JIM FUGLIE: View From The Prairie — The First Thing We Do, Let’s Kill All The Lawyers

You might remember that memorable line, uttered by Dick the butcher, from perhaps the least memorable of Shakespeare’s plays, “Henry VI.” I thought of it today because I was thinking about lawyers. And governors.

It’s been 30 years since North Dakota had a lawyer in the governor’s chair. That’s about to end. Because it looks like the race for governor in 2016 could well come down to a pair of lawyers with long histories of public service — former Agriculture Commissioner Sarah Vogel and current Attorney General Wayne Stenehjem.

North Dakotans don’t often elect lawyers to the governor’s office. Only six of our 31 governors have been lawyers, serving just 30 of our state’s 125 years. The last was Allen Olson, who was serving as attorney general when he was elected, and who’s generally been viewed as a failure. A couple of popular attorneys general have tried since then — Democrats Nick Spaeth and Heidi Heitkamp — but their popularity in their other jobs did not translate into support in their governors’ races. In fact, Olson was the first and only North Dakota attorney general to move across the Great Hall of the North Dakota Capitol to the governor’s office.

Lawyers in North Dakota don’t suffer the same bad rap — deserved or not — as in many other states, but North Dakotans just don’t seem to think their governors should be lawyers. Farmers and businessmen — viewed more as CEO’s or managers — make up the bulk of our governors over our 125 years of statehood, with teachers mostly filling in the gaps. Part of it is, I think, that we like our shopkeepers and our farm neighbors, folks we see on a daily basis, but most of us hardly ever require the services of a lawyer, so we really don’t know a lot about what lawyers really do on a day-to-day basis. Our perception is that they sue people. And we’re not inclined to go around suing people.

Well, Stenehjem is one of the suingest. Especially when it comes to suing the United States government. And that may be his biggest liability, if Vogel is able to make a case for it.

You see, by his own count, Stenehjem has sued the United States government at least a dozen times. And you know what makes people angry about that? We have to pay the lawyer bill. Both sides. Because when there’s a lawsuit by a state against the federal government, tax dollars, supplied by you and me, pay the lawyers on both sides. No matter who wins, we lose. That’s got to be one of the biggest North Dakota taxpayer ripoffs ever. And Stenehjem is responsible.

Stenejhem is lawsuit-happy, way more lawsuit-happy than most other lawyers, because he gets to send the bill to someone who will always pay it — the taxpayers — no matter if he wins or loses. He doesn’t take cases on a “contingency” basis, where he doesn’t get paid if he loses. He, and his legal staff in the attorney general’s office, and  a score of private lawyers, friends of his, I assume, who he appoints as “Special Assistant Attorneys General” because they have more time or expertise available, get paid, no matter what. Paid well, too, although I think a lot of the lawyers in his office in the Capitol are probably underpaid, compared to what they could make in the private sector, if they were good lawyers. That’s the thing about government, at least in North Dakota. Once you get down a pay grade or two below the boss, pay starts falling rapidly.

But back to Stenejhem’s lawsuits. Just lately, he sued the U.S. Environmental Protection Agency, his favorite whipping boy, over its new rule requiring cuts in carbon dioxide emissions from existing power plants. He says the EPA is overstepping its authority by attempting to restructure the state’s electrical power system. And at the same time, he announced he would sue again over the regulations on new power plants. What’s the basis for his lawsuits? Same as every other lawsuit he files — state sovereignty. He says the EPA infringes on the state’s authority to regulate its own electrical systems under the United States Constitution and federal law.

If it’s any consolation, he didn’t catch the EPA off guard. Because two weeks before he filed his latest lawsuit, he announced he would “sue the federal government to block stricter pollution standards for coal-fired power plants as soon as they are published.” Yep, he didn’t even wait to see them. He just said he would sue anyway. Without looking. Some things just can’t wait. Like headlines. When you’re running for governor.

In case you’ve forgotten, it wasn’t long ago Stenehjem sued the EPA over the Waters of the United States rule. Yeah, it’s been a busy fall. He’s not only against clean air, he’s against clean water, too. Remember when state officials used to try to stop people from polluting the air and the water? Well, that was then.

Oh, and the ground, too. Stenehjem started the summer by suing the Bureau of Land Management, another federal agency, to stop them from implementing rules regulating fracking. The BLM said the rule aims to ensure that oil wells are properly built to protect water supplies and that fluids flowing back to the surface during fracking are handled properly and to provide public disclosure of the chemicals used in fracking fluids. Wayne said “No” to that, too.

Oh, and it’s not just the federal government he sues to make sure that North Dakota is allowed to keep polluting.  It was just a few years ago he sued our neighbors in Minnesota who said they were having trouble justifying buying electricity from those coal-fired power plants out in western North Dakota. Minnesota passed a law, called the Next Generation Energy Act, telling Minnesota power companies they couldn’t buy electricity from new coal-fired power plants in North Dakota — they need to get their electricity from clean power sources. It was touted as an effort to cut carbon dioxide pollution and combat global warming. You see, Minnesotans are willing to pay a little bit more for electricity if it makes the air a little cleaner (it’s only coincidental, I’m sure, that the air they want to clean up is upwind from the Twin Cities, but still, well-intentioned legislation).

“What? We’ll sue ’em!” Stenehjem declared. And he did.

There’s one more of these lawsuits that really pisses me off. That’s the one against the U.S. Forest Service to open up the section lines in our roadless areas of the Little Missouri National Grasslands. We’ve got a few thousand acres out in western North Dakota — about 50,000 of them out of our 1 million acres of federal land, which is just 5 percent of the National Grasslands — that are pristine and closed to driving traffic so critters can live there without being disturbed, and people who like those critters, both those who like to hunt them and those who like to just watch them and take pictures of them, can go there and enjoy their time in the “wilderness” without being disturbed by traffic.

