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

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

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

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

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

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

Here’s the email I sent this morning.

Dear Gov. Burgum,

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

JIM FUGLIE: View From The Prairie — 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.