JIM FUGLIE: View From The Prairie — Of Refineries And Bridges

There is news this week on several fronts involving threats to the North Dakota Bad Lands. There are some long documents to read. Here’s a summary. More when I get done reading them.

THAT DAMN REFINERY

First, Meridian Energy’s proposed oil refinery near Theodore Roosevelt National Park. You probably read that the Dakota Resource Council and its legal ally, the Environmental Law and Policy Center, filed a complaint with the North Dakota Public Service Commission asking the PSC to assume jurisdiction over the siting of the refinery before construction can begin.

On Monday, the PSC accepted the two groups’ complaint and agreed to serve the complaint on Meridian. What that means is that Meridian will now have to respond to the request for a full site evaluation. I’m pretty sure it also means that it cannot start construction of the refinery (Meridian has its Permit to Construct for a month but have not started any work at the site yet) until the PSC hears both sides of the story. The PSC has heard the environmental group’s side in the 17-page complaint, and now it will l get to hear Meridian’s case, arguing that it is not subject to PSC review.

And then, the PSC will decide whether to accept jurisdiction over the plant and require Meridian to undergo a full site review to decide if this is a good place to put a refinery. If it does that (and I won’t be surprised if it does), expect Meridian to go to court and challenge the PSC’s ability to do that. If Meridian doesn’t, expect ELPC to go to court to try to get a judge to order it done.

ELPC’s complaint asks for a cease and desist order, keeping Meridian from going ahead. I’m not sure if Monday’s motion grants that order. I’m waiting for a call back from an attorney to answer that question, but I’m guessing it does. I’ll keep you posted.

THAT DAMN LITTLE MISSOURI BRIDGE

The second long document I have to read is the long-awaited 80-page Draft Environmental Impact Statement on Billings County’s proposed Little Missouri River Crossing north of Medora, which was released a couple of weeks ago.

I say long-awaited because public hearings on this project were held in the summer of 2012, and we’ve been waiting more than six years now to see this document. No one seems to know what the holdup was, but no one was complaining, except the Billings County Commission, which has shelled out millions of dollars to the engineering firm KLJ for it.

The EIS identifies the proposed location of the new bridge — about 12 miles north of Medora — and explains why this is the best location for a new Little Missouri River crossing. The location is on private land — the historic Short Ranch — in spite of the fact that Commission Chairman Jim Arthaud said unequivocally at the public hearings on the project in June 2012 that the bridge would be built on public land.

Apparently KLJ couldn’t find a place to put it on public land. It will be interesting to hear Arthaud try to explain what happened. It will also be interesting to hear him explain why no one has bothered to even contact the Short family to let them know what is going on. The bridge is proposed to cross the river just downstream from the Short’s home place, within eyesight of the ranch headquarters, and no one from the county or the engineering firm has even bothered to talk to them.

The release of the EIS also triggers a new round of public hearings, scheduled in Bismarck and Medora. The DOT ran some huge, 25-column-inch ads in the Bismarck and Medora papers a couple of weeks ago advertising the public meetings, scheduled for next week, in Bismarck and Medora. But then, with no public fanfare, DOT changed the dates to the following week with just a short notice buried deep on the Billings County website.

So here’s the deal. The Medora hearing is now scheduled for 5 p.m. (MDT) July 23, in the Medora Community Center. The Bismarck hearing is at the Courtyard by Marriot Hotel in North Bismarck at 5 p.m. July 26.

These hearings are to gather public input on the bridge project. If you don’t like the idea of another bridge across the Little Missouri, in the middle of no goddam place, you should go to one or both of these hearings and make your feelings known. You should probably read the EIS before you go. You can find links to it here.

THAT OTHER DAMN BRIDGE

The third thing in the news this week is a notice from Bureau of Land Management that it is “seeking public comments regarding an application to authorize an existing single-lane ranch bridge over the Little Missouri River, with an associated access road, in Dunn County.”

You read that right. An application to authorize an existing bridge.

This is the bridge I’ve written about before, built by rancher Wiley Bice, west of Killdeer, on BLM land without BLM permission. The BLM knew nothing about this bridge on its land until I told them about it last year, even though it had been there for a few years. Bice also planted alfalfa on BLM land without permission.

In February, I filed a Freedom of Information Act request to see the application Bice submitted for this bridge, but even though the government is compelled by law to give me that application, it refuses to do so. Now I’ve received a letter asking me to comment on an application I have not seen.

I’ve pretty much lost patience with the BLM. Noted author Ed Abbey called it the Bureau of Livestock and Mines. A friend of mine in Montana called it the Bureau of Leasing and Mining. Both were pretty accurate. I know the BLM has been busy with an oil boom in North Dakota, although it hasn’t been booming so much the last couple of years, but it is apparent to me that it doesn’t even go out and look at its land to see what is going on.

I’m pretty sure no one had looked at the parcel that Wiley Bice built his bridge on — and planted alfalfa on — and built a road on, for more than five years. They’re the Bureau of Land MANAGEMENT. How can it MANAGE our public lands if it never goes look at it to see who’s abusing it?

Anyway, according to this letter, if you go to this website you will find all you need to know — not really, just all they want you to know — about this project, and how to comment. You have until Aug. 13 to respond. I have no idea what will happen after that.

Well, actually, I kind of do. The BLM will conduct an Environmental Assessment (a little bit cheaper version of the document Billings County did for their bridge) on the project, and then tell Bice to go ahead and build his bridge. Oh, wait, it’s already built. Never mind.

In a separate letter I found a copy of Tuesday, North Dakota BLM manager Loren Wikstrom writes that the alternatives being considered in the EA are:

  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; and
  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.

