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 — ‘Honest, Officer, I Thought Owned That Land.’ Wrong

If you read The Bismarck Tribune on Tuesday morning, you read Amy Dalrymple’s pretty good story about Monday’s marathon Little Missouri Scenic River Commission meeting.  I’m going to write more about that later. I’ll just say, for now, be careful what you wish for.

What I want to write about today is one of the things the commission discussed Monday — the illegal bridge over the Little Missouri State Scenic River on the Wylie Bice Ranch in Dunn County.

I’ve written about this a few times, but there are new developments and I’m going to address it one more time — for now.

Wylie Bice is the uber-rich rancher from west of Killdeer, N.D., the man who built a trucking company from scratch and sold it for at least $79.9 million. Higher numbers have been bandied about, but we know from business journal reports he got at least that much. He’s a real North Dakota success story. Good for him.

He may have had some debt to pay off with the proceeds, but he had enough left over to buy a neighbor’s ranch, giving him land on both sides of the Little Missouri State Scenic River.

He needed to get back and forth, so he built a bridge — a mighty expensive bridge, probably a couple of million dollars worth — and put one end of it on land he didn’t own. It took a few years for the owners — the U.S. government’s Bureau of Land Management — to find out about it, and when it did, it did what government agencies do: It set out to do a study to determine what to do about Bice’s transgressions.

That study starts next week, at the end of a public comment period. What the BLM has done is required Bice to submit an application to build a bridge on their land (a bridge that already exists).  He’s done that. Now they’re requiring an Environmental Assessment, which Mr. Bice will have to pay for.

The Environmental Assessment could be done yet this fall. It will lay out a series of alternatives, which could include tearing down the bridge, granting an easement and leaving the bridge in place or a new option that surfaced this week — just selling the land the bridge is on to Bice. It’s only about 80 acres, and it’s isolated from other BLM land holdings in Dunn County, and it’s certainly worth less than $79.9 million, so Mr. Bice can afford it.

But it’s looking more and more like Bice is not the kind of man you want to do business with. For one thing, he’s a liar.

If you go read Amy Dalrymple’s story from the Sunday Tribune, you’ll find this line:

“Bice said he believed he owned the property and he chose the location to avoid removing a lot of trees.”

That’s the lie.

Although he didn’t contact the BLM about putting a bridge on its land, he certainly knew it wasn’t his land.

You see, Bice (or his engineer) did one thing right: they applied for a permit from the U.S. Army Corps of Engineers to put a bridge over the river, for which the Corps has management responsibilities. The Corps is only responsible for the river itself, though, not the riverbank. Bice owned the land on one side of the river and the BLM the other.

In his application to the corps, Bice put in photocopies of two maps of the area. Both clearly show the land on the west side of the river is owned by the federal government. He even drew in the bridge on both maps, from his land onto  BLM land. Here’s his map, from the Dunn County Atlas, with his note on the bottom showing the location of his bridge.

There’s a second map in the application, from the U. S. Forest Service’s National Grasslands map, but I won’t bother you with it.

So it is pretty obvious he knew he was putting a bridge where he shouldn’t be putting a bridge, at least without permission from the people who owned the land. Still, the excuse he used for building the bridge where it shouldn’t be, when questioned by the Tribune reporter, was that he thought he owned it.

Sorry, Bice, you’re busted.

I got my copy of the Corps permit application a year ago by sending an e-mail to the Bismarck office of the Corps of Engineers on July 1, 2017, which said:

“I am interested in finding out whether a permit was issued to Wylie Bice, Grassy Butte, N.D., to construct a bridge over the little Missouri in Dunn County, North Dakota. The legal address is Section 33, Township 148 North, Range 97 West. If so, I would like to see the permit and any accompanying documents related to the project. The bridge was likely built in the last five years. Thank you.”

Just two days later, on July 3, I got this response from a nice lady at the Corps office, along with a copy of the permit application and the letter approving the permit:

“Mr. Bice obtained a nationwide permit to install a bridge in 2013.  Attached is the verification letter and application information.  The project manager that worked on this has since retired, so if you have any questions, feel free to give me a call.”

