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Free Legal Advice: Don't Hire Ron Fischer
Written by Chet   
Monday, 25 August 2014 22:47

NDChooseLife1Okay, so maybe the title is a smidge strong. Given an infinite amount of space for a title I might have called it: If The Government Comes To Euthanize You, Don't Hire Ron Fischer As Your Lawyer; He Can't Think Of Any Existing Law That Outlaws Governmental Euthanization of People.

If you don't know what I'm talking about, Grand Forks lawyer Ron Fischer wrote a letter to the editor that's making the rounds right now. It's an expression of his paid-for opinion about "Measure One," the horribly written initiated measure that will likely take away your right to make "end of life" decisions for yourself and your family members.  Here's an excerpt from Fischer's letter to the editor:

I know a thing or two about end-of-life issues. First, I am a constitutional lawyer, born, raised, educated and living right here in North Dakota. Second, I am battling cancer, so end-of-life issues are more than a theoretical concern to me.

Professionally, I have been dealing with issues of constitutional law for the past 34 years. I’ve litigated countless cases concerning constitutional issues, including five years as an attorney in the U.S. Justice Department under President Ronald Reagan, where I received multiple awards for outstanding service.

In 2004, I was honored with a Fellowship in The American College of Trial Lawyers, widely considered to be the premier professional legal organization in America, whose membership is limited to no more than 1 percent of the lawyers in any state.

In addition to my professional qualifications to speak about Measure 1, I have a keen personal interest in making sure North Dakotans retain control over our own end-of-life decisions.

Bismarck Tribune

So let's break down Mr. Fischer's letter to the editor into its subparts. I'm going to try to address these in the context of the Logical Fallacies I learned about as an undergrad taking Ted Messenger's "Introduction to Logic" class back in the olden days.  Dr. Messenger used the textbook by Irving M. Copi to teach us the basics of crap arguments. I bought a copy of Copi's book (latest edition) a few years ago just because I remembered it being one of the best undergrad textbooks I ever had my hands on. Dr. Messenger taught us about what a bunch of "logical fallacies." You might call them "crap arguments."  I don't have Copi's textbook with me now (I'm on vacation out of town) so I don't recall if I'm using Copi's exact words. But you'll get the idea:

(1)  Ron's Resume:  Ron tells us he used to work for "The Justice Department"!!! Dun Dun Daaaaaah!!! Game over right? A guy who used to work for the Justice Department knows everything, right? But it wasn't just any Justice Department; it was the Justice Department under -- wait for it... -- Ronald Reagan! Hey! Reagan is the Messiah, right? But Fischer even won awards for "outstanding service."  Everybody give Ron a round of applause. He worked for the Justice Department under the administration that gave arms to Iran in an illegal exchange. And he got special recognition for his work. Atta boy, Ron.

But that's not all. Ron also says he is "a constitutional lawyer." Do you know what that means? If not, let me translate it for you: Ron is a lawyer. Not just any lawyer, mind you, but a lawyer who took a constitutional law class in law school, and who has to refer to the constitution from time to time in his law practice.  In other words... Ron is a lawyer.  It's not that he's an "expert" on constitutional law. I bet none of Ron's Yellow Pages ads say, "Ron is an expert in constitutional law."  That's because when someone tells you they are a "constitutional lawyer" they are trying to inflate their resume' to try to get you to trust their judgment regarding their personal interpretation of the constitution.

Ron's listing on "www.martindale.com" doesn't say anything about him being a "constitutional lawyer."  It says his practice areas are:  "Insurance; Business/Commercial; Employment; Personal Injury; Appellate Practice."  Does any of that sound like the kind of work a "constitutional lawyer" does? Well, sure. Because every lawyer is a "constitutional lawyer." 

Listen, I'm a lawyer too. I studied the same cases from the same books as Ron. All law students take "Con Law" class; probably two semesters. That means we've both taken the minimum required post-graduate study of constitutional law classes.  

But... wait a minute: I also took two semesters of undergraduate constitutional law classes. And I use the constitution in my practice pretty regularly, too. Just like lots and lots of lawyers and judges in America who think Ron has no idea what he's talking about in his letter to the editor. Does that make me more of a "constitutional lawyer" than Ron?  Yeah, not really. I'm just a lawyer lawyer, like Ron. 

Copi might have called this an "appeal to accomplishment," a subset of the "appeal to authority" logical fallacy. It doesn't matter how many acronyms you have after your name. It doesn't matter where you worked or what awards you've received. If your argument is crap, it's crap.

