Douglas Goehring and The EPA: The Real Story

North Dakota Agriculture Commissioner Douglas Goehring is all over the news media this week saying he was “blindsided” by the EPA. Looks to me like he was just blind. And pretty stupid too, and now he’s going to cost the U.S. taxpayers a bunch of money, if the EPA has to send in a team of federal pesticide inspectors to do what he’s supposed to be doing for the taxpayers and farmers of North Dakota.

Douglas, Douglas, Douglas. Whatever are you thinking?

It seems the Commissioner got a notice this week after an EPA audit that said “EPA Region 8 (which includes North Dakota) is not conducting inspections at establishments that produce pesticides in North Dakota. Further, North Dakota does not have a state inspector with qualifications equivalent to a federal inspector to conduct inspections on the EPA’s behalf.” As a result, “EPA pesticide inspections must resume in North Dakota to determine compliance and protect human health and the environment,” the EPA said in an audit.

Douglas blamed everyone from President Obama on down, calling the EPA “politically motivated” and telling The Forum’s Jonathan Knutson “I get the feeling the White House isn’t very happy with us. Maybe EPA isn’t very happy with us because we’ve pushed back on some issues.”

What a load of crap. Truth is, Douglas screwed up, and he got caught. No amount of railing against the federal government is going to change that.

When I read the story, it said that “federal inspections of establishments that produce pesticides in North Dakota have not occurred for 14 years.” Well, I was taken aback by that, because two of my good friends were federally-trained pesticide inspectors for former Commissioner Roger Johnson for years, and my friend Jeff Weispfenning was Deputy Commissioner for nine of those years, and he would have never let such a thing happen.

Jeff cleared it up in a Facebook post today. All the time Roger and he were running the department, they sent their state pesticide inspectors to federal pesticide school, and they got their federal credentials to carry out federal inspections, and did so under an agreement with the EPA. So, technically there hasn’t been a federal inspector here for 14 years—the first 9 under Johnson, the last 5 under Douglas. But there were federal inspections under Johnson, carried out by federally-certified state inspectors.

Roger and Jeff left the State Ag Department nearly six years ago now, and apparently the stories you read about 70 percent employee turnover in the Ag Department in that time are true, because now none of the department’s handful of pesticide inspectors has federal credentials. Thus, no agreement with EPA to carry out their federal inspections.

Jeff went and read the same audit Douglas did. He says “The audit pinpoints that since 2013, the Ag Department hasn’t had any pesticide inspectors with federal credentials. For some unknown reason the current Agriculture Commissioner didn’t continue with the federal credentials for the pesticide inspectors. This means there haven’t been ‘federal’ inspections since 2013.”

So here’s the bottom line: up until 2013, when the last pesticide inspector with federal credentials was not replaced, there was no problem, and there was no cause for an audit finding. Somebody screwed up, and that somebody is the current Ag Commissioner, who didn’t think the federal EPA credentials for his staff were a big deal.

Well, it turns out they were a big deal. All 50 states have to have federally-certified inspectors to inspect pesticide facilities. That’s the law. Laws are made by Congress, not the White House or the EPA. In most states, to save the federal government some money and avoid duplication of effort (there are state pesticide inspection laws that must be followed as well, so the states have their own inspectors to do that), the state has their inspectors federally certified and the same inspectors fulfill the requirements of both state and federal laws.

Douglas turned a blind eye, and as inspectors hired by Johnson left their jobs (apparently a hundred per cent turnover in that division of the department in just five years) he didn’t send their replacements to school to get the federal certification. That’s taking his disdain for the federal government just a bit too far—he’s an elected state official, and he needs to get his politics out of the way when it comes to the serious business of keeping our farmers and our consumers safe. If it’s not politics, then he’s just plain stupid for not doing his job. Those are the only two possibilities here. I’ll let him choose whichever one he’s comfortable with.

Or maybe the $8,500 in campaign contributions he got last year from Monsanto, Syngenta and Bayer Crop Science—three of the world’s largest ag chemical companies—had something to do with it.


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Another Oil “Boom”

North Dakota’s oil boom was built on the back of lax regulation of the oil industry.           Period.

When Jack Dalrymple takes credit for the oil boom, let’s remind him:

The train that blew up in West Virginia Monday did not have to blow up. It could have derailed without blowing up. It’s easy to blame the railroad—they should have safer cars, right?

Well, not in this case.  The train was using model 1232 tank cars, which include safety upgrades voluntarily adopted by the industry four years ago, according to the Federal Railroad Administration.

The rail company, CSX, was using the latest technology available—safer cars than the ones that exploded in Quebec and Casselton.

So who’s to blame? I’d say the blame has to go to the North Dakota Governor. The Governor could require that the oil that goes in the cars is safe before it goes in. We’ve been asking for him to require oil companies to stabilize highly volatile Bakken crude before it goes into tank cars since the explosions in Quebec and Casselton. To no avail.

To quote the Dakota Resource Council (DRC), which has taken the lead on the demand for stabilization of Bakken crude before it goes into the tank cars (which is possible with current technology): “They (North Dakota regulators) could make sure oil is safe before it’s put on trains, but they’ve refused to do that. They have put protecting oil companies as their highest priority. They do not care about the consequences . . . It is irresponsible to keep approving permits to drill wells if there isn’t a safe way to get the oil to market. North Dakota’s current officials should slow down giving drilling permits. Governor Dalrymple’s Administration is putting people’s lives and property at risk here and across the continent.”


I had lunch recently with one of North Dakota’s pre-eminent environmental lawyers. He said it is a matter of when, not if, someone here gets their ass sued off big time. Let’s hope nobody dies before that happens.

Here’s a video of Monday’s crash and fire.

And then let’s remind Jack Dalrymple of this, from Dickinson Press reporter Andrew Brown’s story over the weekend:

“The North Dakota Department of Mineral Resources’ Division of Oil and Gas has allowed saltwater disposal wells to continue injecting fluid underground even as mechanical integrity tests—meant to detect weaknesses in the well’s construction—have indicated leaks in parts of the wells multiple layers of casing. A review of 449 well files and more than 2090 mechanical integrity tests reports show how state officials conditionally approve disposal wells even after they don’t meet widely accepted pressure testing standards.”

Further, Brown’s story says “State officials said the EPA guidance documents related to integrity testing don’t hold the same standing as the administrative rules, and that the agency has the authority to choose which EPA guidelines to follow. ‘There is a big difference between guidance and having your own (underground injection control) program,’ said Alison Ritter, the public information specialist for the Division of Oil and Gas.”

“But environmental lawyers who reviewed the guidance documents said the state’s actions were legally questionable and could open the agency up to citizen lawsuits or a review by the EPA if enough people petitioned federal officials.”

“‘The EPA doesn’t put these guidance documents out there to be ignored,’ said Patrick Parenteau, a professor at the Vermont Law School and former counsel for the EPA from 1984 to 1987.” You can read Brown’s whole story here.

There’s another case of an expert saying the state is going to get its ass sued off one of these days.

And then there’s this–an exchange between Jack Dalrymple’s top oil “regulator,” Lynn Helms, and Prairie Public Radio’s Emily Guerin, in a story she reported just this morning. The first quote is from Helms testifying before a Legislative committee, and then Guerin challenged the truth of his statements:

LYNN HELMS: Yes, the number of spills is up. But look at it in comparison to the number of wells. The rate of spills is way, way down.

EMILY GUERIN: In fact, the rate of spills was way, way up. That’s according to the state’s own data. It’s more than twice as high as it was in 2006, at the start of the Bakken boom. I asked Helms why he didn’t say that.

HELMS: I never, in a conversation with people, farmers, the general public, get into a whole bunch of statistical analysis business….the detailed statistics are lost on them or just simply don’t work in making a presentation.

Does that qualify as one of the most arrogant statements ever made by a public official? I’d say. Here’s a link to the whole story.

Meanwhile, we wait for Spring to find out if the oil spilled from the pipeline west of Glendive, now trapped under the ice, shows up in sinks in Williston. And if water in Williston, and downstream in New Town and Garrison and even in Bismarck, tastes a bit salty from the millions of gallons of brine which flowed into the creeks which feed the Missouri River. And how many thousands of acres of prairie lie dead from the effects of the brine spill from a pipeline that was never inspected by state officials.

There have been so many stories this winter about lax regulation it makes your head swim. Fines for environmental violations being reduced to less than 20 per cent of what state laws provide for—the state’s “second chance” policy. Thousands of miles of pipelines being installed without inspection by any state official. State officials seeking to eliminate the state’s stringent requirements on disposal of radioactive filter socks. And on and on. Is it any wonder people like me, just an ordinary concerned citizen, question the activities of state officials, and criticize the Governor and his appointed officials? I don’t like being a constant critic, but what choice do ordinary citizens have? Our government has abandoned us so that we can have an oil boom,  which they can take credit for.