Well, I read the application and the letter approving it, and looked at the maps, and saw that the west side of the bridge was on BLM land. So I wrote back:

“Thank you for sending me that information. I have just one more question. The bridge enters/exits the Little Missouri River on the north side on BLM land. Does your permit cover access to the BLM land as well as authorizing the bridge? Or would that need a second permit?”

The nice lady at the Corps wrote right back:

“Our permit is not a land right.  By signing our permit application, the applicant is providing assurance that he/she has the authority to construct the project as presented in the application.”

Well, that settles that, then. I also found this language in the letter approving the bridge:

“Dear Mr. Bice … You may proceed with your project in accordance with the terms and conditions of DA Nationwide Permit No, 14 … This determination is applicable only to the permit program administered by the Corps of Engineers. It does not eliminate the need to obtain other federal, state, tribal, and local approvals before beginning work.”

In other words, Bice, you probably should go knock on the BLM manager’s door and ask him if it is OK to put a bridge on his land.

I did follow up with a phone call to the Corps lady, just to confirm. She said it was the responsibility of the person doing the project to contact the BLM. She said they assumed he had done that — it would only make sense to get permission before building the bridge.

So if you read the Tribune story, and Bice’s statement that he thought he owned the land, and thought to yourself, “Well, anybody can make a mistake,” well WRONG. He knew exactly what he was doing.

Well, after that exchange with the Corps, I called the BLM office and asked what the heck was going on. They were surprised. They said they’d get back to me. They did. With this response “Well, we’ve got a situation here.”

No shit, Sherlock.

So now, I expect Bice to make a nice generous offer to the BLM for the land and hope it will accept it and just go away. I suppose that’s the most logical solution.  But I hope that’s not what happens. That’s just not right. Just because you have A LOT of money, you shouldn’t be able to get away with something like this. It just leaves a bad taste.

My suggestion is a hefty fine (although that won’t bother him, either), grant him an easement for the bridge and the road to it, charge him back rent for the easement and rent going forward and make him clean up the area around the bridge, get rid of his water depot, and reclaim the grassland where he planted alfalfa. This IS public land, land we all own.

So where the whole thing stands right now is, the BLM is now accepting comments on Bice’s application to build a bridge, until Monday (Aug. 13). It sent a letter to “interested parties” (I got one) outlining the alternatives they are considering:

  • 1. Take no action (leave the bridge, road, pond and alfalfa fields on the land as is). This would not achieve the project purpose, but the BLM will analyze the effects to serve as a baseline.
  • 2. Remove the bridge, road, pond and alfalfa fields and rehabilitate the public land to a condition similar to that of the surrounding public land.
  • 3. Sell or exchange the affected public land to the adjacent landowner.
  • 4. Authorize the bridge, road and pond through rights-of-way, and the alfalfa fields through a lease.
  • 5. Authorize only the bridge and access road through a right-of-way, remove the pond and alfalfa fields and rehabilitate the public land. In the event a right-of-way for the bridge and road are granted by the BLM, the site would still remain inaccessible to the public, via road, due to the lack of public roads to the site.

I actually really prefer No. 2, tearing the damn thing down, but it probably just doesn’t make sense to do that now that it is there. I wouldn’t mind if a lot of people suggested that, though.

You can read the letter here. It says:

We would appreciate your input on:

  • Other actions that would meet the purpose of resolving the issue.
  • Suggested changes to the alternatives.
  • Other concerns over project impacts.
  • Data/information the BLM should consider in making a reasoned decision.
  • People or groups the BLM should contact about this project.
  • Future actions by BLM or others that could have a cumulative effect together with the proposed action.

So if you want to commentand make some suggestions, go to this website. Down in the bottom right-hand corner of the page is a place to comment. I’m sending them this blog as my comments. We’ll get another chance to comment on the Environmental Assessment later. I’ll let you know when that time comes.

Oh, and if you want a really good look at the site on an illustrated Google Earth photo, go here. These government guys have some cool tools.

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.

LILLIAN CROOK: WildDakotaWoman — Long X Bridge: Hold Public Meetings In Central North Dakota

Jim and I maintain a lifelong love affair with the Little Missouri River. It is one of the things that most deeply bond us together. We know every mile of this river intimately.

