JIM FUGLIE: View From The Prairie — Comment Now On The ‘Bridge To Nowhere’

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

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

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

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

Here’s what we wrote, and the address to which you can send your comments.

Jen Turnbow, Project Manager

KLJ

P.O. Box 1157

Bismarck N.D. 58502-1157

Aug.17, 2018

Dear Ms. Turnbow:

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

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

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

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

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

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

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

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

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

The North Dakota DOT, as a lead agency for this project, should not approve a project that would violate the law.

Today there are ZERO trucks driving through the river valley and across the Little Missouri State Scenic River between Medora and the Long-X Bridge. That is what the residents of the river valley, although there are few, want the case to be. According to testimony at the public hearings, there are fewer than 10 families living alongside the river who could possibly benefit from this bridge. But they live in fear of the noise, danger, and massive dust clouds which could be generated by heavy truck traffic through the river valley and on their farm-to-market roads.

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

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

Respectfully,

Lillian Crook

Jim Fuglie

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I guess.

JIM FUGLIE: View From The Prairie — ‘Honest, Officer, I Thought Owned That Land.’ Wrong

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

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

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

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

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

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

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

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

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

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

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

That’s the lie.

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

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

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

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

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

Sorry, Bice, you’re busted.

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

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

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

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

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

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

The nice lady at the Corps wrote right back:

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

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

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

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

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

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

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

No shit, Sherlock.

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

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

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

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

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

You can read the letter here. It says:

We would appreciate your input on:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Good for them.

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

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

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

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

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

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

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

Who’s In Charge?  

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

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

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

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

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

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

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

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

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

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

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

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

October 14, 2017

Matt Linneman

North Dakota Department of Transportation

608 East Boulevard Avenue

Bismarck, ND 58505-0700

Dear Mr. Linneman,

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

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

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

Sincerely,

Lillian Crook

Red Oak House

920 Arthur Drive

Bismarck, ND 58501

cc: Gov. Doug Burgum

Jan Swenson, Badlands Conservation Alliance

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

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

The river deserves better.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But those activities are the very reason the Little Missouri Scenic River Commission exists: Our state law, Chapter 61-29 of the North Dakota Century Code, the Little Missouri Scenic River Act, says we need to “preserve the Little Missouri River as nearly as possible in its present state,” and “maintain the scenic, historic and recreational qualities of the Little Missouri River and its tributary streams.”

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

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

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

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

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

The act’s Intent reads: “The purpose of this chapter shall be to preserve the Little Missouri River as nearly as possible in its present state, which shall mean that the river will be maintained in a free-flowing natural condition, and to establish a Little Missouri River Commission. The stated duty of the Commission is to maintain the scenic, historic and recreational qualities of the Little Missouri River and its tributary streams.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JIM FUGLIE: View From The Prairie — The Little Missouri State Scenic River Commission Is Back In Business

When the Little Missouri Scenic River Commission meets Wednesday in Dickinson, N.D., it could have a cake with 10 candles on it to celebrate. It will have been just 20 days shy of 10 years since the Commission last met — Aug. 29, 2007.

The newly formed commission, put together hastily this summer to comply with strict orders from Gov. Doug Burgum, will meet at the Grand Dakota Lodge just off state Highway 22 in North Dickinson at 7 p.m. MDT. Its last meeting was held just across the highway in the Dickinson AmericInn 10 years ago. Likely the only person at Wednesday’s meeting who was also at the last meeting will be Jennifer Turnbow from the Bismarck Engineering firm KLJ.

At that meeting, Turnbow was the only person on the commission’s agenda. She was there to outline plans for a new crossing over the Little Missouri River in Billings County, N.D. More about that in a minute. She’s on Wednesday’s agenda for a much bigger project — a four-lane, multimillion dollar bridge over the Little Missouri State Scenic River to replace the Long-X Bridge on U.S. Highway 85 on the east edge of the North Unit of Theodore Roosevelt National Park.

The North Dakota Department of Transportation is turning Highway 85 into a four-lane highway from Williston to Bowman and is either going to have to widen or replace the existing bridge. It’s a contentious issue because the highway actually runs through the east end of the national park, and there’s great concern about the impact of four lanes of 70 mph traffic zipping through the park.