And those are all things which happened when oil was a hundred bucks a barrel. Imagine what’s ahead, with oil only bringing half that, and our boom in danger. When oil companies really have to cut corners. And regulators have to turn away even farther and faster to overlook continued violations. To keep that boom going. Imagine.

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NBC Buys Comedy Central In A ‘Big F**king Deal’

The Prairie Blog has learned that the National Broadcasting Company (NBC) has bought the Comedy Central television network for an undisclosed sum that is said to be about half of what former NBC News anchor Brian Williams earns in a year.

“We had a bunch of cash lying around, and decided this would be a good use for it,” a network executive said today.

In an effort to boost their NBC Nightly News show in the under-70 demographic, the network announced that Comedy Central’s Daily Show host Jon Stewart will replace the recently-fired Williams as anchor in their regular 6:30 p.m. (ET) news show.

“We know that most of our regular Nightly News viewers have never stayed up late enough to watch Stewart, so he’ll take some getting used to,” the network executive said. “But we also know that most of Stewart’s regular viewers are just toking up for the evening when Nightly News comes on, and we think they will enjoy watching Stewart when they are not as wasted as they normally are when he comes on the air at 11:30 (ET).”

The network also announced that, in an effort to boost the number of black viewers watching the Nightly News, they will replace Williams’ regular black substitute host Lester Holt with Comedy Central’s new black comedy show host Larry Wilmore, who recently replaced Stephen Colbert in the time slot following Stewart.

“A lot of our black viewers found Holt to be a little too, well, ‘brown’” the NBC executive said. “Wilmore’s presence will assure them that the network is indeed committed to a ‘black’ audience.”

When asked to comment on the story, Stewart said “Wow, this is a big f**king deal! You can be sure I won’t be reading the same s**t that Brian Williams was reading every night.”

NBC also announced that instead of being a truly “live” broadcast, the network will switch to a ten-second delay for the show, allowing network “editors” to take advantage of new broadcast software being developed especially for Stewart’s show which will offer nearly-instantaneous substitution of the words “flip” and “snap” for two of Stewart’s favorite on-air words, which FCC regulations forbid on broadcast television. “The software is so good, it will be seamless,” the NBC executive said. “We thought this software program was a much better solution to curbing Stewart’s use of four letter words than trying to reprogram him.”

Williams, meanwhile, could not be reached for comment. A voicemail message on his cellphone said he was tied up having lunch with Queen Elizabeth, the Pope and the Dalai Lama.

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Golden Bison Tomatoes and Thoughts of Spring

Here’s a story about the best customer service ever. Even better than the lady who almost bankrupted Herberger’s. It started last March when Lillian and I attended a presentation by Robert Hanna of the Lewis and Clark Fort Mandan Foundation at the former North Dakota Governor’s Mansion. Robert’s Foundation has taken over the interpretation of the Oscar H. Will Seed Company, and has a display of the company’s early products at their Interpretive Center in Washburn. That cold March night, Robert spent about an hour telling us about the Will company, complete with displays of seed packets sold by the company more than 100 years ago. (For a brief history of the company, founded here in the 1880s, go here.)

What caught our attention was a handout Robert gave us at the end of the session, listing the various places you could still purchase seeds once sold by the Will Company. We read that a company in Oregon had preserved one of Will’s heirloom tomato varieties, called Golden Bison. We ordered some of the seeds last spring, planted them, and they were our best-producing tomato last summer. And early. We were eating them on August 12. And they kept producing right up until freeze-up.

Fast forward to January 21, 2015. I got a call from my friend Sheila (pronounced Shy-la) inviting me to a birthday party–a small, intimate dinner she and our friend Valerie were hosting on Feb. 4 for our friend Clay’s birthday. Clay was going to turn 60 that day, so she said that for a present we should bring 60 of something. That’s Sheila.

We puzzled over it for a bit. Clay likes wine and books, but 60 bottles of wine or 6 ten-year-old bottles of wine were a bit out of our price range, even if we could find them, and 60 books would be insignificant in that house of his with thousands of books, even if we could find 60 he hadn’t read, which is unlikely, unless there are 57 more books in the 50 Shades of Grey series.

But almost simultaneously, Lillian and I hit on the perfect solution: Seeds. And not just any seeds. 60 Golden Bison heirloom tomato seeds. Golden Bison tomatoes were bred in North Dakota in 1932 by horticulturist A. F.  Yeager at the North Dakota Agricultural College (now NDSU, winner of four straight national football championships–sorry, couldn’t resist). Yeager was a pioneer in developing tomato strains for the northern tier of states, with short growing seasons. He did much of his research in Bottineau County, North Dakota, which is about as “northern” as you can get and still be in the U.S. He is credited with developing 14 varieties of tomatoes. I don’t know what happened to the other 13, but the identity of Golden Bison has been preserved all these 80-plus years, and they are great tomato plants, as I mentioned earlier. You can read about them by going here.

You should know that you can’t just buy any old ordinary seeds for Clay. He is a devout North Dakotan and personifies all things Dakota. The Golden Bison would be perfect for him.  The problem was, we didn’t have any, and time was short. We thought we could just write up a card saying they had been ordered and were on their way, and give it to him, which would have been fine, but not great.

So on Saturday, January 24, I went to the website of Adaptive Seeds and pulled up the order form for Golden Bison, and ordered three packets, each of which had 30 seeds–two for Clay (60 total) and one for us. When I clicked on “checkout” there was a message that said they were really busy this time of the year and we should allow a few weeks for delivery. That was okay, because we were just going to give him the card with the note anyway.

But down at the bottom of the order form was a box that said “Comments welcome.” So I thought, what the heck, I’ll send them a note. I wrote that the seeds were for a birthday present  for a friend having a 60th birthday on February 4, and that their Golden Bison seeds would be  special for him because they were bred in North Dakota, and he was a true North Dakotan, and if there was any way they could get the seeds to us before February 4, that would be appreciated, but if not, that was okay too. I pushed “send” about 6 p.m. Saturday evening, January 24.

On Tuesday, January 27, the mailman brought us a manila envelope full of seeds from Adaptive Seeds, postmarked on their end January 25. Sunday. The day after I had ordered them at 6 o’clock in the evening.

Inside were three packets of Golden Bison tomato seeds. Along with most of our other garden seeds for the year–I had liked their website so well–it was so friendly–that I decided to just forget the other 32 or so seed catalogs we had on the shelf and get most of this year’s stuff from them.

Here’s some of the seed catalogs we got so far this year. I have never ordered from most of these, so all I can think of is they swap mailing lists. I’m not complaining. They brighten up otherwise dreary winter days when they come in the mail.

So there were carrot seeds, and beans, mesclun, basil, lettuce, sugar snap peas, radishes,and three other varieties of tomatoes.The whole order, most of what we would need for this summer’s garden, was just a shade over $50.

At the bottom of the receipt, it said the order was processed at 5:13 p.m. on Sunday, January 25, 2015. Just 23 hours after I had ordered.

But the best thing was the handwritten note at the bottom of the receipt. It said “Thanks for your order! I hope your friend has a Happy Birthday. Happy sowing. Sarah” Accompanied by a drawing of a happy face.

Seeds ordered from Oregon Saturday night. Seeds delivered to Bismarck Tuesday afternoon. That is incredible customer service. Generally, when you buy things online, there is little or no human contact. One computer talking to another. Not with Adaptive Seeds. They have real people there. Real friendly people.

Better yet, to paraphrase, the proof of the tomatoes is in the eating. We ate them last year and they were great. Even better than that, they are North Dakota bred, identity preserved, heirloom  tomatoes.

When we gave them to Clay Wednesday night, we offered to start some for him when we start ours in March, because we know he is on the road a lot. We’re going to start a whole bunch anyway. So if you are in Bismarck, or close by, and you want a couple plants, let me know,  and come by on May 15 to pick them up. That’s the day we plant outside. We’ll have plenty.

Or, you can just go to the Adaptive Seeds website, order some, along with your other garden seeds, and start your own. As Sarah would say, “Happy Sowing.”


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“The Badlands Are Willfully Coquettish”

I’ve been writing about the North Dakota Bad Lands on this blog since I first created it in 2009. I have tried to focus on what forces are affecting this important part of North Dakota’s landscape, and why it is such a special place, deserving of more attention and protection than it is getting from our politicians these days.

Somewhere between a half and a third of what we call our Bad Lands is owned by the state and federal governments. As I’ve explained here before, the federal government acquired a million acres out in western North Dakota during the Dirty Thirties, and then rented it back to ranchers, to help them stay on the land during our Great Depression. That practice continues today.

