JIM FUGLIE: View From The Prairie — A Big Day In The Bad Lands

Forty-mile-per-hour winds drove a pouring rain sideways outside the Billings County Courthouse in Medora, N.D., this past Thursday afternoon, washing the Bad Lands dust from a dozen or more cars and pickups (mostly pickups) parked on the streets outside.

Inside, another storm was brewing, this one going on behind closed doors, as a handful of drivers of those vehicles waited for the Billings County commissioners to emerge from a closed meeting and tell them what was going to happen with the proposed Little Missouri Crossing that’s dominated coffee and cocktail conservation for about a dozen years in this little cowtown, gateway to Theodore Roosevelt National Park.

It had been a pretty interesting day in Medora. In the morning, county commissioners heard a presentation from the folks behind the Theodore Roosevelt Presidential Library, who have started construction of the project that’s estimated variously to cost between $100 million and $200 million. Big machinery is hard at work moving dirt and stockpiling construction materials up on the bluff overlooking Medora, south of town. There’s nothing standing in the way of North Dakota’s biggest and best historical project ever, except to complete fundraising. But library officials assured the commissioners that the funds will be there and that they have guaranteed payment to their contractors and architects and that the doors will open as promised on the July 4, 2026, America’s 250th birthday.

Commissioners also listened with some skepticism to representatives of Meridian Energy, the company that’s been saying for about the past 10 years they will put a refinery just east of Theodore Roosevelt National Park. There’s no activity over there, but the refinery folks are saying there might be pretty soon.

The road leading from Old Highway 10 down to the proposed refinery site is a gravel road down the middle of a section, mostly leading to Greg Kessel’s farm and grain-drying operation. The refinery folks say they’re going to build their nearly $1 billion refinery on 80 acres or so of Greg’s land beside his farmstead. They haven’t paid Greg for the land yet, but they put him on their board of directors, and I’m sure he gets a nice regular stipend. The last time I asked him about getting paid for his land, he said, “I’m not worried. I’m taken care of.”  Uh huh.

Meridian’s presence was to tell the commissioners it was going to improve the road to the refinery site so their big construction trucks could more easily access the site when construction on the refinery begins. Officials said they are going to build a 50-foot wide gravel road first and then pave it later.

Commissioners seemed a little puzzled about why Meridian officials were even at the meeting, since they’re not going to use a county road and they weren’t asking for any money for their own road. I guessed it was kind of a publicity stunt to let the public, state regulators and their nervous investors know that there was something going on at the site.

I’m going to write a little more about them later.

Anyway, those two things and a few other agenda items took up the morning for the commissioners. They adjourned for lunch, and when they came back, they were greeted by about a dozen cowboys in boots, hats and checkered shirts with snaps on the front instead of buttons, crowded into all the chairs in the small commission meeting room.

Chairman Lester Iverson gaveled the group to order and immediately turned the meeting over to State’s Attorney Pat Weir, who promptly announced that everyone had to leave the room because they were going into executive swession to discuss their strategy for acquiring land for their bridge from the Short family. Pat, who’s as good an attorney as the commission could hope for, was joined by his assistant, Tami Norgard, and he read aloud to the cowboys and spectators the section of North Dakota law that allowed him to kick us out.

Amid the grumbling of cowboys who had come to town just for the meeting, we filed out into the courthouse lobby. A few lingered, but most headed down the street, I assume to Boots Bar or the Little Missouri Saloon. They were in town, after all, with the afternoon off, so why not enjoy it. In visiting with the ranchers in the lobby while we waited, I learned there are a lot of them who aren’t happy with the Short family, who has not lived there for many years and whose ranch is rented out and managed by a local guy who lives with his family in the ranch house, just a few hundred yards from the proposed crossing. All of the Short family lives somewhere else.

In the tradition of the scion of the family, the late Congressman Don Short, they’re opposed to industrial development in the Little Missouri River Valley so near their land. While he was in Congress in the 1960s, Congressman Short put a stop to a similar scheme. So somebody got on the phone this week and recruited a “Bad Lands Posse” to attend the meeting. They ended up being in the courthouse just about five minutes, except for a few hangers-on who didn’t want to take a chance on missing out on some action.

The commission’s secretary came out about an hour and a half later and told us we were welcome to come back in. Only a few had remained there during that time.

When we were seated, Chairman Iverson began reading from a pretty lengthy resolution that had been prepared by someone, I assume Norgard, well in advance of the meeting. You see, at an earlier meeting, the commissioners had agreed to offer the Short family and Ben Simons — whose ranch is directly across the river, so the bridge and its approach would be on his land as well — a princely sum of $20,000 an acre for the right of way for the roads and the bridge. The Shorts turned down the offer. They said there was no price high enough for them to let the county put a bridge and its associated road through their property. Simons was still considering it.

The resolution basically said, “Screw you, Short family, we’re coming to take your land.” Through condemnation. Here’s how that works.

Governmental bodies, like county commissions, can use eminent domain to condemn land they need for public uses, such as bridges, but they have to pay the landowner fair market value for it. It’s usually a negotiated figure, such as the $20,000 per-acre offer.