A decision is going to have to be made pretty soon about how to get those cars and trucks across the Little Missouri State Scenic River with the least possible impact on the park. That’s what Turnbow will discuss Wednesday. We’ll have to wait and see if she has a formal recommendation.

Kudos to Gov. Burgum, and whoever put together the agenda, for putting the bridge project up for discussion at this historic first meeting of the commission in 10 years. Actually, credit really goes to Jan Swenson, executive director of the Badlands Conservation Alliance. Last year, in submitting comments on the draft of the Environmental Impact Statement on the Highway 85 project, Jan suggested that the North Dakota DOT consult the Little Missouri Scenic River Commission.

Well, Jan’s comments set us all to scrambling to find out what the hell that commission was all about. So we all refreshed our memories (here’s an article I wrote about it last year) and reminded ourselves that it was created by the 1975 Legislature 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.”

That’s quoted from the Little Missouri State Scenic River Act of 1975, now Chapter 61-29 of the North Dakota Century Code. A little-remembered but significant state law. So, some of us began lobbying newly elected Gov. Burgum last winter to revive the commission, and sure enough, he did, and now we’re going to a meeting.

Thank you Jan, and thank you Gov. Burgum. This is important because Chapter 61-29 also says, “The commission shall also have the power and duties of promulgating management policies to coordinate all activities within the confines of the Little Missouri River when such action is deemed necessary.”

And if there was ever a time when activities in the Little Missouri State Scenic River Valley need some oversight, it’s now. Because in the absence of the commission during the Hoeven and Dalrymple years, there’s been a lot of bad shit going on in the Little Missouri River Valley.

And so last week, Jessie Wald, public information officer for the State Water Commission, sent out a press release announcing:

“Gov. Burgum has requested that the Little Missouri River Commission reconvene to discuss water management and development issues in the Little Missouri River Basin. The meeting is scheduled to be held on Wednesday, Aug. 9. It will take place at the Ramada Grand Dakota Lodge in the Freedom Hall at 532 15th Street West in Dickinson, N.D., from 7 to 9 p.m. MDT.”

Jessie went on to say:

“The Little Missouri River State Scenic River Act (Act) was created and passed in 1975 by the North Dakota Legislature. That same legislation also established the Little Missouri River Commission to administer the Act — though as an advisory commission only (emphasis added).

“LMRC membership, by statute, includes the Director of the North Dakota Parks and Recreation Department, the State Health Officer, the Chief Engineer of the State Water Commission, or their designated representatives; and one member each from McKenzie, Billings, Slope, Golden Valley, Dunn, and Bowman counties.

“The Aug. 9 meeting will provide background of the LRMC, include an election of officers, and there will be various presentations and discussions pertaining to current natural resource management issues along the Little Missouri River. The last LRMC meeting convened in 2007.”

I underlined the language above because it kind of pissed me off that Jessie’s superiors found it necessary to say that it only has “advisory” responsibilities. These are the same fellows over at the State Water Commission, also known as the State Engineer’s Office, who flouted this same state law for years by issuing more than 600 illegal industrial water permits to let the oil industry use Little Missouri River water to frack their oil wells, despite the law’s language that said (at the time — it’s been updated by the 2017 Legislature to allow industrial uses of Little Missouri River water)  “Channelization, reservoir construction, or diversion other than for agricultural or recreational, purposes … are expressly prohibited. I wrote about that back in April.

And so, when this body of six ranchers, one from each of the Bad Lands counties, and three state officials, get together Wednesday night, the first item Jessie’s bosses put on the agenda is a review of an old attorney general’s opinion issued by Nick Spaeth back in the 1980s.

In that opinion, Spaeth said he felt the law 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.”

So, we and commission members, are being told, at the commission’s first meeting in 10 years, that they really don’t have any authority over what goes on in the Little Missouri State Scenic River Valley.

Except that 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. Therefore, regulating bodies should carefully consider the Commission’s recommendations.” (emphasis added)

And that’s why Jennifer Turnbow, representing KLJ, which is engineering the Highway 85 project, will be at Wednesday’s meeting. When she completes her EIS, she wants to be sure she acknowledges the feelings of the Little Missouri River Commission.