Loren has already told me that No. 5 is their preferred alternative, and that they’re not looking to make Bice  tear down a bridge that cost a couple of million dollars. He’s also told me they are making Bice pay for the cost of the EA and the reclamation. No big deal to Bice. As I wrote here earlier, he sold his oilfield trucking company for about $100 million. This is small change for him.

So I wouldn’t waste time writing letters to the BLM about this. It’s a done deal. A rich guy builds a bridge on public land, gets his hands slapped and lives happily ever after. That’s how the Bureau of Land Management manages your land.

Anyway, those three things are a pretty good indicator that there are still plenty of threats to North Dakota’s Bad Lands. So many it’s hard to keep track. I’ll try to write about each of them as things progress. Somebody has to keep an eye on these bastards.

JIM FUGLIE: View From The Prairie — Who Wants To Invest In A Refinery? Here’s How You Can Do It

I wrote here a couple of weeks go about the beginning of Theodore Roosevelt National Park, created by Congress in 1947, and about the proposed oil refinery that threatens it, a refinery that has now been issued a permit by the state of North Dakota to build the dang thing.

It’s been 70 years since Congress declared that this place in the North Dakota Bad Lands should be protected forever as a national park. Now this California company, Meridian Energy Group Inc., a startup company with no experience building or running a refinery, says it’s going to build a refinery just three miles from the park, alongside the road that runs into Medora.

I want to look at this more carefully. I don’t trust them.

On Jan. 27, 2017, Meridian Energy Group Inc. issued what it called a “Confidential Private Placement Offering” which began:

“Meridian Energy Group, Inc. (‘Meridian’or the ‘Company’) is a closely-held South Dakota corporation that will construct and operate the Davis Refinery, a 55,000 barrel per day high conversion crude oil refinery on a 715-acre site in Billings County, near Belfield, North Dakota, in the heart of the Bakken formation.”

Don’t be fooled by the “South Dakota” in there. They might be incorporated there for tax purposes, but these guys are from Texas and California. And pay special attention to the number 55,000. That’s important. I’ll talk about that in a minute.

And don’t be fooled by the words “Confidential Private Placement Offering” label on the prospectus. I went digging around the Internet and found it for myself, although I bet Meridian is not happy about that, and it may disappear pretty soon, unless the word “confidential” is just another sham put out there by this sleazy company — more about shams in a minute, too.

The first thing you notice in the prospectus, right there in the third line, is that Merdian is selling stock in a refinery that is going to process 55,000 barrels of oil per day. Somebody at Meridian didn’t do their homework. When North Dakota Public Service Commissioner Julie Fedorchak and her fellow commissioners heard about this, they said, “Wait a minute. North Dakota state law says if you are going to process more than 50,000 barrels per day, you have to come to us and let us do a comprehensive site review to determine if that is really a good place to put an oil refinery.”

“Oh, dang,” Meridian responded. “That was a mistake. We didn’t mean 55,000. We meant 49,500 barrels per day. That’s our story, and we’re sticking to it.”

Except that the prospectus is still there, online, selling stock in a refinery that Meridian says is going to process 55,000 barrels per day.

So in spite of that, as I pointed out here a week or so ago, there will be no site review (as of now), which if one took place, would probably determine that this is NOT a good place to put a refinery.

Dang!

Our Health Department has decided that the unproven technology planned for this refinery might — just might because there’s no way to know until it is built and operating — meet federal air quality standards (this is North Dakota, after all, and we’ll plant big wet kisses on the ass of any oil company executive who shows up here with a fat checkbook). So I guess there’s nothing left to do but watch a refinery go up beside Theodore Roosevelt National Park.

Except there is one other possibility. I said earlier I don’t trust Meridian. And I’m not alone. I’ve had more than one person mention in casual conversations, including some people in pretty high positions, that this whole deal sounds suspicious. The project has a price tag of close to a billion dollars, but the stock offering is for only $30 million. Now that Meridian has the permit, it has to find a bank willing to lend it at least three-quarters of a billion dollars. Again, as I mentioned, on unproven technology. Would a bank really do that? What’s the collateral on that if this falls through? A refinery that doesn’t work?

I asked Gov. Doug Burgum if he wouldn’t mind asking his State Securities commissioner, Karen Tyler, to take a look at the prospectus and see if they think this is all on the up and up. I mean, the state does have some responsibility to help protect investors in big deals like this in our state. Apparently he did that. Here’s what his spokesman Mike Nowatzki told me the other day:

“Commissioner Tyler informs me that Meridian is utilizing a federal securities registration exemption under Regulation D Rule 506(c) of the 33 Act. This federal exemption requires that they only accept investments from Accredited Investor — income of $200,000 to $300,000 or net worth of $1 million excluding primary residence.  The exemption largely pre-empts state securities regulatory authority. The Securities Department can require that Meridian put the department on notice that it is soliciting and selling in the state (Note: Meridian has done that), and Securities’ anti-fraud authority is preserved, but it does not have the authority to opine upon and set requirements for their offering documents.”  (emphasis added)

Well, how convenient. Is there any loophole in the law this sleazy company won’t find?

Would I be surprised if I learned down the road, in a few months, that this company never really intended to build an oil refinery here? No, I would not. In fact, I’d be willing to bet all my shares in the company that there’s at least a 50-50 chance this whole thing is a big stock scam designed to make some quick bucks for a few executives and board members.

On the very first page of the “confidential” prospectus, there’s a line that says the total stock offering is for $30 million, but up to 25 percent — $7.5 million — can be used for “cost of issuance,” including “compensation paid to employees of Meridian.” From what I can tell from its website, that might be about a dozen or so people on the “management team” and a few clerical staff dividing up $7.5 million dollars.

