LILLIAN CROOK: WildDakotaWoman — Our Comment Letter On The Proposed Little Missouri River Bridge

Jim has written about the proposed new bridge over the Little Missouri State Scenic River north of Medora, N.D., that is being shoved down our throats by a megalomaniac county commissioner who wants to spend up to $20 million of our gas tax dollars on a “Bridge to Nowhere.”

At the insistence of the Federal Highway Administration, the county is deep into an Environmental Impact Statement process — in fact nearing the end stages of that process — and will soon be asking for federal funds to build its bridge. One of the final steps in the process is a public comment period, which is open now and runs through Sept. 4. If you go to this website, you will find the details and a link to another website which contains the actual Draft EIS, for your reading pleasure.

If you have any feelings about running a lot of traffic through the valley of the Little Missouri State Scenic River, or wasting millions of taxpayer dollars, you should send in comments on the project. Below is the letter Jim and I have sent expressing our feelings. This letter and Jim’s earlier blog should give you plenty of information about the project, so you don’t have to read the entire 178-page document. (Although if you really want to spend a summer afternoon reading, here’s the link to the Draft EIS.)

Even easier, if you agree with what we have written, feel free to just copy and paste a link to this blog into an e-mail addressed to LMRC@kljeng.com and tell Jen Turnbow you agree with the letter in the blog, and your comments will be duly noted.

Jen Turnbow, Project Manager

KLJ

P.O. Box 1157

Bismarck, N.D. 58502-1157

Aug. 17, 2018

Dear Ms. Turnbow:

Please accept these comments on the Draft EIS for the Little Missouri River Crossing in Billings County, North Dakota. We are writing to recommend Alternative L, the no-build option.

If built, this bridge would be the most colossal waste of taxpayer dollars in memory. If it is built with federal or state matching funds, approved by the North Dakota Department of Transportation, it will be a huge embarrassment for both the North Dakota DOT and the Federal Highway Administration because it is truly a “bridge to nowhere.”

North Dakota has substantial infrastructure needs, as witnessed by several state legislators recently, and the proposed $11.2 million, and likely as much as $20 million, could be much better spent correcting existing problems rather than building a new bridge unlikely to be used by many except possibly the oil industry.

In spite of all being said by the county and KLJ, it appears the only real beneficiary of this bridge would be the oil industry. Federal, and state tax dollars should not be spent to accommodate a single industry, especially at the expense of real and substantial damage to the historic, recreational and scenic properties of the states only designated State Scenic River.

If the bridge is built with Billings County taxpayer dollars, as the commission has indicated it might do if federal or state dollars are not available, it should be subject to a referendum by Billings County voters before it is approved.

Almost no one wants this bridge. It has simply become a cause celebre for Billings County Commission Chairman  Jim Arthaud, who has already spent several million dollars in Billings County tax dollars pursuing it, and despite the fact it is not in his preferred location, has gone too far down the road for him to consider abandoning it without losing face. It is simply now a monument to his persistence, a monument on which he would like his name inscribed.

Almost no one will use this bridge, according to testimony at the public hearings, unless KLJ, the project’s engineers, are misleading us with this statement:

“Traffic volume increase of 3.5 percent for roads associated with the alternative and adjacent roadways. Not expected to generate new traffic; however the redistribution of local trips attracted to the new bridge is anticipated to increase the typical 2.5 percent traffic growth rates by 1 percent for roads associated with the alternative and adjacent roadways.”

If that statement is true, there is no need for the bridge. If that statement is misleading (which is not only possible, but likely), and the volume of heavy truck traffic increases dramatically, it will destroy the sanctity and peacefulness of the state’s only designated State Scenic River, likely in violation of Chapter 61-29 of the North Dakota Century Code, the Little Missouri State Scenic River Act, enacted by the North Dakota Legislature “to preserve the Little Missouri River as nearly as possible in its present state … (and) maintain the scenic, historic and recreational qualities of the Little Missouri River and its tributary streams.” The North Dakota DOT, as a lead agency for this project, should not approve a project which would violate the law.

Today there are ZERO trucks driving through the river valley and across the Little Missouri State Scenic River between Medora and the Long-X Bridge. That is what the residents of the river valley, although there are few, want the case to be. According to testimony at the public hearings, there are fewer than ten families living alongside the river who could possibly benefit from this bridge. But they live in fear of the noise, danger, and massive dust clouds that could be generated by heavy truck traffic through the river valley and on their farm-to-market roads.

