” That caught my eye. What’s the definition of “temporary” and what the heck is going on here? They are amending the State Scenic River Act. To allow something that hasn’t been allowed before, or it wouldn’t take an amendment to the law. What’s up?

Since the language was in the Water Commission’s appropriations bill, I sent an e-mail to a couple of members of the Legislature’s Appropriations Committees and to my state senator, Erin Oban. I got almost instant replies, telling me who to contact at the Water Commission to get the story on this.

Which I did. I had a 40-minute phone conversation this morning. And here’s what I learned.

A couple of weeks ago, a young staff person in the Water Appropriations Division of the Water Commission came running up to the boss’s office with a copy of a blog post I wrote last year about the Little Missouri Scenic River Commission, in which I cited the language from Chapter 61-29 (above).

“Holy Cow! We’ve broken the law! 600 times!”

What the commission had done, of course, was fairly logical. If an oil company needed water, and the Little Missouri was close by, it issued permits for “diversion” of some of that water. Made sense to the Water Commission staff. If the oil company could get water close by, the oil company could save money, there would be fewer trucks hauling water from somewhere else, less dust in the air from those trucks  — what’s not to like about that?

Except the water was coming from the LITTLE MISSOURI STATE SCENIC RIVER. AND THAT’S AGAINST THE LAW.

But nobody at the Water Commission knew about the law. In spite of the fact that the law established a Little Missouri State Scenic River Commission, and the state engineer, who runs the Water Commission staff, is a member of that commission. I wrote a couple stories about that last year, under the headlines “Who’s Looking Out For The Little Missouri?” and “Turns Out Nobody’s Looking Out For The Little Missouri.”

I suppose because the Scenic River Commission has been inactive for many years (also in violation of the law) and because there’s no institutional memory on the Water Commission staff, we could forgive the current staff for not knowing about it. But as I pointed out to the staff people I talked to, ignorance of the law is no excuse. That’s something we’ve all had preached to us all our lives.

“Honest, officer, I didn’t know the speed limit was 45 here.”

“Sorry, dude, here’s your ticket. Ignorance of the law is no excuse.”

Well, anyway, the staff decided it needed to do something about that. It could have sent a letter to everyone with a current permit and told them their permit was revoked. And then obeyed the law for the rest of it life.

Or it could try to change the law, so it could issue more permits, legally.

Which is what it did. It went running over to friendly Republican faces on the Senate Appropriations Committee and had them put an amendment on the Water Commission appropriations bill making those permits legal. And it almost slipped it through. A friend of mine happened to be in the Senate chamber one day last week when the chief clerk was reading the title of the bill on the Senate Floor and heard the words “Little Missouri Scenic River Commission” and mentioned it to me that night.

I did a little digging and now we all know the rest of the story. So far.

The bill has not passed yet. It is stuck in conference committee. The conference committee members are Reps. Jim Schmidt, Roscoe Streyle and Tracy Boe and Sens. Gary Lee, Ronald Sorvaag and Larry Robinson. If you know any of them, send them this blog, and call them and ask them to take the amendment to Chapter 61-29 out of the bill, to save what’s left of the Little Missouri River. Because if the bill passes, and the boom comes back, there are going to be 600 more water permits issued.

And send it to Gov. Doug Burgum as well. Because this is an appropriations bill, I’m pretty sure he has line-item veto authority under legislative rules and state law. Tell him to strike that chapter from the bill before he signs the Water Commission budget bill, HB 1020.

Seriously, do those things. Somebody has to look out for the Little Missouri, and if government won’t do it, we have to do it ourselves.

Thank you. Amen.

JIM FUGLIE: View From The Prairie — ‘Guilty, Your Honor’

Jason Halek wandered in and out of Bismarck on Wednesday. He wasn’t all that excited about being here, and I’m pretty sure he didn’t stick around to visit with old friends, instead likely heading back to Texas to sell some more used cars. For a couple more months.

I wrote about Halek last month, after his lawyer negotiated a plea agreement with the U.S. government in the matter of violations of the U.S. Safe Drinking Water Act. He is responsible for dumping 800,000 gallons of poisonous oilfield brine down an abandoned well south of Dickinson, N.D., about five years ago.