(2) Ron's Illness:  I'm sorry Ron has cancer. Cancer can be a horrible disease with tragic ends. I'm glad he has found science-based healing professionals at the Mayo Clinic who are having some success in treating his condition. An alternative might have been for him to turn to a faith-based evaluation and faith-based healing through prayer, but that likely would have had a tragic outcome. I'm glad his doctors don't have their hands tied by church leaders who reject logic, reason and science. See, sometimes some people need to rely on their faith, and other times they need to rely on logic and reason (and maybe a little faith, too).  If I'm standing on a fire escape on the tenth floor of a building and want to get down to the ground, I can rely on my faith and jump, or I can take the stairs (having faith they won't collapse). The person who relies only on his/her faith isn't necessarily taking the right approach to a problem or situation. I'm glad Ron chose to rely on science, logic and reason (and probably some faith) when dealing with his cancer. I just wish he would do the same in the debate about Measure One.

The fact someone -- Ron, here -- has a potentially fatal condition does not give them special authority to discuss a legal issue. Listen; we all have a fatal condition; it's called "life." (Look it up. It's terminal. Everyone dies.) Just because Ron -- like all of us -- is facing life-and-death decisions does not make his opinion special. Some might say he should be ashamed of himself for trying to use his unfortunate medical condition to bolster his crap argument.  

Copi would have called Fischer's abuse of his illness an example of the "appeal to pity" fallacy, or argumentum ad miserecordiam. Copi might say, "Sure, feel pity for Ron; but don't accept his crap argument because you feel pity for him."

And I have the flu right now and feel like I'm going to die. So my opinion is somehow more meaningful, right? Of course not. Pity me, but don't agree with me because you pity me.

(3) Ron's Shameful Hypocrisy and Scare Tactics:  See how Ron accuses folks like the Constitutional Law professor of "playing on your fears"?  Yeah, Ron, take a look in that mirror of yours. See, Ron thinks opponents of measure one are fighting for "unlimited right to abortion in North Dakota." An abortion clinic in every kettle. He wants you to be scared because everybody will be rushing off to their nonexistent corner abortion clinic tomorrow if Measure One doesn't pass. He supports Measure One, he says, because he supports "life."  Well, Ron, we all support life. Even pro-choice people. They just also believe in the right of certain people to make private medical decisions without your church or our government getting involved. Yours is a "straw man" argument if I've ever seen one, too, by the way. Nobody's asking for "unlimited right to abortion in North Dakota," and he knows it. That's just the bogie man he wants dumb people to fear. 

Measure One's biggest impact will be on people's right to make end-of-life decisions. That is just fact. Read Professor Morrison's writings on the topic if you don't believe me.

(4) Ron's Appeal To Authority:  Ron's opinion is supported by "a prestigious group of 16 legal, medical and senior-care experts" who wrote up report for the Catholic church funded pro-Measure One organization.

He also cites FDR. FDR might be rolling in his grave.

Upton Sinclair wrote, “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

Fischer's law firm is defending all the state's crazy, new anti-women's reproductive health laws. So far this fiscal biennium, it looks like Fischer's office has billed the state over $150,000 to defend those crazy laws.  Do a "vendor" search on North Dakota's OMB website for "Pearson Christensen" and you'll see what I mean. Does anybody wonder whether Fischer's law firm would get to keep that high-dollar gig if he or anybody in his firm publicly spoke out against Measure One? A Letter to Editor writer with slightly more integrity than Fischer would have disclosed a glaring conflict of interest like that.

And some of the “prestigious” “experts” Ron points to would undoubtedly lose their jobs if they didn’t support all the proponents' lies about Measure One. See, at least one "expert" is actually not an expert at all, but is a lobbyist for North Dakota’s Catholic bishops. The Bishops are the ones who were not-so-secretly behind Measure One. Many others work for Catholic Church institutions. Catholic hospitals. Catholic nursing homes. Catholic colleges. Other Catholic organizations. Do you really think their jobs would still be there for them if they spoke out against Measure One? Is anybody insane enough to think that?

But let’s take Upton Sinclair a step further. What if your invitation to your church depended on you not understanding Measure One? What if your Bishop told you your entry into Heaven was conditioned on you NOT understanding the impact of Measure One? Do you think you’d “understand” Measure One if your church was important – if it was THAT important – to you?

One of Ron's "prestigious" experts is a "professor emeritus."  Do you know what "emeritus" means?  It means "not one anymore." The guy used to be a professor, but he isn't anymore. Is he a respected authority on constitutional law who's written peer-reviewed journal articles?  I don't know.  But if he is and has, it was probably a long time ago when he was a professor. And he isn't anymore. 