The County Commission has leaned heavily on the need for the bridge to accommodate emergency vehicles. That argument doesn’t wash. Almost all of the county’s emergency vehicles are located in Medora, less than a mile from the bridge across the Little Missouri River there, and can go either way — east or west — to respond to an emergency.

For all of these reasons and others, the county should quit wasting taxpayer dollars and select Alternative L, the no-build alternative, and the North Dakota DOT and the Federal Highway Administration should reject the use of state and/or federal funds for this project.

Respectfully,

Lillian Crook & Jim Fuglie

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I guess.

JIM FUGLIE: View From The Prairie — ‘A Bridge To Nowhere’

Well, after nearly a dozen years of delay, it looks like Billings County is finally going to build a bridge over the Little Missouri State Scenic River north of Medora, N.D. The county posted a notice in the Federal Register on Oct. 12, 2006, that it was beginning an Environmental Impact Statement process “for a proposed roadway project and river crossing over the Little Missouri River.”

Last week, almost 12 years later, the county presented its Draft EIS to the public and took testimony for and against the project at a pair of public hearings in Medora and Bismarck. Now a mechanical process will lead to a final decision on the location of the bridge, involving mostly the North Dakota Department of Transportation and the Federal Highway Administration. More about that in a minute. First, a little history.

In the Dust Bowl days of the 1930s, with an alarming number of farmers and ranchers facing foreclosure, especially on the barren prairies of North Dakota, President Franklin Roosevelt declared it was the policy of the United States government to keep as many people on the land as possible in hopes of better times.  Emergency plans were implemented.

In North Dakota, ranchers in the western part of the state were offered the opportunity to avoid foreclosure — by banks that did not want to become landowners — by selling their land to the government, which would then lease it to back to them for pennies on the dollar. The money from the sale would settle their debts to the banks, and even though times were tough, they might be able to survive on the meager income from their ranching operations.

The ranchers were able to keep the home section, where their homesteads and ranch buildings were located. For ranchers along the Little Missouri River, that meant they could keep their river frontage — important because it provided water for their cattle. One look at a Little Missouri National Grasslands map today shows clearly the result of that. Nearly all the land directly beside the river is privately owned. The rest — a million acres of it— is owned by the federal government and leased to those ranchers alongside the river for their ranching operations.

Much of that private land along the river is owned by descendants of those who benefited from Roosevelt’s program, and much of the government land is leased by those same descendants. A typical Bad Lands rancher today owns just a section or two of land along the river and leases the rest of his acreage from the government. FDR’s program continues to work today. (The current map shows the thin strip of white along the river — private land — in a sea of green — public land.)

So six years ago, when Billings County Commission Chairman Jim Arthaud said that he wanted to put the new bridge over the Little Missouri State Scenic River on public land, he knew that was likely not possible because there are very few places between Medora and the northern border of Billings County where the government owns land on both sides of the river.  “I mean, I can tell you where I think it needs to go. It needs to go on public land where it affects all the public, where it doesn’t affect private people,” Arthaud said at a public meeting back in 2012.

One of those places where there is public land on both sides of the river, of course, is beside the Elkhorn Ranch Unit of Theodore Roosevelt National Park. That’s where Athaud originally wanted to put the bridge, but a huge public outcry put an end to that idea.

”We know damn well where that bridge belongs,” Arthaud told National Public Radio’s John McChesney in an interview in the late summer of 2012. “On federal ground, about three miles north (of the Elkhorn).”

McChesney also reported that “Arthaud also owns a trucking company. He says the bridge will be out of earshot and eyesight of the ranch. But studies of those effects have not been completed. It is estimated that at least 1,000 trucks a day would cross the bridge. But Arthaud says tourists would use it, too.”

“The whole public would be able to use that place, not just the elitist environmentalists,” he (Arthaid) says. “That lousy 50, however many acres it is, 200 acres or whatever, where Teddy sat there and rested his head and found himself.”

Ouch.

Arthaud’s an interesting character. He’s one of North Dakota’s wealthiest men. He sold his trucking company, the largest oilfield service company in the state, once reportedly valued at more than half a billion dollars, to a private equity firm but has other business interests. Still, he spends an inordinate amount of time in his capacity as a county commissioner, treating Billings County as his own little kingdom.

He’s politically active — he chaired former Gov. Jack Dalrymple’s re-election committee in 2012, and he and his wife, Lynn, have donated more than a quarter of a million dollars to Republicans and conservative causes since 2000, according to the watchdog website FollowTheMoney.org, giving him lots of good political connections, which he may need in the coming years. Because the request for federal funding to pay for the bridge project is going to go directly to the governor of the State of North Dakota.

