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 — State Agency Breaks The Law 600 Times; How Much Jail Time Do You Get For That?

The North Dakota State Water Commission has violated state law more than 600 times in recent years, by issuing permits for industrial use of water (read: fracking oil wells) from the Little Missouri State Scenic River. Employees there claim they didn’t know they weren’t supposed to do that. I believe them. But that’s no excuse. More on that in a minute. First, a little history lesson.

Let’s travel back in time 42 years. 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.

Bills become laws. Here are two chapters of this bill as it was written into the North Dakota Century Code after it was approved by a large bipartisan majority and was signed by Gov. Art Link. The law remains there, untouched, 42 years later. Until now.

“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

“Management. 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.” — North Dakota Century Code 61-29-06

That’s still the law, 42 years later. You can’t build dams on the Little Missouri River or any of its tributaries. Neither can you take any water from the river or its tributaries for any use other than irrigation or recreation.

Back in 1975, we decided the Little Missouri was special, and we decided to protect it from industrial use. And, you know, we observed that law for more than 30 years. Until someone invented fracking. Fracking takes millions of gallons of water to make an oil well operate in the Bakken. Some estimates run as high as ten million gallons per well.

And so, oil companies began looking for some serious water supplies. And they saw that pretty little river running through the Bad Lands and thought that might be a good place to get some. So they went to the Water Appropriations Division of the State Water Commission and asked, “Hey, could we have some of that water?” And the engineers at the Water Commission office said, “Sure.”

They said “sure” more than 600 times. And each time, they claim they did not know they were breaking the law. Chapter 61-29 of the North Dakota Century Code. Which specifically says they couldn’t do that.

And so those big old trucks backed up to the Little Missouri State Scenic River and sucked the water out to fill their tanks, and took it over to a well site and  mixed it with some sand and chemicals and pumped it down a well hole to break up the shale holding the black gold below.

The engineers at the Water Commission told me this week they weren’t worried about running the river dry because the Little Missouri has plenty of water. Uh, huh. Tell that to canoeists (like me) who know they only have a three- to four-week window each year when there’s enough water to float a canoe. Or to the hikers and bicyclists who regularly ride or hike across the river on the Maah Daah Hey trail without getting their knickers wet.

I had an old Bad Lands rancher tell me not so many years ago that nine years out of 10 you could canoe the Little Missouri River on Memorial Day weekend. Now it’s more like two or three out of ten. Just sayin’ …

Well, all this came to light last week when I was looking at the appropriations bill in the Legislature for the State Water Commission. Tucked away in that bill, down at the bottom of page 8 of a 13-page bill, is this:

“SECTION 16. AMENDMENT. Section 61-29-06 of the North Dakota Century Code is amended and re-enacted as follows: 61-29-06. Management. Channelization, reservoir construction, or diversion other than for agricultural or, recreational, or temporary use 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. Flood control dikes may be constructed within the flood plain of the Little Missouri River. Diking and riprapping for bank erosion control shall be permitted within the confines of the Little Missouri scenic river. The construction of impoundments for any purpose on the Little Missouri mainstream shall be prohibited. This chapter shall in no way affect or diminish the rights of owners of the land bordering the river to use the waters for domestic purposes, including livestock watering, or any other rights of riparian landowners.”

Notice those three underlined words, “or temporary use.” That caught my eye. What’s the definition of “temporary” and what the heck is going on here? They are amending the State Scenic River Act. To allow something that hasn’t been allowed before, or it wouldn’t take an amendment to the law. What’s up?

Since the language was in the Water Commission’s appropriations bill, I sent an e-mail to a couple of members of the Legislature’s Appropriations Committees and to my state senator, Erin Oban. I got almost instant replies, telling me who to contact at the Water Commission to get the story on this.

Which I did. I had a 40-minute phone conversation this morning. And here’s what I learned.

A couple of weeks ago, a young staff person in the Water Appropriations Division of the Water Commission came running up to the boss’s office with a copy of a blog post I wrote last year about the Little Missouri Scenic River Commission, in which I cited the language from Chapter 61-29 (above).

“Holy Cow! We’ve broken the law! 600 times!”

What the commission had done, of course, was fairly logical. If an oil company needed water, and the Little Missouri was close by, it issued permits for “diversion” of some of that water. Made sense to the Water Commission staff. If the oil company could get water close by, the oil company could save money, there would be fewer trucks hauling water from somewhere else, less dust in the air from those trucks  — what’s not to like about that?

Except the water was coming from the LITTLE MISSOURI STATE SCENIC RIVER. AND THAT’S AGAINST THE LAW.

But nobody at the Water Commission knew about the law. In spite of the fact that the law established a Little Missouri State Scenic River Commission, and the state engineer, who runs the Water Commission staff, is a member of that commission. I wrote a couple stories about that last year, under the headlines “Who’s Looking Out For The Little Missouri?” and “Turns Out Nobody’s Looking Out For The Little Missouri.”

I suppose because the Scenic River Commission has been inactive for many years (also in violation of the law) and because there’s no institutional memory on the Water Commission staff, we could forgive the current staff for not knowing about it. But as I pointed out to the staff people I talked to, ignorance of the law is no excuse. That’s something we’ve all had preached to us all our lives.

“Honest, officer, I didn’t know the speed limit was 45 here.”

“Sorry, dude, here’s your ticket. Ignorance of the law is no excuse.”

Well, anyway, the staff decided it needed to do something about that. It could have sent a letter to everyone with a current permit and told them their permit was revoked. And then obeyed the law for the rest of it life.

Or it could try to change the law, so it could issue more permits, legally.

Which is what it did. It went running over to friendly Republican faces on the Senate Appropriations Committee and had them put an amendment on the Water Commission appropriations bill making those permits legal. And it almost slipped it through. A friend of mine happened to be in the Senate chamber one day last week when the chief clerk was reading the title of the bill on the Senate Floor and heard the words “Little Missouri Scenic River Commission” and mentioned it to me that night.

I did a little digging and now we all know the rest of the story. So far.

The bill has not passed yet. It is stuck in conference committee. The conference committee members are Reps. Jim Schmidt, Roscoe Streyle and Tracy Boe and Sens. Gary Lee, Ronald Sorvaag and Larry Robinson. If you know any of them, send them this blog, and call them and ask them to take the amendment to Chapter 61-29 out of the bill, to save what’s left of the Little Missouri River. Because if the bill passes, and the boom comes back, there are going to be 600 more water permits issued.

And send it to Gov. Doug Burgum as well. Because this is an appropriations bill, I’m pretty sure he has line-item veto authority under legislative rules and state law. Tell him to strike that chapter from the bill before he signs the Water Commission budget bill, HB 1020.

Seriously, do those things. Somebody has to look out for the Little Missouri, and if government won’t do it, we have to do it ourselves.

Thank you. Amen.