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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE GOOD NEWS

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

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

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

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

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

Here are a couple of excerpts from the meeting minutes:

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

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

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

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

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

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

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

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

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

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

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

Here are two numbers to remember:

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

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

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

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

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

WHO PAYS?

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

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

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

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

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

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

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

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

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

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

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

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

Uh huh. Just in case.

Anybody want to make bets on that?

STILL COMING CLOSE TO THE ELKHORN

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

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

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

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

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

FOUR LANES ON HIGHWAY 85

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

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