And it is likely she will be back in front of the commission again pretty soon because as I mentioned at the beginning of this article, she’s also drafting the EIS for the Billings County bridge project. And she wrote in a newsletter for the project back in April 2008 (who’d have ever guessed a project could drag on this long?),  “Coordination with the (Little Missouri State Scenic River) 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.” Here’s some more background.

Well, we’re about at that stage now. We expect to see that EIS in the next few months. And sure enough, after all these years, the commission is back in business. So, true to her word, as she always is, Turnbow will come back sometime this fall or winter, after she releases the EIS on the Billings County bridge project, and seek the commission’s blessing for that bridge. I’ll write more about that on another day.

For now, I’m going to brush up on the Highway 85 project by reading this old blog post, and put some gas in the car for the trip to Dickinson, to be part of this historic first meeting of the “new” Little Missouri State Scenic River Commission.

JIM FUGLIE: View From The Prairie — The Newest Bridge Across The Little Missouri State Scenic River. What The …?

For the past 50 years or so, there have been just five places where you can drive your car across a bridge over the Little Missouri State Scenic River: in Marmarth on U.S. Highway 12, on Pacific Avenue in the city of Medora, on Interstate 94 just north of Medora (two bridges, one going each way), on U.S. Highway 85 south of Watford City (the Long-X Bridge) and on state Highway 22 north of Killdeer (the Lost Bridge).

The Billings County Commissioners have made news for the past 10 years trying to build a new bridge over the Little Missouri north of Medora. Their initial idea to put it beside the Elkhorn Ranch Unit of Theodore Roosevelt National Park got shot down, and they’ve been involved in a long and costly EIS process, which has settled on a spot about 12 miles north of Medora, on the Short Ranch. The draft EIS should be released shortly, and a public comment process will follow the release.

The county has spent millions of dollars, probably enough to actually build the bridge, on the EIS process. Its still going to have to get permission from the Short family to put the bridge on their ranch. That’s unlikely to happen, so more time and money will have to be spent in a condemnation proceeding. When —  or even if —  the new bridge will be built remains to be determined by a court, and by the Commission.

They should have talked to Wylie Bice.

A couple of years ago, Bad Lands rancher Wylie Bice needed a way to get across the Little Missouri on his ranch northwest of Killdeer, so he just went ahead and built a bridge. It’s 9½ miles straight east of the Long-X Bridge, which crosses the river right on the eastern edge of the North Unit of the national park.

Here’s Wylie Bice’s story.

Bice ran a small trucking company from his ranch in northwest Dunn County before the oil boom. When the boom came, Wylie took advantage of it, buying some trucks, hiring some drivers, contracting with a lot of truck owner-operators and making a lot of money hauling water to and from oil wells.

In 2012, he sold the company to a Florida trucking company named Quality Distribution for — you ready? — somewhere between $80 million and $100 million. By the time the dust settles, the final deal will likely be closer to the second number than the first.

The Commercial Carrier Journal, a trade publication, said at the time of the sale, Bice employed 500 drivers and trucks and was “one of the largest haulers of fresh and disposal water and oil in the Bakken shale. Bice is principally an asset light business, as the company primarily utilizes independent contractors who own their own equipment.”

Well, there’s a North Dakota success story. Kind of like that guy from Fargo who sold his software company to Microsoft.

Bice had maintained his ranching operation on the east side of the Little Missouri State Scenic River and flush with cash after selling the trucking company, he bought the adjoining Hellickson ranch on the west side of the river. Both pretty good-sized spreads.

And now he had a problem. With ranches on both sides of the river, he needed a way to get back and forth, to move cows, cut and haul hay and operate his irrigation systems.

So without really telling anyone, except the Corps of Engineers, from whom he needed a permit, he just went ahead and built himself a bridge over the Little Missouri State Scenic River.

The Corps made him jump through some hoops, but he hired an engineer familiar with the process, and by the spring of 2013 he received permission from the Corps to build the bridge and was able to start construction. He’s been driving on it for about three years now.

I drove across the bridge last month. It’s a pretty substantial bridge, 240 feet long, with two large stone/concrete abutments holding it up, much like those under the railroad bridge across the Missouri River in Bismarck-Mandan, although much smaller. It’s well-engineered, though, and when I first came over the hill on the east side of the river, my reaction was “Holy S**t, look at that.” Since then, everyone I’ve shown the photo to has said pretty much the same thing.

