JIM FUGLIE: View From The Prairie — A Victory For The Bad Lands

I know, I’ve written about this legal battle in this space before, but it’s such good news — for now, at least — that I just can’t quit sharing it. Below is an article that appears in the June issue of Dakota Country magazine, on the newstands and in the mail right now. By the way, if you aren’t a subscriber to Dakota Country, you should be. It’s a darned good magazine, with some darned good writers.

I want to tell you about one of the best days of my life. It was Good Friday, a dozen or so years ago, a beautiful warm spring day in the North Dakota Bad Lands, and Lillian and I had just finished a hike up magnificent Bullion Butte and back, and we were sitting on the bank of the Little Missouri State Scenic River, catching our breath. The sky was deep blue with scattered puffy little cotton ball clouds.

Overhead, we heard the soft call of a flock of sandhill cranes, passing through, we guessed, on their spring migration from the sandhills of Platte River country in Nebraska. We laid back on the bank to look up, and as they approached, we saw them catch a thermal rising from the butte, and they coasted, their wings motionless, lifting on the thermal as they made big, lazy circles above the butte. 

They were followed by another flock, and then another, and another, each catching the thermal and circling and rising above the massive butte before heading on to wherever they were planning to spend the summer.

We lay there for what seemed like forever that afternoon, although it was probably only about half an hour, witnessing one of nature’s great shows. I’ve been back to the top of that butte and the bank of that river many times since but have never seen anything like it again.

Bullion Butte, located south of Interstate 94, about 15 miles from Medora, N.D., as the crow (crane?) flies, is one of the last unspoiled places in the Bad Lands. You can see it off in the distance, rising above the prairie, from the highway as you approach Medora. It’s not the highest butte in the state, although it is in the top five, but it is the largest, covering more than four square miles, big enough to force the Little Missouri to take a 40-mile detour around it on its way to its confluence with the big Missouri River. (The Little Missouri is one of two North Dakota rivers that flow north, the other being the Red River on the state’s eastern boundary.)

Bullion Butte, along with three other as-yet undisturbed Bad Lands areas, are part of a decade-long story that I think has come to a happy ending. It’s the story of an ugly, court case that looks like it has finally been resolved, and the winner is … the North Dakota Bad Lands.

Some background. The North Dakota Bad Lands are part of a million acres of pretty much wide-open spaces called the Little Missouri National Grasslands. The Grasslands exist because back in the drought and depression years of the 1930s, when farmers and ranchers all across the Midwest were facing foreclosure and bankruptcy, President Franklin Roosevelt created a program, managed by the U.S Department of Agriculture, to buy land from farmers and ranchers and then lease it back to them for pennies on the dollar, allowing them to pay off their mortgages at the bank on their land and then keep on using it, mostly for grazing cattle.

It saved thousands of ranchers during those awful, hard times, and before the decade was out, the government owned a million acres in western North Dakota. Today, some grandchildren of those ranchers still run cattle on those acres, leased from the USDA’s U.S. Forest Service.

The ranchers and the Forest Service have been good stewards of that land. The thing is, there’s oil down below, and the government has leased the mineral rights to about 95 percent of those acres to oil companies, and those companies have drilled thousands of oil wells on them, and the royalties on the oil from those wells have provided a healthy income to the government.

But there are a few rugged, remote areas that haven’t been developed, and that remain roadless, except for two-track trails where ranchers tend to their cattle. Those are areas enjoyed by outdoors enthusiasts — hikers, hunters, birders, photographers, trail riders and campers — who don’t mind leaving their vehicles behind to pursue their activities.

Those areas — Bullion Butte and the Kendley Plateau south of I-94 and the Twin Buttes and the Long-X Divide north of the freeway — comprise about 40,000 acres of the Bad Lands, and are classified by the Forest Service as “Suitable for Wilderness.” They’ve gotten that designation over time since the Forest Service wrote management plans for the National Grasslands back in the 1970s and 1980s.

About 20 years ago, a small group of North Dakotans, members of the Badlands Conservation Alliance, proposed to the Forest Service to have those four areas designated as official Wilderness areas, with a capital W, through the Federal Wilderness Act of 1964. That would have provided permanent protection from development for them. They named their proposal, fittingly, the Prairie Legacy Wilderness Act.