What follows is my letter of last week to North Dakota Department of Transportation regarding the Long X Bridge project. The bridge is near to the North Unit of Theodore Roosevelt National Park.

Please consider writing a similar letter. The public deserves as robust a process as is possible. Let’s bury NDDOT with pleas to hold more meetings.

October 14, 2017

Matt Linneman

North Dakota Department of Transportation

608 East Boulevard Avenue

Bismarck, ND 58505-0700

Dear Mr. Linneman,

I’m following up my comments at this week’s public meeting of the Little Missouri Scenic River Commission to write urging that your department schedule a public meeting in Bismarck regarding the Long X Bridge project.

I would also remind you that in a letter dated December 2, 2015, Jan Swenson of Badlands Conservation Alliance said the following: “Finally, the significance of this proposal and impacts both detrimental and beneficial to state and federal resources demands that public meetings be held across the state of North Dakota. Two public meetings, both located in far western North Dakota, are not sufficient to the issues at hand.”

While I wholeheartedly agreed that there should be adequate public meetings in the Highway 85 corridor, this is a federal highway, and your department represents all North Dakotans, more than 80 percent of whom live east of Glen Ullin. It is an undue burden to expect these citizens to have to travel so far to attend any of the meetings and well worth the department’s time to provide a greater range of opportunity to seek public comment from as many North Dakotans as possible. After all, we all use this bridge and care about the natural resources of North Dakota.

Sincerely,

Lillian Crook

Red Oak House

920 Arthur Drive

Bismarck, ND 58501

cc: Gov. Doug Burgum

Jan Swenson, Badlands Conservation Alliance

And here is Jim’s blog on last week’s meeting of the Little Missouri River Commission: Maybe the Governor shouldn’t send engineers to represent him

While you are thinking about the river, here is part two of his blogs on the river: Conflicts of Interest Could Plague Scenic River Commission. You can’t make this stuff up.

The river deserves better.

JIM FUGLIE: View From The Prairie — Conflicts Of Interest Could Plague Scenic River Commission

The North Dakota Legislature approved, and Gov. Doug  Burgum signed, legislation last May authorizing the use of water from the Little Missouri State Scenic River for fracking oil wells. Now our state engineer, Garland Erbele, has issued industrial water permits authorizing more than 2.1 billion (that’s 2,142,000,000)  gallons of water to be taken from the river. So far.

The withdrawals are actually measured in acre feet, and the allocation by the state engineer, who works for the State Water Commission, is about 6,600 acre feet between now and next Oct. 30. An acre foot is enough water to cover one acre of land a foot deep in water. That takes about 325,000 gallons. I don’t know if the permittees will get as much as they’re authorized, but they could, if the technology is there, and the river cooperates.

I also don’t know how much water there is in the river, but I do know the river has been running pretty close to dry all summer and fall.

It’s a big number, but I am not really concerned about that. As the oil boys will tell you, if we don’t take it out, it just goes to New Orleans, and they have plenty of water.  There are plenty of other things I am concerned about, though. Like the impact of all this industrial activity on the integrity of the Little Missouri Scenic River Valley, North Dakota’s only State Scenic River. And conflicts of interest.

For example, the newly elected chairman of the Little Missouri Scenic River Commission, Joe Schettler of Killdeer, is a partner in a company called Streamline Water Services, and his company, which sells water to oil companies for fracking, has industrial water permits to draw 715 acre feet between now and next August.

And Scott Kleeman, Schettler’s proxy on the Commission if Joe can’t make it to the meetings, is part of a family operation that has an industrial water permit to draw 900 acre feet and sell it to oil companies between now and next April.

There’s also one more potential conflict. At last week’s meeting, neither the McKenzie County Commission member David Lee Crighton, nor his proxy, Kit James (who also has an industrial water business), was able to attend, so they sent Kaye Nelson to represent the county. Kaye is the widow of Alvin Nelson, the former commission chairman back when it used to have meetings, around the turn of the century. Apparently she attended a lot of the meetings with Alvin, so the county felt like she could represent them well.