Not only does he have a bridge, but he has a water depot there for storing water he’s taken from the Little Missouri State Scenic River, ostensibly for irrigation. The depot consists of four large plastic-lined pits, two on each side of the river.

Setting up an irrigation operation on BLM land.
Setting up an irrigation operation on BLM land.

The day I was there in June, it appeared there were two hired men pumping water from the river to supply the irrigation system. At least that’s what they said they were doing when I stopped to visit with them.

He does have a couple of water permits, and I looked at them on the North Dakota Water Commission website. It shows that he hasn’t taken any water out of there in the past 20 years. The Water Commission’s website can be a little cumbersome, so maybe I’m not reading it right, or maybe the info is buried somewhere else on the website, or maybe someone hasn’t been reporting the water they have taken from the river. Someone named Wylie Bice. I think there are some guys over at the Water Commission who read my blog, so maybe they’ll do a little checking for me.

But what Bice doesn’t appear to have is permission from the Bureau of Land Management to put a bridge on their land, and a road to it, and two water storage pits.

See, Bice owns the land on the east side of the river, but the BLM owns the land on the west side of the river. Likely the grazing rights went along with the purchase of the Hellickson ranch, but the federal government — you and I — own the chunk of land there — about 100 acres — and likely Bice has been paying rent to run cows on it. There’s quite a bit of BLM land nearby, probably also part of Bice’s grazing permit.

The folks at the BLM office don’t seem to know anything about the bridge or the road or the water pits, but they should, since things like that would certainly need “permission slips,” and I’m guessing they’re checking on that right now as well.

The folks at the North Dakota Department of Transportation, which is responsible for inspecting bridges to make sure they are safe, doesn’t know anything about the bridge, and maybe they don’t have to, since it is a private bridge. Still, it’s on public land, and you’d like to think the DOT knows about all the bridges in the state, especially one of this size, crossing our state’s only designated State Scenic River.

The folks in the Dunn County Courthouse do know about the bridge, but weren’t involved in permitting it, since they don’t maintain the roads to it. None of them have been out to see the bridge, from what I can tell. In fact, I may be the only person other than Bice, his hired men, the engineers and the guys who built it who have actually seen the bridge. Too bad. It’s an engineering marvel out there, deep in the heart of the North Dakota Bad Lands.

The Little Missouri Scenic River Commission, had it been active when this was built, would surely have been involved in passing judgment on it, but the commission has been inactive for about 15 years under the Hoeven and Dalrymple administrations. Our new governor, Doug Burgum, has ordered it reactivated, though, and it might hold its first meeting as soon as this August. I’d hope there would be some discussion of this bridge at that meeting.

My friends and I, and my wife and I, canoe the Little Missouri State Scenic River pretty often, but since the boom we’ve avoided that stretch of the river. Too much noise, too much dust, too many flaring oil well pads. On our last trip, maybe10 years ago now, we stopped short of the bridge—  which wasn’t there yet —  at the ranch of my friend, Curly Haugland, which is about three miles west.

There might have been a canoer or two by there since it was built, but I sure hadn’t heard any reports from any of them about a new bridge. It’s not on the Forest Service map, which is the Bad Lands user’s bible, so I suspect it would be quite a shock to come around a bend in the river and see a brand-new bridge there. Maybe one of these days, if the river ever gets any water in it …

Well, that’s what I know for now. I can’t give you directions to the bridge, but I can tell you the legal address is the west half of Section 33, Township 148 North, Range 97 West. That’s it on the left, on the Forest Service map. White is private land, yellow is public land — owned by the BLM. You’ll have to get a Forest Service map and follow the winding gravel, and sometimes two-track, roads. The road from the east is a private road through private land, so you probably should go there from the west, across public land. And you probably shouldn’t cross the bridge, like I did, because you’ll be trespassing.

I’ll be checking back with state and local permitting agencies, and I’ll report back here if I learn anything new.

Y’know, with all the things I’ve learned, and all the stories I’ve heard, about the Bakken Oil Boom, this takes the cake.

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.