I don't have anything against people of the Catholic faith. Many of my friends are Catholic, and I love 'em. Many of my Catholic friends reject this heavy-handed nonsense from the Bishops and are against Measure One. Their salaries don't depend on getting support from the Bishops. But you should ask yourself how many of the people on Ron's list of "prestigious experts" aren't Catholic people whose salaries depend on them having the support of the Catholic Bishops.

While I am not a constitutional law professor -- and neither is Ron -- I stand pretty comfortably with the hundreds or thousands of prestigious "constitutional lawyers" and law professors and judges who disagree with Ron.

See what I did there? I can appeal to authority, too. Just like Ron.

Here's the thing: you guys who think you know what God wants: you don't. God's Will is not dependent on Measure 1, and in fact God's Will is not Measure 1. And, yet, not only do you think it is, but because you think it is, it is okay to lie -- i.e. to "bear false witness" -- and to scare and to manipulate through any means necessary to carry out what you think is God's Will even though it isn't. The irony - it's downright sad. 

North Dakota Christian Group Continues Its Assault on the Eighth Commandment
Written by Chet   
Friday, 08 August 2014 08:42

ADIP-465_copy__14891_zoomFor North Dakotans who actually practice their Christian religion -- particularly Catholics and Lutherans -- the 8th Commandment is pretty clear. It says "Thou shalt not bear false witness..." Exodus 20:16.  Folks familiar with the Bible recognize this as being one of the parts of Christian dogma that says good Christians shouldn't lie; especially about our neighbors.  

Then along comes the Church-backed group "ND Choose Life." According to the website for the "North Dakota Catholic Conference," "ND Choose Life is a coalition of" anti-choice "organizations. Supporters include the North Dakota Catholic Conference..."  (Source)  ND Choose Life has released a propaganda piece that does not quite live up to the express language in the Eighth Commandment.  Take a peek:

So let's break this video down into the two main "facts" about Measure One, according to the Catholic Conference-backed group:

(1) The first message of the video is that Pro-choice groups sought out "a judge sympathetic to their cause" who struck down some of North Dakota's unconstitutional anti-choice laws. This is patently false. It is a lie. North Dakota is unique in that it has a law -- NDCC § 29-15-21 -- that says both sides in every lawsuit get one shot at demanding a change of judge. They don't have to give an explanation for why they want or need a different judge; either or both sides simply ask, and -- abracadabra -- they get a different judge.  This makes it impossible to shop for a "judge sympathetic to their cause."  The oppressie anti-choice side in the lawsuit had the exact same right to demand a diffent judge in every case where the anti-choice laws were challenged. This "change of judge" law makes it impossible to "seek out a judge sympathetic to their cause," because -- if either side thinks the judge isn't unbiased -- they can simply get a different judge; no questions asked. 

And this statement about the other side seeking out a judge sympathetic to their cause isn't just false "false;" it's false in that it it is a falsehood -- i.e. a lie -- stated about the neighbors of the people who back ND Choose Life. And that includes the ND Catholic Conference. So let's be clear about this: The ND Catholic Conference is propping up an organization that is dishonoring knowing and intentional lying.  And that's sad. you would think a Church organization would hold itself to a higher standard. You'd think a Church organization would immediately disavow any involvement with an organization that bears false witness against its neighbors. Instead, the ND Catholic Conference gushes about its support of the dishonest ND Choose Life organization on its website. That's troubling.


(2) The uninformed and misguided actress in the video reads from a script which claims Measure 1 was put on the ballot "to protect the laws we already have."  This is false. An amendment to the state constitution that is unconstitutional under the federal constitution, is still unconstitutional. These laws -- or some of them -- were declared unconstitutional because they violate the federal constitution. The idea that a state can adopt a state constitutional amendment in order to shield its federally unconstituional laws from being stricken...  is false. And it's not just normal false false.  This assertion made by ND Choose Life is also a lie about our neighbors in North Dakota. It is a lie that pretends to explain why Measure 1 was put on the ballot. It was not put on the ballot "to protect the laws we already have" because, as a matter of fact and of law, it could not possibly "protect the laws we already have" if those laws violate the federal constitution (which they do). 

So that's two Eighth Commandment demerits for ND Choose Life and it's church backers.  And it's too bad those aren't the only two examples of ND Choose Life bearing false witness. There are plenty more.  (See today's Fargo Forum, for example)

Here's where I come down on this dishonest pro-Measure-One propaganda from church-backed organizations:  I don't have a problem with the church leaders taking a position on Measure One. I don't have a problem with a church-backed organization taking a position. But when a church-backed organization starts to lie about a ballot measure, the reasons for the measure, and the impacts of the measure, that is a sign that the church-backed organization is also supportive of lying. And lying is supposed to be a big "no-no" for Christian people, and particularly for leaders of these churches.  So if you are a member of one of these churches, and it becomes this obvious that the church is supporting of lying, and lying is one of God's big "no-nos," don't you have to start wondering what else your church is lying about? 