The problem is, a company called Select Energy Services has a water depot on her ranch along the Little Missouri west of Grassy Butte, and it has an industrial water permit to take about 100 acre feet of water between now and next May.

To be fair, all of them have been in the water business a long time, and were in it when they took their seats on the commission. I’m guessing the county commissioners in their counties who appointed them knew about that. But they’ve not taken advantage of their positions on the Scenic River Commission for personal gain. So far.

Still, it would seem like there’s a pretty big potential conflict of interest there. One of the other commissioners told me this week that the fact they are in the water business threatens the integrity of the whole commission.

Right now, the industrial permits are being given out by the state engineer under an “interim” policy allowing river water to be used for fracking. “Interim” because Gov. Burgum wants the approval of the Scenic River Commission before he makes it permanent.

At last Wednesday’s commission meeting (I wrote about it earlier this week), there was a motion to approve Burgum’s “interim” policy. It was made by Gene Allen of Golden Valley County. But no one seconded the motion, so it died. And they voted to postpone consideration of the policy until their next meeting. Schettler was chairing the meeting, so he couldn’t second it. Nelson also demurred. Maybe she thought it would be inappropriate because she has a potential conflict. Or maybe it was because she really isn’t a member of the commission, and was just filling in.

In any case, it would be good if the members who are already in the industrial water business made that fact known to the rest of the commission and to the public. Well, I guess I just did that for them. If there are any other members who are in the water business, or have a potential conflict, I don’t know about it. If so, they should ‘fess up as well.

The rest of the list of industrial water users who have gotten permits since the governor signed the bill May 2 is pretty interesting, too. Erbele didn’t waste any time. On May 5, just three days after the bill became law, he signed the Kleeman family’s permit for 900 acre feet.

The second one was even more interesting. On the 9th, he granted a fellow named Wylie Bice 700 acre feet. You might remember that name. I wrote about him last summer. He’s the guy who sold his trucking company for $80 million or so, bought the ranch next door on the other side of the Little Missouri Scenic River and then built a bridge over the river to get to it.

One side of his bridge is on federal land, owned by the Bureau of Land Management, as is a road he built on federal land to access it. And then he put in an illegal water depot on BLM land beside the Little Missouri River, a big plastic-lined pit to store the water he’s taking from the river to sell to oil companies.

Wylie Bice’s illegal water depot, on BLM land.
Wylie Bice’s illegal water depot, on BLM land.

The BLM has been up to see Bice, and it’s given him an application to apply for a bridge and a road, to “get things legal.” I don’t know about the water depot.

I’m having a hard time wrapping my head around the idea that the BLM might give him a permit for a bridge and a road after he’s already built them. I’m going to go out to Dickinson to the BLM office one of these days and take a look at that application.

What I’m not going to get a look at, my friends at the BLM tell me, is what is called a “trespass file.” I’m not sure exactly what’s in there because it’s confidential right now, but I have to guess they’re considering some kind of legal action against Bice for putting stuff on federal land without permission. I’ll find out more about that when I get to Dickinson, too.

Also troubling is the creep of fracking further south into the Little Missouri River Valley. A company called NP Resources is drilling two wells near the Little Missouri Scenic River between Medora and the Elkhorn Ranch. The wells are on land owned by two pretty wealthy friends of mine who have purchased ranches along the river to protect them from development. One is directly across the river from the Elkhorn, President Theodore Roosevelt’s historic home. In both cases, the minerals under their ranches are owned by someone else, so they were powerless to stop them. Mineral owners trump surface owners.

In both cases, NP resources applied for and was granted water permits for 58 acre feet of water from the Scenic River — bout half a million gallons each — to frack the wells. It’s troubling because the industry appears to now be making serious advances deep into the heart of the Bad Lands, in the Little Missouri Scenic River valley, not so far north of Medora and Theodore Roosevelt National Park.

The rest of the permits are mostly for a couple of hundred acre feet, and ranchers are taking advantage of their location beside the river to make a little money. Maybe more than a little. Hard to begrudge them that.

But those activities are the very reason the Little Missouri Scenic River Commission exists: Our state law, Chapter 61-29 of the North Dakota Century Code, the Little Missouri Scenic River Act, says we need 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.”