But it is still publicly owned land. We all own a little bit of these wonderful Bad Lands. And we all have a responsibility to do what we can to preserve them. It is the only land in North Dakota which can be protected from the ravages of rapid development, because we are the owners and have some say in what happens to it. There are many who have come before us into the Bad Lands who would be alarmed at what we are allowing to happen there today. Let me share a few of their words, to illustrate why I think it is important we pay special attention to the future of our Bad Lands.

Here’s John Steinbeck from Travels With Charlie:

“I was not prepared for the Bad Lands. They deserve this name. They are like the work of an evil child. Such a place the Fallen Angels might have built as a spite to Heaven, dry and sharp, desolate and dangerous, and for me filled with foreboding . . . And then the late afternoon changed everything. As the sun angled, the buttes and coulees, the cliffs and sculptured hills and ravines lost their burned and dreadful look and glowed with yellow and rich browns and a hundred variations of red and silver gray, all picked out by streaks of coal black.

It was so beautiful that I stopped near a thicket of dwarfed and wind-warped cedars and junipers, and once stopped I was caught, trapped in color and dazzled by the clarity of the light. Against the descending sun the battlements were dark and clean-lined, while to the east, where the uninhibited light poured slantwise, the strange landscape shouted with color.

And the night, far from being frightful, was lovely beyond thought, for the stars were close, and although there was no moon the starlight made a silver glow in the sky. The air cut the nostrils with dry frost. And for pure pleasure I collected a pile of dry dead cedar branches and built a small fire just to smell the perfume of the burning wood and to hear the excited crackle of the branches. My fire made a dome of yellow light over me, and nearby I heard a screech owl hunting and a barking of coyotes, not howling but the short chuckling bark of the dark of the moon. This is one of the few places I have ever seen where the night was friendlier than the day. And I can easily see how people are driven back to the Bad Lands . . . In the night the Bad Lands had become the Good Lands. I can’t explain it. That’s how it was.”

From Lewis Crawford, Former Superintendent of the State Historical Society of North Dakota, in his book Badlands and Broncho Trails, published in 1922:

“Size is only one element of grandeur. Beauty is usually made up of fine lines and rich colorings, and depends largely upon its transitoriness. It defies the camera. Beauty, whether in woman or nature, is never static. The camera always is. Mountains are too vast to get a close up view and too far away to give distinctiveness; they are grand, sublime, majestic, but are static, lifeless pictures unchanging through the ages, everlasting to everlasting. The Badlands are willfully coquettish. Mountains are the cold marble statues with unspeaking lips and unseeing eyes; the Badlands are the living actors with flushed faces, beaming countenances and pulsing blood. The sublimity of the mountains is awe-inspiring and reduces the beholder to nothingness, while that of the Badlands is palpitating, alluring, ecstatic; the one soul diminishing, the other soul accruing.”

Olaus Murie, the great naturalist and “father of modern elk management” came to the Bad Lands in the 1950s, partly to make recommendations on the re-introduction of elk into what was then Theodore Roosevelt National Memorial Park. This description is from his handwritten report:

“Here is history! Our visitor looks across the badlands—the broken, tumbled Badlands—domes and bluffs and color-banded rims. Traces of lignite coal are there, speaking of ages still farther back in time. And the colored scoria, the product of native clay baked by burning coal seams. Traces of petrified forest. A landscape of clay and sandstone, persistently, patiently carved by muddy water, through infinite ages, until these rugged land forms took shape.

“I like to remember one evening on the rim of the deeply chiseled valley in the north area. We had been looking down on the winding course of the Little Missouri far below us, with its typical line of cottonwoods, and bordered by the typical Badlands formations. I had thought of those high school days in Minnesota, when I had borrowed Roosevelt’s books from the library. I remembered Frederic Remington’s drawings, remembered the burning desire to find this western scene. Will the people of today, the people of tomorrow, continue to feel the pull of land that beckons to a sample of our country as it was, a country of space and beauty and a sense of freedom?

“The sun went low and dusk was creeping over the valley below us. We watched that poetic quality of light envelop the cliffs and rims about us, and settle over the river bottom where we glimpsed the gleam of water in the bends.

“Not a serrated mountain range here, not a mossy forest, nor a lake-studded paradise. Rather an open country; its trees are twisted and storm worn, and grow sparingly along the river banks. A raw country, a country in the making, perhaps. This very fact, this character, the attributes of chiseled buttes and domes, the clay and the prairie grass, the eagle, the prairie dogs, deer, coyote; the flocks of grouse at the heads of the wooded draws—all of these spell one phase of our west—not to be compared with different ones—to be taken and enjoyed for its own singular beauty and character. Ordinary country, but with an aura of the west—something that drew Roosevelt, the adventurous ones.”

Herman Hagedorn, one of Theodore Roosevelt’s first biographers, in his book Roosevelt in the Badlands, described the world Roosevelt encountered when he first came to the Bad Lands:

“It was a region of weird shapes garbed in barbaric colors, gray-olive striped with brown, lavender striped with black, chalk pinnacles capped with flaming scarlet. French-Canadian voyageurs, a century previous, finding the weather-washed ravines wicked to travel through, spoke of them as mauvaises terres pour traverser, and the name clung. The whole region, it was said, had once been the bed of a great lake, holding in its lap the rich clays and loams which the rain carried down into it. The passing of ages brought vegetation, and the passing of other ages turned that vegetation into coal. At last this vast lake found an outlet in theMissouri. The wear and wash of the waters cut in time through the clay, the coal and the friable limestone of succeeding deposits, creating ten thousand water-courses bordered by precipitous bluffs and buttes, which every storm gashed and furrowed anew. On the tops of the flat buttes was rich soil and in countless pleasant valleys were green pastures, but there were regions where for miles only sagebrush and stunted cedars lived a starved existence. Bad lands they were, for man or beast, and Bad Lands they remained.“

And the great Roosevelt himself wrote much about the Bad Lands, including this description of the Bad Lands in winter, written in his log cabin on the Littler Missouri River on a long, cold winter night, and published in his book Ranch Life and the Hunting Trail:

“When the days have dwindled to their shortest, and the nights seem never-ending, then all the great northern plains are changed into an abode of iron desolation. Sometimes furious gales blow out of the north, driving before them the clouds of blinding snowdust, wrapping the mantle of death round every unsheltered being that faces their unshackled anger. They roar in a thunderous bass as they sweep across the prairie or whirl through the naked canyons; they shiver the great brittle cottonwoods, and beneath their rough touch the icy limbs of the pines that cluster in the gorges sing like the chords of an AEolian harp. Again, in the coldest midwinter weather, not a breath of wind may stir; and then the still, merciless, terrible cold that broods over the earth like the shadow of silent death seems even more dreadful in its gloomy rigor than is the lawless madness of the storms. All the land is like granite; the great rivers stand still in their beds, as if turned to frosted steel. In the long nights there is no sound to break the lifeless silence. Under the ceaseless, shifting display of Northern Lights, or wintry brilliance of the stars, the snow-clad plains stretch out into dead and endless wastes of glimmering white.”

At the conclusion of an early summer hunting trip he took to the Bad Lands in 1884, Roosevelt wrote a letter to his sister Anna back in New York:   

“For the last week I have been fulfilling a boyish ambition of mine—that is I have been playing at frontier hunter in good earnest, having been off entirely alone, with my horse and rifle, on the prairie. I wanted to see if I could not do perfectly well without a guide, and I succeeded beyond my expectations. I shot a couple of antelope and a deer—and missed a great many more.  I felt as absolutely free as a man could feel; as you know, I do not mind loneliness; and I enjoyed the trip to the utmost. The only disagreeable incident was one day when it rained. Otherwise the weather was lovely and every night I would lie wrapped up in my blanket looking at the stars till I fell asleep in the cool air. The country has widely different aspects in different places. One day I would canter hour after hour over the level green grass, or through miles of wild rose thickets, all in bloom; on the next I would be amidst the savage desolation of the Bad Lands, with their dreary plateaus, fantastically shaped buttes and deep winding canyons. I enjoyed the trip greatly.”

I’m sharing these words, some of the best ever written about the Bad Lands, because when I try to describe them myself, I feel much like another North Dakota historian, Clell Gannon, who wrote, after a canoe trip on the Little Missouri River in the 1920s, “The view from the top overlooking a canyon-like reach of the Little Missouri was of the kind that gains little and suffers much from the inadequacy of a written description.”

Yes, the Bad Lands are hard to describe. The Bad Lands must be experienced to be appreciated. How they survive the coming storm of development will depend on how much attention we pay to them, and how we rise to their defense. That’s why I keep writing about them.