And even though the lawyers had done their work, the federal court system requires that everyone line up in front of a judge and get that plea agreement on the record before the judge hands down a sentence. That formal “plea hearing” took place in Judge Daniel Hovland’s courtroom Wednesday.

I don’t spend much time in courtrooms, so it was kind of an interesting experience for me. I was the only spectator, the only person in the room not involved in the proceedings. The North Dakota media has studiously avoided covering this case, in spite of the fact that it has been labeled by government attorneys as the most serious safe drinking water case in North Dakota since the oil boom began. You can read the background on this case here, in case you’re new to the coverage on my blog.

The huge courtroom with the towering ceilings has very poor acoustics, and I don’t hear all that well, so I’m going to describe the proceedings as best I can, but keep in mind, these are not actually direct quotes, just a pretty good summary of what took place.

When I arrived, Judge Hovland had just finished up another sentencing case, so he was already on the bench. Three government attorneys, led by Christopher Costantini from the U.S. Justice Department in Washington, D.C., who I am told, is one of the leading environmental prosecutors in America, entered the courtroom first. They were greeted by Judge Hovland, who said “Welcome to the wild, wild west.” To which Costantini replied, “Thank you, Your Honor.”

Halek’s attorney, Alex Reichert of Grand Forks, came in next, followed shortly by Halek himself. This was the first time I had seen Halek in person. I would describe him as a hipster, in today’s parlance. He’s got a shock of dyed or bleached yellow hair which hangs down onto his forehead, in kind of a Trumpian fashio. But the rest of his hair is brown and curling a bit over the collar. He was wearing a nondescript black suit and a white shirt and tie, and he seemed to smile a lot, considering the fact he was there to plead guilty to three felonies.

The judge acknowledged the presence of the three government attorneys (I didn’t ask, but I’m guessing the other two were from the North Dakota U.S. Attorney’s office), welcomed Reichert and then proceeded to quiz Halek a bit, asking about his family (“I have two daughters, ages 19 and 21, your honor”) and where he was living at the time (in Texas). And the judge asked if Halek was aware of the charges against him, and Halek replied he was. All in all, a very pleasant, casual conversation.

The judge then explained that he was going to read three charges against Halek, charges 2, 3 and 4 of a 13-count indictment the government had brought earlier.

“Count 2 is a violation of the Safe Drinking Water Act. How do you plead?”

“Guilty.”

“Count 3 is another violation of the Safe Drinking Water Act. How do you plead?”

“Guilty.”

Count 4 is another violation of the Safe Drinking Water Act. How do you plead?”

“Guilty.”

The judge then lifted up a great big book, probably 500 or 600 pages, and said that in the book were guidelines for sentencing crimes like the ones Halek had committed and pleaded guilty to. He asked Attorney Reichert if he and his client were familiar with the sentencing guidelines. Reichert held up his own copy of the book and said, “Yes, Your Honor.”

The judge acknowledged the earlier agreement between Costantini and Reichert, that Halek would serve between 24 and 30 months in prison, and said he would consider the agreement and said everyone should come back to his courtroom on July 31 for formal sentencing, to hear his decision on whether he accepts the agreement. That’s the day Halek will shuffle off to prison.

The only thing I learned from Wednesday’s hearing was that this is costing the U.S. government a lot of money. Costantini had to fly in from Washington. And he’s put in a lot of hours on this. The Environmental Protection Agency and the Justice Department don’t take Safe Drinking Water Act violations lightly. Good for them. Halek now has a court-appointed attorney — he had originally hired Reichert, but he appears to have run out of money, so the government is picking up the tab for his lawyer now. And Reichert had to drive in from Grand Forks. Maybe the used car business is not so good in Texas these days. And from what I can tell, he’s still on the hook for about $22 million in a fraud case in Texas that’s never been settled.

Luckily for North Dakota, which according to the Legislature meeting right now, seems to be teetering on the brink of bankruptcy, it’s the feds picking up the tab. Our attorney general, Wayne Stenehjem, determined a few years ago that there just wasn’t enough evidence to convict Halek of anything. As I have reported here several times, it was our U. S. Attorney, Tim Purdon, who called bullshit and went after Halek. Maybe Stenehjem foresaw this economic disaster the state’s facing right now and wisely decided to save the state some money. In that case, I guess we should be grateful to him for being prudent with the state’s money. Uh huh.

I’ll report back July 31.