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

LILLIAN CROOK: WildDakotaWoman — Native American Art & Crafts At Red Oak House

Because I promised my friend Marilyn I would share with her the photos of my Navajo rugs, I’m writing this blog. It’s just easier. I must confess that I feel a little like it is bragging, but, if nothing else, it is documentation for my loved ones. My husband Jim and I have a lifetime’s worth of Native American art collecting under our belts, thus we own some lovely, treasured pieces.

First, the Navajo rugs. We have three, all purchased at Goulding’s Trading Post in Monument Valley, Utah.

The first I bought in 1993.

This is called “Tree of Life” (left) and was woven by Lena Begay as shown on the provenance tag I keep in our safety deposit box.

The charming birds attracted me to this rug. A very knowledgeable friend of mine, a cultural geographer and serious collector of Indigenous art, tells me that it is a very fine rug and has increased in value since I bought it.

Next was this rug.

The third rug (right) we own, we purchased at Goulding’s when traveling in September 2008. We camped and hiked all over western Colorado, New Mexico and Utah, including Echo Park at Dinosaur National Monument, and all of the iconic national parks of Utah, as well as a few memorable nights at a lovely place in Bluff, Utah, the Desert Rose Inn, and a very fine establishment outside of Moab called the Sorrel River Ranch, where we arrived in the dark and woke up in our cabin right on the banks of the Colorado River. These places were our treat to ourselves after many nights of sleeping on the ground in a tent. One memorable night was spent near Natural Bridges National Monument, when shortly after setting up camp and eating supper, a thunderstorm brought a downpour. The washes all around us surged with water. We sat that out in our Jeep, in awe of the power of nature, and once the floodwaters had subsided, we fled to the nearby town for a motel room and laundromat, returning the next day to hike the entire canyon from end to end.

That autumn, the desert was ablaze with yellow rubber rabbitbrush, so we chose a yellow rug (right) in homage to the scenery.

This very old rug, woven by Bessie Little, is titled “Storm” and is from the historic LaFont Collection.  In spite of its age, it is in fabulous condition and greatly cheers our living room walls.

To accompany this rug, we also purchased this piece (below) that demonstrates the various plants that the Navajo women harvest to dye the wool.

While at Canyon de Chelly we observed the Navajo people herding their sheep in their oases in the red rock country.

When one loves Native American arts, one must own some of the iconic turquoise jewelry.  I purchased the ring shown below at Goulding’s, and the other pieces in the next three photos were gifts to me from thoughtful (and generous) friends.

This bear’s claw jewelry (right) I bought in 1993 from the Hopi artist James Selina at his roadside stand near the Second Mesa in Arizona. He told me that the bear’s claw is a symbol of strength and power, and it is true that I feel its strength against my skin.

In May 1999, I rafted the Colorado River and, on that journey, I purchased this bracelet (below) just outside of Durango, Colo. I wear it often and it makes me think of that sinuous river of rivers.

This beautiful handpainted Mandan turtle drum was something I purchased from my friend, the geography professor, when she was downsizing (she had a huge collection that enriched her teaching).

The feathers drew the unwelcome attention of a U.S. Fish and Wildlife Service agent who was on campus investigating smuggling (she had been to a conference and purchased something from a shady character who was the actual target of the investigation). The agent was brought to my office one day by the VPAA, something that understandably shook me up. The feathers on this piece are, it was agreed by all parties, turkey feathers and thus I escaped from this incident unscathed.

I also purchased this turqouise talisman (below) from the geographer.

The talented Lavalla Moore painted us this red-tailed hawk dreamcatcher (below) on leather she prepared herself.

The last piece that hangs in the living room is this Buffalo turquoise jewelry (below) that was purchased at Five Nations Gallery and Gifts, located in the Mandan, N.D., depot.

A visit to Pipestone National Monument in Minnesota found us buying this pipe (below), which is hanging in the library along with a Lakota pipe bag and doll.

The pièce de ré·sis·tance is a delightful pottery owl (right) I purchased in Santa Fe, N.M., at the end of our very long 2014 odyssey Jim writes about on his blog, From My Cold, Dead Wrist. This fine example of Santa Domingo pottery was made by Eddie Pacheco. He was selling his wares on the historic plaza, and it took me a very long time to select something. This piece spoke to me. Just this past week, I purchased the pottery ring at the Arizona State Museum in which he now nests.

I think my next acquisition is going to be a good basket. Somehow, I managed to resist purchasing one on my recent visit to Arizona, but stay tuned.

JIM FUGLIE: View From The Prairie — The Little Missouri Crossing: How To Take A Bad Idea And Make It Worse

A thousand trucks a day. That’s what Billings County Commission Chairman Jim Arthaud bragged to the Dickinson Press one day, a number of years ago, when he was asked how many vehicles would use a new bridge over the Little Missouri River north of Medora, N.D.

A lot of water has flowed beneath that proposed bridge since 2012, the last time the public was invited to consider a draft Environmental Impact Statement for the project. He might lower that estimate by a few hundred today.

As I wrote here a few days ago, a new draft of that EIS is ready to go, and we’ll get a look at it in the next couple of months. KLJ Engineering has caught everyone by surprise, including, I think, the Billings County Commission, by its proposed suggested location of the new river crossing on the Short Ranch, just 15 miles or so north of Medora.

Everyone’s asking, “Why there?”

We’ll find out when we actually read the document, but it’s important to remember that what is driving the suggested location is an Environmental Impact Statement. And that means just what it says. What will be the impact on the environment of a new bridge across the Little Missouri River desired by the Billings County Commission? (You can see a map of the proposed location here. The Preferred Alternative at the Short Ranch is Alternative K, Option 1)

The Environmental Impact Statement is required by the National Environmental Policy Act because Billings County is requesting the federal government pay a significant portion of the cost of the project and because the construction of the bridge may impact a federal waterway, the Little Missouri River.