            FOOTNOTE:     If you have observed these writings carefully, you will notice a certain inconsistency throughout them: the spelling of Bad Lands-Badlands-badlands. Since I deal with this part of the state a lot, it is a particularly annoying problem to me. I prefer Bad Lands, two words, capital B, capital L. I never gave it a lot of thought, frankly, until Tracy Potter, who worked with me in the North Dakota Tourism Department, said to me, casually, one day, “It should always be two words, both capitalized.” I realized then that I agreed with him, but I had often been carelessly spelling it all three ways from time to time.

There’s no question that, at least as a matter of pride, it should be capitalized. Everyone pretty much agrees with that. But one word ort two? Broad disagreement. Theodore Roosevelt almost always used two words, Bad Lands. I say almost because, while I haven’t found any writings by him that make it one word, there might be. I probably have not read every word he wrote. But I did a quick check in the Roosevelt books on my shelf and cannot find any other spelling than Bad Lands in his writings. Roosevelt’s use of two words, capitalized, is just so Rooseveltian. In his usage, the word Bad is an adjective, describing some Lands, and both words are capitalized for emphasis. In Badlands, the whole word becomes a noun, and even if it is capitalized, it does not carry the strong character reflected in Bad Lands.  As Hagedorn points out, the French Canadian fur trappers who first came here called them mauvaises terres pour traverser, which translated means “bad lands to travel through.” Mauvais is French for “bad.” The trappers were describing the lands they traveled through.

But most people use Badlands, including the National Park Service, both in the name of Badlands National Park in South Dakota and in describing the area in which Theodore Roosevelt National Park is located. North Dakota state government usage is one word as well, and I blame Ed Schafer for that. Ed made it the semi-official position of the state when he was governor, based on the fact the NPS uses one word. I’ve tried to talk some sense into his head, but he’s stuck on it, so I guess we are too. But I will continue to use two words, except when I am quoting someone who does it differently.  I say, if it was good enough for our 26th President, the great TR, it is good enough for me.

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Wading Through More Outdoor Heritage Fund Questions

Okay, I’m going to take another whack at the Outdoor Heritage Fund after getting off on too many tangents in yesterday’s article. Plus, there’s new information coming out daily in light of the sharp drop in oil prices, leading to a sharp drop in state tax revenues.

Here’s what we know for sure:

The Outdoor Heritage fund was created by the 2013 Legislature and received its revenue from a small percentage of oil and gas tax revenues. The fund was to receive “up to” $30 million if the total oil and gas taxes collected were sufficient to provide that much under the percentage allocated to the Fund. This week the North Dakota Legislative Council released income projections for the remainder of the biennium which revealed that the Outdoor Heritage fund is likely to collect only $18.7 million (about $700,000 more than I estimated in yesterday’s article, but, hey, I was pretty close).

As of January 9, the date of the last North Dakota Industrial Commission meeting, the Fund had spent $19.3 million. That’s about $600,000 more than anticipated revenues. And they have announced another round of grants, with a deadline for applications of April 1.

The Industrial Commission awards the grants upon recommendations from its Outdoor Heritage Advisory Council, a citizens board appointed by the Governor to screen grant applications and make recommendations to the Industrial Commission. The Advisory Council has no authority to spend money, only to recommend to the Governor, the Attorney General and the Agriculture Commissioner how to spend it.

That $600,000 glitch is going to have to be dealt with somehow, because they can’t spend money they don’t have. And unless they solve their revenue problem, the next round of grants is likely going to have to be canceled.

There are two bills in the Legislature which would seemingly fix the problem, at least for the next biennium. The Governor announced last summer, and then included in his executive budget bills submitted to the Legislature, an increase in the fund to $50 million per biennium. Not “up to” $50 million, but 50 million real dollars. There are, in fact, two bills in the Legislature using the $50 million figure.

HB 1013 is ostensibly the budget bill submitted by the Governor for the Board of University and School Lands, but it has some additional budgets tacked onto it, including the budget for the Outdoor Heritage Fund. The paragraph dealing with the OHF amends the language in the current law as follows:

d. Credit four percent of the amount available under this subsection revenues to the North Dakota outdoor heritage fund, but not in an amount exceeding fifteen twenty – five million dollars in a state fiscal year and not in an amount exceeding thirty fifty million dollars per biennium;

Words with a strike-through is language from the current law that is being removed, and words underlined are what is being proposed to replace them. So, as you can see, the new language removes the reference to a percentage of the Oil and Gas Tax and replaces it with just the word “revenues,” and increasing the amounts to $25 million per year and $50 million per biennium.

It’s seemingly a bit confusing, because you can see it doesn’t specifically say exactly how much will be allocated, just how much it cannot exceed, but my friends who know this stuff say that is standard legislative language which would mean the fund gets $50 million per biennium. This is, after all, the Governor’s bill, and that is certainly what the Governor intended when he first broached this last summer. He did not say he wanted to simply raise the cap on the existing program—he said he was going to include $50 million in his budget for the Outdoor Heritage Fund. So despite the seemingly cumbersome language, we have to assume that’s what it means.

There is a second bill, HB 1409, introduced by the Governor’s nemesis in all this wrangling over all matters outdoors, Rep. Todd Porter, who wants to be “Mr. Outdoors” in the Legislature, in his capacity as chairman of the House Natural Resources Committee, and therefore wants to take credit for these kinds of things instead of acquiescing to the Governor.

Porter’s bill does a couple of things the Governor’s bill does not—it starts to solve the problem of too much money for swing sets on public and school playgrounds, and tries to direct the funds more to natural resource and conservation projects. Tries to. Public pressure will likely keep it from deleting those kinds of things from the fund’s approved activities.

But the revenue part of the bill is goofy. Current law, the bill passed last session, has two parts, with pretty much identical language, except the first part deals with allocating funds during the current biennium, and the second part makes some changes in how things are to be handled in the next biennium. The Governor’s bill simply gets rid of one section, and makes the other section permanent, so it doesn’t change from biennium to biennium. It simplifies the law. The language I quoted above is from that bill.

Porter’s bill has the same language, but leaves both sections in–dealing with the current biennium and the next biennium–so it seems to change the allocation amount to $50 million in the current biennium, as well as in the next biennium. Except, if it passes, the law doesn’t take effect until July 1—it says that specifically at the end of the bill—so the effect would be back-dating checks, which I don’t think is legal, or was anticipated by the Governor. It would be, in effect, the deficiency appropriation I mentioned yesterday, but it seems to me it would need an emergency clause at the end of the bill making it law as soon as it was passed for the funds to become available this biennium. Otherwise, the new law, taking effect on July 1, would send funds back to the former biennium, to cover overspending by the Industrial Commission. Maybe some lawyers can tell me if that is legal. It doesn’t look like it to me.

See, the law as it is written now is the law the Industrial Commission has to go by. And under that law, the fund only gets a percentage of the oil and gas tax, which  the Legislature’s own research arm estimates is going to be just $18.7 million.  As I mentioned at the top of this article, the Industrial Commission has probably already overspent the fund for this biennium. That’s something they’re going to have to deal with. Maybe one of these bills can do that, by attaching that emergency clause, giving them an additional direct appropriation–in Porter’s bill, that would be $50 million–for this biennium, as I read it.

We’ll keep an eye out for an amendment with an emergency clause as the bills emerge from committees. Obviously, because the bills both deal with the same subject, one of them is going to have to be killed or changed.

Meanwhile, we’ll be waiting to see if the Industrial Commission proceeds with another round of grants giving out more money they don’t have.

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What If the Governor, the Attorney General and the Agriculture Commissioner All Went to the Pokey?

During last year’s campaign for and against Measure 5, the Clean Water, Wildlife and Parks amendment to the North Dakota Constitution, opponents of the amendment—the Greater North Dakota Chamber, the North Dakota Grain Growers, the North Dakota Petroleum Council, the North Dakota Farm Bureau, the North Dakota Farmers Union, the North Dakota Stockmen, the Lignite Energy Council and others—used as one of their sticking points the fact that there is already an Outdoor Heritage Fund in state government and it will provide $30 million this biennium for the same kind of projects the CWWP proponents advocated for.

Voters heard that number–$30 million—over and over. “We don’t need Measure 5. There is already an Outdoor Heritage Fund with $30 million for conservation projects.”  Then the Governor came out and said he was going to increase it to $50 million in the next biennium. The use of those figures was an important factor in the voters’ rejection of the CWWP Amendment, which various estimates ranged from $200 to $400 million per biennium for conservation projects.

That’s background. This is not another screed against the lying opponents of Measure 5. This is about that Outdoor Heritage fund that already exists. Something bad is going on, and I can’t figure out why. But it is time somebody asked for some answers.

I’m going to put the bottom line at the top. So far, in the first 18 months of the 2013-2015 biennium (there are 24 months in a biennium, and it started July 1, 2013), the Outdoor Heritage Fund has collected less than half of that $30 million. Here’s a direct quote from the State Treasurer’s website:

As of December 19, 2014, the Outdoor Heritage Fund has received $14,708,577.88 since its inception on July 1, 2013.

