A Victory For The Good Guys. And The Bad Lands.

In a major victory for conservationists, and for the North Dakota Bad Lands they work hard to protect, U.S. District Judge Daniel Hovland of Bismarck ruled this week that the state of North Dakota and four western North Dakota counties have no right to go in and build roads in areas of the Little Missouri National Grasslands which have been inventoried as “roadless areas” and identified as “suitable for wilderness designation.”

Hovland dismissed the lawsuit filed nearly five years ago by North Dakota Attorney General Wayne Stenehjem and Billings, Golden Valley, McKenzie and Slope Counties because a 12-year statute of limitations for the state and counties to open section lines for development had expired. The state and the counties can appeal the decision, and this may end up in the U.S. Supreme Court, but that’s a lengthy and expensive venture at a time when budgets are lean because of the oil bust. We’ll see if the attorney general is willing to gamble away more of the state’s tax dollars pursuing this.

Here’s a little background. Over a long period of time (40 years), going back to a management plan for the Grasslands written in 1976 and 1977, and followed by numerous updates in public notices issued by the Forest Service in the years since, the Forest Service has let it be known that they consider several areas of the Grasslands off limits to motorized travel.

But when the oil boom came, county commissioners out west decided to challenge those restrictions in court, hoping to get access to section lines in those areas to build roads so oil companies could get in there and drill. When Stenehjem heard about it, he jumped right in and joined the lawsuit, and, in a heroic gesture, said “We’ll handle it from here in Bismarck.”

Bullion Butte-the mothership of the Bad Lands. Still roadless.

So in September of 2012 Stenehjem, as he loves to do, sued the United States government, claiming that the state should be allowed to build roads on every section line in the state (although, in a magnanimous gesture, he said he was okay with not building roads in Theodore Roosevelt National Park).

I went to his office to ask him about that, and he claimed he was just defending “state sovereignty.” Well, I didn’t believe him then, and I don’t believe him now. In reality, he was just putting on a good show for those western counties, beefing up his political support out west in case he ever decided to run for governor.

The agenda for the county commissioners from the oil patch was different. They wanted to stop a movement by conservationists to get official wilderness designation for about 50,000 of those roadless areas, a proposal called Prairie Legacy Wilderness. If the lawsuit was successful they’d send their graders and scrapers in there and build some roads, and take care of those pesky conservationists and their wild ideas.

The Forest Service and their U.S. Department of Justice attorneys were having none of that. They set out to prove that the court had no jurisdiction in the case because North Dakota and the counties had missed the deadline for filing their suit by more than 25 years, something Stenehjem might have thought about before he wasted all that state money on the case.

I went to the Federal Court House this week to look at the judge’s opinion and what I found in the case file was 190 separate court filings, with hundreds and hundreds of pages of arguments by the state and the federal government. It looked to me like the counties, who originated the lawsuit, really didn’t have to spend much time or money on this, which is a good thing, because they’re overwhelmed with the crime wave to hit their part of the state as a result of the oil boom. But you and I, taxpayers, footed the bill for lawyers for both sides.

The Forest Service is operating the Little Missouri National Grasslands under a management plan written in 2001, and that plan sets aside about 5 per cent of the million acres it manages as roadless. 95 per cent of their land is open for oil development. The remaining 50,000 acres or so—places like majestic Bullion Butte, isolated Kendley Plateau, the historic Long-X Divide and Twin Buttes, looking down into Theodore Roosevelt National Park–are walk-in areas for hikers, deer hunters, birders, photographers, cross-country skiers and campers. And, for now at least, they’ll remain that way, in spite of state government’s desire to put an oil well on every section of land in western North Dakota. Hooray!

Before I quit and go have a toast to justice served and a breath of fresh air blowing into the beleaguered Bad Lands, I want to point out two pieces of irony resulting from Hovland’s decision.

  • The law says that the 12 year statute of limitations only applies to lands on which the government or its lessees have made some investments or improvements, such as range improvement, tree planting, mineral activities, farming, and wildlife habitat improvement. Well, thanks to some oil and gas activity on the lands back before they were included in a roadless area, and to shelterbelts, stock tanks and dams, fencing, and other range improvements by ranchers leasing the lands for grazing, the statute of limitations, which decided this case, applies. So thanks to the North Dakota Oil and Gas Division and the North Dakota Grazing Associations for your help with this decision.
  • Back in 2014, Attorney General Stenehjem proposed we protect a number of “extraordinary places” from oil development, and a bunch of those were in or near the roadless areas that Judge Hovland’s opinion protects. Now that Stenehjem has lost this lawsuit, those “extraordinary places” of his will be better protected from development.

God, it’s good to win one once in a while. Now let’s get going on that Prairie Legacy Wilderness designation.

5 Responses

  1. Joan

    Jim, You’ve been busy lately! Thanks for reporting on this. I do not live in North Dakota, so I would appreciate it if you could include references to mainstream newspaper articles so I could read them too. Again, thanks for reporting on this very important issue.

  2. Gene

    While battle in ND over extractable (oil) continues, I’m following another one.

    A Mashco Piro camp was located, about 2 days from Puerto Maldonado, Peru & they terrorize locals with bows & arrows June 24, 2017.

    Isolated indigenous peoples appear in the native community of Puerto Nuevo, Peru. Extractable industry stir these wild Indians up. Illegal logging, gold mining, oil exploration & drug trafficking.

    The native community Puerto Nuevo, belongs to the Yine people and is settled on the banks of the Stones, two days from the city of Puerto Maldonado, adjacent to the territorial reserve of Madre de Dios. In the place was registered presence of approximately 50 Mashco Piros armed Indians, who sent to the comuneros a score of arrows with the intention of frightening and reducing them. Faced with this event, the protection agents of the native community of Monte Salvado applying the protocols of action and recommendations of the FENAMAD, supported the comuneros safeguarding the physical integrity, health and the life of the people.

    Full story & photo of Mashco attack at FENAMAD FB. Click on photo to enlarge.

    http://www.fenamad.com.pe/noticias/pueblos-indigenas-aislados-asoman-en-la-comunidad-nativa-de-puerto-nuevo/

  3. I don’t like this decision, because the section line rights go back to statehood and are a vary basic property and access right in ND. The conflict with environmental interests is secondary, in my opinion.

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