The NEPA was signed by President Richard Nixon in 1970. It also created one of the biggest bogeymen in federal government, the Environmental Protection Agency, a much despised agency in western North Dakota. I’m going to share a story in the next few days about how valuable the EPA has been for western North Dakota. Search back in your memory and see if you remember the name Halek. I’ll get to that in a day or two.

But back to NEPA. My friend, Dave Pieper, retired Dakota Prairie Grassland supervisor, points out that it was oil that brought this law into existence. Congress and President Nixon acted to begin protecting our environment in part in response to the public outcry after the 1969 Santa Barbara, Calif., oil spill.

In a letter to the editor a few years ago, Dave summed it up nicely:

NEPA has two primary goals: 1) It obligates federal agencies to consider every significant aspect of the environmental impact of an action before proceeding with it, and 2) It ensures that the agency responsible for the action will inform the public what the action is, and that it has considered environmental concerns in its decision-making process. It is a law of public disclosure.”

The Federal Highway Administration, which gets final sign-off on this project, is requiring Billings County to prove that there are sufficient environmental safeguards built into this project to satisfy the requirements of NEPA before it starts signing checks, which could run as high as $15 million. Higher if new roads have to be built to accommodate the traffic the bridge will enable to cross through the Badlands.

We’ll know more when we read the document, but it appears as if KLJ, hired by Billings County to clear the way for federal funds, is proposing what they believe is the least environmentally damaging location to put the bridge. I’m told the cost to the county, which must pay for the EIS, is now approaching $2 million, about double what I cited in my story the other day. Luckily, Billings County can afford it. Thanks to oil tax revenue over the past 40 years, it is perhaps the richest county, per capita, in the state. It’s a cash cow KLJ has found convenient and desirable to milk for all it is worth. By just doing the job they were hired to do.

There are no such things as federal “earmarks” for projects such as this anymore, so federal money for the project will have to come from North Dakota’s annual allocation of federal highway funds. So when, or if, the project gets the green light as a result of the EIS , the acceptance of the proposed location by Billings County, and approval by the FHWA, then officials at North Dakota’s DOT will have to decide if the money should be spent there, or on other more needed or worthy projects elsewhere in the state. Ultimately, I suppose, Gov. Doug Burgum will have the final say in when, or if, the project gets built. His agency holds the purse strings.

From what I’ve been told, KLJ told the commission at its January meeting that the Short Ranch is the preferred alternative, but there has been no discussion  by the commissioners yet. So to speculate on what will happen next is probably fruitless.

What we know is, there will be a series of public meetings, testimony will be taken, both written and oral, and then the final EIS will be written and will need to be accepted by the County Commission, which will present it to the FHWA, along with the request for funding.

From what I can tell, if, in the end, a bridge is built at the Short Ranch, the biggest beneficiaries will be a few local ranchers. Because of its proximity to Interstate 94, it’s not likely to become a big truck route. To get to the bridge from U.S. Highway 85 is a circuitous route, through some pretty rough Badlands terrain. We’ve been told that the anticipated speed limit on the roads approaching the bridge is 35 miles per hour. When those big old trucks, loaded with oil or water, start up some of those hills at 35 mph, they’re gonna be going backward by the time they get halfway up. The next time, they’ll take I-94.

But there will be some shortcuts created for the locals. A few of the ranchers who live on the west side of the river will be able to get to Medora faster than by going down to the freeway as they do now. And they’ll be able to go see their friends across the river more easily at times of the year when they can’t use their own low-water crossings.

Speaking of low water crossings, I’m guessing the EIS will also recommend the type of crossing — a solid concrete bed with culverts through it, or a bridge. Each, I suppose, has its strong points. We’ll see what comes out of that. I can tell you which canoeists prefer.

The ability to get back and forth to Medora might have also played a key role in the rejection of the only other alternative still under consideration, at the Goldsberry Ranch, about 10 miles farther north. There’s no access to Medora on the east side of the river from the Goldsberry Crossing. The big Whitetail Creek drainage is so steep and rugged that it is unlikely a north-south road would ever be built through it to connect to a road south of it to Medora. So if someone were coming from the west and crossed the bridge, they’d have to go all the way to Highway 85, then south to Belfield, then back west 15 miles to get to Medora.

Most of the talk about the Short Ranch recommended location, I suspect, will be about the convoluted access to the bridge from both state Highway 16 on the west and 85 on the east. While the Goldsberry ranch location offered pretty direct access to both highways, that’s not true of the southern crossing. There’s some speculation that the commission could decide to build a more direct route to Highway 85 by improving and extending Mike’s Creek Road. It runs pretty much straight east (well, as straight as Badlands roads can run)  from near the Short place, but it’s a pretty small road and would require major improvements, and it dead-ends short of Highway 85. An extension would have to be built to get cars and trucks to the highway.

An interesting and ironic aside is that I think the road dead-ends at the ranch of Commissioner Jim Arthaud. They’d have to go through his place to complete the road to the highway. I’m not sure how he’d feel about that. And as I mentioned the other day, getting out to Highway 16 on the west site involves going south almost to I-94 before heading west to the highway. Makes no sense at all. I called if goofy, and since I wrote that, I’ve found several other people using the same word.

The stated goal for this project at the outset was to move traffic from Highway 85 to Highway 16 without going all the way to the interstate. It’s my opinion that this proposal does not meet that goal. We need to remember that originally, the County Commissioners proposed to build the crossing right beside the Elkhorn Ranch, which was about halfway between the two existing bridges, and which, with good outlets to both highways, did accomplish the goal. But the firestorm of opposition to putting it beside the historic Roosevelt ranch stopped that idea dead in its tracks. That’s what sent KLJ and the county scrambling, and this new EIS is the result.