But county commissioners in four western counties, in a mean, despicable act, with Stenehjem’s support, sued the federal government to open those areas up to roads. You can read more about that lawsuit by going here. Roads, of course, bring vehicles — like oil trucks. Stenehjem jumped right into that lawsuit, signing the state of North Dakota on as a partner in suing the federal government to allow roads through those protected areas, even though all five of those areas he wants to open up are the same ones he put on his “Extraordinary Places” list last year.

In what turned out to be a farce of a policy, Stenehjem announced with great fanfare that there are places in the Oil Patch that just must be protected. Industrial Commission meetings were moved to large rooms and hearings on his policy were held. Television cameras and radio microphones and newspaper reporters showed up. Headlines blared “Attorney General Wants to Protect Extraordinary Places.” But all five of the areas Stenehjem’s lawsuit seeks to open up are on that list of “Extraordinary Places.” That is sheer hypocrisy on the part of the Attorney General.

When I asked him about the obvious conflict one day, he said it’s about “state sovereignty.” Turns out special places are not as important as “sovereignty.” Also turns out Stenehjem was not too serious about passing the policy. He caved to the governor and agriculture commissioner and the oil industry, gutted the policy and passed a meaningless motion which is doing almost nothing to protect “Extraordinary Places.” And will do absolutely nothing if his lawsuit is successful.

Pat Springer wrote a story about Stenehjem filing this lawsuit in the Forum. Stenehjem didn’t like it, and refused to comment in the story. But Jan Swenson, executive director of the Badlands Conservation Alliance, did. Here’s what she said:

“The state appears more interested in helping petroleum companies to develop every possible area than in preserving the few small pieces that remain eligible for wilderness protection. One can’t but believe that it goes back to what Mr. Helms (head of the state’s Oil and Gas Division) has said — that they want to drill and hydraulically fracture every square mile out there.”

I mentioned earlier that Stenehjem has sued the federal government at least 12 times. I learned that from reading the minutes of the Industrial Commission (yeah, I know, I need to get a life). Here’s an excerpt from the minutes of the Oct. 28, 2011, meeting, which discusses the cost of these lawsuits plus the reference to how many Stenehjem has filed:

In response to a question regarding how costly that would be, Attorney General Stenehjem stated it could be very costly. The model we have is the funding for other EPA lawsuits that we are involved in- one was $1 million — the lawsuit against Minnesota was $500,000 up to $1.5 million for that. He suggested first to see if they do something and if they do we will look to see if it is possible to do it in house. That is not likely because we already have eight lawsuits against the EPA and we wouldn’t have time to do it. Secondly, he would visit with his other colleagues, other attorney generals similarly situated like Pennsylvania, Oklahoma, Texas, etc. to see if that is something we could do as a group — then it may not cost as much. Barring that, we need to look at the possibility of hiring outside counsel like we have done on the regional haze lawsuit. He would suggest we do the same as we did with the EPA litigation — $1 million which they appropriated a contingent $500,000 with authority to borrow $500,000 from BND and come back for a deficiency appropriation. First, we would try to get all the states to ban together and hire a law firm and pay a portioned share. We need to be ready. If EPA regulates fracturing, they will stop fracturing and that will stop oil development. It was moved by Commissioner Goehring and seconded by Attorney General Stenehjem that the Industrial Commission request an appropriation during the 2011 special session for the purpose of defraying expenses associated with possible litigation and other administrative proceedings to oppose, if necessary, federal actions to regulate hydraulic fracturing. 

“We already have eight lawsuits against the EPA.” That was in 2011. There are at least four more since then. And they cost up to a million dollars each. I asked the Attorney General’s office for a list of those 8 lawsuits, but Liz Brocker, Wayne’s spokesperson responded by e-mail “I don’t have exactly what you are looking for … ” but she sent me a 12-page PDF, single spaced, written in lawyer language, titled “Energy Generation: Lawsuits, Amicus Briefs and Comments Filed.” I could pick out four lawsuits filed before October 2011 in there, but the other four Stenejhem mentioned at the meeting remain a mystery to me. Maybe I need a lawyer to help me interpret the document. Or maybe Stenejhem was exaggerating a bit.

What we know for sure is, it has become standard procedure in the North Dakota Legislature that at the end of each session, a special appropriation is passed to fund the attorney general’s lawsuits against the government — usually in the million range, sometimes higher. Our tax dollars at work.

I’ll finish this rant by saying that none of those lawsuits ever seem to get resolved. They all just seem to linger through the court system, because if they get resolved, the lawyers quit getting paid. Lawyers we pay with our tax dollars — lawyers on both sides of those lawsuits (except for the Minnesota one — their taxpayers are paying for that).

Is it any wonder North Dakotans are reluctant to elect lawyers as their governor?

Well, next year, we’re going to. I just hope it is the right one. Because there’s a whale of a difference between the two of them, Sarah Vogel and Wayne Stenehjem. I’ll talk about that on another day. It will be a whole lot easier, and a whole lot less discouraging, to write about Sarah Vogel. Because like in any profession, there are good lawyers and bad lawyers. And Sarah Vogel is one of the good ones.

Footnote: I’ve been a little hard on lawyers here. I have or had — a lot of lawyer friends. Please, lawyer friends, including David(s), Monte, Joel, Larry, Malcolm, Christine, Bill, Tim, Tom, Earl, Craig, Robin and the rest of you, know it wasn’t you I was talking about, or thinking  bad things about. If any of you want to be governor, give me a call. I’m here to help.

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