If you support Measure One because of your religious dogma, just say so. Whatever your reasons for supporting measure one, just be honest. If you're not a constitutional scholar and don't understand how laws and constitutions interact, don't pretend to know how they interact. Don't pretend to be an expert. Leave that to the unbiased law professors and other true experts who aren't handcuffed by a paycheck from the Bishops or by their religious dogma.

News Updates from mid-July 2014
Written by Chet   
Wednesday, 23 July 2014 08:25

There's been a glut of news coming out lately about North Dakota, nationally. We don't see a lot of it locally, but it's important stuff we all should know about.  I've had about fifteen web browser windows open on my computer for a little while. I've been meaning to try to write blog posts about each of them. But they keep piling up on me, as does my work, family commitments and other stuff. There have also been a couple local news stories and an editorial many of you may have missed, and so I'll lump those in here too. So today I'm just going to dump all of them on you, with a recommendation that you read as many of these as you have time to read.  So, in no particular order, here goes:

(1)  "Race for North Dakota's Agriculture Commissioner is All About Oil" (Reuters) July 22, 2014

[Doug] Goehring, armed with donations from executives and political action committees at Continental Resources Inc, Whiting Petroleum Corp, Marathon Oil Corp and other companies active in the state's Bakken shale oil formation, is in the fight of his political life.

His opponent in the November election, Ryan Taylor, is a rancher and former Democratic state senator who threatens to impose stiffer regulations on an industry used to operating with little intervention in what is typically a conservative state.

"We want the oil, but we also want productive land when it's all done," Taylor said in an interview on his 2,900-acre ranch, dotted with scores of quietly grazing cows. He went on to say that if elected, "I'll probably be looking at things in a more critical eye."

The Ag Commissioner race in North Dakota in 2014 will answer a variety of questions, the most important of which is this:  "Are North Dakota voters going to continue to let oil companies put oil company prostitutes in statewide elected offices in North Dakota?"  We soon shall see.

More on this from Ed Schultz last night, too.



(2)  "In North Dakota's Oil Bonanza, Natural Gas Goes Up In Flames" (LA Times) July 16, 2014  

Republican Gov. Jack Dalrymple, saying he is "embarrassed" by a gas flaring record that he says has "been easy on companies," has vowed that the state will strictly enforce new rules aimed at cutting the waste. State officials say the regulations, which took effect in June, will curb the proportion of total natural gas production flared from 28% in May to 10% in 2020.

"We will reduce flaring — it's just that simple," Dalrymple said.

The pledge hasn't soothed the Leppells, whose 30-acre homestead has become surrounded by three well pads since they purchased it in 2009 — one of them directly on the 1,200-acre pasture they lease. Because they only rent the pasture, they earn no royalties, unlike many North Dakota farmers and ranchers who have become wealthy from oil earnings. They say the state should have required infrastructure for capturing and marketing the gas before allowing more oil wells, which now gush $2.5 billion a month worth of crude.

"All of the details should have been worked out long ago," Wanda Leppell said. "Instead, I'm sitting here as a guinea pig because, you know, money talks."

Jack Dalrymple is "embarrassed" about something?!?  Doubt it.  He's at his apartment in Paris, again, sipping Chardonay and making fun of the hicks in North Dakota which is not, by the way, where he is from.  (He was born and raised in Minnesota. Look it up.)  

(3)  "Bright Future: North Dakota Officials Project Bakken Production Through 2010" (Dickinson Press) July 17, 2014

The North Dakota Industrial Commission projects that oil development in the Bakken will last at least five generations — with production lasting through 2100 and beyond.

Lynn Helms, director of the North Dakota Department of Mineral Resources, spoke about the state’s biggest industry at the sixth annual Bakken Rocks CookFest here on Thursday afternoon.

“Your grandchildren’s children will be sitting in these chairs,” Helms said at the informational session.

Helms' comment presumes North Dakota will still be habitable when our grandchildren's children are around, and not a massive SuperFund site.  And -- the way things are going right now -- that requires a lot of optimistic speculation.

(4)  "North Dakota's Oil Bonanza Is Unsustainable" (FiveThirtyEight.com) July 21, 2014

There’s a practical limit to how long those gains can continue, however. Drilling efficiency — how many wells a rig can drill in a given period — has been essentially flat over the past year.2 The wells themselves, meanwhile, are getting better at least in part because companies are drilling longer “laterals,” the sections of wells that run horizontally through the shale rock. In 2007, the average well in North Dakota was about 17,000 feet long (including both the vertical and horizontal portions); in 2013, the average well was nearly 20,000 feet long. But that rate of growth, too, is slowing as companies reach the technical and economic limit of how far they can drill.