I hope this is a deal killer. We don’t need a thoroughfare for trucks through the Little Missouri River Valley, and no one other than the oil industry, fronted by Arthaud, was asking for one. Until he sold his trucking business a few months ago, Arthaud would have been one of the major beneficiaries of the bridge. Of course, there was an oil boom going on then, and there were a lot more trucks on the road. With Arthaud out of the picture, and the oil boom gone bust, we’ll see how much enthusiasm there still is for this project. I, and many, many other people concerned about the Little Missouri River Valley, hope the enthusiasm is gone, and that this really bad idea gets thrown into the shitpile of equally bad busted dreams and scorched-earth plans somewhere in a pit beside a back road in oil country, never to be seen or heard from again.

Footnote: Let’s give credit, or put the blame, where it is due. From the beginning, when the proposal was to put the new bridge hard up against the Elkhorn Ranch, this was Jim Arthaud’s project. He owned the big trucking company MBI, what he bragged was the biggest oilfield service company in the state, and he wanted a shortcut through the Badlands. He had managed to get himself elected as chairman of the Billings County Commission, found a couple of old ranchers to serve as “yes men” for him and has run roughshod over the Badlands environment ever since. His county’s road crew, for example, is the crew excavating gravel from a pit directly across from the Elkorn. He absolutely rejects giving any special significance to what its supporters call the “cradle of conservation.” Until public pressure forced him to back away from the crossing beside the Elkhorn, he had gotten his way whenever he wanted to. To show you his attitude, let me just share with you a quote from Arthaud in a radio interview with NPR’s John McChesney a few years ago. McChesney asked him about the impact on the Elkhorn, and Arthaud argued that the new bridge would be good for the Elkhorn. He said:

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

And here’s one more look back at an earlier article I posted about this project and other threats to the Elkhorn Ranch.

JIM FUGLIE: View From The Prairie — Camping At The Elkhorn, Part 2

I’ve spent a lot of nights sleeping within spitting distance of the Little Missouri River. God willing, I’ll spend a lot more.

I’m pretty sure I’ve slept there in every month on the calendar. Some nights — and some months — were better than others. I’ve slept there alone, I’ve slept there with canoeing buddies, I’ve slept there with wives,  with kids, with dogs, with a herd of bison trampling through my campsite, with coyotes howling, with a full moon and a new moon.

I’ve slept there on bare ground with nothing above me but stars, and I’ve slept there in a tent, in a camper, on top of my sleeping bag on hot summer nights and buried under layers of blankets on cold winter nights. I’ve slept there in howling winds and nights when just the slightest breeze rustled the cottonwood leaves above me. I’ve slept there sober and not so sober — those were the nights with my canoeing buddies —  I’ve slept there with aching legs exhausted from bushwhacking through the Bad Lands all day, I’ve slept there with arms so tired from paddling into the wind I can hardly raise myself in the middle of the night to answer nature’s call. I’ve slept on the west bank, the east bank, and islands in the middle of the river. And every one of those nights was better than any night sleeping INDOORS, in a soft, warm bed in winter or in a summertime air-conditioned bedroom.

Most recently, I slept beside the Little Missouri River snuggled against my wife, Lillian, under layers of down sleeping bags Dec. 23, 2016, a cold winter night in the North Dakota Bad Lands, with warnings of the “blizzard of the year approaching” ringing in our ears. I’m saying right now, out loud, it was one of the best nights of my life.

We were on the tail end of a three-day, pre-Christmas Bad Lands getaway, something we try to do every year but don’t always succeed. The day before we had explored the “Grand Canyon of the Little Missouri River” in the North Unit of Theodore Roosevelt National Park, where the ranger told us when we stopped at the visitor center, we were Visitors Nos. 6 and 7 to the park that day.

Except for the small herd of bison that created a temporary traffic jam on the Park’s scenic drive, we pretty much had the Bad Lands to ourselves that afternoon, and after watching the sun set over the snow-covered river valley, we headed for, appropriately, the Roosevelt Inn in Watford City for the night.

The Inn’s owners have turned the place into more than just a comfortable motel — it is a great Theodore Roosevelt museum onto itself, with hundreds of photos, documents and artifacts lining the walls throughout the motel. We spent more than an hour just looking at the display before supper at Outlaws’ Bar and Grill in downtown Watford City, a great small-town restaurant whose menu includes a 54-ounce “long-bone ribeye steak” (allow 45 minutes for cooking, the menu says).

We awoke early in the Roosevelt Inn the next morning and wandered backroads to Theodore Roosevelt’s Elkhorn Ranch, some 30 miles south, where we spent the daylight hours setting up camp, hiking, reading, gathering firewood, snacking, taking pictures and just absorbing the Bad Lands experience, the sky as blue as blue can get, the ground covered with a blindingly white blanket of snow, about 6 inches deep, decorated by meandering tracks of river-bottom deer and the THUMP thump thump pattern of jackrabbit tracks heading toward the tasty bark of creekside willows.

In all the hours we were there, about the only sound we heard was a rancher feeding cattle with his loader late in the afternoon. Winter birds were scarce, perhaps already hunkering down as the barometer dropped in advance of the oncoming storm.

I had hoped to see a shrike, a bird Lillian had introduced me to on our first winter visit there together almost 15 years ago. The shrike that flew by us that day, Lillian explained to me, was probably looking for a field mouse which, if successful, it would likely impale on the government-built barbed wire fence or a sharp twig in one of the ancient junipers as a sort of “cache,” to which it could return again and again for small bits of flesh to sustain it on cold winter nights.

No such luck on this trip. We had to settle for some crows (a distant shrike relative), a few flocks of sharptails and two golden eagles floating high above us on thermals, looking for their own food source, perhaps one of those jackrabbits that left their tracks in the snow.

Lillian setting up our campsite beside the Little Missouri.
Lillian setting up our campsite beside the Little Missouri.

After setting up camp on the frozen Little Missouri riverbank, we enjoyed a short sliding hike on the snow-covered river before I decided it was time to gather firewood for the coming chilly night, and Lillian set off on her own on the ice into the Bad Lands, as she often does, to clear her mind and collect her thoughts and sink deep into the soul-refreshing place she’s called the “center of her universe” since her childhood days on the family ranch on Deep Creek, a Little Missouri tributary a hundred or so miles south of here.