But then it also says, “Management’s Discretionary Control over Proceeds — Although the Company anticipates that it will apply the net proceeds of its financing as described herein, Management will have complete discretionary control over the utilization of the funds and there can be no assurance as to the manner or time in which said funds will be utilized.”

So that management team can pay themselves way more than $7.5 million. It can use it all. Good grief. Who would invest in a company like this? Ummmm, maybe somebody looking for a tax write-off?

Well, if it’s a scam, too bad for the investors, but good for us. Except I’m not willing to take a chance. I’m going to keep talking and writing about it. Because if Meridian is serious, and we fail to stop it, shame on us. It will the most egregious example of failed leadership in the history of our state.

I hope Gov. Burgum doesn’t want that to be his legacy.

P.S. Here’s an “Important Notice” from page 3 of Meridian’s “confidential” offering:

“This memorandum contains certain information of a highly confidential and proprietary nature. The receipt of this memorandum constitutes an agreement on the part of the recipient hereof to maintain the confidentiality of the information contained herein or any additional information subsequently delivered in connection herewith. Prospective investors who accept this memorandum or become aware of the information contained herein must understand and comply with the extensive federal and state securities law restrictions placed upon their ability to disclose information contained herein to others or to participate in or otherwise effect or facilitate any transactions relating to any securities of the company. Prospective investors who cannot comply fully with such restrictions should not review the information contained herein and should immedialtely (sic) return this memorandum to the offeror.”

Yikes! Well, golly, I’m not a prospective investor, so I guess I can share that much with you, but I won’t tell you anything else that’s in it because I don’t want to take a chance on going to the pokey. But if you’re interested, and maybe want to invest a buck or two (and if you make 300 grand a year and have a million bucks in the bank you’d like to gamble), just click here and you can read it yourself. Oh, and if it’s disappeared by the time you read this, don’t worry — I’ve got a PDF. Just send me an e-mail and I’ll send it to you.

This story is an edited version of a story that appears in the July 2018 issue of Dakota Country magazine.  It’s a magazine you should be reading. You can subscribe here.

JIM FUGLIE: View From The Prairie — ‘I So Declare It!’

My day started out OK this morning. My pillbox told me it was Thursday — it’s always nice to know what day of the week it is right away in the morning. I had a pretty good bowel movement — for you young readers, that‘s pretty important for someone my age. I got my belt through every belt loop but one and got my shoes on without untying them.

And then it all went to hell, when I opened the paper to see the headline screaming from the front page: “Davis Refinery permit approved.”

Yikes!

I turned the paper face down on the kitchen counter so it wouldn’t be the first thing Lillian saw before she even had a sip of coffee. And then I went and sat down on the patio and sipped my coffee and looked at the beautiful, clear blue sky over North Dakota and thought to myself, “What kind of monsters would want to do this — put an oil refinery right next to Theodore Roosevelt National Park? And what kind of state regulators would permit that to happen?”

And who, at the highest level of North Dakota state government, will step in and say, “No. We’re not going to let you do that.”

Surely, Doug Burgum, you have a soul. Surely you won’t let this happen on your watch. Surely, you don’t want this to be your legacy.

Let me ask you this, Gov. Burgum:

  • Would the state of Wyoming allow an oil refinery to be built three miles from Old Faithful in Yellowstone National Park?
  • Would Montana put a refinery three miles from the Going To The Sun Highway in Glacier National Park?
  • Would Alaska permit a refinery at the base of Mount Denali? Well, maybe, Alaska is an even bigger whore to the oil industry than North Dakota. But let’s not give them any ideas.

These places — Yellowstone, Glacier, Denali, and yes, Theodore Roosevelt — these national parks are our national treasures. There are only 59 of them. The federal government — our elected Congress members and senators — agreed to protect these most spectacular places in our states, passing laws that said, “We’ll take care of what’s inside these park boundaries. Now you, people of these states, you take care to not let anything mess them up from the outside.”

Theodore Roosevelt National Park is the only national park in America named for a president of the United States — in fact the only national park named for a person. That’s how revered Theodore Roosevelt is. He was afforded this honor because of his great conservation record, which includes setting aside more than 230 million acres of public land during his presidency from 1901 to 1909.

He didn’t set aside the land where Theodore Roosevelt National Park is today. That was done by Congress in 1947, to honor him. But he lived and ranched there and developed his strong conservation ethic there and said if it was not for the time he spent in the North Dakota Badlands, he never would have been president of the United States.

The National Parks Conservation Association, a national parks watchdog group, has suggested that the Health Department attach a condition to the permit — perfectly allowable in the law — requiring the refinery to undergo a PSC site review. Here’s a story with some background on that.

I asked an official with the Health Department a couple of weeks ago if they were considering attaching such a condition. He responded, “We will address the PSC siting review issue in our response to comments, which will be made available upon completion of the document.”

They did that. In response to comments requesting them to attach the condition of a site review by the PSC (you can take a look at the Health Department’s response here–look at Comment 3), the Health Department said:

“Imposing a condition in the permit to construct requiring PSC siting would not be reasonable because a permit to construct is intended to address air pollution-related issues, not siting issues. See N.D.A.C. § 33-15-14-02(9) (authorizing the Department to impose “reasonable conditions” in a permit to construct). Concerns regarding the PSC’s requirements must be addressed to the PSC.”

Well, that’s complete and total bullshit.

