JIM FUGLIE: View From The Prairie — Another Not-So-Little Win For The Bad Lands

I’m sitting in my office on a clear, crisp, Saturday morning (I know it’s clear because the sun is shining in my eyes through my office window, and I know it’s cold because I went out looking for three or four days’ issues of the Bismarck Tribune in the snow, to no avail) reading a 17-page decision handed down by the United States Court of Appeals For The Eighth Circuit two days ago. It’s a really good decision, full of good news.

Good news for the North Dakota Bad Lands. Good news for people who love them.

It’s a decision that (hopefully) ends 10 years of legal wrangling between the state of North Dakota and four of its counties out west, against the U.S. government’s Forest Service backed up by some North Dakota conservation organizations, over who owns the section lines in five isolated areas of the Little Missouri National Grasslands, comprising about 40,000 acres.

Those five areas make up about 4 percent of our million acres of National Grasslands, and they’re the last areas that have not yet been invaded by the oil industry. Four of them are classified by the U.S. Forest Service, which manages our National Grasslands, as “suitable for wilderness,” although they have not been officially designated as Wilderness, with a capital W. Yet. Maybe some day. A fifth, Twin Buttes Wilderness Study Area, has a few roads, but no oil development–so far.

The judges of the Eighth Circuit on Thursday upheld the earlier decision of U.S. District Judge Daniel Hovland to dismiss a lawsuit filed by the state and those counties, to open those areas up for development. Score one for the good guys, the Badlands Conservation Alliance, the North Dakota Wildlife Federation, the Sierra Club and Jan Swenson, Mike McEnroe and Wayde Schafer.

A little background. About 15 years ago, those organizations, later joined by a few others, created an informal alliance called the North Dakota Wilderness Coalition and wrote a proposal asking Congress to use the Federal Wilderness Act of 1964 to create the Prairie Legacy Wilderness in North Dakota, protecting those remaining roadless areas of the Bad Lands from future development. 

Their legislation still languishes, mostly because the word “Wilderness,” especially with a capital W, doesn’t curry much favor in the heart of American’s meanest and most aggressive oil boom area.

Bill Knudson, Ken Rogers and I atop Bullion Butte, accessible only on foot. No vehicles allowed. That’s the Little Missouri State Scenic River in the background.
Bill Knudson, Ken Rogers and I atop Bullion Butte, accessible only on foot. No vehicles allowed. That’s the Little Missouri State Scenic River in the background.

In 2012, commissioners in Billings, Golden Valley, McKenzie and Slope counties, getting nervous that the Wilderness proposal might be getting some legs, filed a lawsuit against the U.S. government, seeking to remove the Forest Service’s protection of those areas and grant the counties the right to build roads on the section lines, to allow industrial uses of the federal lands, which until that time, were used only for grazing by ranchers, with limited access, just to tend to their herds.

The lawsuit began creeping through the judicial system, and about three years later, North Dakota’s Attorney General Wayne Stenehjem decided to run for governor and thought that lending the state’s power and money to the lawsuit might enhance his chances out west. So he added the State of North Dakota as a plaintiff in the case and assigned Assistant Attorneys General in his office to take over the case and assume the costs of doing that.

By then, the two North Dakota conservation groups, The Badlands Conservation Alliance and the Sierra Club, asked to join the lawsuit as defendants. U.S. District Judge Daniel Hovland, to whom the case had been assigned, granted their requests, and working with the national legal group Earthjustice, they assigned lawyers to work with the federal government’s attorneys, defending the protection of the roadless areas.

It took a couple of years, until 2017, for Hovland, an appointee of President George W. Bush, to rule in favor of the conservation groups and the Forest Service and against the state and the counties, saying the Forest Service had a right to keep the section lines in those areas closed, to protect the “suitable for wilderness” status. I wrote about that five years ago. You can read that story here.

On page 72 of a long, thoughtful opinion, Hovland wrote “The Court has carefully scrutinized, considered and weighed each of the hundreds of documents in the record. The Court has also carefully read the parties’ respective historical narratives, offered through the reports or declarations of those employed to trace the history of the grasslands. The parties’ briefing has been pondered at length. For the reasons set forth above, “The United States of America’s Amended Motion to Dismiss North Dakota’s Amended Complaint … is GRANTED. ”

For some reason, Stenehjem and the county commissioners didn’t seem to understand the meaning of the word “NO.” So, they sent a letter to Hovland asking him to reconsider. After having written 72 pages of a pretty thoughtful opinion, Hovland respectfully declined to do that.

So Stenehjem sent his assistants running to the 8th Circuit, appeal papers in hand. And five years later, just this past Thursday, Judges Steven Colloton and Jane Kelly of Iowa and Bobby Shepherd of Arkansas, ruled on behalf of their fellow 8th Circuit judges that Judge Hovland’s opinion was correct.

Hovland had essentially ruled that this was a statute of limitations case — that the state and the counties might have had a leg to stand on had they acted within the 12-year statute of limitations from when the Forest Service enacted its ban on travel in the roadless areas way back in the 1970s. Stenehjem and the counties tried to argue their way around that, but Hovland said “Sorry, you missed the deadline,” and Judges Colloton, Kelly and Shepherd agreed with him.

So, is it over? Are the roadless areas safe? There’s a new “sheriff” in the Attorney General’s office. There was a time when I believed Wayne Stenehjem really cared about the Bad Lands, but political pressure, mostly from the oil industry, seemed to sway that concern the other direction. So now, how about Drew Wrigley? Will he be inclined to take the next step — the U.S. Supreme Court? It’s his name that’s now at the top of the notice the 8th Circuit judges sent to North Dakota this week, with a footnote at the bottom of the page noting Stenehjem’s passing, reading, “The current officeholder is automatically substituted as a party pursuant to Federal Rule of Appellate Procedure 43(c)(2).”

You can bet your ass a couple of county commissioners from out west and North Dakota Petroleum Council President Ron Ness will be calling the Attorney General’s office for an appointment after Easter to talk about it. But I’d be surprised if Wrigley took the bait. He’s just a few months into his job and in the middle of an election campaign, and he seems like a reasonable enough fellow to deal with — unless your name is Alfonso Rodriguez Jr.

Grand Forks attorney Connie Triplett, current president of BCA, seemed to agree in an e-mail Saturday: “This is a huge win for the preservation of the Badlands!! The State of ND and the four counties could, of course, appeal to the U.S. Supreme Court. However, because this is really just a statute of limitations case, I don’t think the high court would be likely to accept the case.”

I’ve written a lot of stories over the 10-year history of this case. I hope I never have to write another one. But I’m not holding my breath.

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