JIM FUGLIE: View From The Prairie — Wayne Stenehjem: Public Lands Enemy No. 1

We’ve got a million acres of public land, most of it excellent wildlife habitat, in western North Dakota, owned and managed by the U.S. government, which means you and me. I know, you’ve read those words before in my writings. Sorry, but I’m going to keep talking about this UNTIL SOMEBODY LISTENS!

There’s a huge overlap between those public lands and North Dakota’s Bakken oil fields. In fact, about 96 percent of those public lands are open to oil development. And there will likely come a day, probably in the next 10 years, when there are oil wells on almost every single square mile of those public lands. I say “almost” every single square mile because there are about 40,000 acres out of that million acres — about 4 percent — that are protected from development. So far.  A few words about that — a lot of you already know this story.

In the depths of the Great Depression and Dust Bowl, the federal government came to the rescue of Great Plains farmers and ranchers facing foreclosure, many of them North Dakotans. The government bought parts of their operations, giving them much needed cash to make payments on their mortgages, and then leased it back to them for pennies on the dollar so they could continue farming it or grazing cattle on it. Much of it was grazing land, and in North Dakota, it became what is today the million-acre Little Missouri National Grassland. And many third- and fourth-generation ranchers in western North Dakota still run cows on that same land their grandparents did.

Along with the land, the government bought the minerals under that land, and no one anticipated there would be billions of barrels of black gold under that vast expanse of prairie. But the black gold was there, and today, the government receives billions of dollars in royalties from oil companies that lease the right to drill for oil under that land.

Because the government’s holdings are so vast, the U.S. Forest Service, which manages most of that land, writes a Management Plan from time to time — sometimes every 10 years, sometimes as long as 20 — which it shares with the ranchers who lease the surface, the oil companies who lease the minerals and the general public, those of us who use it for recreation uses and have conservation interests.

Management plans for North Dakota were written in 1974, in 1986 and in 2002. The one in 2002 set aside some 40,000 acres, which had not yet been developed for anything but cattle grazing, as “suitable for wilderness.” That meant that if the president and Congress decided they would like to permanently keep four little undeveloped islands in a great sea of oil, gas, coal and gravel development, they could designate that land as Wilderness with a capital W under the federal Wilderness Act of 1964.

Those four areas, Long X Divide, Twin Buttes, Kendley Plateau and Bullion Butte, shown on the map below, joined what we call two additional “roadless areas,” one near a landmark called Lone Butte west of the Killdeer Mountains in western North Dakota, and the other on the Sheyenne National Grasslands in eastern North Dakota, in being off-limits to development.

A small group of dedicated conservation-minded North Dakotans, members of Badlands Conservation Alliance, has presented a plan for Wilderness designation, called Prairie Legacy Wilderness, and they’ve recently found what could become an important ally, Backcountry Hunters and Anglers, which I wrote about here a couple of months ago, a sportsman’s organization dedicated to public land preservation. So far, the formal Wilderness plan hasn’t gotten any traction in Washington, but these are persistent folks.

The Forest Service continues to protect those areas, but there are increasing threats to that protection. A couple of years ago, I wrote here about a lawsuit filed by some western North Dakota county commissioners, aided by North Dakota Attorney General Wayne Stenehjem, to open those areas to roads and to the development which will accompany those roads.

The suit is approaching its sixth birthday now, and it’s costing the taxpayers of North Dakota a lot of money, since Stenehjem is essentially taking the lead in the case and picking up the tab for what a lot of people think is frivolous legal activity.

The case was filed in the fall of 2012. It asks the federal government to “quiet title” to the section lines through the roadless areas, giving the state and the counties the right to go in and build roads through what is now roadless, which would destroy the “suitable for wilderness” designation. It would also destroy the prized scenic and recreational values of the areas and wipe out critical habitat for wildlife.

These are the last truly undeveloped areas in all of North Dakota, and they make up less than 1 percent of our state’s total land area. I went to Stenehjem’s office to visit with him about this a couple of years ago. His argument: “Jim, it’s about state sovereignty. The people of North Dakota have a sovereign right to use those section lines.”

Well, Mr. Attorney General, I don’t think most of the people of North Dakota give a rat’s ass about sovereignty. What they do care about is the land — and the critters. Meadowlarks are disappearing from the prairie. Pronghorn and mule deer herds are stressed like they’ve never been before.

Actually, the lawsuit should be over now. Last summer, after five years of motions and arguments and court briefs, U. S. District Judge Daniel Hovland in Bismarck wisely dismissed the lawsuit and threw it out of his court, telling the North Dakota attorney general, in much kinder words than I’d have used, to go away from his courtroom and not darken his door again on this issue.

Hovland’s decision hinged on the fact that there’s a statute of limitations thing — a federal law that gives states 12 years to file a lawsuit against the federal government if they feel that the feds have unjustly taken something from the state — in this case the right to build roads on section lines on federally-protected  land.

Twelve years should have been plenty of time for the state to get its stuff together and challenge the Forest Service if it had wanted. The judge essentially said, “Hey, you’ve known about this protection for way more than 12 years, so you’re too late. The law is the law. Go away.”

So Stenehjem lost. Winners were mule deer, sharptail grouse, meadowlarks, pronghorns, coyotes, hunters, anglers, photographers, hikers, campers, birders and everyone else who just wants to WALK on that land without being interrupted by pickups and four-wheelers, or much worse, oil wells with hundreds of fracking trucks and noisy flares that light up the night sky and scare away the critters.

But that wasn’t good enough for Stenehjem. He’s filed a motion — another exercise in frivolity and futility, lawyer friends of mine say — asking Hovland to “reconsider.” No one I know could explain why the judge might be willing to reconsider his ruling, after doing hours and hours of research and writing a 72-page opinion explaining why he was dismissing Stenehjem’s lawsuit.

Worse, it’s not just the North Dakota taxpayers whose money is being wasted — the federal government’s lawyers had to go back to work as well, writing their own response, which essentially says “Hey, Stenehjem, WTF are you thinking? Get over it.” So we’re paying for that as well.

Hovland will hopefully rule on the motion to reconsider this summer. If he rejects it, we’ll see if Stenehjem decides to keep on spending our money by appealing to the 8th Circuit Court of Appeals. Don’t bet against that. It’s election year, and there’s nothing better for a politician in an election year to get headlines by taking on the big, bad federal government. He’d probably be making his arguments, and getting his headlines, in the months leading up to the election, but if he loses, which I hope is the eventual outcome, it won’t be until well after the election is over that we find out how much the whole fiasco cost the taxpayers.

There’s a danger, though, slight as it is, that the appeals court could overturn Judge Hovland. That would be a much bigger loss. Then get out of the way, cuz the dozers are coming.

Meanwhile the mule deer and the sharptails and the meadowlarks don’t read newspapers or magazines or websites, so they’ll go on enjoying their wilderness (with a small w, but maybe someday …), not knowing what’s being plotted in the attorney general’s office in the North Dakota Capitol. For now, let’s not tell them.

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