I did go “see N.D.A.C. § 33-15-14-02(9).” It says:

“The department may impose any reasonable conditions upon a permit to construct, including …” and then it goes on to list various things, like

  • 1. Sampling, testing, and monitoring of the facilities or the ambient air or both.
  • 2. Trial operation and performance testing.
  • 3. Prevention and abatement of nuisance conditions caused by operation of the facility.
  • 4. Recordkeeping and reporting.
  • 5. Compliance with applicable rules and regulations in accordance with a compliance schedule.
  • 6. Limitation on hours of operation, production rate, processing rate, or fuel usage when necessary to assure compliance with this article.

Well, I guess I could make a pretty good case that any refinery operating beside a national park could create “nuisance conditions,” for the park, but that should not be necessary. There’s nothing in 33-15-02(9) that says they cannot require a PSC review. They could certainly attach that condition and let Meridian challenge it in court, if they want to.

I am reminded of a story about Theodore Roosevelt. When he heard that yachtsmen in Palm Beach, Fla., were shooting brown pelicans for sport as the ponderous birds flew to their nests on a small island not far away, Roosevelt asked an aide, “Is there any law that will prevent me from declaring Pelican Island a federal bird reservation?”

“No,” the aide replied. “The island is federal property.”

“Very well, then, I so declare it.”

And that was the birth of our National Wildlife Refuge system.

If there’s nothing in state law preventing the Health Department from attaching specific conditions to a construction permit, then it should “so declare it.”

Or, if Meridian wants to be a good North Dakota corporate citizen (yeah right) they could simply comply and go through a site review, like every other major energy conversion facility in our state has done, and using the best legal and scientific methods, find out if this is really a good place for a refinery.

That’s what should happen, Gov. Burgum. Those folks over at the Health Department work for you. Call them up and insist that they attach a condition for building that refinery next to our national park requiring Meridian to go through a PSC site review. As I have written here before, there is precedent for that.

Way back in 1974, in the face of a massive development of coal gasification facilities and coal-fired electricity generating plants, with the state lacking laws to regulate things like pollution and mined-land reclamation, Gov. Art Link and his state Water Commission attached a set of conditions to water permits granted to Michigan Wisconsin Pipeline Co. and a pair of Minnesota electric cooperatives, United Power Association (UPA) and Cooperative Power Association requiring them to take substantive measures to guard against pollution and land destruction. Those conditions, later adopted by the Legislature, became what are still today, I think, the strictest land reclamation laws in the country.

The companies, of course, challenged the Water Commission’s right to attach the conditions. On behalf of the Link administration, then-State Tax Commissioner Byron Dorgan asked Attorney General Allen Olson for an attorney general’s opinion on whether such conditions were legal. Dorgan wrote:

“I know that the Water Commission and the Governor are attaching these conditions in order to provide the best possible protection for North Dakotans as a result of the approval of these projects.

“The conditions are designed to make certain that developments of the type that were approved are subject to very stringent regulations in order to protect North Dakota’s quality of life.

“However, if these conditions should not be able to stand the test of a court challenge, then we are all living with a false sense of security about these conditions.

“For this reason, I believe that the Water Commission and more importantly, the people of North Dakota, should have the opinion of the Attorney General whether the imposition of conditions attached to water permits is legally binding action that the Water Commission has the authority to take.”

Olson wrote in his opinion:

“It is our opinion that the conditions on the Michigan-Wisconsin Pipeline Company and United Power Association/Cooperative Power Association Conditional Water Permits granted by the State Engineer and approved by the State Water Commission are basically valid.”

Olson then went on to say “However, as in all such cases, the courts would make the final dispositive determination as a validity.” You can look at the full exchange here.

In the end, the courts did that. Link won his battle “to protect North Dakota’s quality of life.”

North Dakota’s leaders had balls in those days. It took a special kind of courage for Art Link and Byron Dorgan and Allen Olson to stand up to the industrial giants of their day and say “Not so fast. Let’s take a good look at this and make sure we’re doing it right.”

In the end, we got a coal gasification plant, and some power plants, built under specific conditions that protected the environment. That’s the model Gov. Burgum needs to take a good hard look at.

We can have a refinery here if we want one. And I think we do. But we can put it somewhere else, down the road, not beside the national park named for the greatest conservation politician in the history of our country.

Let’s do that.

One more thing: Shortly before 7 a.m. this morning .I sent an e-mail to Mike Nowatzki, the governor’s press person, asking for 10 minutes with the governor today to talk about this. Here’s his response:

“The Governor is completely booked today with things that can’t be changed and is not available for an interview. Below is a quote you can attribute to him.

“The North Dakota Department of Health has determined that this project is expected to comply with all applicable federal and state air pollution rules and regulations and meets the requirements for a permit to construct. The project is going through the proper regulatory authorities as prescribed in North Dakota state law, and the Governor’s Office will continue to stay apprised of its progress.”

I wonder how Art Link,  Byron Dorgan and Allen Olson would feel about a response like that.

Finally, the entire document allowing Meridian Energy Group to build a refinery next to Theodore Roosevelt National Park is available online. You can go here to look at it.

You can also take a look at Meridian’s response to the public comments received by the Health Department in this document. Pay particular attention to its response to comment 4(e). The company has the nerve to say that there is more pollution from the cars visiting Theodore Roosevelt National Park each year than there will be from the refinery. They even built a fancy chart purportedly showing how much tailpipe emissions are coming from the cars visiting the park.

Great! There’s a way to protect the park. Keep everyone out.

LILLIAN CROOK: WildDakotaWoman — Walk On The Wild Side — In The Bad Lands

While life at Red Oak House here on Missouri River is filled with many blessings and much happiness, as frequently as possible we refresh our spirits with visits to the Bad Lands of North Dakota, which we did early this week, joined by our daughter, Chelsea, and Paul and Joe, our friends from Arizona.