Eventually, productivity growth won’t just slow but reverse. Companies prioritize drilling in the best parts of an oil field, then gradually shift their drilling to less productive areas. But because the Bakken is so new, no one really knows how those second-tier areas will perform. If they prove successful, Bakken production could enter a long plateau before a gradual decline. If they aren’t, production could decline precipitously. The boom, in other words, is bound to end eventually. Whether it will be followed by a bust remains uncertain.

I had to plug this one in here to contrast the gush-fest published by the Dickinson Press (see #3, above).  FiveThirtyEight -- for those of you who don't know -- is the blog run by Nate Silver, who used to work for the New York Times and who correctly predicted all but one federal race in 2012.  The one he got wrong was North Dakota's race between Heidi Heitkamp and that slumlord guy from Fargo; ol' whatshisname.  More about that here.

(5)  "North Dakota's Oil And Gas Boom Has Prosperity, But Critics Wonder About The Costs" (Huffington Post) July 21, 2014

“I don’t think most people know how pervasive the influence of the oil industry is in the Capitol,” said Jim Fuglie, a former state tourism director and former head of the state Democratic-Nonpartisan League Party. “Nothing this big has happened since homestead days. This is a game changer for North Dakota.”

Put another way, the state’s modern history has been rewritten by the energy industry in just four short years. And while few want to argue with the prosperity — the cascading cash, the budget surplus, the new hospital wing, the abundant jobs — the clout and swagger of the oil companies, arguably the most powerful force in modern politics, has unsettled the traditionally amicable and moderate politics of this state of just 725,000 people. Whether through campaign cash, charitable donations or larger contributions to the economy, the industry has gained a level of influence that’s hard to overstate. Each significant attempt to tighten regulatory oversight or restrict some of the industry’s more wasteful practices in the last legislative session either failed or passed only after being stripped of its core. Any talk about clamping down on the pace of drilling has been quickly snuffed out.

The results have been making headlines for a couple of years now: oil field spills by the thousands, billowing clouds of dust kicked up by an endless stream of trucks pounding on deteriorating roads, radioactive waste left to degrade in vacant buildings, skyrocketing crime rates and housing costs and methamphetamine abuse and prostitutes in a land where few outsiders wished to venture just a few years back. Many landowners and local officials in the state’s western oil fields — political conservatives for the most part — see an industry allowed to operate where and when it pleases, at any given speed, and to pollute with virtual impunity. Drillers wastefully burn off nearly a third of the natural gas that’s produced with the oil without paying royalties or taxes because they haven’t installed the pipelines and processing plants to capture it. As recently as 2009, there were just 451 oil field spills statewide, but last year there were at least 1,782. Just a fraction result in punishment: authorities issued 15 fines for spills in 2013, mostly for incidents from previous years.

Wait!  Someone is telling the truth about problems with North Dakota's oil boom?!?  BLASPHEMY!!!

(6) "North Dakota Fire At Oil Supply Business Continues To Burn" (LA Times) July 22, 2014

North Dakota firefighters continued to battle a huge blaze at an oil industry supply business in the town of Williston that spewed 500-foot-tall flames, officials said Tuesday.

Explosions and flames began shortly after midnight Monday at Red River Supply, the Williams County Emergency Services told the Los Angeles Times. A state highway near the fire was closed.

A half-mile radius around the fire has been evacuated, but no injuries had been reported. Emergency officials said in a Tuesday afternoon statement that they did not think they would have to increase the evacuation area.

The cause of the blaze was under investigation.

Another boom in the boom.  Look for a lame investigation and the subsequent cover-up. 

(7) "Tribune Names Editor, Other Staff Changes" (Bismarck Tribune) July 13, 2014

Steve Wallick, whose 40-year career at the Bismarck Tribune includes stints as a reporter, copy editor and supervisor, has been named the editor of the newspaper.

Wallick has been in charge of the Tribune newsroom as the city editor since 2002.

A native of Lincoln, Neb., he started at the newspaper as a reporter and copy editor in 1974, covered a legislative session and serving as the copy desk supervisor from 1975 to 2002.

I've often heard that the best way to make a shitty newspaper better is to promote people who are part of the problem, and retire people who aren't.  