Arthaud knows something about dealing with politicians. Here’s a story from a friend of a friend of a friend. Someone was in Arthaud’s office and needed something from Sen. John Hoeven. Arthaud picked up the phone, dialed up Hoeven’s office in Washington, D.C., got Hoeven on the phone, got what his friend needed, hung up, and said, “That’s what $20,000 will get you.”

Here’s how the funding process works.

At the public hearing last week in Bismarck, Arthaud said the county is going to look at all possible funding sources for the bridge (and if they can’t get state or federal funding, by God, they’ll pay for it themselves!), which has a price tag that may exceed $20 million. The EIS prepared by the Bismarck Engineering Firm KLJ puts the actual cost of the bridge at $11.2 million but says under a “worst case scenario” an equal amount may need to be spent relocating utility facilities. I expect that to be the case. So I’m just going to call it a $20 million project from now on.

In the olden days, it would be as easy as Arthaud having his friend Sen. Hoeven earmark $20 million in the next federal highway appropriations bill, but earmarks are a thing of the past. Today, states get a share of the federal gas tax money, and they spend it as they see fit, with minimal oversight from the Federal Highway Administration.

So now, when the final EIS is approved and the county is ready to build, it will send a request for the money to the North Dakota Department of Transportation. In essence, Gov. Doug Burgum gets to decide if federal funds will build the bridge.

Dave Short, whose family land the bridge is slated to cross, calls this “The Bridge to Nowhere.” He’s mostly right. At the public hearings in both Medora and Bismarck, KLJ and Arthaud contended that the bridge is being built mostly for local use. But there are only a handful of ranchers along the river who will likely find any use for the bridge — mostly four or five who will have a shorter trip to Medora, although they will have to drive 35 miles an hour through the South Unit of Theodore Roosevelt National Park to get there.

Some years ago, Arthaud bragged to The Dickinson Press that “a thousand trucks a day” would use the new bridge to get between U.S. Highway 85 and North Dakota Highway 16. That was the stated intention of the bridge — to connect the two paved highways, making a cut-across for oilfield rucks that then wouldn’t have to go down to Interstate 94 to get across the river.

That talk has mostly disappeared, and now it’s local use, tourists and “some” truck traffic that will benefit from the bridge, the county says. Well, even if “some” is a hundred trucks a day, it’s a nightmare scenario for the affected ranchers.

Here’s the story now, the EIS says:

“Traffic generated within the study area consists primarily of oil and gas-related, recreational, agricultural and local traffic. Most of the existing roadways within the study area carry less than 100 vehicles per day (approximately 50 percent are heavy trucks). Travel patterns throughout the study area generally concentrated on Belle Lake Road, Forest Highway 2, County Road 50, Magpie Creek Road, Blacktail Road, East River Road and Franks Creek road. Traffic on these roadways is expected to grow approximately 2.5 per cent each year.”

So the governor is going to have to decide if there’s justification for a $20 million bridge to accommodate that small amount of traffic. My friends and I have been worried about the “1,000 trucks a day” scenario and the damage it could do to the Little Missouri State Scenic River Valley. But last summer, a friend of mine did a driving tour to see how much time would be saved if an oil trucker wanted to take the cut-across from Highway 85 to Highway 16 instead of going down to the interstate. Guess what? Because of the 35 mph winding gravel roads, it’ll take longer to take the cut-across (and be a much more miserable trip) than it would take by going down to the interstate.

But there’s one thing no one is talking about that does bother me, if indeed it becomes a truck route. The traffic between Highway 85 and the river will utilize Blacktail Road and East River Road and will come within a mile of the Elkhorn Ranch. That potential for noise and dust at Theodore Roosevelt’s “Cradle of Conservation” — one of the most peaceful places in all of North Dakota — troubles me.

Dave Short and the rest of his family, whose land is on the west side of the river and has been described as “one of the best bottoms on the Little Missouri,” as well as Doug Mosser, whose ranch the bridge will impact on the east side of the river, are both opposed to the bridge. To gain right-of-way from the ranchers, the county will likely have to condemn it, using the eminent domain process, a heavy-handed government tactic much disliked in conservative Billings County, and all of western North Dakota’s ranch country, for that matter.