We met on the veranda of the Rough Riders Hotel to make a plan. After a quick lunch, determining that Paul had not been to the Chateau de Mores since his southwest N.D. childhood days, we went there to tour. Joe had never been. Thus it was a good way to reflect upon the founding of the town of Medora and the colorful characters who lived there in the 1880s. When Chelsea was in college, she worked at the Chateau for the summer, as part of the interpretative staff, in period costume. I’m pleased at how much she remembers.

It was a perfect late May day and the Bad Lands are very green right now. There is an array of wildflowers in bloom, including Prairie Ragwort and, my favorite, Prairie Smoke.

We spent the remainder of their two-day visit hiking Theodore Roosevelt National Park trails and driving the loop road. It was very interesting to observe the effects of the recent controlled burn, which although it might seem extreme due to the fire’s proximity to the road, close observation revealed a mosaic pattern that mimics the natural prairie fire process, effecting a relatively small percentage of the Park’s total acreage.

We observed many grazers taking advantage of the fresh green native grasses that had quickly sprouted in the wake of the fire, including a fine bull elk.

Day 2 found us taking a four-mile hike to the Petrified Forest on the park’s west side, a place neither Joe nor Paul had seen, and it was another pleasant day with temperatures in the high 70s. I pointed out to my companions that we were in the officially designated wilderness within the park. A couple of bison bulls were spotted and we gave them a sufficiently wide berth.

Although I’m fairly knowledgeable regarding prairie wildflowers, this one (right) had me stumped (although I thought it was likely a vetch). In all of the miles we hiked, I saw only this one large clump of this specimen. Later, I checked with friends, crowd-sourcing this on social media. One of my friends identified it as a Narrow-leaved Milkvetch (Astragalus pectinatus).

The dominant birds of the day were Lazuli buntings, bobolinks, meadowlarks and yellow-breasted chats. While we hiked, I taught the others some about the birds and plants and confessed to being rather a dunce when it comes to rocks.

While we hiked and chatted, we learned that our friends had never been to the Elkhorn Ranch. By Godfrey, this must be solved, we said, and off we went. The ticks were thick there and a very fine specimen of a bull snake slithered across the trail. We were pleasantly surprised to find a few other visitors who’d made the trek.

Then, it was time to return to Medora, for pizza, followed by a farewell to our good friends and trail companions, until their next visit to North Dakota.

“My home ranch-house stands on the river brink. From the low, long veranda, shaded by leafy cotton-woods, one looks across sand bars and shallows to a strip of meadowland, behind which rises a line of sheer cliffs and grassy plateaus. This veranda is a pleasant place in the summer evenings when a cool breeze stirs along the river and blows in the faces of the tired men, who loll back in their rocking-chairs (what true American does not enjoy a rocking-chair?), book in hand–though they do not often read the books, but rock gently to and fro, gazing sleepily out at the weird-looking buttes opposite, until their sharp outlines grow indistinct and purple in the after-glow of the sunset.” — Theodore Roosevelt

RUSS HONS: Photo Gallery — Theodore Roosevelt National Park

Grand Forks photographer Russ Hons spent this past weekend in Theodore Roosevelt National Park in western North Dakota, and here is what he saw. (Check out more photos from Russ Hons here.)

LILLIAN CROOK: WildDakotaWoman — Rollin’ Up Our Sleeves

It is the tradition for members of the Badlands Conservation Alliance to do a day of service, usually in Theodore Roosevelt National Park, on the weekend closest to Earth Day. On this past Saturday, we did just that, rollin’ up our sleeves for Theodore Roosevelt National Park, in the heart of the Bad Lands, our sacred landscape.

I’ve been involved with a service event on Earth Day since 1970, when we schoolkids from Rhame, N.D., picked up trash from state Highway 12 ditches. I often think back to that day.

Photo by Jim Fuglie.
Photo by Jim Fuglie.

The moment Jim and I arrived in the park, we headed straight to the banks of the Little Missouri River, as is our tradition. The river is big right now, filled with snowmelt. It drove us both a little bonkers to not be canoeing.

Duty called, and we gathered with 21 other dedicated souls in the parking area of Cottonwood Campground, where Ranger Grant expressed the gratitude of the park for our service and gave us our directions. It was a beautiful spring day, after a very long winter.

Photo by Jim Fuglie.
Photo by Jim Fuglie.

We fanned out across the campground and went to work, cleaning out the ashes from the fire grates and picking up litter and fallen branches, preparing the place for the summer camping season.

There were a few campers in one campground loop, and from these I recruited a new member, who curious about what we were up to, offered to join us in the chores. In our midst were Bart and Julie Koehler, traveling with their Scamp camper from Florida to their Alaska home, and delighted for the occasion to be with old friends in a beloved place. When all was ship-shape, we celebrated Bart’s birthday with a cake and song.

The rest of the weekend was play time for all, with drives and hikes throughout the park, where lots of wildlife was spotted. Sunday morning, Earth Day proper, Jim and I put in extra effort and located the first crocus (pasque flower) of the season.

The spring peepers were singing in the Paddock Creek wetlands, and all was well on a sunny 65-degree day with no wind. Every time we stopped, we reveled in meadowlark song.

If you are interested in joining in future BCA fun, find the details about upcoming events here.

“Look deep into nature, and then you will understand everything better.” — Albert Einstein

JIM FUGLIE: View From The Prairie —A Short Message About Our National Park

This might be the shortest blog post I’ve ever written. Or will ever write. But it’s an important one, so if you are concerned about the possibility of an oil refinery being built next to Theodore Roosevelt National Park as I am, please take just one minute to read it.