Firewood gathered (not enough, as it turned out later, leading to an early bedtime as the fire ebbed), I sat down with a small glass of wine and my book of choice for the trip, Bernd Heinrich’s “Ravens in Winter,” in perfect sunlight, the temperature hovering just below freezing but with no wind, making it wonderfully comfortable for an hour of reading as the sun sank slowly behind me and lengthening Bad Lands shadows danced on the snow-dusted buttes across the river from me.

Heinrich’s book is a delight, even though you’ll seldom see one of his ravens in western North Dakota — their first cousins, the crows will have to do — and I loved how he reminded this old Norseman in his introduction that, according to Nordic legend, Odin, the lord of the gods, kept a pair of ravens perched on his shoulders.

“They were Hugin (Thought) and Munin (Memory),” Heinrich wrote, “and he sent them out at dawn to reconnoiter the ends of the earth. At night they returned and whispered into his ear the secrets they had learned … Odin, with his universal knowledge, then advised the other Norse gods.”

Just as the sun was approaching the Bad Lands horizon, Lillian returned with her own secrets, including a tale of a chance encounter with the rancher and his hired men out feeding cows, who must have wondered what on God’s green (now white) earth would a woman be doing out walking alone in the Bad Lands in the middle of no damn place, in the dead of winter. Just to make sure she was OK, the rancher stopped by our campsite on his four-wheeler just before dark, a nice friendly North Dakota gesture.

Supper was some second-time-around thick soup, enough when reheated on our Coleman stove for two bowls each, with breadsticks for dipping and wine for washing it down. There was no finer meal served nor appreciated anywhere in North Dakota that night, I am sure.

The bed Lillian had made for us consisted of four self-inflating air mattresses, two atop two more, covered by a heavy cloth summer sleeping bag for a bottom bedsheet, and for our covers, two unzipped winter sleeping bags providing about 6 inches of down cover against the cold of the night, which turned out to be only in the low teens.

We slept like babies, but at 5 a.m., Lillian shook me and said she simply could not lay there any longer, wanting to get up and see what the day in the Bad Lands — Christmas Eve day — was to bring us.

It first brought us hot coffee, which should have cleared our heads and the sky above us, but it turned out a heavy ice-fog had moved into the valley of the Little Missouri River, and it followed us all the way to town where we had a hot breakfast.

I hesitate to end the story of this great trip on a sour note, but I’d be remiss if I left you thinking all was rosy in the Bad Lands that day.

There are many threats to our Bad Lands, and on Christmas Eve Day 2016, the sky just north of Theodore Roosevelt National Park was blackened by a huge plume of thick dark smoke, coming from the site where the Belle Fourche Pipeline Co. had recently spilled nearly 200,000 gallons of crude oil into Ash Coulee Creek, a tributary of the Little Missouri. We drove toward it and found the smoke was from the cleanup of the spill. They had set the land and the creek afire, as their way of removing the oil which had not already sunk into the ground or been trapped beneath the ice.

Smoke from the oil burning in Ash Coulee Creek on Dec. 24, 2016. The site is about nine miles north of Theodore Roosevelt National Park’s South Unit.
Smoke from the oil burning in Ash Coulee Creek on Dec. 24, 2016. The site is about nine miles north of Theodore Roosevelt National Park’s South Unit.

It was an ignominious end to what had been an otherwise marvelous pre-Christmas adventure, and as we sat atop the hill above burning Ash Coulee Creek, watching the most unlikely, almost unearthly, of all possible scenes spread out before us, we were reminded of the words of the great Roosevelt himself, our Conservation President, who wrote, more than a hundred years ago:

“We have become great because of the lavish use of our resources. But the time has come to inquire seriously what will happen when our forests are gone, when the coal, the iron, the oil, and the gas are exhausted, when the soils have still further impoverished and washed into the streams, polluting the rivers, denuding the fields and obstructing navigation.”

What would Theodore Roosevelt think, we wondered, if he were here to witness this scene? What would he think of us, as Americans, for letting it come to this? We have not done as he instructed. That was evident, watching the story of this massive environmental blunder unfold before us. This would make him sad. Well, shame on us.

How much longer we will be able to enjoy the beauty and solitude of the Little Missouri River valley, as Lillian and I had just done, depends, I think, on our willingness to do as Roosevelt said:

Inquire Seriously. Starting now.

JIM FUGLIE: View From The Prairie — Turns Out Nobody’s Looking Out For The Little Missouri

A couple of weeks ago, I posted an article here about the Little Missouri State Scenic River Commission and how important it had been to protecting the integrity of North Dakota’s only “State Scenic River” during our first oil boom in the 1970s and ’80s. If you missed it, you can go here to catch up.

Well, we’ve had another boom since then, and with some big threats facing the river, today’s government leaders seem to have abdicated any influence they may have in protecting that important resource from the greedy oil industry, always in a hurry to get from here to there. Time is money, you know.

Here’s more of what I learned about the the laws that were written to protect the Little Missouri River ― and how they have been ignored.

The Little Missouri State Scenic River Act

Part 2 

On Aug. 29, 2007, the Little Missouri Scenic River Commission, meeting in Dickinson, N.D., watched a PowerPoint presentation by Kadrmas, Lee and Jackson (KLJ), the engineering firm hired by the North Dakota Department of Transportation to design a new crossing on the Little Missouri River north of Medora. The purpose of the presentation KLJ stated, was “to seek guidance from the Little Missouri State Scenic River Commission, if the river crossing structure alternatives comply with the Little Missouri State Scenic River Act.”

KLJ said it had received “numerous comments” citing the Little Missouri State Scenic River Act, and stating that the project may not comply with the Act. You can actually go to Chapter 61-29 of the North Dakota Century Code and read the act. It’s very short, and very specific. It says the job of the commission is to “advise local or other units of government to afford the protection adequate to maintain the scenic, historic, and recreational qualities of the Little Missouri River and its tributary streams.”