            Okay, so the fund is running a little—well, a lot—behind projections. Three fourths of the way through the biennium, the fund has collected less than half of what it was projected to raise, and with the precipitous drop in oil prices, it’s likely not going to get to $30 million, because the tax that funds it is based on a percentage of the price of a barrel of oil.

But here’s the problem: despite the fact that the fund has only collected $14.7 million, the three men responsible for spending the money in the fund—the Governor, the Attorney General and the Agriculture Commissioner, who make up the North Dakota Industrial Commission—have already spent $19.3 million. You read that right. Jack Dalrymple, Wayne Stenehjem and Douglas Goehring have overdrawn their bank account by $4.6 million.

The numbers are real. I’m not making this up. Here’s a quote from a press release issued by the Industrial Commission on January 9, 2015—three weeks ago:

The 2013 Legislature appropriated up to $30 million per biennium from oil and gas production tax revenue to support outdoor recreation and conservation projects including access to public and private lands for outdoor activities, farming and ranching stewardship practices, fish and wildlife habitat preservation, and outdoor recreation areas. A total of $19,312,625 has been awarded during the biennium.

            Prior to January 9, the Commission had given out $14.1 million in grants, well within the amount shown a couple weeks earlier in the State Treasurer’s report.  On January 9, according to that same press release, they approved $5,202,225 in new grants.

Add ‘em up. It’s $19,312,625.  

Bank balance: $14.7 million. Checks written: $19.3 million.

In addition, there is one more grant round scheduled for April 1, 2015. Here’s another quote from the Industrial Commission press release:

The next application deadline is April 1, 2015. More information about the program, including the application process can be found on the Outdoor Heritage Fund website.

April 1 is just two months from now. Conservation groups, city park boards, state agencies, local wildlife clubs, and deeply committed local groups interested in adding swing sets to their playgrounds are busy writing grant applications to get them done in time for the April 1 deadline, because they’ve been told there’s still more than $10 million of that $30 million left to be divided up before the end of the biennium, Which ends just three months after that April 1 deadline.

The Industrial Commission is still saying that’s there’s going to be $30 million in the fund, and they’re spending money like it is so. The last financial statement presented to the Outdoor Heritage Fund Advisory Board, at their December 15 meeting last month, showed anticipated biennial revenues of $30 million. Which, according to the Commission’s own numbers, means there is still more than $10 million to give out in the next six months.

Except there isn’t.

I’ve got a friend who’s worked in government many, many years, and knows budgets, and accounting, and tax collections, and things like that. Things an English major like me could never figure out. My friend says that during the slap-happy days last summer when oil was cruising along at about $88 a barrel, the fund was collecting about $930,000 a month. He says the price of oil is probably half that now, so the fund is probably collecting about half that much in taxes. That would be about $465,000 a month. As of that last financial statement, there were about 6 months left in the biennium. So that would come to about $3 million more in anticipated income for the rest of the biennium, bringing the total income to roughly $18 million in collections for the biennium that ends June 30.

Except that the Industrial Commission has already spent more than $19 million.


It’s probably not a cash flow problem, because it’s likely many of the grant funds haven’t been paid out yet. They might get paid out in stages, as projects get underway, or at the end of a project, when all the bills come in.

But any organization or agency that hasn’t gotten its check by June 30 is probably in trouble. Because state government, by law, cannot commit future biennial appropriations for expenses incurred in this biennium. In other words, you can’t charge things now to the next biennial budget. Because, you know, the price of oil could drop and the Legislature could decide to just kill the program. Then there wouldn’t be any money to pay the bills.

And if my friend’s research is right, and these numbers are right, and the bank account really is overdrawn, then what? Do we send the state’s top three elected officials to the pokey?

Thing is, they should have known better. Here’s what someone who follows the Legislative process told me:

Sometime after the bill that created the Outdoor Heritage Fund was introduced in the 2013 Legislature, supporters of the bill, HB1278, discovered that the Legislative Council was scoring the legislation as having a fiscal impact of only $17.62 million. Closer analysis revealed that oil production would need to increase significantly in order to achieve a level of $30 million for the fund, due to the way the bill was drafted. Although the sponsors, especially Rep. Todd Porter, were aware of the problem with the bill draft, the language was not changed during remainder of session, despite efforts by conservation interests. (Porter was angered that conservation groups had also supported separate legislation that would have created a larger fund with a more conservation-oriented advisory committee. Coincidentally, Porter received a public service award from the North Dakota Petroleum Council for his work on the Outdoor Heritage Fund.) 

            In May, after the Legislature had gone home, Fargo Forum reporter Patrick Springer wrote a story about that. Springer wrote

A glitch in the funding formula for North Dakota’s new Outdoor Heritage Fund means the conservation initiative is projected to have only a little more than half of the $30 million authorized for the next biennium. The fund is projected to raise $17.62 million during the 2013-2015 budget, well short of the $30 million cap allowed by the law to fund conservation projects.”

            Springer noted in that story back last May that Governor Dalrymple was saying that the legislators decided not to adjust the funding formula during the session because there was a “very real possibility” that production levels would exceed the estimates the state’s Office of Management and Budget used in its revenue forecast for the fund.

“We know the collection is going to be growing, basically every month,” the governor said. “There was talk of adjusting the percentage. There’s a lot of people who think production levels are about to jump again.”

            My friend who follows the Legislature told me this week:

Since the bill was enacted, oil production and prices have exceeded the original legislative assumptions (830,000-850,000 barrels per day for the two years of the biennium, and $75-80 per barrel for the two years). The outlook was so rosy that in September, 2013 OMB predicted the Outdoor Heritage Fund would grow to $23.8 million during the 2013-15 biennium based on increased production of 1,290,000 barrels per day by the end of the biennium.

But sometimes state regulators aren’t all-powerful, and the “invisible hand” intervenes.  According to Lynn Helms’ January 14, 2015 “Director’s Cut” the price of North Dakota sweet crude has sunk to $29.25 per barrel and North Dakota oil production hovers at 1,183,000 barrels per day.

            Uh huh. So there weren’t a lot of people predicting a 50 per cent drop in the price of oil, which has two effects: an immediate loss of revenue, because the fund comes from a percentage of oil taxes collected (which itself is a percentage of the price of a barrel of oil), and a drop in exploration, resulting in, at best, a stabilization in production instead of the hoped-for regular monthly production increases.

Still, the Industrial Commission has been walking a pretty fine tightrope, giving out grants as late as this January that exceeded OMB forecasts, even after watching the price of oil tank for four or five months. I don’t think there are a lot of state agencies that are allowed to do that. But when the chairman of the Commission is the Governor, and the Attorney General is sitting beside him, well . . .

And that’s the way it all appears to me, an English major, writing a story with a lot of numbers in it. I’m sure if I am wrong, someone will be quick to point that out.

I’m a little puzzled by all this. Oh, I’m not puzzled that the Governor and all his fellow opponents of Measure 5 used the $30 million figure to defeat the measure, and even increased it to $50 million for the last few months of the campaign. This was just another of the lies they told, lies which went unchallenged by the woefully inexperienced Pollyanna-ish proponents of the measure. The lobbyists for the Greater North Dakota Chamber, the North Dakota Grain Growers, the North Dakota Petroleum Council, the North Dakota Farm Bureau, the North Dakota Farmers Union, the North Dakota Stockmen, and the Lignite Energy Council are all up there at the Capitol these days, so I hope they’ll all go running down to the Governor’s office and make sure the Governor has a plan to cover his tracks, because, after all, they promised the voters $30 million . . .

Look, the Industrial Commission members had to know the number was wrong, yet they kept on spending the money as if the number was right. I just don’t get it. Unless . . . unless they planned to take advantage of a loophole called a “deficiency appropriation,” and ask the currently-meeting Legislature to appropriate more money to the fund, and then announce with a fanfare that they are so concerned about conservation that they are putting MORE MONEY into the Outdoor Heritage Fund, when all they are really doing is covering their tracks of bad management and overspending.

I don’t know. I hope they have an answer to all this. Because I’d really hate to see the Governor, the Attorney General and the Agriculture Commissioner go to the pokey. Then again . . .

UPDATE 11:58 A.M. FRIDAY, JANUARY 30:  Just released figures from the North Dakota Legislative Council project revenue to the Outdoor Heritage Fund for the 2015-2017 (next) biennium to be $16,720,000, based on a revised state revenue forecast due to falling oil prices. Remember, the Governor promised us $50 million if we’d vote against Measure 5. Stay tuned. 