So here’s the scenario ahead. A public comment period closes Aug. 20. If you have strong feelings about wasting federal highway dollars that could be better used elsewhere, then you should submit comments on the project. Republican legislators just announced they plan to spend more than $280 million from the state’s Legacy Fund in the next biennium to solve what Gov. Burgum called “critical infrastructure needs across our entire state.” If indeed we have “critical infrastructure needs across the entire state,” perhaps the federal gas tax dollars would be better spent on those than on a “Bridge to Nowhere.”

Or if you don’t like the possibility of a hundred, or maybe even a thousand, trucks a day kicking up a dust storm through the Little Missouri State Scenic River Valley, you should submit comments.

Or if you don’t like the idea of some renegade county commissioners destroying one of the state’s most historic ranches using eminent domain to take land and put in a bridge and a road through the ranch, you should comment.

After Aug. 20, the county and KLJ will read your comments and respond to them. Then the Federal Highway Administration will read the EIS and the comments and make its suggestions about the project. Eventually, probably next year some time, the FHWA will sign what is called a “Record of Decision” giving the project the green light to proceed.

Then the county will ask North Dakota Gov. Burgum for funding from the state’s allocation of federal highway tax dollars. Generally, the state will grant funds for 80 percent of the project and the county has to come up with the other 20 percent.

If Burgum says yes, it will be the biggest waste of tax money in his time as governor and a total sellout of the Little Missouri State Scenic River Valley. The governor’s got a ranch on the Little Missouri about 30 miles south of where this bridge is proposed. I wonder how he’d like it if the county wanted to put a bridge and a road through HIS place for a thousand trucks a day to use?

If, however, the governor says no, that’ll tighten up the shorts of the Billings County commissioners a bit as they decide whether it’s really a good use of THEIR money. Stay tuned.

To submit comments:

Jen Turnbow, Project Manager

KLJ

P.O. Box 1157

Bismarck, ND 58502-1157

Or: LMRC@kljeng.com

Here’s a link to a webpage with the Draft EIS on it.

One more note:

Way back in 2007, when KLJ was just beginning the EIS process, not having an inkling it was going to take 11 years, KLJ requested a meeting with the Little Missouri Scenic River Commission “to seek guidance from the Commission, if the river crossing structure alternatives comply with the Little Missouri State Scenic River Act.”

The minutes from that 2007 meeting say “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.”

Here’s what NDCC 61-29 says, in part:

61-29-05. Powers and duties of commission.

“The commission may advise local or other units of government to afford the protection adequate to maintain the scenic, historic, and recreational qualities of the Little Missouri River and its tributary streams. The commission shall also have the power and duties of promulgating management policies to coordinate all activities within the confines of the Little Missouri River when such action is deemed necessary.”

Well, as you’ve read here before, the commission went out of business for about 10 years after that meeting but was revived by Gov. Burgum last year, and now it is active. Sort of.

Well, last week I reminded State Parks Director Melissa Baker, who serves as secretary of the commission, of that excerpt from the meeting minutes. I think it took her about 10 minutes to get on the phone and start the process of setting up a meeting. I like that woman.

The meeting will be held next at 2 p.m. Monday (MDT) in the Legends Hall of the Ramada Grand Dakota Lodge in Dickinson. Here’s a link to a web page with the meeting notice and also the minutes from previous meetings.

I’m guessing KLJ will make a presentation similar to the ones it made at the two public hearings on the bridge last week. I’ll be interested to see what a bunch of ranchers (the commission is made up of mostly ranchers along the Little Missouri) think of this idea. And how they think the bridge will contribute to the “scenic, historic and recreational qualities” of the Little Missouri State Scenic River.

JIM FUGLIE: View From The Prairie — Gov. Burgum Needs To Take Responsibility For His Actions

I don’t think North Dakota Gov. Doug Burgum has a disingenuous bone in his body. But sometimes political naivete can make someone appear disingenuous (actually, my definition of disingenuous is “fake naivete”).

There’s still a bit of naivete in Burgum. The transition from the business world to government is not an easy one. He’s still learning, although he’s a pretty fast learner. And when count on your ability to learn fast, in the public eye, for all the world to see, you can make mistakes.

So I’m writing off his charge to the Little Missouri Scenic River Commission to approve an industrial water policy for the Little Missouri State Scenic River as naivete, a mistake and not disingenuousness. Let me explain what I am talking about.

As I wrote here a couple of weeks ago, the North Dakota Legislature last May approved, and Gov. Burgum signed, legislation authorizing the use of water from the Little Missouri State Scenic River for fracking oil wells.