Well, two weeks after the Dickinson meeting, Arik Spencer, a staff person for the North Dakota Parks and Recreation Department, wrote to KLJ on behalf of the commission that the alternatives presented seemed to be in compliance with the Act. Spencer asked that the commission receive detailed information on the project once the alternatives for location and type of structure had been finalized, 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.”

That was the last anyone ever heard of the Little Missouri Scenic River Commission. It seemingly disappeared into thin air.

I wrote here earlier that the commission was deeply involved in development issues facing the river, which flows through the scenic North Dakota Bad Lands, from the time it was created by the North Dakota Legislature and former Gov. Art Link in 1975, through the first oil boom of the late 1970s and early 1980s and into the 1990s. But there is no record of any other correspondence involving the commission, or minutes of any meetings ― in the last nine years ― since that 2007 meeting.

For a few years, that meeting was also the last anyone heard of the proposed river crossing as well. It got bogged down in right-of-way access and objections to its planned location, adjacent to the Elkhorn Ranch Unit of Theodore Roosevelt National Park. The project resurfaced in 2012, with the beginning of a new Environmental Impact Statement, which now, four years later, is expected to be presented to the public this summer.

I’ve written about this project before. Initially, it meant a new bridge across the Little Missouri River next to Theodore Roosevelt’s Elkhorn Ranch. That plan was discarded after loud objections from the public. New location alternatives were presented. Everyone now expects, when the EIS is released this June or July, it will recommend a bridge about four miles north of the Elkhorn, bringing as many as 1,000 oil trucks a day through this very remote and very scenic part of the Little Missouri River Valley. And likely it will recommend that it be built pretty soon.

There will be public hearings on the project ― and opportunity for the public to comment in person or on paper. I’ll write about that when I know more.

And when the EIS is released, KLJ will face a commitment it made way back in April 2008, on page four of a newsletter updating progress on the project:

“The (Little Missouri State Scenic River) Commission has reviewed the preliminary range of reasonable alternatives and found them to not violate the Little Missouri State Scenic River Act (NDCC 61-29). However, coordination with the commission will be ongoing throughout the environmental process. Once alternatives have been defined and are carried forward for impact analysis, they will be presented to the Commission again. At that time, the commission will determine if the proposed project is in compliance with the Little Missouri State Scenic River Act.”

Well, good luck with that, KLJ.

Because for all intents and purposes, the commission no longer exists. Oh, it’s still there in state law, but no one’s paying any attention to that. The commission hasn’t met in almost nine years. Its last chairman, Bad Lands rancher Alvin Nelson, died more than a year ago and hasn’t been replaced. And state officials responsible for calling it to meet, and presenting measures for “protection adequate to maintain the scenic, historic, and recreational qualities of the Little Missouri River and its tributary streams,” as the law states, hardly seem to know it even exists.

As I pointed out in my earlier article, three state officials — the State Parks and Recreation director, state engineer and state health officer — are the ex-officio members of the commission, and they join six ranchers, one from each of the Badlands counties, on the commission. The Parks director serves as secretary to the commission and traditionally calls the meetings and presents agenda items concerning threats to the integrity of the river for the commission’s consideration.

When I first spoke to the current Parks director, Mark Zimmerman, a couple of months ago, he said the commission had not met in the five years he has been in his job. Frankly, I think he didn’t even know about it until I made him aware of it.

After some digging, his staff found three pages of minutes from a 2001 meeting, with three agenda items: a discussion of the liability dangers in creating a Little Missouri River canoeing map, the possibility of designation of the river as a National Wild and Scenic River and plans for irrigation of a proposed new golf course south of Medora.

(If you’re curious, the map never got printed, the National Wild and Scenic River designation didn’t happen, and we’ve been playing the golf course for about 10 years now.)

At the end of those meeting minutes, it says this: “In closing, Ray Clouse (Golden Valley County’s representative on the commission) indicated a need to elevate the work of the commission to the public at large. Some form of publicity is needed to make the work of the commission aware to the public, function and value of the work so projects and actions along the river flow through the organization. That will be a topic for a future meeting.”

Never mind the bad grammar by the person writing the minutes. What Clouse wanted was to make the commission more visible, so that people and companies with plans which might impact the Scenic River valley would let the commission — and through them, the general public — know about those plans.

That was 2001. As far as I can tell, there were no “future meetings,” except for that time KLJ called the group together to review its plans for the bridge in August 2007. After I pressed the Parks Department to dig a little deeper, it did find minutes of that 2007 meeting, along with the PowerPoint presentation. But the department made it pretty clear there haven’t been any meetings since.

I talked to Clouse, a rancher from Golva, N.D., who just happens to be an old friend of mine, earlier this spring. He’s no longer a member of the commission, but said while the commission had little authority, it was important to keep the river free-flowing, and the commission’s work contributed to that.

His reference to “little authority” stems from an opinion issued in 1989 by then-North Dakota Attorney General Nick Spaeth that limited the commission to “adopting advisory policies for consideration by regulating bodies.”  Spaeth said, “It is my opinion that the Little Missouri Scenic River Commission may not regulate activities affecting the Little Missouri River (emphasis added).”

But Spaeth went on to say that “Regulating bodies are to recognize that the commission has an important role to play in managing the river. The commission, because of its composition, is able to provide a unique local perspective to management issues (emphasis added). Therefore, regulating bodies should carefully consider the Commission’s recommendations.”

Attorney general opinions in North Dakota have the force of law unless the Legislature supersedes them. In this case, I can find no evidence that has happened. That’s why Clouse told me he felt the board was a “paper tiger,” but still important.

Of course, the commission can’t make any recommendations unless it meets. I asked current Parks Director Zimmerman if he thought the commission might ever meet again, considering the numerous threats to the river from encroaching development, including TWO new bridges going through the river valley in the next two years or so. Yes, TWO — both the proposed oilfield road and bridge over the river north of Medora, and the replacement of the historic Long-X Bridge as part of the widening of U.S. Highway 85 to four lanes adjacent to the North Unit of Theodore Roosevelt National Park. It was that project that brought the commission to my attention in the first place.