Let’s make sure we do that. It’s getting harder, though.

JIM FUGLIE: View From The Prairie — Maybe The Governor Shouldn’t Send Engineers To Represent Him

“Be careful what you wish for, because you just might get it,” the wise man said. And you might not like what you get, I might add.

That’s what I was thinking about four hours into last week’s second meeting of the newly reconstituted Little Missouri Scenic River Commission. I’ve been harping for a couple of years on the idea of bringing back what was supposed to be a watchdog group overseeing what goes on in the Valley of the Little Missouri River during an oil boom.

It started with a letter from Jan Swenson, executive director of Badlands Conservation Alliance, to the North Dakota DOT’s Matt Linneman in 2015, regarding the construction of a new bridge over the Little Missouri Scenic River on U.S. Highway 85. Jan reminded us “The Little Missouri River was established as a N.D. State Scenic River in 1975 by the Little Missouri State Scenic River Act.

The act’s Intent reads: “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. The stated duty of the Commission is to maintain the scenic, historic and recreational qualities of the Little Missouri River and its tributary streams.”

When I read that, I went looking in the North Dakota Century Code for Section 61-29, Little Missouri State Scenic River Act. I had a foggy memory of a company called Tenneco wanting to build a coal gasification plant in the Bad Lands and to dam up a tributary of the Little Missouri to provide water for the plant, and of the North Dakota Legislature responding by passing the Scenic River Act in 1975, sending Tenneco home with its tail between its legs. The state had effectively said “No thanks, Tenneco, put your plant somewhere else.” Can you imagine anyone in state government using those words today? Hah.

Well, long story short, I wrote a bunch of articles about it, Doug Burgum got elected governor, I lobbied him through his chief of staff, and he reinstated the commission, directing the six Bad Lands counties to appoint new members, and now they’ve had two meetings. And accomplished nothing.

Actually, as far as the last meeting goes, accomplishing nothing is a good thing. They could have done something bad.

A bit of background. For the first 42 years of its existence, Section 61-29, the State Scenic River Act, prohibited the State Water Commission from issuing Little Missouri water permits for industrial use (read: fracking oil wells). Little Missouri River water could only be used for agriculture and recreation. Made sense. But the 2017 Legislature changed that, to allow Little Missouri water to be used for fracking.

Turns out the Legislature was only legalizing something that had been going on for 30 years or so. See, the Water Commission staff had been ignoring the law (it claimed it didn’t know about it, a story I bought until just a few days ago — more about that on another day) and the commission had issued more than 600 industrial water use permits from the Little Missouri, all in violation of the State Scenic River Act.

What the Legislature did was make legal what had been going on for decades — at the request of the Water Commission engineers who had been breaking the law. Burgum signed the bill. But in either a show of uncertainty, or just a show, he slapped a moratorium on that industrial use. That was in May of this year, just after he signed the bill. But then only a month later, he steered the State Water Commission, which he chairs, into lifting the moratorium. But in doing that, he said this was just going to be an “interim policy” because he wanted the newly appointed Scenic River Commission to “weigh in” on that action, to let him know how it felt about industrial use of Little Missouri River water. You still with me here?

Meanwhile, while we’re waiting for that commission to “weigh in,” permits for use of Little Missouri River water for fracking are being issued.

So at this week’s Scenic River Commission meeting, Water Commission engineer Jon Patch, the man who issues water permits (including those 600 illegal ones) brought the interim policy to the commission and spent two hours pleading with commission members to ratify it. Commissioners were skeptical, which in my mind, was “weighing in.”

In fact, when a motion was made by one commission member to approve the policy, it died for lack of a second. Only one of the nine commission members wanted to approve it. When newly elected commission chairman Joe Schettler announced the motion had died for lack of a second, there was a stunned silence at the commission table and among the 50 or so audience members.

Patch had just spent two hours fending off comments from audience members in opposition to industrial use of Little Missouri River water for fracking and pleading with some skeptical commission members, going on and on about how it would keep trucks off the road, making the roads safer and eliminating dust, although with no mention of how the oil companies were going to get the water from the river to their oil wells.

