JIM FUGLIE: View From The Prairie — Turns Out Nobody’s Looking Out For The Little Missouri

A couple of weeks ago, I posted an article here about the Little Missouri State Scenic River Commission and how important it had been to protecting the integrity of North Dakota’s only “State Scenic River” during our first oil boom in the 1970s and ’80s. If you missed it, you can go here to catch up.

Well, we’ve had another boom since then, and with some big threats facing the river, today’s government leaders seem to have abdicated any influence they may have in protecting that important resource from the greedy oil industry, always in a hurry to get from here to there. Time is money, you know.

Here’s more of what I learned about the the laws that were written to protect the Little Missouri River ― and how they have been ignored.

The Little Missouri State Scenic River Act

Part 2 

On Aug. 29, 2007, the Little Missouri Scenic River Commission, meeting in Dickinson, N.D., watched a PowerPoint presentation by Kadrmas, Lee and Jackson (KLJ), the engineering firm hired by the North Dakota Department of Transportation to design a new crossing on the Little Missouri River north of Medora. The purpose of the presentation KLJ stated, was “to seek guidance from the Little Missouri State Scenic River Commission, if the river crossing structure alternatives comply with the Little Missouri State Scenic River Act.”

KLJ said it had received “numerous comments” citing the Little Missouri State Scenic River Act, and stating that the project may not comply with the Act. You can actually go to Chapter 61-29 of the North Dakota Century Code and read the act. It’s very short, and very specific. It says the job of the commission is to “advise local or other units of government to afford the protection adequate to maintain the scenic, historic, and recreational qualities of the Little Missouri River and its tributary streams.”

Well, two weeks after the Dickinson meeting, Arik Spencer, a staff person for the North Dakota Parks and Recreation Department, wrote to KLJ on behalf of the commission that the alternatives presented seemed to be in compliance with the Act. Spencer asked that the commission receive detailed information on the project once the alternatives for location and type of structure had been finalized, addressing the scope and impact of this project to the Little Missouri River. “Only then will the commission consider the project for compliance with NDCC 61-29.”

That was the last anyone ever heard of the Little Missouri Scenic River Commission. It seemingly disappeared into thin air.

I wrote here earlier that the commission was deeply involved in development issues facing the river, which flows through the scenic North Dakota Bad Lands, from the time it was created by the North Dakota Legislature and former Gov. Art Link in 1975, through the first oil boom of the late 1970s and early 1980s and into the 1990s. But there is no record of any other correspondence involving the commission, or minutes of any meetings ― in the last nine years ― since that 2007 meeting.

For a few years, that meeting was also the last anyone heard of the proposed river crossing as well. It got bogged down in right-of-way access and objections to its planned location, adjacent to the Elkhorn Ranch Unit of Theodore Roosevelt National Park. The project resurfaced in 2012, with the beginning of a new Environmental Impact Statement, which now, four years later, is expected to be presented to the public this summer.

I’ve written about this project before. Initially, it meant a new bridge across the Little Missouri River next to Theodore Roosevelt’s Elkhorn Ranch. That plan was discarded after loud objections from the public. New location alternatives were presented. Everyone now expects, when the EIS is released this June or July, it will recommend a bridge about four miles north of the Elkhorn, bringing as many as 1,000 oil trucks a day through this very remote and very scenic part of the Little Missouri River Valley. And likely it will recommend that it be built pretty soon.

There will be public hearings on the project ― and opportunity for the public to comment in person or on paper. I’ll write about that when I know more.

And when the EIS is released, KLJ will face a commitment it made way back in April 2008, on page four of a newsletter updating progress on the project:

“The (Little Missouri State Scenic River) Commission has reviewed the preliminary range of reasonable alternatives and found them to not violate the Little Missouri State Scenic River Act (NDCC 61-29). However, coordination with the commission will be ongoing throughout the environmental process. Once alternatives have been defined and are carried forward for impact analysis, they will be presented to the Commission again. At that time, the commission will determine if the proposed project is in compliance with the Little Missouri State Scenic River Act.”

Well, good luck with that, KLJ.

Because for all intents and purposes, the commission no longer exists. Oh, it’s still there in state law, but no one’s paying any attention to that. The commission hasn’t met in almost nine years. Its last chairman, Bad Lands rancher Alvin Nelson, died more than a year ago and hasn’t been replaced. And state officials responsible for calling it to meet, and presenting measures for “protection adequate to maintain the scenic, historic, and recreational qualities of the Little Missouri River and its tributary streams,” as the law states, hardly seem to know it even exists.

As I pointed out in my earlier article, three state officials — the State Parks and Recreation director, state engineer and state health officer — are the ex-officio members of the commission, and they join six ranchers, one from each of the Badlands counties, on the commission. The Parks director serves as secretary to the commission and traditionally calls the meetings and presents agenda items concerning threats to the integrity of the river for the commission’s consideration.

When I first spoke to the current Parks director, Mark Zimmerman, a couple of months ago, he said the commission had not met in the five years he has been in his job. Frankly, I think he didn’t even know about it until I made him aware of it.