I had a chance encounter with Gov. Doug Burgum this weekend. We had a lengthy, frank and off-the-record discussion about the Davis refinery.

Off-the-record, but I think I can share a few things with you after the conversation without him objecting.

First, I don’t think the governor wants an oil refinery next to our national park any more than you and I do, but I believe he is committed to letting the regulatory process play out, without interfering with his agencies.

Second, I think that he believes, as do many of us, that there will be a legal process before construction begins on the refinery and that he is committed to letting that legal process play out as well.

And third, if the refinery gets its permits and survives a legal challenge, I am starting to get the feeling that we might be able to convince the governor to intervene personally with the company and try to get them to move it away from the park.

To convince him, we need to let the governor know that we will support any efforts he undertakes to get the company to move the refinery away from the national park by sending him an e-mail at governor@nd.gov. We can do that now, or we can do that after the legal process is over. But now might be better.

To quote my new online friend and fellow blogger, Judge Tom Davies: Amen.

JIM FUGLIE: View From The Prairie — Of Refineries And The Public Trust Doctrine

The official comment period has passed on that sleazy company Meridian Energy’s request for an Air Pollution Permit for an oil refinery beside Theodore Roosevelt National Park. I’m guessing the State Health Department got an earful.

Mandan’s Tesoro Refinery. They all pretty much look alike. That white stuff is what you’ll see from Theodore Roosevelt National Park.
Mandan’s Tesoro Refinery. They all pretty much look alike. That white stuff is what you’ll see from Theodore Roosevelt National Park.

Friday, on the last day of comments, my friend,Sarah Vogel, our former state agriculture commissioner and one of the state’s best attorneys, sent me a copy of what she sent to the Health Department. It’s so good, I just have to share it. If the Health Department can issue a permit after reading this, everyone there should be sent packing. And if the governor doesn’t step in after reading this, he should be sent back to Cass County.

Here’s what Sarah wrote:

“The Health Department is well aware of the views of the three statewide-elected officials who serve on the Public Service Commission. They have been clear that they believe that this project should not go forward without a ‘big picture’ overview that would come with a site review by the PSC. See, Bismarck Tribune, ‘Commission urges refinery developers to apply for siting permit,’ December 19, 2017. The majority of the persons testifying at the Health Department’s hearing in mid-January 2018 were opposed to the issuance of the air quality permit by the Health Department, and many urged that the Health Department not grant the permit until such time as a site review by the PSC was completed.

“It appears that the Health Department is evaluating comments on some type of a ‘bright line’ separation between its own concerns, and the concerns by other state agencies such as the PSC, and that it believes it lacks authority to look at any factors other than those strictly dealing with the air quality permit requirements set forth in Health Department regulations.

“Yet, the Department of Health is the lead environmental agency of the State of North Dakota! See N.D.C.C. Section 23-01-01.2 (‘The state department of health is the primary state environmental agency.’) Because of its additional role as the primary environmental agency, the Health Department should take a broader view consistent with the Public Trust Doctrine that underlies the duties and operations of all state agencies, including the Department of Health.

“As explained by the North Dakota Supreme Court, the Public Trust Doctrine is part of the common law of this state and overlays and informs the actions of the state as those actions affect the citizens of North Dakota’s critical reliance on clean water and other resources such as clean air. See, e.g., United Plainsmen Association v. North Dakota Water Conservation Commission, 247 N.W.2d 457, at 460-464 (ND 1976). See, also, State ex rel. Sprynczynatyk v. Mills, 523 NW 2d 537, at 540 ND 1974) (‘North Dakota could not totally abdicate its interest to private parties because it held that interest, by virtue of its sovereignty, in trust for the public.’)

“The Public Trust Doctrine is part of the overarching principles that should govern North Dakota governmental officials and especially those at the Department of Health See N.D.C.C. Section 23-01-01.2, supra.

“I recommend that the Health Department consider the Public Trust Doctrine in determining whether it, as the primary environmental agency, has a duty on behalf of the citizens of North Dakota to coordinate with the PSC to insure that all environmental factors are appropriately considered at the appropriate time and in the appropriate sequence.

“The Legislature’s use of the word ‘primary’ necessarily implies a leadership role with other secondary agencies for environmental issues. Here the PSC is pleading for the opportunity to do its job, and review the site of a project that will have a huge effect on western North Dakota in advance of issuance of a permit. The stakes are even higher since North Dakota’s premier attraction, the Theodore Roosevelt National Park, is extremely close to the site for the proposed refinery. Surely, the Health Department has the discretion to defer its decision on an air quality permit for Meridian’s proposed refinery until the PSC has the opportunity to do a thorough and thoughtful determination of the suitability of the site in keeping with state government’s duty to protect the public’s interest.

“The idea that a Meridian claim of a 500 barrel disparity in anticipated production could prevent this critical and essential review is a weak rationale to avoid PSC review. To illustrate, why should the Department of Health take at face value Meridian’s current assertion that it will produce 500 barrels of oil less than the cutoff for mandatory PSC review? As the Department of Health is well aware, Meridian has a history of changing its numbers based upon the audience it is addressing. One set of numbers is provided on Wall Street for potential investors and stockholders; another set of numbers is provided to officials of the State of North Dakota. The latest illustration of the unreliability of Meridian’s public statements is its recent press release on the Health Department’s January hearing which asserted that most of the people testifying were in favor of the project. In contrast, the Bismarck Tribune’s story by Amy Dalrymple said exactly the opposite.

“In conclusion, the permit should be denied or the application should be held in suspense until a proper site review is conducted by the PSC.”

Well. Thank you, Sarah.