Patch brought along a power point slide to that effect, (as you can see, visible and audible disruption of the Little Missouri River Valley is not really a problem!), and when Jan Swenson rose from the audience to make a well-reasoned plea to delay action on approving the policy, Patch rudely put the slide up on the screen behind her for the audience to see. Frankly, I was surprised that no one booed, but audience members apparently had better manners than Patch.

Well, nether the audience members nor the commissioners were stupid enough to buy Patch’s argument. Finally, in an ironic twist, commission members and State Engineer Garland Erbele, Patch’s boss, made a motion to postpone action on the policy, a motion that was quickly seconded and passed unanimously. Erbele’s motion staved off further embarrassment for his staff engineer, who had just wasted two hours of everyone’s time, and also staved off the possibility of a motion to reject the policy, which likely would have gotten a second, and maybe would have passed.

By this time, the meeting, which had been billed as a two-hour gathering, was more than three hours old, and it took another hour and a half to finish, thanks to some silliness on Erbele’s part (or more likely his staff).

See, when Erbele’s staff was putting together the agenda for the meeting, there was really only one item to discuss — approving Patch’s policy — so to fill up the two hours, whoever did the agenda, with Erbele’s approval, had scheduled a bunch of bureaucrats to brief the commission members on some pretty much irrelevant stuff.

First, an assistant attorney general spent about half an hour, with a fancy power point presentation, going painfully through all the nuances of the state’s open meetings law, including changes made by the 2017 Legislature, when all she really had to do was say, “Hey, you guys, all your meetings are open to the public, and all minutes of your meetings are available to anyone who wants to read them.”

Then another engineer, this one from the Department of Transportation, repeated everything he had said at the group’s August meeting about the proposed new bridge over the Little Missouri on Highway 85, beside the North Unit of Theodore Roosevelt National Park.

It’s important for the commission to “weigh in” on that one, too, but there was no new news at this meeting, just a rehash of the previous meeting. The commission might decide to weigh in after it sees the Environmental Impact Statement in a couple of months. This presentation, and its power point slides, could have waited until then.

And then a fisheries expert from the state Game and Fish Department got out his power point slides and talked for a long time about “endangered” fish in the Little Missouri. Duh. He could have just said, “There are no fish in the Little Missouri because it’s only 6 inches deep in most places in the summer and it freezes to the bottom in winter.” Yeah, that might endanger the fish.

It was a really bad miscalculation on the part of the Water Commission staff, and it is time for Parks Director Melissa Baker to wrest control of this board from the engineers, the way three Parks directors — Doug Eiken, Bob Horne and Gary Leppart — before her did. There were no meetings during the most recent Parks Director Mark Zimmerman’s term, and only one or two during his predecessor Doug Prchal’s term.

But give those ranchers on the commission credit — they stuck it out for 4½ hours, even though there were a hundred things they could do at home, and most of them just wanted to get into the bar for a quick Jack and Coke before heading back to the ranch.

The three Bismarck bureaucrats on the commission — Erbele, Baker and Dave Glatt from the Health Department — are probably used to long government meetings, but I bet two of them called Erbele the next day and said, “No more of that.” The meeting, which had begun at 4 p.m. Bismarck time, ended at 8:30 p.m., and they still had to drive home from Dickinson.

Here’s the bottom line: Gov., Burgum wants the Little Missouri River Commission, whose members are mostly Little Missouri River Valley ranchers, to tell him how they feel about the interim policy adopted by the State Water Commission, which allows temporary industrial water permits to be issued to draw water from the Little Missouri river for fracking. A reasonable approach by the governor. It might have been a good thing for the governor to come to the meeting, sit down with the commissioners and talk about it. That’s the way to find out how the Commission members feel.

Instead, he had his state engineer bring in one of his staff who, frankly, came off as a bit of a schoolyard bully, with a statement, all written up, and just asked them to approve it. It read:

“The Little Missouri River Commission has received and considered Temporary Water Permits Revised Interim Policy in the Little Missouri River Basin developed by the office of the State Engineer and presented to it at the August 19, 2017 meeting. The Little Missouri River Commission concurs with the policy and recommends that the State Water Commission adopt it as a permanent policy of the State Water Commission and the State Engineer.”