But the coalition could not find a member of the North Dakota congressional delegation to sponsor their bill, and so their proposal languished. It remains in that limbo today, but the Forest Service is being patient and is keeping those areas classified as roadless and “Suitable for Wilderness,” in hopes that one day a congressman or senator with some cajones will step forward and introduce a bill.

But the oil industry couldn’t wait. Ten years ago, not satisfied with having 95 percent of the land in the million acres of the Little Missouri National Grasslands open to oil development, and with the Bakken in full boom, the oil boys convinced county commissioners in four western North Dakota counties to file a lawsuit against the Forest Service, claiming that the state of North Dakota should have the right to determine what happens there, not the federal government. Their reasoning was that tucked inside each of those areas was a section or two of state-owned land, commonly called “school sections,” and that the state should be able to build roads through the Forest Service land to access them, so the state (and, coincidentally, the counties in which they are located) could get some of that royalty money from the oil under their land.

Soon North Dakota’s Attorney General, Wayne Stenehjem, jumped in and joined the counties in the lawsuit, and the case started making its way through the courts. Stenehjem’s lawyers handled the case for the state and counties, and the Forest Service’s lawyers were joined by lawyers for the coalition that had written the wilderness proposal, the Badlands Conservation Alliance, and its big brother, the Sierra Club, in fighting off the state’s claim.

It took about five years of legal wrangling, but in 2017, U. S. Federal Judge Daniel Hovland, whose courtroom is in Bismarck, ruled in favor of the Forest Service and the conservation groups, and against the state and the counties, citing a federal statute of limitations law that said they were too late in their asking — that the Forest Service had given them a 12-year window to do that when the Forest Service first wrote the management plans back in the 1970s and ’80s, but they hadn’t asked. Of course, there was no oil boom back then, so they missed their chance.

Stenehjem and the counties appealed the decision to the 8th Circuit Court of Appeals in St. Louis. In early April of this year, five years after Judge Hovland’s ruling, a panel of judges from that court agreed with Judge Hovland and dismissed the lawsuit. The state and the counties lost. The Bad Lands won.

Those four still unspoiled areas will remain roadless, and perhaps could officially become Wilderness, with a Capital W, someday.

There’s an interesting sidebar to this story. The Forest Service, which manages the land and was successful in its defense of it, was created by our great conservation president, Theodore Roosevelt, way back more than 100 years ago. TR would be really happy to see the outcome of this case today. After all, when he lived and ranched here in the 1880s, long before he became president, he rode horseback through all of those areas, and in fact, on his very first hunting trip here in 1883, shot a buffalo, the focus of that hunt, in the long shadow of Bullion Butte.

Now, a nonprofit foundation has raised the money and is planning to start construction of the Theodore Roosevelt Presidential Library near Medora, within the view shed of Bullion Butte and Kendley Plateau. When the library is done, visitors will be able to stand outside on its porch and see those two areas off to the south, unmarred by dust clouds from oilfield trucks on gravel roads, and oil derricks.

When I told one of TR’s great-grandsons, Simon Roosevelt, about the Eighth Circuit ruling, he said he and other family members were happy to hear it, but said he hoped, if there were more appeals, the case would eventually also be decided on its merits, not just the statute of limitations issue. I’m with Simon. There are real conservation reasons to protect these areas, not just the legal technicalities cited in the recent court rulings.

For now, the story has a happy ending. It’s possible, but not likely, there could be more appeals. Lawyers have to litigate. Politicians have to pontificate. If appeals are filed, I’ll let you know.

But so far, it’s been fun to watch the conservation groups win one against the big old oil industry. Hooray for them. That doesn’t happen often. To paraphrase the poet Alfred Lord Tennyson, writing about Sir Galahad, “Their strength is as the strength of 10, because their hearts are pure.”

And if you’re out in the Bad Lands this summer, near Bullion Butte or Kendley Plateau or the Twin Buttes or the Long-X Divide, stop and listen carefully. You might hear some cheering off in the distance. That would be the meadowlarks or the sage grouse or the sharptails or the redtails or the prairie dogs or the coyotes, saying “Thank you,” to the judges of the U.S. Eighth Circuit Court of Appeals for protecting their homes.

P.S. In the next few months, I’m going to use this space to tell you more about each of the four proposed Wilderness areas, including how to get there, hoping you might enjoy them yourselves. They’re worth visiting. On foot. And worth saving.

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