I have no doubt the Public Service Commissioners will read this and agree with Sarah. But as long as the Faustian refinery developers hold to their estimate of 49,500 barrels per day (99 percent of the 50,000 bpd that triggers a site review), the PSC is helpless.

But are you reading this, Doug Burgum? Because, ultimately, you’re the man responsible for upholding the Public Trust Doctrine, on behalf of the citizens of your state. The Health Department works for you. You’re the governor. You asked for the job. Now do your job. The Supreme Court has already upheld the Public Trust Doctrine. Do you really want to be on the same side — the wrong side — of a lawsuit with Meridian Energy, governor, and on the opposite side of your own Public Service Commission, when someone files suit to force you to uphold the Public Trust Doctrine?

LILLIAN CROOK: WildDakotaWoman — Mother-Daughter Date To Theodore Roosevelt National Park

My daughter and I had a Theodore Roosevelt National Park getaway Thursday. She hadn’t been out there since Labor Day, and she described the day as “rejuvenating.”

She loves the Bad Lands as much as I, and she is particularly in love with the wild horses that inhabit the South Unit of TRNP. She is a photographer and a member of the group North Dakota Badlands Horse. This nonprofit organization publishes an annual guide to the horses and my daughter, Chelsea Sorenson, has had her photographs featured in the 2017 and 2018 guides.

Thursday was a very monochromatic day in the park, with overcast skies, but not a breath of wind. There were very few other visitors, and the entire loop road was open, something very unusual this winter as it has been closed most previous winters. In addition to seeing 50 horses, we spotted a few bison and some activity in the prairie dog towns. We also saw several hawks, six wild turkeys, lots of magpies and two golden eagles perched on a clay butte. A bald eagle flyby was the day’s finale.

The highlight of the day was that she got to see a stallion she’d never seen before, which is pretty remarkable considering all of the hours she’s spent at the park.

Here are some of Chelsea’s photographs from the day. You can follow her work on Facebook, Twitter and Instagram at Wild Dakota Photos.

JIM FUGLIE: View From The Prairie — The Refinery Needs A Site Review

A pair of former Democratic-NPL state senators challenged the North Dakota Health Department to demand a site review by the State’s Public Service Commission before issuing an air pollution permit allowing Meridian Energy Group to build a refinery three miles from Theodore Roosevelt National Park at a marathon public hearing by the Department Wednesday night.

Former Sen. Connie Triplett of Grand Forks told Health Department administrators near the end of a four-hour public meeting in Dickinson that they should attach a condition to the permit if they issued it, stating that the permit to build the Davis refinery would only be valid if the company submitted to a full site review by the PSC. And former Sen. Tracy Potter of Bismarck went a step further, saying the Health Department should just put the permit application on hold, and not consider it, until the PSC reviews the site.

Damn, I wish I could get rid of the word “former” in front of those two senators’ names. Out of the 40 or so people testifying on issuing an air pollution permit to the company at Wednesday’s public hearing, their Legislative experience showed their understanding of the government processes that could be brought into play before a refinery is built on the national park’s border.

To review: North Dakota has a law that says any energy conversion facility, such as a refinery, that is going to process more than 50,000 barrels of oil per day (bpd) needs to undergo a site review by the Public Service Commission to “ensure the location, construction, and operation of energy conversion facilities … will produce minimal adverse effects on the environment and the welfare of the citizens of this state …”

Further, it says “The policy of this state is to site energy conversion facilities … in an orderly manner compatible with environmental preservation and the efficient use of resources. Sites and routes must be selected to minimize adverse human and environmental impact …” (emphasis added)

To get around that requirement, Meridian now says it is going to process only 49,500 barrels per day, a sleazy, transparent move to avoid having the PSC tell them it this is a lousy place for a refinery and that Meridian should put it somewhere else where it won’t detract from our national park.

Meridian’s number of 49,500 bpd is 99 percent of the PSC’s jurisdiction limit of 50,000 bpd. Fifty thousand barrels is 2.1 million gallons. 49,500 barrels is 2.079 million, just 21,000 gallons less than the threshold for regulation. So Meridian’s tactic is to stay just 1 percent under the threshold for regulation. It would be a laughable move by the refinery people if it weren’t for the fact that by staying just barely under the threshold, THERE IS NOTHING STOPPING MERIDIAN FROM PUTTING AN OIL REFINERY BESIDE THEODORE ROOSEVELT NATIONAL PARK.

I can’t shout that loud enough. Nothing stopping them except, of course, issuance of an air pollution permit, which was the matter at hand at Wednesday night’s public hearing. And that’s why Triplett and Potter’s requests are so important. Because in its initial review, the Health Department says it thinks that the refinery could come in under the pollution limits allowed by the federal Clean Air Act to protect the Class I Air Quality Status of a nearby national park.

Now whether we believe that — the Meridian people haven’t said much that is believable so far in this process — Triplett and Potter pointed out that this is just one very narrow — albeit very important — look at whether the refinery should be built there. North Dakota state government needs to take a holistic approach to siting something as big as this — and there’s no doubt this is big, the biggest industrial plant to be built in our state since the Great Plains Coal Gasification Plant near Beulah 35 years ago, which at the time, was labeled the largest construction project in North America.

That’s what the PSC siting process brings. A look at the big picture.  And then once the PSC has completed its site review, the Health Department, the Water Commission, the Game and Fish Department, the State Parks Department, the Agriculture commissioner, the Tourism director, the Transportation director, maybe some other directors and, most importantly, the governor need to sit down around a table and decide what’s really good for the state, and  if this is really the best place to put an oil refinery. That’s how state government should work, whether we trust all those people or not. I guess we have to trust them, since they’re in charge here right now.