There is precedent for the commission’s involvement in bridge projects. In the late 1980s, North Dakota’s DOT replaced another bridge over the Little Missouri River, the Lost Bridge north of Killdeer, on state Highway 22. The commission was heavily involved in that project, working with the DOT on siting of the bridge. It even had aerial photos taken of the proposed routes for the new road and bridge, studied them, and then-Parks Director Doug Eiken, on behalf of the Commission, made a formal request to DOT to locate the new bridge adjacent to the old one, to cause the least disturbance possible to the Little Missouri River Valley.

And that’s exactly what happened. The commission spoke. DOT listened.

Now, we face a similar, but much larger, project–a great big four-lane bridge on Highway 85. At early public hearings and in written testimony on the Highway 85 project — for which an Environmental Impact Statement will be released any day now — conservation groups, led by Jan Swenson of the Badlands Conservation Alliance, asked that once again, the Little Missouri Scenic River Commission be consulted. It’s that board, composed mostly of Badlands ranchers, who have on-the-ground knowledge of potential impacts on the river valley from the project.

So when I asked Director Zimmerman about that, he said, yes, that might be a good idea. Referring to the attorney general’s opinion, he said, “We really don’t have any authority — it is kind of a feel-good commission,” but from a “tourism and environment aspect,” it might be a good idea to get the commission back together again.

He mentioned that on a visit to the Elkhorn a couple of years ago, both former Theodore Roosevelt National Park Superintendent Valerie Naylor and North Dakota Gov. Jack Dalrymple had expressed some concern over the gravel mining operation now taking place beside the Elkhorn Ranch (more about that one of these days, too) and said that the commission could at least serve as a “sounding board” for those types of concerns.

“I’d be happy to act as a catalyst to call a meeting,” Zimmerman said.

I hope he does that. I’ve mentioned just a few of the threats to the “scenic, historic and recreational qualities of the Little Missouri River.” There are many more.

A couple of years ago, I rounded a  bend in the Little Missouri north of Medora in my canoe and found a brand new oil well sitting right on the bank of the river. Obviously, the commission hadn’t been asked to weigh in on that. This magnificent and important river needs all the friends it can muster.

Besides, it’s the law. Chapter 61-29 of the North Dakota Century Code.

JIM FUGLIE: View From The Prairie — Who’s Looking Out For The Little Missouri?

I love the Little Missouri River. It is one of the longest, free-flowing rivers in America.

In reality, I believe it IS the longest because the Yellowstone, which claims the honor, is full of low-head dams that create little pools and eddies all along its length, even though they don’t create giant reservoirs like the Big Missouri’s dams do. The Little Missouri has none of those. It just runs and runs and runs, unimpeded, and it is a joy to behold, on every one of its 560 miles. It is truly “free-flowing.”

I love the Little Missouri River because it carved the North Dakota Bad Lands, a place where I spend much of my time, a place written about so much, by so many people, I won’t even start here.

I love the Little Missouri because it is accessible. It has hundreds of miles of public lands on one side or the other, land we own and can use to get to this marvelous river. And when we get there, we can almost always walk right across it. For probably most of 10 months of the year, it is either low enough to walk across without getting your underwear wet ― or frozen solid.

It’s a river that invites participation. It says “come on in” or “come on over.” There’s simply nothing finer than to strip down to that underwear on a hot summer day and sit down in the deepest hole you can find, often only 6 inches, and just let the water meander by, splashing it on your face and body to cool off.

I took my wife, Lillian, there on our first date. Actually, it may have been her idea, but I drove, so I guess “took her there” is accurate.

We drove through Medora, north through Theodore Roosevelt National Park, and up East River Road to the Buckhorn Ranch. We parked my Jeep on the bank and walked across the river to the Elkhorn Ranch, where we sat on a fallen cottonwood trunk beside the foundation stones of Theodore Roosevelt’s cabin (a tree that surely was standing, although just a youngster, when TR lived there) and had a picnic.

I remember the date: Feb. 2, 2002. It was about 20 degrees, there was no wind in the Little Missouri River Valley, and there was about 6 inches of snow on the ground, perfect for a winter’s day hike. Across a frozen river.

Sunrise in the Little Missouri River Valley. Photo by Bill Kingsbury.
Sunrise in the Little Missouri River Valley. Photo by Bill Kingsbury.

Lillian’s a birder, I’m not, and she pointed out a northern shrike, a medium-sized gray bird that catches little critters like field mice and impales them on spikes or barbed wire fences to kill them before eating them. I didn’t know that. I’m not sure I wanted to know that.

Here’s another reason I love the Little Missouri. It rises in Crook County, Wyo., just below Devils Tower. Lillian’s last name is Crook.  The county was named, of course, for Gen. George Crook, the famous Indian fighter. There may be some connection. If not, at least being married to a woman who has the same last name as the county that gives birth to one of the world’s greatest rivers is good enough for me.

Enough romance. Here’s what I want to write about. What got me thinking about the Little Missouri this Spring was the article I wrote a couple of months ago about the four-lane project for  U.S. Highway 85. That’s the north-south highway through the Badlands. I was reading some comments on the project by Jan Swenson, the executive director of the Badlands Conservation Alliance, a Badlands watchdog organization.

Jan suggested that the North Dakota Department of Transportation, in charge of widening the highway and replacing the historic Long-X Bridge over the Little Missouri River, consult the Little Missouri Scenic River Commission for its feelings about how to approach the issue of a new four-lane highway through the Little Missouri River Valley.

Huh? Little Missouri Scenic River Commission? What’s that? I went looking.  Deep in the archives of the State Historical Society of North Dakota, I found a set of files, about 12 inches thick, the “Minutes and Correspondence of the Little Missouri Scenic River Commission ― 1976-1998.”