The Commission said no, we’re not approving that. At least not today.

Well, good for them. Meanwhile, the “interim” policy continues to allow issuance of fracking water permits from the Little Missouri. I don’t know if that’s what the governor wants. But it’s what he’s got, without the blessing of those who matter most — the ranchers in the Little Missouri River Valley. I’m not sure what will happen if the Scenic River Commission says “No” to the governor. Will he back off on issuing fracking permits?

There’ll be another meeting of the Little Missouri Scenic River Commission in a couple of months. Maybe commissioner will discuss the policy then. Or maybe next time the governor, if he really does want their input, will come and sit down with them ask them what they think. Wouldn’t that be something?

JIM FUGLIE: View From The Prairie — The Little Missouri State Scenic River Is In Trouble Again

North Dakota’s Little Missouri State Scenic River lost most of its scenic protection this week when Gov. Doug Burgum reversed course and joined the members of his State Water Commission in opening the entire river to industrial water development.

Last month, Burgum declared upstream areas of the state’s only official State Scenic River — the areas surrounding the three units of Theodore Roosevelt National Park — off-limits to industrial water use and told State Engineer Garland Erbele to “immediately review, modify and make transparent the process and requirements for any future issuance of temporary use permits for nonagricultural uses.” Read: Permits for fracking water.

That came after it was revealed that the Water Commission staff had issued more than 600 illegal industrial water permits and then had state law changed in the waning days of the 2017 Legislature to make such permits legal. The Little Missouri State Scenic River Act, passed by the 1975 Legislature, prohibited the use of Little Missouri water for industrial purposes. The bill passed this year changed that.

Friends of the river urged Burgum to veto the legislation, but he declined, instead issuing his policy of only allowing those permits downstream of the National Park.

In issuing that policy, Burgum said in a letter to me and others:

“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.”

Well, so much for “being responsible stewards.” Thursday’s action by the Water Commission took care of that.

Erbele did his “review” and came up with a recommendation 180 degrees from Burgum’s policy, opening up the entire Little Missouri State Scenic River basin to industrial use.

And in a puzzling move, the governor then took that recommendation to the Water Commission this week, instead of acting on it himself, as he had done in declaring his earlier policy.

Even more puzzling, the governor did not question the policy recommendation, and voted to implement it, opening up the entire river to industrial development and leaving friends of the river shaking their heads in wonder — and anger — at his inconsistency.

Now, I suspect that the governor, if questioned, would say he wanted broader input on the policy — input from his State Water Commission members. But the Water Commission only heard one side of the story — the oil industry’s side — at Thursday’s meeting. Opponents of the policy, who wanted to keep industrial development away from our State Scenic River and from the National Park, were not given a chance to speak to the issue.

Several of those opponents sat through Thursday’s marathon session for five hours, waiting for a discussion of the Little Missouri State Scenic River Act, as promised on the Commission’s agenda. But they were caught off guard when a Water Commission staff member presented a recommendation from a list of four options — the three that were not adopted offered some protection for the river — and the Commission adopted the one opening up the river for development after a brief discussion. Only Agriculture Commissioner Douglas Goehring voted against the recommendation, citing concerns over industrial use trumping the needs of farmers and ranchers for irrigation.

I was among those who thought it unusual for a major new state policy to be adopted by an important state agency without any public discussion or any chance for making a case against the policy before a vote was taken. But then, if we can adopt a national health care policy written behind closed doors, I suppose nothing surprises any more.

There was some discussion among Commission members before the vote. Commissioner Harley Swenson of Bismarck questioned the urgency of adopting the policy, given low water levels in the Little Missouri this year and pointing out that there were another 1,000 wells awaiting fracking right now, and perhaps wells along the river could wait until there is more water available and the list of wells awaiting fracking shrinks.

But Commissioner Larry Hanson, also of Bismarck, jumped in on behalf of the oil industry, saying that if they don’t get the water out of the Little Missouri, it’s a “long haul” to have it brought in from somewhere else. Old, white –haired, mostly bald heads around the table nodded in assent, and a vote was taken quickly then to approve the policy.