Ever since 1975, until that day in May 2017, it had been illegal to use Little Missouri River water for industrial purposes, like fracking. That policy was part of the “Little Missouri Scenic River Act” passed by the 1975 North Dakota Legislature and signed into law by Gov. Art Link.

But the state engineer over at the Water Commission office had been illegally issuing industrial water permits from the Little Missouri for about 15 years, more than 600 of them, and the Water Commission, chaired by the governor (Govs. Hoeven and Dalrymple), had been approving them. So the change in the law served the purpose of making those permits legal.

Conservationists, having observed how little regard for the law and for the environment existed in the Capitol, opposed the change to the more-than-40-year-old law and let Burgum know about it, asking him to veto the bill. Ignoring those pleas, he signed the bill but then took a series of executive actions.

While the new law allowed free and open access to the entire Little Missouri River for industrialization, Burgum initially limited that to just the part of the river downstream from the Long-X Bridge, which is located on the east end of the North Unit of Theodore Roosevelt National Park. Essentially, he allowed industrial water use in the last 40 miles of the river before it flows into Lake Sakakawea. That stretch of the river is mostly in Dunn County, where most of the heavy oil activity near the river takes place. So he really didn’t slow down development by limiting industrial water use on the rest of the river.

In doing that, he protected all three units of the national park from industrial development. For the time being, that is. Because he said this was going to be an “interim policy,” and he told his state engineer over at the State Water Commission office to present some options for a more permanent policy.

A month later, the engineers at the Water Commission office did just that, and at a State Water Commission meeting in June, Burgum joined his fellow Water Commission members in voting to open up the entire Little Missouri State Scenic River Basin to industrial water use, backtracking from his earlier policy of protecting the national parks.

He and the Water Commission did that with no public hearings and no public input. They just listened as the Water Commission engineers presented four different possible levels of development and recommended the most destructive one, and the Water Commission adopted it. No one except the engineers and the commission members got to address the issue. I guess that’s the way Burgum did things in the business world. But it shouldn’t happen in state government. Public comment should be required when major decisions like this are made by appointed boards, chaired by the governor.

I remember the days in the 1970s, when Art Link and Myron Just were the two elected members of the Water Commission — I was actually working for Myron back then — and they’d never have done anything like that. God, I long for those days again.

So in June, just six weeks after the Legislature passed a bill allowing industrialization of the Little Missouri State Scenic River Valley (another law change that had no public hearing because it was an amendment slapped onto the end of the Water Commission budget bill with just days to go in the session), and Burgum signed it into law, Burgum had a new “interim policy” on industrial use of the Little Missouri State Scenic River — anything goes.

But that’s when he did something I view as disingenuous.

He said he wanted this “interim policy” to be in effect until it was presented to his newly reactivated Little Missouri Scenic River Commission for its approval. Once approved, which he expected, this would become permanent policy.

If you’ve been reading this blog for a while, you know that the Little Missouri Scenic River Commission was also created in 1975 by the Scenic River Act but that it had essentially been discharged of its duties by Govs. John Hoeven and Jack Dalrymple. In other words, it quit meeting.

Those duties outlined in the law were to “advise local or other units of government to afford the protection adequate to maintain the scenic, historic, and recreational qualities of the Little Missouri River and its tributary streams.”

So Burgum was asking the Scenic River Commission to give the final approval for the industrialization of the Little Missouri State Scenic River, which would seem to be in direct conflict with the commission’s charge under the law to maintain the river’s “scenic, historic and recreational qualities.”

The way he asked them was to send an engineer out to their meeting in Dickinsn in October and ask the Scenic River Commission to approve the interim policy of the Water Commission, so it could become a permanent policy. You read that right. He asked the Little Missouri Scenic River Commission to give its blessing to a permanent policy that would allow industrial use of Little Missouri River water over the entire length of the river in North Dakota.

The appearance that gave was that Burgum had assuaged the conservation community by reactivating the Scenic River Commission, and then the very first thing he asked them to do was approve an industrial water policy. It just makes no sense. That’s not the Doug Burgum I know. Or used to know.

Luckily, the Scenic River Commission demurred, saying they wanted more time to think about it. I don’t think Burgum, or the engineers who passionately presented their case to the Commission, expected that. But to the general public, and those of us paying attention to all this, it gave the appearance that the commission was doing its job, maintaining the river’s “scenic, historic and recreational qualities.”

Good for them.

I wrote in an earlier blog that the policy is likely to be revisited at the commission’s next meeting, either with a presentation by the same engineers who pitched it at the last meeting, or maybe that the Governor himself should come and pitch it. Well, I’ve changed my mind about that.