I don’t think anybody’s questioning whether we should have an oil refinery in North Dakota. Of course we should. As Triplett has pointed out, it is certainly more environmentally — and economically, I’ll add — desirable to refine oil here and ship a finished product out in a pipeline than it is to ship out raw crude in a pipeline and then ship refined gasoline and diesel fuel back here in trucks or another pipeline.

So the only real question is, where should the refinery be? Public Service Commissioners Julie Fedorchak and Brian Kroshus pushed hard at Meridian officials at a meeting last month to get them to consider other locations away from the park but to no avail. Barring that, they asked politely to be allowed to conduct a formal site review to “ensure the location, construction and operation of the refinery… will produce minimal adverse effects on the environment and the welfare of the citizens of this state …”

Meridian officials told them to stuff it. The 49,500 bpd refinery is under the threshold for a site review, they said, and they are complying with the law. Well, yeah 1 percent under the threshold, and in terms of impact on the environment and the welfare of our citizens, that’s a pretty slim — and sleazy — standard they set for themselves.

In fact, it prompted PSC Chairman Randy Christmann to tell me and a few others after the meeting that he won’t be surprised if some legislator introduces a bill in the next legislative session to get rid of the threshold altogether and make all energy conversion facilities of any size subject to a site review. Good for him. Christmann is not a big government regulation guy, but I think he’d like that. In the case of Meridian, that would be closing the barn door after the cows are out, but it certainly would keep this from happening again in the future.

Shortly after that meeting between Meridian and the PSC, when Meridian snubbed its nose at three elected officials, I sent a letter to Gov. Doug Burgum asking him to call Meridian CEO William Prentice into his office and ask him politely — CEO to CEO — to move the refinery away from the park. I think I’ll just put my letter at the end of this post because it’s been a month now, and I’ve not had a response from the governor.

I’m disappointed in that. It used to be in North Dakota, when you wrote a letter to an elected official, you got a response in a pretty timely manner. I worked for a governor for eight years, and I don’t recall a constituent letter ever going unanswered. Especially on a matter as important as this. I’ll write a little more about that subject in a few days.

Meanwhile, subsequent to Wednesday’s Health Department hearing, a public comment period on this issue remains open until Jan. 26. Then the Health Department will read all the public comments and respond to them, I think. Often the response is just to thank you for commenting and telling you they are taking your comments into consideration, but at least you know your comments have been read by someone. I submitted mine a few weeks ago and shared them with you in this space. You can read them by going to my old blog. I urge you to join me in commenting. I’m putting the address for your comments at the end of this post, too.

I’m adding to mine by strongly urging the Health Department to take the advice of Sens. Potter and Triplett and attach conditions to any permit, requiring Meridian to undergo a site review. Triplett, an environmental attorney, knows North Dakota law, and she says they can attach conditions to a permit. There’s precedent for that, even.

Way back in the 1970s, when a company named Michigan Wisconsin Pipeline Co. asked for a state water permit to construct some coal gasification plants here (one of which ended up being the Great Plains Synfuels Plant I mentioned earlier), the North Dakota Water Commission attached a series of conditions to the permit, which ended up being the beginning of North Dakota’s Mined Land Reclamation Laws, now the strictest reclamation laws in the country.

I think the conditions were challenged in court, and they held up. We’re all winners because of that. Strict regulations were followed, the coal gasification plant got built, and it’s still operating successfully today.

And I’m going to go a step further and ask the governor to strongly advise the Health Department — they work for him, after all — to attach the condition of a site review to the permit, if they issue one. Or to just tell the company they’re holding the permit until a site review is done. If Meridian is confident they’ve got the right project in the right place, they won’t have any problem undergoing a site review.

Let me repeat that.

If Meridian is confident it has got the right project in the right place, it won’t have any problem undergoing a site review.

One more time.

If Meridian is confident it has got the right project in the right place, it won’t have any problem undergoing a site review.

Here’s the address for your comments, to be submitted to the Health Department by Jan. 26. You might want to use the line “If Meridian is confident they’ve got the right project in the right place, they won’t have any problem undergoing a site review.”

Terry O’Clair, P.E., Director

Division of Air Quality

ND Dept. of Health

918 E. Divide Ave.

Bismarck,ND 58501-1947

And here’s my letter to the governor:

 December 21, 2017

Dear Gov. Burgum,

Late in the afternoon on this shortest day of the year, my mood is as dark as the 5 p.m. sky. I close my eyes and think back to the meeting between the PSC and William Prentice from Meridian Energy Group the other day, and I see him smirking as he says “We are going to comply with the law.”

So that’s what it’s come to for Meridian. It’s about the law. It’s not at all about anything North Dakotans might feel about having a refinery smack up against their national park. A national park named for our Greatest Conservation President.

“If these stupid North Dakota hicks are willing to put that kind of a loophole in their siting law, I’m going to use it,” the snarky Californian says.

So now, Governor, it’s up to you. You need to get that asshole in your office and tell him he needs to move that refinery. You can do that. He’ll respect you, a fellow businessman and North Dakota’s CEO.

Randy and Julie and Brian did their best, but they carried no authority. They’re not used to dealing with this kind of character. “I don’t see why you don’t just go through the siting process” won’t work with this guy. It’s kind of like the salesman who says “I don’t suppose you’d like to buy some insurance, would you?”

Please, Governor, call this guy up and get him in your office. And tell him to move the damn refinery.

Please let me know if you are willing to do this, so I can stop writing about it (and you) for a while. Even if it does no good, I need to know that at least you were willing to try.

Thanks.

Sincerely,

Jim Fuglie