I point out the white-haired, mostly bald heads because the Water Commission is — or should be — an embarrassment to North Dakota government. All seven appointees to the board are old white males, many well into their 70s, at least one 80. To be fair, all were appointed by governors other than Burgum, and Burgum let four of them go after Thursday’s meeting, opening up their spots to new members he will appoint later this summer. Maybe some women? Maybe some under 70?

In another disappointing moment in the meeting, Burgum made a lame argument about the sequence of events leading up to the change in the law and Thursday’s adoption of a new policy. The illegal permits issued for industrial use had been going on “for decades,” Burgum said, and when a staff member discovered it, they quickly stopped doing it.

“There was no cover-up,” Burgum said. They admitted what they did was wrong, he went on, and brought it to the attention of the Legislature, which fixed the law to make those permits legal now.

Yeah, well, the governor was blowing smoke. Here’s what really happened. More than a year ago, I wrote an article for my blog and for Dakota Country magazine about the Little Missouri Scenic River Commission. During this year’s Legislative Session, a friend of mine, who had read the blog, told me he had heard a mention of the Scenic River Commission on the floor of the Legislature. I went looking, and sure enough, there was an amendment to the State Water Commission budget bill changing the law to allow industrial use of water from the Little Missouri State Scenic River, which had been prohibited since 1975.

I called the Water Commission, got a couple of the staff responsible for issuing water permits on the phone and asked what they were up to. They told me that they never knew about the law, in spite of working there for decades, and that one of their staff had read my story and brought the law to their attention, so they were getting it changed. I asked if they had issued any industrial permits to take water for the oil industry from the river, and one of them blurted out, “Yeah, more than 600.”  I’m guessing those two wished they had been a little more circumspect — I doubt they had told the Legislature that, when they asked to change the law — but it was too late. The cat was out of the bag.

So I wrote a story about it, and, when the bill passed the Legislature, a whole lot of people put heat on the governor to veto it. He didn’t, but he wrote the policy I mentioned earlier about keeping the industrial permits away from the section of the river near the National Park, the policy which was overturned Thursday with the governor’s blessing.

So what’s next?

Right now, the Water Commission staff said Thursday, there are four industrial water permit applications pending, asking for water for oil well fracking from the Little Missouri. I looked them up on the Water Commission’s website. All are between the North and South Units of the National Park, one just a couple of miles from the Elkhorn Ranch. One has asked to start pumping water immediately, one Sept. 1, and two Nov. 1. The permits, once approved, are good for only 12 months, so I’d guess they will be pretty eager to get going.

The oil companies have negotiated what I suspect is a pretty sizeable fee with the ranchers for access to the river on their land and building some kind of water depot into which they’ll pump the water. And then the water trucks — as many as a thousand trucks for each well — will thunder down the hill to the depot and load up and take their water to the well that needs fracking. At least I think that is how it works. I asked the Water Commission today what their intentions are for those four permit applications. Here’s the response:

“They all are in pending status. Based on the decision of the State Water Commission yesterday, they are eligible to be reviewed for approval. If approved conditions will be applied similar to the temporary industrial permits that have been issued downstream of the Long-X bridge. A threshold and maximum pumping rate will be developed for this reach of the river based on the Medora gage.” 

Well, I don’t suppose they’ll be pumping much water from the river right now if they are approved — which they could be. Right now, about noon on June 23, 2017, the river gauge at Medora shows there are just over 3 cubic feet per second (cfs) flowing through Medora. According to the U.S. Geological Survey, which maintains the gauges and keeps the records, that’s the lowest flow for this date in the 60 year history of keeping records on the river. The previous low was just under 8 feet in 2004, and the mean flow is 1150 cfs. In other words, the river is just about dead in its tracks. A severe drought, like the one we’re in right now, will do that. But if it rains …

I’m going to send this article to the governor to let him know how unhappy I am with him. He’s the only one who can protect the Little Missouri State Scenic River valley right now. It wouldn’t hurt if he heard from a few more people, too. It’s pretty easy. Just click here. 

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 — 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