But since the Shorts had turned down the $20,000 (it would have been about $600,000 to them) the county had the land appraised for its agricultural value and in the resolution adopted Thursday they offered just $1,200 an acre —  $36,000. They said they are going to send the Shorts a check and take the land. Just like that.

As for Ben Simons, well, he’s still thinking about it. His check could be north of $400,000. He doesn’t have the same financial resources as the Shorts, so he could be tempted. If he turns it down, he’s going to lose his land to condemnation, get a bridge and just get a pittance. The county gave him until Friday to decide. I’ll report when I learn what he decides.

So after Iverson read the resolution, he called for a motion to adopt it. The motion came from Steve Klym, the newest member of the commission, and like Iverson, an acolyte of former Commissioner Jim Arthaud, the driver behind this project. Arthaud almost had this project done a few years ago until he was defeated for re-election by Dean Rodne, who thinks a bridge somewhere might be OK but who’s an outspoken opponent of the use of eminent domain.

Iverson called for someone to second the motion. It’s only a three-member commission, and Rodne was silent. So Iverson seconded the motion himself. Iverson called for a roll call vote. He and Klym voted to approve the resolution. Rodne said, “I’m opposed to eminent domain. I vote no.”

Motion carried, 2-1. We’ll see what happens next.

But all this was being played out against a backdrop of news the commissioners had learned during their lunch break. The Short family was taking them to court.

On Wednesday, the day before the meeting, Short family lawyers Derrick Braaten and Tim Purdon filed a lawsuit against the commissioners in the U.S. District Court in Bismarck, technically a “Complaint for Breach of Contract and Declaratory Relief.” Here’s what that means:

The Billings County Commission has been trying for a few years to buy the land from the Shorts and Simons. When they couldn’t get it, they announced they were going to use eminent domain to take it. In April 2020, they voted to approve a resolution authorizing the use of eminent domain without even telling the ranchers they were going to do so. The commissioners at that time were Chairman Jim Arthaud, Joe Kessel and Mike Kasian. They offered $2,500 an acre for the land in return for taking it involuntarily.

But a funny thing happened on the way to the courthouse. There was an election that fall, and Arthaud was defeated by Rodne. Kessel retired and was replaced by Lester Iverson, an Arthaud acolyte. There was a lull in the process after Shorts filed the lawsuit to stop the county from taking their land. and by the next summer, in July 2021, Kasian changed his mind about the use of eminent domain, and at a July 6 meeting he made a motion to “rescind all previous authorizations for a bridge over the Little Missouri River located at the Short Ranch” according to the meeting’s minutes.

After the meeting, State’s Attorney Weir and lawyers for the Short family negotiated a letter of agreement. The Shorts pledged to drop their ongoing lawsuits against the county and the county agreed not to use eminent domain to take their land. At the next meeting, on Aug. 3, 2021, the commission voted to sign the agreement, and commission Chairman Kasian did so.

That would have been the end of the story, except there was another election in 2022 and Kasian was defeated by another Arthaud acolyte, Steve Klym, and Klym and Iverson voted to go ahead with eminent domain, over Rodne’s objection.

And that brings us to this past Wednesday, when the Short family lawyers filed their lawsuit claiming that because there was a signed agreement between the commission and the Short family stating that the county would not do that, the commissioin is now guilty of a breach of contract. The lawsuit asks the court to tell the Billings County Commission that because of the signed agreement, it cannot use eminent domain. And it asks for a jury trial to decide who wins

What’s interesting about this is that the two commissioners who voted at Thursday’s meeting to proceed with eminent domain, and the county’s lawyers, Weir and Norgard, knew that they were being sued, but they decided to go ahead anyway.

It gets pretty muddled now. It looks like the Short family will have to get an injunction against the county to stop the process. I’m going to have to talk to attorneys Weir and Purdon to figure that out.

I’ll let you know what I find out. Meanwhile, the fellow across the river, Ben Simons, has until this Friday to decide if he wants to take the $20,000 offer and run, or hold out and hope the courts rule against the county in the Short lawsuit.

Now, I’m about to utter the five most dangerous words in the English language for a journalist: “I’m not a lawyer, but …” Here is an interesting scenario. Simons takes the money, gives up a little piece of his land, and then the Short family wins in court and the bridge never gets built. That could happen.

3 thoughts on “JIM FUGLIE: View From The Prairie — A Big Day In The Bad Lands”

  • John Burke August 7, 2023 at 1:18 pm

    I hope your “interesting scenario” comes to pass!

  • RIchard Watson August 8, 2023 at 2:56 pm

    may connivers and liars find life hard
    when they treat God’s earth with such disregard
    may the bride just lie there, dreamed dry bones
    Lord make them leave your Badlands alone–

    thank you Jim for telling the story…
    “5:51” by Bruce Cockburn should playsin the background

  • JIM FUGLIE: View From The Prairie — The Check’s In The Mail … Er … At The Courthouse – UNHERALDED.FISH September 25, 2023 at 4:30 pm

    […] my last report, I said the Short family, on whose land the Billings County Commissioners want to place the bridge, […]


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