Here’s what I learned: There’s a state law, dating back to 1975, that says:

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

The 1975 North Dakota legislative session was not like any session of the North Dakota Legislature in recent memory. In 1975, Republicans and Democrats disagreed from time to time on matters of major policy, but they got along after the votes were counted, and they recognized that some things transcend party politics. There’s not much of that going on here, or in most states, or certainly nationally, today.

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

And in so designating the river that carved our magnificent Bad Lands, the Legislature created the Little Missouri Scenic River Commission and said:

“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.” 

Continuing, it said: “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.”

“Promulgating management policies.” Hooray for them.

Those words exist today in North Dakota state law, Chapter 61-29. Except no one pays attention to them. Those are words that would never become part of state law if such a law was proposed today. It’s probably still on the books because no one remembers it, which gave me pause in writing this article.

But I am calling attention to it because there is much that could be done if the commission saw fit. Unfortunately, that’s not on anyone’s agenda these days. And the Little Missouri, America’s longest free-flowing river, is threatened because of it.

The commission consists of a representative of each of the six counties that are home to the Badlands, plus three state agency heads, from the North Dakota Parks and Recreation Department, the North Dakota Water Commission and the North Dakota Department of Health. County commissioners appoint their representatives, and they must be ranchers whose land abuts the Little Missouri River. A fine qualification, I think.

Created in 1975, the commission held its first meeting on Nov. 10, 1976. Parks Director Gary Leppart explained to those present that the commission was to “serve as an advisory group to any or all units of government with regard to river management.”

Fences across the river were one topic of discussion at that first meeting, but the most time was spent discussing a proposal by a company called Tenneco to put a dam on Beaver Creek, a major tributary of the Little Missouri, to provide water for some kind of energy project they were contemplating.

Because the commission consisted of mostly ranchers, it was pretty skeptical of that. The plant was never built, but I didn’t dig deep enough into the subsequent meeting minutes to see if they were instrumental in that.

But that set the tone of the commission’s activities. The state was just entering into its first oil boom, with much of the oil activity taking place right there in the Bad Lands, and the minutes and correspondence for much of the next seven or eight years are consumed with oil activity around the Little Missouri River.

Meetings were held once a year, or more often if needed, but because the group came from a large area, stretching from the South Dakota border almost to Canada, plus three from Bismarck, much of the discussion was done by mail (no e-mail in those days, and even conference calls were not that common), and decisions were often made on sticky issues by sending out ballots for members to vote on and return.

Back then, pipelines were the order of the day, to serve the oil companies’ needs to move oil and gas. Pipelines generally ran from west to east. Much of the drilling was west of the Little Missouri. That meant they had to cross the river. And when they did, the commission weighed in. Generally, it approved them, but often with suggestions for modification — or a change in course — or for additional safeguards.

Pipelines were pretty safe in those days, for some reason — spills were uncommon, unlike today. For example, on Aug. 29, 1980, the commission received a request from Matador Pipeline Co. to run a pipeline under the river in McKenzie County. At the conclusion of the letter, Matador’s project leader, L.C. Mann, wrote “Matador Pipeline Inc., shares the Little Missouri Scenic River Commission’s concern that the ‘River’ be protected and preserved in its natural state where ever and whenever possible.”

Just 12 days later, on Sept. 10, after consulting members of the commission, Robert Horne, State Parks director and secretary of the commission, wrote back:

“Permission is granted to cross the river with the understanding that you will do your utmost to protect the aesthetic and scenic qualities of the river and surrounding area.

“I learned from the State Land Department there are a considerable number of trees on either side of the river where you intend to cross. I also learned there is another pipeline crossing within one-half mile of your proposed crossing. If there is any way to cross near the existing crossing which has already impacted the river, this would be preferable. If you must cross where you originally planned, be careful to exert the utmost effort to protect and preserve as many of these scarce river bottom trees as possible.

“Thank you for keeping us aware of this project and for treating the river with respect.”

Can you imagine such an exchange taking place today? Hardly. And in 12 days, not 12 months? Impossible. But it seems to me that is the way government ought to work. Respectfully, on both sides.

On the other hand, the commission was no “rubber stamp with kind words of protest.”

At about the same, the commission was considering Matador’s pipeline request, a company called Mile High Exploration requested permission to seismograph 50 miles of the riverbed to provide seismic information to oil companies. Here’s Horne’s letter to that company:

“Following your presentation Aug. 27 to the Little Missouri Scenic River Commission, the commission voted to deny your request … Basically, the commission felt this information could be gathered  by seismographing on either side of the river some distance away, that there would be undue and unnecessary disturbance to the scenic river … that it might set a precedent … (and) that this would lead to oil exploration in the bed of the river, something they wish to avoid.”

I wish I could say that the commission was still active and still taking care of the Little Missouri River the way it should be taken care of. Sadly, that is not the case. I’m still looking into that. I’ll report in when I have more information. Thanks to Jan Swenson for calling this to our attention.

JIM FUGLIE: View From The Prairie — Protecting Humans, Critters and the Little Missouri River Valley

U.S. Highway 85 is North Dakota’s deadliest highway. If you’re not familiar with it, it is the road that runs north and south along the western edge of the state, from our border with Canada to our border with South Dakota, through the North Dakota Bad Lands, some of the state’s most scenic and fragile landscapes.

Even though it passes through what has historically been the most remote area of our state, it has the most fatal accidents, the most injury accidents and the most property damage accidents of any highway in North Dakota.

The reason? It’s now the main drag through the Bakken oil boom country, and it now has some of the highest traffic volumes in the state.

Trucks.

Really big trucks.

Lots of them.

And drivers who are often young and reckless, sometimes really, really drunk, always in a hurry and don’t have a clue about driving in our weather conditions.

More often than not, when you read in the paper of a traffic fatality in Bakken Country, you’ll learn that the accident was caused by a relative newcomer to the state. Problem is, also more often than not, the victim in a fatal accident is an innocent North Dakotan who just happened to be in the wrong place at the wrong time, when somebody ran a stop sign, or passed a truck when they shouldn’t have, or was driving one of those huge oil tanker trucks in a careless manner.