Nearly two years ago, the Tribune's previous editor -- John Irby -- announced he was retiring effective September 9, 2011. In the column he wrote to announce his retirement, Irby said he was tired of being picked on by bloggers, and very specifically by me; that's why he was leaving.  (Read more about that here.)  Last year (in 2013) Irby acknowledged through a Facebook comment that he'd been "censored" by some unnamed power above him in the food chain at the Bismarck Tribune, causing him to not publish the hard shories he (allegedly) really wanted to publish.  (More about that here.)  It was clearly an allegation that Tribune publisher Brian Kroshus was censoring the hard journalism Irby (allegedly) wanted to publish about the way oil develepment was happening, etc.  But, of course, he didn't name Kroshus by name. He didn't have the stones.

So now, 10 days ago, the Tribune has hired a "replacement" for Irby.  I'd like to say I'm glad the Tribune has finally hired an editor after not having one since 2011, but from everything I've heard about Wallick, he's more of the same, or worse.  So we've got that going for us, which is nice.

(8) "Forum Editorial: Oil Boom Sex Trade An Epidemic" (Fargo Forum) July 21, 2014

North Dakota’s attorney general again warned that sex trafficking in oil country is, by state historical standards, approaching epidemic levels. Wayne Stenehjem was on the airwaves last week reporting how easily it’s been for law enforcement agents to set up stings and nab men who were seeking to buy sex involving girls as young as 12 and 13. Every successful sting reveals the pervasiveness of the sex trade.

All the pretty spin on the obvious benefits of oil and gas development in North Dakota’s Bakken cannot put a happy face on sex trafficking. All the explanations (“well, duh, it happens everywhere”) cannot hide the awful reality that it has never happened before with the intensity and organization seen in 2014 in oil country. All the excuses (“well, duh, we need more law enforcement”) cannot hide the irrefutable evidence of an escalating sex trade that is growing only because it is following the money generated by the oil boom.

Stenehjem and others, in particular federal law enforcement officials, are not soft-pedaling a problem that goes to the heart of protecting vulnerable children – girls and boys. They are instead speaking out candidly, even as some politicians and industry leaders would rather not talk about a downside of energy development that is as down as it gets. Anyone heard anything substantial, anything credible, from North Dakota legislators, some of whom have sold their souls to the oil industry?

Okay, the Fargo Forum gets a couple things right in this editorial, but that's not what I want to talk about. I want to talk about the enourmous courage it takes for the Forum's editors to "name names."  See where they say "some politicials and industry leaders would rather not talk about a downside of energy development..."?!?  And "North Dakota legislators, some of whom have sold their souls to the oil industry?"?!?  Who is the Forum talking about? Are they talking about Jack Dalrymple?  Wayne Stenehjem?  Doug Goehring?  Who are these "some politicians" and anonymous legislators?!?  Frickin cowards might as well burn their Journalism Diplomas.  If they can't name names, they should start sending applications to WalMart; they have no business working in journalism, let alone being the Forum's editorial board.  


I've got a few more things I wanted to write about, but I'm out of time...

A Loophole Big Enough To Drive A Fracking Truck Through
Written by Jim Fuglie   
Thursday, 17 July 2014 08:40

(Cross-posted, with permission, from The Prairie Blog.)

I’m working on an article for a magazine I write for about the North Dakota Industrial Commission’s new policy for siting oil wells, and I thought I might share some of what I have learned here, because it’s pretty interesting and I can often say things here that my editor at the magazine (although he is fairly generous with me) won’t let me say in print. Things like bad words, really bad words, of which I have a few on my mind today. Let’s see if I can get through this without using too many of them.

The article zooms in on the Industrial Commission’s Policy “NDIC-PP 2.01,” more commonly known as Wayne Stenehjem’s “Special Places,” “Extraordinary Places,” or “Areas of Interest” policy. That’s the policy that identifies 18 of these “Areas of Interest” in the Bakken oil field which have some intrinsic value beyond the minerals under them, generally scenic values, critical wildlife habitat or historical significance. Stenehjem’s idea, proposed to his two fellow Industrial Commission members Jack Dalrymple and Doug Goehring last winter, was to run a routine check on drilling permit applications, and if the request is for mineral development in or near these special areas, that they are subjected to some scrutiny, both by the public and by knowledgeable state and federal officials, to make sure that if a well is sited, the company developing it goes a bit out of its way to make sure it is placed in a spot where it will do the least amount of damage to those intrinsic values. Like tucking the well behind a butte, or keeping it out of woody draws that mule deer like for procreating, sleeping and eating, or out of sight and sound of an eagle’s nest. I published a list of those areas a week or so ago.

That policy took effect May 1. It generally says that when an application for a drilling permit arrives at the Oil and Gas Division, someone on the staff will check it against a list, and if it is on public land, and near one of these places, a process is triggered to enforce the policy. As far as I am concerned, that person—whoever it is—now has the most important job in North Dakota: Starting a process which will help protect the most important places in western North Dakota.