After some digging, his staff found three pages of minutes from a 2001 meeting, with three agenda items: a discussion of the liability dangers in creating a Little Missouri River canoeing map, the possibility of designation of the river as a National Wild and Scenic River and plans for irrigation of a proposed new golf course south of Medora.

(If you’re curious, the map never got printed, the National Wild and Scenic River designation didn’t happen, and we’ve been playing the golf course for about 10 years now.)

At the end of those meeting minutes, it says this: “In closing, Ray Clouse (Golden Valley County’s representative on the commission) indicated a need to elevate the work of the commission to the public at large. Some form of publicity is needed to make the work of the commission aware to the public, function and value of the work so projects and actions along the river flow through the organization. That will be a topic for a future meeting.”

Never mind the bad grammar by the person writing the minutes. What Clouse wanted was to make the commission more visible, so that people and companies with plans which might impact the Scenic River valley would let the commission — and through them, the general public — know about those plans.

That was 2001. As far as I can tell, there were no “future meetings,” except for that time KLJ called the group together to review its plans for the bridge in August 2007. After I pressed the Parks Department to dig a little deeper, it did find minutes of that 2007 meeting, along with the PowerPoint presentation. But the department made it pretty clear there haven’t been any meetings since.

I talked to Clouse, a rancher from Golva, N.D., who just happens to be an old friend of mine, earlier this spring. He’s no longer a member of the commission, but said while the commission had little authority, it was important to keep the river free-flowing, and the commission’s work contributed to that.

His reference to “little authority” stems from an opinion issued in 1989 by then-North Dakota Attorney General Nick Spaeth that limited the commission to “adopting advisory policies for consideration by regulating bodies.”  Spaeth said, “It is my opinion that the Little Missouri Scenic River Commission may not regulate activities affecting the Little Missouri River (emphasis added).”

But Spaeth went on to say that “Regulating bodies are to recognize that the commission has an important role to play in managing the river. The commission, because of its composition, is able to provide a unique local perspective to management issues (emphasis added). Therefore, regulating bodies should carefully consider the Commission’s recommendations.”

Attorney general opinions in North Dakota have the force of law unless the Legislature supersedes them. In this case, I can find no evidence that has happened. That’s why Clouse told me he felt the board was a “paper tiger,” but still important.

Of course, the commission can’t make any recommendations unless it meets. I asked current Parks Director Zimmerman if he thought the commission might ever meet again, considering the numerous threats to the river from encroaching development, including TWO new bridges going through the river valley in the next two years or so. Yes, TWO — both the proposed oilfield road and bridge over the river north of Medora, and the replacement of the historic Long-X Bridge as part of the widening of U.S. Highway 85 to four lanes adjacent to the North Unit of Theodore Roosevelt National Park. It was that project that brought the commission to my attention in the first place.

There is precedent for the commission’s involvement in bridge projects. In the late 1980s, North Dakota’s DOT replaced another bridge over the Little Missouri River, the Lost Bridge north of Killdeer, on state Highway 22. The commission was heavily involved in that project, working with the DOT on siting of the bridge. It even had aerial photos taken of the proposed routes for the new road and bridge, studied them, and then-Parks Director Doug Eiken, on behalf of the Commission, made a formal request to DOT to locate the new bridge adjacent to the old one, to cause the least disturbance possible to the Little Missouri River Valley.

And that’s exactly what happened. The commission spoke. DOT listened.

Now, we face a similar, but much larger, project–a great big four-lane bridge on Highway 85. At early public hearings and in written testimony on the Highway 85 project — for which an Environmental Impact Statement will be released any day now — conservation groups, led by Jan Swenson of the Badlands Conservation Alliance, asked that once again, the Little Missouri Scenic River Commission be consulted. It’s that board, composed mostly of Badlands ranchers, who have on-the-ground knowledge of potential impacts on the river valley from the project.

So when I asked Director Zimmerman about that, he said, yes, that might be a good idea. Referring to the attorney general’s opinion, he said, “We really don’t have any authority — it is kind of a feel-good commission,” but from a “tourism and environment aspect,” it might be a good idea to get the commission back together again.

He mentioned that on a visit to the Elkhorn a couple of years ago, both former Theodore Roosevelt National Park Superintendent Valerie Naylor and North Dakota Gov. Jack Dalrymple had expressed some concern over the gravel mining operation now taking place beside the Elkhorn Ranch (more about that one of these days, too) and said that the commission could at least serve as a “sounding board” for those types of concerns.

“I’d be happy to act as a catalyst to call a meeting,” Zimmerman said.

I hope he does that. I’ve mentioned just a few of the threats to the “scenic, historic and recreational qualities of the Little Missouri River.” There are many more.

A couple of years ago, I rounded a  bend in the Little Missouri north of Medora in my canoe and found a brand new oil well sitting right on the bank of the river. Obviously, the commission hadn’t been asked to weigh in on that. This magnificent and important river needs all the friends it can muster.

Besides, it’s the law. Chapter 61-29 of the North Dakota Century Code.

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