UPDATE #2, 12:50 P.M. FRIDAY, JANUARY 30: I missed this earlier: The Legislative Council’s latest revised revenue projections for the 2013-2015 (current) biennium estimate the Outdoor Heritage Fund will receive only $18,700,000. As noted above, the Industrial Commission has already spent $19,312,625. Uh oh. Now we’ve got a real problem.

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If I were a North Dakota Democrat, here’s what I would say to my fellow party members:

I turned on the Rachel Maddow show last night and, as usual, she had her headlights on bright, and the deer in those headlights was a young North Dakota Democratic-NPL legislator named Corey Mock. The subject was the 3 million barrel saltwater spill in North Dakota, an incident that warrants national attention and concern because it has invaded the Missouri River, threatening to reach all the way to the Father of Waters, the Mississippi, and eventually the Gulf of Mexico, in a worst case scenario.

Like most deer caught in headlights, Corey hesitated for a moment, then stammered and shuffled his way out of the road and made an escape, with little damage. But it was an opportunity missed. Rachel gave him the opening he needed, a chance to tell the story of why these things happen, more and more frequently now, and unless someone tells the story in a large, loud voice, they are going to continue to happen. They are happening because of political failure.

They are happening because Corey didn’t know THE ANSWER.

I’m going to get very political now, and a lot of you aren’t going to like it. I’m going to be critical of Democrats first, because they are a big part of the problem. When I was young and strong, Democrats controlled the Governor’s office and much of North Dakota state government, for many years. For 28 of 32 years, they owned the Governor’s office and all the appointive offices that go with it. At times Democrats held most of the other statewide offices, and half of the Legislative seats, and for 24 years all three of the Congressional offices.

But politics is cyclical in North Dakota, and the power has shifted to the Republicans, and they now run the state in what I believe is a careless and oftentimes frivolous manner (read: Tax Commissioners getting drunk before noon), and this is North Dakota’s most critical time, and I believe they are mismanaging it. When that happens, it is the responsibility of the party out of power to speak out, to call into question errors in leadership, to challenge the established thinking of the majority of voters who have elected those now in charge. To do that, they have to know THE ANSWER.

So here’s a memo to North Dakota Democrats:  It doesn’t matter what the question is, or who asks it. Here is THE ANSWER.

“North Dakota’s oil industry is regulated by a three-member commission called the North Dakota Industrial Commission. The three members, all Republicans, are the Governor, the Agriculture Commissioner and the Attorney General. The oil industry owns the first two, but the Attorney General, not so much.  He is, though, a member of the team and generally acquiesces. The oil industry owns the Governor and the Agriculture Commissioner by virtue of having paid for their election campaigns.”

“Ironically, the campaigns were against the same man, a cowboy-rancher named Ryan Taylor, who was defeated for Governor by Jack Dalrymple in 2012 and for Agriculture Commissioner by Douglas Goehring in 2014. In both cases, the oil industry paid most of the Republicans’ campaign bills—more than half a million worth in 2012, something less than that in 2014—even though Taylor was probably going to lose anyway. But the industry knew he was going to be a thorn in their side, and they wanted an insurance policy that guaranteed the two men who had kept the doors open to their greedy march across the prairie, unchecked by onerous regulations, were going to remain In office. So they opened their fat wallets and paid for a couple of campaigns. Now they own two of the three most important politicians in North Dakota.”

“In North Dakota the industry is regulated only to the extent that when regulations are needed, they are drafted in the offices of the North Dakota Petroleum Council and delivered to the Capitol for implementation. The most recent example is the regulation on flaring of natural gas, which the industry wrote and presented to the Industrial Commission, saying this is how much we are willing to do to try to keep the state from getting such a bad reputation about all this gas, enough to heat all the homes in Minneapolis, being burned at the top of tall pipes sticking out of the ground every mile or so in western North Dakota.”

“The Industrial Commission, with ruffles and flourishes, adopted the rules, with the industry providing them political cover by sending in a few shills to mildly protest that they might be a bit stringent, making the politicians look like they were getting tough on industry boys who didn’t like even these watered down rules. Now, of course, as the economics of the industry have tightened, a cry has already risen that the flaring rules may be too burdensome, so don’t be surprised if they’re revisited in the next couple of months.”

“Pipeline spills can be prevented, but not by state officials who look the other way instead of sending in inspectors with rigorous safety standards. There were more than 2,000 spills reported in 2014, the worst year on record. We don’t know how many were not reported.  There have been more than 9,000 spills reported since the Department began keeping track, including what was previously the single worst on-shore pipeline leak in U.S. history (now superseded by this latest one), the largest salt-water disposal case in U.S. history, and the worst train derailment incident in U.S. history. There’s no doubt we’re making history here in North Dakota, all right.”

“That’s the record of the Republicans in North Dakota. When the industry owns the regulators, nobody gets regulated.”

That, North Dakota Democrats, is THE ANSWER.

It doesn’t matter what the question is. It’s called using your talking points, staying on message. It’s so simple, even Republicans have mastered it. It doesn’t matter what you ask John Hoeven, he’s going to talk about “good paying jobs.” It doesn’t matter what you ask Kevin Cramer, he’s going to talk about how important our veterans are. It doesn’t matter what you ask John Boehner, he’s going to bash Obamacare. It doesn’t matter what you ask Mitch McConnell, he’s going to tell you how important the Keystone Pipeline is. They’ve all got THE ANSWER.

Today’s Democrats need to learn from their old master, Byron Dorgan, one of North Dakota’s best politicians ever. I’m pretty sure this story is true. In  his first campaign for Congress, at a town hall meeting in some small North Dakota community, a woman in the audience stood up and asked “Mr. Dorgan, are you for abortion or against it?”  Dorgan’s response was “Thank you, I was hoping someone would ask about the farm bill.” And then he launched into a ten minute detailed explanation of what he would do in Congress about farm payments, crop subsidies, land set-asides, disaster loans and everything that rural North Dakotans wanted to hear from a Congressman. Dorgan was elected, that year, and over and over again, because he knew THE ANSWER.  It didn’t matter what the question was.

Besides controlling the Governor’s office for the last 22 years, Republicans occupy every single statewide office in North Dakota, four-fifths of the Legislature and have two-thirds of the Congressional delegation. Until two-party government returns to North Dakota, bringing with it healthy debate and a balanced approach to growth, the industry’s going  to continue to run amok, pipelines will keep bursting, flares will  keep burning, trains  will keep exploding, and the magnificent landscape of our precious state will be despoiled in a manner our grandparents could have never imagined. Shame on us. For not knowing THE ANSWER.

Now, Democrats, back to the beginning: Repeat after me:

“North Dakota’s oil industry is regulated by a three-member commission called the North Dakota Industrial Commission. The three members, all Republicans . . . “

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Elkhorn Ranch Update #2

           Based upon the analysis contained within the Elkhorn Gravel Pit EA, and taking into consideration the applicants private property rights, my regulatory authority, and considering public comment received, I have decided to implement Alternative 2 as described in the EA (pages 23-25) for Elkhorn Minerals LLC’s development of the proposed Elkhorn Gravel Pit. Under this decision the Forest Service will issue to Elkhorn Minerals LLC, special use and road use authorizations for use of the existing road system and a Surface Occupancy Permit for the development of the private mineral rights authorizing surface occupancy on National Forest System (NFS) lands.
          (signed) Karen E. Dunlap, Acting District Ranger
          (dated) January 6, 2015


 With those words, and that signature, the most imminent threat to the integrity and solitude of Theodore Roosevelt’s Elkhorn Ranch site became a reality.

I started writing Saturday about the threats to the Elkhorn, Roosevelt’s home on the Little Missouri River in the North Dakota Bad Lands, now part of Theodore Roosevelt National Park. The most serious threat is the potential for a bridge across the river adjacent to the ranch. That could happen in the next couple of years.

But the gravel mine across the river from the ranch could happen this spring. In North Dakota, caught up in the most massive industrial explosion in the state’s history, nothing is sacred any more. And so our giddiness over economic prosperity and a sound financial future for our state is tempered by a sense of hopelessness over the sacrifices we’re being forced to make to achieve that prosperity. That makes me sad. And angry.

To review: The Forest Service was given the land directly across the Little Missouri River from Roosevelt’s home site in 2007 by a group of conservation groups that raised the money to buy it from the Eberts Family. The conservation groups would have preferred to make the land part of the National Parks system, but it is a whole lot more complicated to give land to the National Park Service than to the Forest Service. The whole idea was to stop the land from being subdivided into ranchettes serving as summer getaways for rich folks, thereby preserving the viewshed and soundscape from the ranch.

It probably should be noted, somewhat ironically, that Roosevelt was one of those rich folks who came here and built what might have been called, in those days, a ranchette, as a summer getaway. But Roosevelt went on to become one of our most important presidents, certainly the one who can claim to be the true champion of conservation among those who preceded and followed him. He later said he would never have been President if it had not been for his time here. So we’re okay with that.