I don’t know who that person is, or if there are more than one of them. Alison Ritter, spokesperson for the Oil and Gas Division, outlined the process for me. To make it happen as efficiently as possible, the Division has compiled a pretty sophisticated GIS tool (you can actually look at the map by going here), and the application is checked against it both when it arrives and again during the evaluation process. If it scores a hit with the areas of interest list, a process begins which includes a review, public comment, agency comment and, hopefully, mitigation. Here’s the process outlined in the policy:

NDIC-PP 2.02. The director shall, within five calendar days after receiving an application to drill a well on public land within an area of interest identified under NDIC-PP 2.01:

A. Post on the daily activity reports (emphasis added) section of the Department of Mineral Resources website a notice including all non-confidential permit application information. The posted notice shall include all supporting information or records provided by the applicant which are not confidential. Public comments about public lands within the areas of interest regarding such issues as access road and well location, reclamation plans and timing, noise, traffic, and visual impact mitigation, will be accepted by the Industrial Commission executive director’s designee for 10 calendar days after the notice is posted.

B. Forward the portions of the application that are not confidential to the Director of North Dakota Game and Fish Department, the State Historical Preservation Officer, the Director of North Dakota Parks and Recreation Department, the Director of North Dakota Department of Transportation, the Commissioner of North Dakota Department of Trust Lands, the State Engineer of the North Dakota Water Commission, the State Director of the Bureau of Land Management, the Park Superintendent of Theodore Roosevelt National Park, the Supervisor of Dakota Prairie Grasslands, the Field Supervisor of United States Fish and Wildlife Service North Dakota Field Office and the county auditor of the affected county. Any comments regarding the permit application may be accepted by the Industrial Commission executive director’s designee (Note: I wrote about this designee last week) within 10 calendar days after the information is sent.

NDIC-PP 2.03. All comments shall be reviewed by the Industrial Commission executive director’s designee who shall summarize any comments received for the director of the Division of Mineral Resources. However, the Mineral Resources director is not bound to act upon any comments. (emphasis added)

NDIC-PP 2.04. The director may consider the comment summaries for the purposes of attaching conditions to any permit pursuant to NDAC 43-02-02, 43-02-02.2, 43-02-02.3, 43-02-02.4, 43-02-03 and 43-02-05 to mitigate potential impacts to the sites listed in NDIC-PP 2.01.

So, as you can see, the process can be used to write and attach special provisions to a drilling permit, designed to help protect these “Special Places.” The Division Director, Lynn Helms, can do that if he wants to, but he doesn’t have to.

It was a good idea Wayne Stenehjem had, and even though it was gutted to remove drilling on private land from consideration—only lands owned by the state, federal or local governments will get this scrutiny—it creates an awareness that we should be considering things other than maximization of wealth to drillers and mineral owners when we site an oil well—at least on public lands.

The problem with the policy is that there is a loophole in it big enough to drive an oil well fracking truck through. Or a thousand trucks, or, possibly fifty thousand or a hundred thousand trucks (I’ve been told it takes a thousand trucks full of water and fracking material to complete a well). Here’s the loophole which is the problem:

The policy only applies to drilling permit applications received by the Oil and Gas Division after May 1, 2014. Applications. Paperwork that comes into the Division office asking for permission to drill a new well. Paperwork that is coming into the Oil and Gas Division now, since the policy took effect May 1.

It does not apply to applications received before May 1. That’s the loophole. You see, one rainy day a couple of weeks ago I was looking at those “Daily Activity Reports” mentioned above (you can see them here), and I spotted approval of a drilling permit for a well to be drilled on state-owned land about half a mile from the boundary of Theodore Roosevelt National Park’s South Unit. Wait a minute, I said. That’s within the “Areas of Interest” boundaries. How come the new policy doesn’t apply?

Well, it doesn’t apply because the application came in before the policy took effect. So even though it is now the policy of the state of North Dakota to carefully examine all oil well sites for their impact on the neighborhood and those who live in it, it doesn’t apply if you beat the deadline.

Well, that’s a bummer. We’ve got a policy in place, but it doesn’t apply right now. We’re going to go ahead and allow wells inside these “Special Places,” as long as they beat the deadline, defeating the purpose of the very policy we put in place to prevent that.

I just happened to look at the legal section of the Bismarck Tribune the very next day, and there was a legal notice posted by the U.S. Forest Service that they were signing off on a well about a mile and a half from the North Unit of the Park, again inside the two-mile boundary zone of the Park that the state wants to protect. Same story. The application came in before the deadline.