State officials recognized the problem a few years ago and began the process of upgrading the highway to make it safer. A project to make the highway four lanes wide is under way between the Bakken’s two hot spots, Williston and Watford City. By the end of 2016, drivers should be using all four lanes of the new highway.

Next up is the 60-mile stretch through the Bad Lands, from Watford City down to Interstate 94 at Belfield. The DOT is completing an environmental impact statement on that project now, mostly necessitated by the fact that the highway passes through the North Unit of Theodore Roosevelt National Park and the Little Missouri National Grasslands and calls for upgrading or replacing the historic Long X Bridge over the Little Missouri State Scenic River.

All of those things have caught the attention of the public, including conservation organizations, wildlife groups and the state’s Game and Fish Department, because Highway 85 is not just the deadliest highway in the state for humans — it is the deadliest for wildlife as well.

Game and Fish has long been concerned about the number of animal-vehicle collisions on the highway. Rubber tire disease claimed so many bighorn sheep a couple of years ago that Game and Fish actually had to pick up and move the remainder of what used to be a herd of 43 out of the area along Highway 85 to get them out of danger.

Now, the proposed bigger, wider and faster highway through some of the state’s most important big game habitat will mean increased distances for wildlife to cross, greater traffic volumes and potentially higher speeds, and the Game and Fish Department is paying close attention to the design of the new road.

Everybody recognizes the safety need. Separating the lanes of northbound and southbound traffic should reduce accidents and fatalities. But it is going to be a lot harder for the critters to make safe passages across the four lanes, increasing the likelihood of animal-vehicle collisions. As a result, North Dakota will get its first-ever “wildlife crossings” as part of the project.

Construction of the first one is already under way as part of the first phase of the project. It’s just south of the Missouri River bridge at Williston, where the highway passes through the Lewis and Clark Wildlife Management Area.

According to Bruce Kreft, a department wildlife biologist who’s been working with the DOT on design of the crossing, it will be a 15-foot high, 40-foot wide underpass, with appropriate fencing along the highway to encourage wildlife to cross under the highway instead of over it.

It’s essentially a moose crossing, recognizing the growing number of moose (mooses? meese?) in the Williston area. Kreft says the department is seeing a number of moose fatalities in the area, and moose are more likely to use an underpass than an overpass, hence the design.

Game and Fish Wildlife Chief Jeb Williams says his department is mostly concerned about keeping people safe. “These are good-sized critters,” he says, and we need to do everything possible to keep them off the highway. Williams said similar crossings in Montana have proven successful.

Kreft, who’s been to Montana with North Dakota DOT officials to look at crossings similar to the one being built now, says deer also will use the underpasses, and there’s a healthy deer population in that area of the state as well.

bridgeFor the second phase of the widening project, through the Bad Lands, Game and Fish is proposing five additional crossings. Topography and deference to the species of critters likely to use the crossings dictate whether they will be overpasses or underpasses. For example, a crossing proposed for just north of the North Unit of Theodore Roosevelt National Park would be an overpass, basically a bridge over the highway, where bighorn sheep, deer and elk would make their way across safely.

“Deer will go through a lot of things, but bighorns like an open space for crossing,” Kreft says. “They will use the bridge.”

Kreft said other proposed crossings include one located under the bridge where the road crosses the Little Missouri River, another at a scenic overlook just south of the national park, “where the wildlife guys say they have a lot of mortality,” and on the north and south sides of state Highway 200, which intersects with Highway 85 about halfway between Watford City and Belfield.

The department has good pronghorn antelope migration data for the areas near Highway 200, and studies in other states have shown pronghorns will only use overpasses, so that’s what will be built there. Kreft says the department also has good bighorn sheep migration data, and the migration of both antelope and bighorns is necessary to maintain the population.

Habitat fragmentation caused by the oil boom already is happening on a large scale in western North Dakota — witness the severe decline in sage grouse in the southwest corner of the state, for example — and our wildlife biologists hope these crossing will help facilitate seasonal movement of animal herds and stave off further declines in our wildlife population.

The biggest issue with the crossings is likely to be money. The crossings are expensive, maybe costing as much as a couple of million dollars each. We haven’t seen any cost estimates yet. And maintenance is expensive as well.

The department is likely going to need some support to convince DOT officials — and the governor, for whom they work — that the expense is justified. Letters in support of the crossings to the governor from concerned citizens, and especially from local wildlife clubs, would not be out of order. And the letters should come soon. Decisions on the final highway design will be made as soon as the EIS is complete, as early as mid-2016.

There also will be public meetings when the EIS is complete, and that’s a good time to show up and express your support. Keep your eyes open this coming spring for meetings in your area. Conservation groups have encouraged the DOT to hold public meetings across the state, not just in the project area, because the Bad Lands are also a high visitation area for outdoor recreation — hikers, cyclists, photographers, birders and hunters.

And conservation groups also are encouraging the DOT to take steps to preserve the integrity of the North Unit of Theodore Roosevelt National Park.

For example, Jan Swenson, executive director of the Badlands Conservation Alliance, has suggested lowering the speed limit for the seven-mile stretch of the road that crosses through the park and putting up signage well in advance of the entrance to the park advising drivers that they are entering a very sensitive environmental area — National Parks provide refuge to a lot of wildlife which may stray near the road. Both reasonable suggestions, I think.

In her statement to the DOT at a public hearing last year, Swenson said, “As this proposed study for expansion of Highway 85 moves forward, Badlands Conservation Alliance insists that the N.D. DOT … move forward ONLY with the aim of a state-of-the-art design that recognizes the need for flexibility, creativity, and use of the very best engineering and construction technology. This is the only way to appropriately address transportation safety needs while preserving the integrity, nay the sanctity, of the Little Missouri River Valley.”

The sanctity of the Little Missouri River Valley. An important consideration, indeed.