When the Forest Service got the land, they failed to get the rights to the minerals underneath it—that would have taken more time and money than the conservation groups could afford—so those who own those minerals have the right to develop them. That’s the law. Generally, it’s a law we can live with. The Forest Service owns a million acres in western North Dakota, and many of those have private mineral owners, and the system has worked, as oil has been extracted over the years, regulated by Forest Service rules to protect as much as possible the integrity of the land.

That could have been the case here except for one mineral owner who turned out to be a real asshole. His name is Roger Lothspeich and he owns about a fourth of the surface minerals—gravel, sand and scoria—and he’s discovered that there is a rock layer under the ground on the hill directly across from the Elkhorn Ranch that would make really good gravel if it were mined and crushed up into a size that would work on roads in western North Dakota. Gravel has been in high demand these days because of the oil boom. The oil industry is building thousands of miles of gravel roads and leveling thousands of acres for well sites that need to be covered in gravel. The cost of gravel has gone up more than 500 per cent in the last six or seven years. So a few years ago, Lothspeich filed notice with the Forest Service that he was going to commence a mining operation in full view of the Ranch, unless someone was willing to give him two and a half million dollars not to do that.

Of course, no one was going to do that. So various ideas were tossed around to prevent the mining operation, including trying to find some land or minerals somewhere else that the Forest Service could trade him, but nothing worked. So the Forest Service went ahead and processed his application for a permit to commence mining, and a couple weeks ago, on January 6, they signed the papers giving him permission to start mining this spring. And he says he’s going to do that.

“Alternative 2,” cited above in the excerpt from the Decision Record, is the plan outlined in the Forest Service’s Environmental Assessment of how the mining is going to be done. Briefly, it gives Lothspeich the right to mine 25 acres, 5 acres at a time, reclaiming as he moves from one 5-acre site to the next, and hauling the rocks he mines away from the site to be crushed into gravel off-site. The Forest Service did its best to minimize the impact on both the land to be mined and the surrounding historic site.

Still, there’s this, from the Record of Decision:

             In consultation with the Advisory Council on Historic Preservation (ACHP) and North Dakota State Historic Preservation Office (NDSHPO), the DPG defined the undertaking’s composite Area of Potential Effect (APE) as the area of direct effect, the viewshed APE, and the soundscape APE, for the purposes of compliance with Section 106 of the National Historic Preservation Act (NHPA). Specifically, the area of direct effect is defined as the 24.6 acre gravel operation footprint, associated access roads and a buffer zone. The viewshed APE includes the viewshed equal to or greater than 70 % probability of being seen by an observer located within the general vicinity of the proposed gravel pit. This includes the Elkhorn Ranch Unit of Theodore Roosevelt National Park and the Elkhorn Ranchlands NHD. The viewshed analysis was conducted by the National Park Service using standard viewshed analysis protocols.
            The coordinated soundscape APE utilized analysis (see Soundscape in Chapter III for further discussion) derived through consultation with the ACHP and NDSHPO. This resulted in a defined two-mile affected area radiating from the center of the proposed gravel pit from all directions.


So visitors to the Elkhorn Ranch, the “cradle of conservation,” where Roosevelt developed his conservation ideas, are going to see and hear an ugly and noisy gravel mining operation.  The Forest Service, to its credit, was a little troubled by that. Ranger Dunlap wrote:

          Roosevelt found solace and solitude at his cabin during a very tragic part of his life and this played an important role in his thinking. Visitors to his cabin site may get a glimpse of what Roosevelt saw and heard, but Roosevelt’s soundscape and viewshed did not include modern day noises and intrusions, such as semi-truck traffic on the county and oil gas roads, oil and gas wells drilling and production, and agricultural activity. Gravel pit development may add to these various intrusions.

(If anyone wants to read the whole record of decision, all 19 pages, you can do that by going here.)

So what’s to be done? Well, I hate to say it, but somebody just might have to pay the asshole off. The conservation groups who led the original purchase effort, back in 2007, have made some effort to find a solution without writing a big check. They spent some money to hire a title lawyer in North Dakota to find out who owns the 75 per cent of the minerals that Lothspeich doesn’t own, to see if there might be some solution involving others who own minerals but are not interested in developing them. It took some work, but they’ve all been located. Get this: There are a total of 35 people/parties/businesses who own a part of the minerals.

Lothspeich (actually, he gave the mineral rights to his girlfriend, Peggy Braunberger for “tax purposes” he said in an earlier newspaper story, although  he retains power of attorney—I hope the North Dakota Tax Department and the IRS scrutinize his tax returns pretty carefully) and the Eberts family each own about a fourth of them. The other half are owned by 35 different people with some having as little as two-tenths of one per cent. Back in the 1980’s before the Eberts family owned the ranch, 1400 net mineral acres, including the acres where the proposed gravel pit is going to be located, were sold to some Williston companies owned by the Aafedt family—they were interested in the oil rights, but got the surface minerals, including sand and gravel, along with the oil—and they were re-sold and subdivided many times over the years, with the result being that there are 35 different names on the mineral title.

So far, neither the Eberts family nor any of the other 35 owners have expressed any interest in mining gravel. Nor are they likely to. But if Lothspeich goes ahead, he’ll have to keep good records, because any profits from the gravel will have to be shared with the Eberts and the other 35. I know if I was any of those folks, I’d be keeping a sharp eye on Lothspeich’s books.

But I got distracted. I asked what’s to be done. Well, I hate to say this, but given the state of things today, I can’t imagine but one outcome: someone, perhaps the same conservation groups who paid for the ranch originally, pays off Lothspeich, but a fraction of what he originally asked for. Because the price of oil has dropped drastically, and no one really knows what the ripple effect of that is going to be.

Will there still be a demand for gravel?

Will the price of gravel remain high enough to make the mining operation profitable?

Is that worth the gamble on Lothspeich’s part?

If the answer to any of those questions is “No,” then Lothspeich has spent a lot of money on lawyers and engineers for nothing, at least in the short term. (In the long term, he’s going to have to spend money on accountants too, and they don’t come any cheaper than lawyers and engineers.) He might just be happy to get out with the money he has already invested. With a little something for his trouble.

Or is this all just a big bluff on Lothspeich’s part, as a lot of folks contend, to rip off the federal government? A lot of folks, including many who do business in the Oil Patch, believe that’s the case, and are pretty angry about that. It’s a black eye on the industry, and with all the other problems out west, Lothspeich isn’t going to find a lot of sympathizers.

In fact, a number of the 35 smaller mineral owners are well-known players in the oil industry, who I won’t name here because they are pretty much innocent bystanders in this gambit. I have the list, and I can guarantee you’d recognize at least half a dozen of them.

On second thought, I’m going to name one. Because he stuck his name into this story a week or so ago. His name is Jim Arthaud. He’s the chairman of the Billings County Commission, and he was featured prominently in Saturday’s blog post about the bridge across the Little Missouri River—if you didn’t read that, stop reading this right now and go back and read that one, here, so you get some perspective on who I’m talking about. He’s kind of cut from the same cloth as Lothspeich.

Anyway, in the paper last week, Arthaud, who I assume was being interviewed because of his role as a county commissioner in the county in which the Elkhorn is located, said “Private property rights are a big thing in the United States of America. I have no sympathy for the people that think that they have that right to just condemn people’s mineral (rights) without just compensations. It’s beyond me how people can even think that.”

And then he went on to say, and I am quoting from a Dickinson Press story here, “there are oil minerals under the ranch, and mineral owners have a right to collect income on oil and gas. He said he thinks people will attempt to drill after this decision. ‘It’s right in the middle of an oil field,’ he said. ‘They probably are not going to do it with $40 oil, but when oil prices come back, absolutely.”

You could almost hear the glee in his voice when you read that in the paper. Rightfully so, because Arthaud is one of those mineral owners. Instead of saying “they” will be drilling oil wells on the property, he should have said “I” will be drilling. Oh, he’s just a small owner, just over one per cent, but he’ll be getting royalties from it when someone decides to drill. So it was a pretty disingenuous statement on Arthaud’s part.

Actually, though, there’s a little less concern about the oil part, at least from the perspective of protecting the viewshed of the Elkhorn site. Oil companies have been willing to accommodate those concerned about the viewshed in the past, moving rigs back from the bluff line out of site from the ranch. Despite the fact that the Forest Service approves pretty much every well site location on their property (including the earlier one right up against the gate of the Elkhorn), and the state issues permits to drill any damn place the oil companies want to, the oil companies have shown some responsibility when approached by the Park Service. They don’t want, or need, any bad publicity.