I think that is a bad spot to put the commission in. There were a lot of people in the audience at the last Scenic River Commission meeting who finally got a chance to speak against the policy. Commission members appeared to listen.

I think both the governor and the engineers should stay home from the next meeting and let the commission get on with selecting an agenda for itself that indeed involves maintaining the “scenic, historic and recreational qualities” of the river. To do anything else would be disingenuous of the governor. I hope he gets that by now.

If he wants to adopt a permanent policy to industrialize the Little Missouri, let him do that. Don’t try to pass that off to a volunteer group charged with just the opposite. That’s the definition of disingenuous. Not naivete.

I’m posting a few pictures with this story that I made by scanning the Little Missouri Scenic River Valley on Google Earth. Take a look at them. They show what’s been going on the last few years as a result of the state engineer issuing illegal water permits and the absence of oversight by the Little Missouri Scenic River Commission during the Hoeven and Dalrymple administrations.

Take a look at the well pads and water depots just yards from the state’s only officially designated State Scenic River. This is what needs to stop. I really hope the Little Missouri Scenic River Commission will step in and do what the law that created it allows them to do. Here’s that law:

61-29-05. Powers and duties of commission. The commission may advise local or other units of government to afford the protection adequate to maintain the scenic, historic, and recreational qualities of the Little Missouri River and its tributary streams. The commission shall also have the power and duties of promulgating management policies to coordinate all activities within the confines of the Little Missouri River when such action is deemed necessary.

Who’s In Charge?  

Footnote: The Little Missouri State Scenic River Act was the brainchild of an early North Dakota State Parks director, Gary Leppart. He wrote the legislation and recruited a couple of local Republican legislators — Earl Rundle from New England and Karnes Johnson from Sentinel Butte, to sponsor it. Those two were enormously popular back home, and their legislative districts encompassed most of the Little Missouri River Valley. They helped bring local support for the bill, which might have been seen as an intrusion by state government into local affairs had Leppart not had local Republicans as sponsors. Rundle, who stood about 5-foot-4 with an enormous girth and an ever-present cigar, actually got in a canoe and went for a trip down river to show his support. My friend Mike Jacobs, who was a reporter at the Dickinson Press at the time, went along. He tells a pretty good story about the trip.

Leppart told me just the other day that “There really wasn’t any entity to oversee the river, so we just assumed the State Parks Department could do it. But I thought there should be some local input, that we should get people who lived beside it, to get involved. That’s why we wrote the law the way we did. And the support of local legislators helped get it passed.”

The law provided for six Bad Lands ranchers and three state officials — the state Parks director, the state engineer and the atate health officer — to serve on the commission. The commission was staffed by the State Parks Department. The Parks director served as the official secretary of the commission, and the Parks director’s staff handled the details of setting up meetings and distributing minutes. For many years, the Parks director managed the affairs of the commission, alerting members of issues they needed to deal with, and scheduling meetings to deal with them.

Burgum changed that when he reactivated the commission, handing the administrative duties over to the state engineer’s office. That was a bad idea. The state engineer implements state water policy. Engineers need to engineer things. Generally, they aren’t concerned with “scenic, historic and recreational qualities.” That’s just their nature.

On the other hand, those are the EXACT things State Parks directors do — “maintain scenic, historic and recreational qualities” of special places set aside for the public’s enjoyment. Leppart kept a close eye on this commission, and kept it active, as did his successors, Bob Horne and Doug Eiken. But Doug Prchal and Mark Zimmerman, who succeeded them, ignored it, and the result was rampant development along the river valley, aided and abetted by 600 illegal water permits issued by their sister agency, the state engineer’s office and by an Oil and Gas Division director who never learned to say “No.”

I blame Prchal and Zimmerman for the massive development on the banks of the Little Missouri State Scenic River today as much as I do the state engineers who issued those water permits and the Oil and Gas Division directors who issued drilling permits and oil tank battery permits beside the river. Although I truly believe the real blame lies with Hoeven and Dalrymple, who were rolling over for the oil industry. The bureaucrats were likely just following orders, and to not follow them would have meant their jobs, I suspect.

But I think Burgum didn’t know a lot of that history and didn’t think through who should be managing the Scenic River Commission when he reactivated it, and so he put the state engineer in charge.

It’s time to move that back to the Parks Department. The people there care about things like scenery, and history, and recreation. And they care about the river, and the river valley, and the Bad Lands, and the environment. Good for them. Let’s put them in charge of the whole state!