JIM FUGLIE: View From The Prairie — Attorneys General — Good Guys And Bad Guys

This article is reprinted from the October 2022  issue of Dakota Country magazine.)

OK, I know, I know, I’m not supposed to speak ill of the dead. But I’m going to a little, this month, and then I’m going to offer some praise for the living. And no, it’s not dead critters or fish like you’ll read about elsewhere in this magazine. It’s dead lawyers (no jokes please). And live ones, too.

The dead one is former North Dakota Attorney General Wayne Stenehjem, who died unexpectedly of a heart attack this past winter. (Former attorneys general seem to be in the news a lot lately around here. How’s that former one of yours, doing, South Dakotans?) Wayne was a longtime friend of mine, but we parted company somewhat over an issue involving the North Dakota Bad Lands. We agreed to disagree, but our friendship suffered some. I’ll come back to that in a minute.

The living guy I’m going to offer some praise for is Drew Wrigley, Stenehjem’s successor, who was appointed to the job after Stenehjem died. He’s a candidate for election this year, so I’m going to try not to be too effusive, so I don’t politicize this article (yeah, right), but he deserves to be recognized for something really good he did this summer.

We’re revisiting the story I’ve written about a couple of times here, the lawsuit filed by Stenehjem on behalf of the state of North Dakota against the U.S. Forest Service. The background is this:

The Bad Lands have been threatened for nearly 10 years by this lawsuit. What it would have done, as I reported here in June, was open up the section lines in four sensitive areas of the Badlands so the oil industry could go in and drill for oil. The four areas, about 40,000 acres in four parcels, less than 4 percent of the 1.25 million acres of National Grasslands in North Dakota, have been protected from development since 2002, when the Forest Service listed them as “Suitable for Wilderness.” (The other 96 percent is open for development, and much of it has fallen prey to the oil industry.)

It’s fall in the Bad Lands, and this Fall they’re a little more protected.
It’s fall in the Bad Lands, and this fall they’re a little more protected.

That listing led a small North Dakota conservation organization, the Badlands Conservation Alliance, and a couple of national groups, the Sierra Club and the Wilderness Society, to propose a formal listing as Wilderness, with a capital W, under the federal Wilderness Act of 1964.

But North Dakota’s lawsuit would have changed all that. Five years ago, U.S. District Judge Daniel Hovland in Bismarck ruled against the state and in favor of the Forest Service … and the Bad Lands.

And, as I also reported in June, the state appealed the judge’s decision to the 8th Circuit Court of Appeals. In April, five years after Judge Hovland’s decision — ever heard the phrase “the wheels of justice turn slowly?” — the 8th Circuit judges agreed with Judge Hovland. The Forest Service and the Bad Lands won again.

That was cause for another celebration, but it was a nervous one because there was still the possibility of another appeal — this one to the U.S. Supreme Court. Most lawyers go their whole career without ever being involved in a case that offers an appeal to the Supreme Court. Stenehjem’s been there a few times. Lawyers like that. It looks good on their resume. Especially when they win.

But the ruling came a few months after Stenehjem’s passing, so he never got the opportunity to go there again. That opportunity was left to his successor, Wrigley. We all waited for an announcement, but none came.

So, on a slow day in midsummer when I had nothing better to do, I called the Clerk of the 8th Circuit Court of Appeals in St. Paul and asked if there had been an appeal. She told me that the time had expired for the state to file an appeal and that the case was over now. Wow! Another victory for the Bad Lands.

Oh, and also a victory for the conservation organizations that had filed amicus briefs in support of the Forest Service’s right to keep the areas roadless and remain “Suitable for Wilderness.” Hooray for them, too!

When I learned that the state had decided against any further appeals, I fired off an e-mail to Wrigley, thanking him for his wise decision not to waste any more of the state’s time or money on this case.

Within a few hours, my phone rang, and the voice said, “Jim, its Drew. I’m calling to thank you for your note.”

Drew and I have been friends in passing for many years. We had a nice conversation for about five minutes. He said, basically, you win some and you lose some, and they lost this one. That was it, as far as he was concerned.

Well, thank you, Drew Wrigley. You’re starting off your new career as attorney general on a high note, as far as I am concerned.

And on a side note, a piece of legislation drawn up by North Dakota Sen. John Hoeven to change the law and give the section line rights to North Dakota has languished for a few years now and seems to stand little chance of being introduced, or enacted.

OK, so what’s to become of the 40,000 acres now safely remaining listed as “Suitable for Wilderness?”

Well, as I also mentioned here this past spring, there’s a new plan being thrown around — a national monument. Those parcels plus a few more pretty valuable places with some relationship to President Theodore Roosevelt might be pretty good candidates for national monument status.

TR’s going to be much in the news in the next few years as construction begins on his new presidential library south of Medora, N.D. That could provide some pretty powerful impetus, since Roosevelt is pretty well-connected to all four of the areas we’re talking about — he surely rode his horse through all of them from time to time.

And one would think the new secretaries of Agriculture and Interior would be interested in seeing them protected. A letter from those two supporting the idea could make it happen with a stroke of the president’s pen. No congressional approval is needed for creation of a national monument — TR saw to that when he signed the Antiquities Act in 1906, giving the president sole authority to preserve “landmarks, structures and objects of historic or scientific interest” as national monuments.

That wouldn’t give them quite as much protection as Wilderness designation, but it would be a good start and keep the drilling rigs at bay.

I hope that happens. I think I’ll send Agriculture Secretary Tom Vilsack and Interior Secretary Deb Haaland a letter. I’ll let you know if I hear back from them.

Meanwhile, we conservationists and outdoors enthusiasts should give a big shout-out to Wrigley. He’s helping us protect our Bad Lands. Thank you, Drew.

Oh, and you South Dakota readers can keep your former attorney general down there and out of our Bad Lands. We’ve got a lot of hikers crossing roads out there. And besides, the cellphone service in the Bad Lands is pretty bad, anyway.

Footnote: I was in the middle of a series of articles about each of the four proposed Wilderness areas when I encountered some medical problems and was unable to go back and visit Kendley Plateau and Twin Buttes this summer. I’m better now, and I’ll get out there this fall and catch up on that series. They’re worth visiting, and writing about.

One thought on “JIM FUGLIE: View From The Prairie — Attorneys General — Good Guys And Bad Guys”

  • Dan Rice October 3, 2022 at 1:16 pm

    Jim, I read your blob on a regular basis and love it. Thank you for being a serious “watchdog” for the Badlands and related areas in western North Dakota and keeping us informed about the many and ongoing attempts to commercialize and otherwise damage and desecrate these special and even sacred areas of our state. In response to this most recent blog, I think you may be lavishing too much praise on our new Attorney General. My guess is that he decided not to appeal the case to the SCOTUS because he was overcome with a rush of compassion for these special lands but because he thought the case had little chance of success. Maybe he didn’t want his first run at the highest court in the land to be a failure and, thus, a blot on his record.
    Dan Rice, Fargo


Leave a Reply