But if your concern is trying to protect the Elkhorn Ranch and the valley of the Little  Missouri River, and the Bad Lands in general, it’s the gravel operation that is troubling. Oil wells are going to happen, we know that. But as more and more of us keep a close eye on the industry and the officials who are supposed to be regulating it, I think, or at least I hope, that we’ll find them more and more accommodating, and a little bit sensitive to “special places.”

Roger Lothspeich has displayed none of that sensitivity. He’s just a bad guy. His gravel mine could be the first place where someone lays down in front of a bulldozer.

Footnote: The Prairie Blog is hosted by Forum Communications and there are links to it from the Forum’s newspapers and TV stations in North Dakota. Until recently the Forum had a pretty good spam filter, but it has somehow been disabled, best I can tell, and so to guard against unwanted scurrilous comments, my blog is no longer accepting comments. Feel free to e-mail me at if you really need to comment on a blog, and I’ll try to get it posted here by adding it myself. 

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Elkhorn Ranch Update #1

Over the past few years I’ve written a number of stories about the threats to the Elkhorn Ranch Unit of Theodore Roosevelt National Park. It’s a pretty sacred site to a lot of North Dakotans and Americans, and it needs to be protected. Aside from the fact that the 218 acre site in northern Billings County, hard up against the Little Missouri River, is a  tiny protected island in a sea of ongoing oil development, the imminent threats have been three in number. One, a proposed oil well right at the gate of the historic home of our 26th president, has been negotiated to a site two miles away by public pressure and diligent work by the former park superintendent, Valerie Naylor.

Two others, both with what have become long histories now, remain. One is the proposed gravel mine directly across the Little Missouri River from the Elkhorn Ranch. That’s the most imminent—it could happen this spring. It’s a temporary, short-term problem, but pretty serious. I’m looking up some new information on that and will share it with you in a day or two.

However, the biggest long-term threat is a proposed bridge across the Little Missouri State Scenic River right beside Theodore Roosevelt’s historic home site. The bridge is the brainchild of the Billings County Commission and its chairman, a wealthy oilfield contractor named Jim Arthaud. Arthaud’s oilfield business, MBI, mostly involves trucks, and the bridge would accommodate those trucks.

I’ve written about it here before, but not for a good long while, and so I want to summarize and update you on what’s going on there. The project was initiated in the fall of 2006 when a notice was published in the Federal Register.  That notice began an Environmental Impact Statement process because Arthaud wants federal tax dollars to build the bridge and the roads leading to it.

The preferred location was right up against the Elkhorn Ranch site–I mean, within yards of it, not miles. Public workshops, a necessary first step in writing an Environmental Impact Statement, were first held in the spring of 2007, followed by a public comment period. According to a newsletter put out by Kadrmas, Lee and Jackson (KLJ) Engineering, which has had a longstanding contract with the county, 52 comments were received after the public meetings.   The newsletter said “The majority of the comments stated a general opinion on the project, a preference for the no-build alternative, and expressed concern for potential impacts to the Elkhorn Ranch Unit of Theodore Roosevelt National Park and the Elkhorn Ranchlands.”

The county and KLJ retrenched after those meetings, looking for alternatives somewhere other than the crossing beside the Elkhorn Ranch, and a second round of public meetings was held in the summer of 2008. Then the project went quiet, collapsing under the weight of negative public opinion and the inability to satisfy requirements of the EIS process.

But then came an oil boom. By 2012, Arthaud’s fleet of trucks had grown from a handful to many dozens, with more being added as he could hire drivers. He was joined by many more trucking companies, both from in-state and out-of-state. It takes a lot of trucks to frack a well. If you’ve been anywhere west of New Salem, you’ve seen the trucks. A new EIS process was initiated by the Billings County Commission. New alternatives were identified. A third round of public meetings was held in the summer of 2012, again with most participants expressing opposition to a bridge over the Little Missouri River anywhere in Billings County. Perhaps Arthaud’s mistake this time was that he bragged to the Dickinson Press that 1,000 trucks a day would use the bridge. No sane person could comprehend the impact of 1,000 trucks a day, running 24 hours a day, through the valley of the Little Missouri River on gravel roads, creating huge dust storms and a cacophonous racket, both of which would essentially steal the quiet, contemplative atmosphere that visitors find at the Elkhorn Ranch site. A good number of those trucks would be Arthaud’s, providing him substantial financial benefit, in addition to the slaps on the back he’d get from his oilfield buddies, who will also benefit from the taxpayer dollars—some say as much as $15 million—that will be used to build the bridge and roads.

The new EIS was scheduled to be completed in January of 2013, but it’s dragged. Just recently, the page on the Billings County website maintained by KLJ changed to reflect a new timeline. It now says the draft EIS will be ready for public viewing in “late spring or early summer 2015”–two full years behind schedule. (Incidentally, the cash register keeps on ringing at  KLJ–they’ve now collected somewhere around a million dollars of Billings County Taxpayer money, with no end in sight.)

If they stay on the new schedule, sometime this summer there will be more public meetings, and a final EIS and Record of Decision will be issued by the federal agencies involved this fall. The federal agencies are the Federal Highway Administration, the U.S. Army Corps of Engineers, the U.S. Forest Service and, I think, the Environmental Protection Agency. Other agencies with something to say about it, perhaps during the public comment period, are the U.S. Fish and Wildlife Service, National Park Service, the North Dakota Parks and Recreation Department, and North Dakota’s State Historic Preservation Office.

The most important item in the EIS will be the Federal Highway Administration’s recommended location for the bridge, and the proposed routes of the roads leading to it—if, indeed, the Highway folks agree to authorize the project. There were a handful of possible locations, identified as “alternatives,” including the one beside the National Park site, presented at the public meetings in 2012.

It’s pretty easy to see why it has taken so long: none of the alternatives work. The engineers can’t find a good spot for the crossing. At the public meeting in Medora in 2012, in response to heated criticism, Arthaud said the crossing would not be next to the Elkhorn Ranch. I was at the meeting, and it was obvious he heard the passion of those trying to protect the Elkhorn. Backing that up, the Forest Service spokesman at the meeting said they would not allow it on their land across from the Elkhorn. And in response to a local rancher whose land was included in one of the crossing alternatives, Arthaud said it would be on public land, not private land.

The problem is, of the alternatives being considered by KLJ, none are completely on public land–except at the Elkhorn Ranch site. There is Forest Service land on the east side of the river at a couple of the crossing locations, but not on the west side. So that screws up Arthaud’s promise to keep it on public land. Unless new locations are found. The last time I was in communications with the engineers at KLJ, they told me there had been no new alternatives proposed. But that was a year ago. Maybe the reason for the new timeline, now proposing to “get it done” in 2015, is that they found a new alternative (I’m not sure where that would be—I’m pretty familiar with the crossings on the Little Missouri, and other than the one at the Elkhorn Ranch site, I don’t know of any that have public land on both sides of the river) or they have found a private landowner willing to have the bridge on their land. We’ll know that in “late spring or early summer.” I’ll keep you posted.

Footnote 1: The real need for this bridge anticipates the Bakken Boom moving full blast into the Bad Lands. There’s been some oil activity in the Badlands of Billings County, but nothing like what has been going on up north of Lake Sakakawea. Leases on federal lands are generally for ten years, as opposed to five year leases on the private lands north of Lake Sakakawea, so there’s been no urgency to bring the rigs across the Missouri River and Lake Sakakawea. But everyone expected that to start happening in the next year or two. The drop in oil prices might just give the Bad Lands a breather—there probably won’t be a lot of rigs moving south into the Bad Lands for a while, until prices stabilize. The EIS process will proceed, but there’s likely less urgency for construction. 

Footnote 2: A couple of years ago, I asked the Federal Highway guy how this bridge is going to get paid for. He said mostly with Federal Highway funds, with some small state and county match. The bridge was proposed back in the day when Congress earmarked funds for projects like this. But earmarks have disappeared. So, if it gets to that stage, the money for the bridge will have to come from the state’s regular allocation of federal highway funds. Which means money will have to be taken away from some other project somewhere else in the state. Jack Dalrymple can, and will, make that happen. Because Arthaud has taken out an insurance policy. He’s one of the biggest, if not THE biggest, contributors to Jack Dalrymple’s campaign and the state Republican Party. It’s hard to add up, but it’s safe to say that Arthaud and his family members and company executives have given at least $100,000 to North Dakota Republicans since 2010. And Dalrymple’s proven over and over that campaign contributions matter. Pretty good insurance.

Footnote 3: The Prairie Blog is hosted by Forum Communications and there are links to it from the Forum’s newspapers and TV stations in North Dakota. Until recently the Forum had a pretty good spam filter, but it has somehow been disabled, best I can tell, and so to guard against unwanted scurrilous comments, my blog is no longer accepting comments. Feel free to e-mail me at if you really need to comment on a blog, and I’ll try to get it posted here by adding it myself. 


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