I began to wonder just how many of these applications were now on file with the Oil and Gas Division, awaiting approval. See, the Industrial Commission had been discussing this since back in December, so oil companies had four or five months to get their applications in before the policy took effect on May 1. So if they knew they were going to want to drill next to the national park, or beside a wildlife refuge, or snugged up against the shoreline of Lake Sakakawea, they just hurried up and got their applications in before May 1.

So I sent an e-mail to Alison Ritter, a very helpful spokesperson for the Oil and Gas Division, asking how many permit applications were on file when the policy took effect May 1.


You read that right. On May 1, the day the new policy took effect, there were more than a thousand pending applications to drill for oil sitting on somebody’s desk at the Oil and Gas Division, and none of them were subject to the new policy, because they were submitted before the deadline. I don’t have any way to determine how many of them are inside the boundaries of the “areas of interest,” and I have a bit too much fishing and gardening and golfing to do to spend my time looking at a thousand applications to see how many are inside those “Areas of Interest” boundaries, but I do know there are at least two—the ones I just mentioned—and that there are probably more. Maybe a lot more.

Well, shit, that’s discouraging. The oil industry has plenty of time to screw up the “Special Places” before they have to start following the new rules. And there’s nothing we can do about it. Legally, at least.

Last Spring, when the Industrial Commission was putting the finishing touches on the policy, the Attorney General told me he’d like to have coffee and visit about this. So last week I took him up on that offer. I took him copies of the map that showed the locations of these two wells that are going to be drilled inside the two-mile boundary around Theodore Roosevelt National Park, and asked him if there was anything we could do about them, and the other 1,062 pending applications. He was interested in finding out. He said that he’d check to see what could be done with those 1,062 pending applications. We agreed that, legally, the oil companies can plunge ahead. But Wayne thought he might see if we could get some agreement about informally checking those permit applications to see if any of them would have the new policy applied to them if they had come in after May 1. And then, maybe, in good faith, the Oil and Gas Division director could ask the companies to work with him on siting those wells and the roads to them. I expect Wayne’s working on that right now. But I won’t hold my breath waiting for a positive outcome. I know those folks over at the Oil and Gas Division.

So, right now, the old rules still apply. If you’re an oil company and you got your application to drill a well on a school section next door to the National Park filed before May 1, you can just go right ahead. I don’t know how old those applications are, but Ms. Ritter told me it takes an average of 27 days from the time an application arrives until it is approved by the Oil and Gas Division. As I write this, May 1 was about 75 days ago, so all of those should have been approved and issued by now.

I don’t know how many of those 1,062 might have been inside the boundaries of the “Areas of Interest,” but my cursory look showed me there were two, so it’s likely there are more if you carefully scrutinize the daily activity reports. I’m not doing that. I’m going fishing.

I hope Wayne will ask three questions of his staff over at the Oil and Gas Division:

  1. How many of those 1,062 applications have yet to be acted on?
  2. Would you please check and see if any of those not yet acted on are inside the “Areas of Interest” boundaries?
  3. Would you see if you can get your experts, like wildlife or historic preservation staff , to take a look at them and see if there are any problems, and if there are, talk to the oil companies about rectifying them?

That would be a nice thing to have happen, and it would reassure all of us that the state is serious about this business of looking out for “Extraordinary Places.”

You Can’t Mitigate Greed
Written by Jim Fuglie   
Monday, 30 June 2014 09:53

(Cross-posted, with permission, from The Prairie Blog.)

Mitigation. There’s a word that draws mixed reaction.

Most dictionaries generally define mitigation as “the act of making a condition or consequence less severe, the process of becoming milder or gentler.”

It’s a word we didn’t much find in common usage in North Dakota until the 1970s, when the Garrison Diversion project surfaced. That project would have destroyed tens of thousands, perhaps hundreds of thousands, of acres of wildlife habitat, and the state of North Dakota and the federal government agreed to a mitigation plan to replace that habitat. The project was never completed. Even mitigation could not justify a really bad idea.

Today, it’s a pretty familiar word here. Our on-the-ground definition of mitigation is “if you screw something up over here, you better do something nice over there to replace it.” Most recently it has come into play as a requirement of a new North Dakota Industrial Commission policy designed to offer some measure of protection to critical wildlife habitat, or scenic, recreational or historic areas near proposed oil development sites. Note I said “designed.” Not “implemented.”

The policy, affectionately known as “Wayne Stenehjem’s Special Places,” was scheduled to take effect on May 1. Essentially it said that after that date, any state-issued permit to drill an oil and gas well in North Dakota on publicly-owned land that is on, or in, or near, any site designated as one of 18 “areas of interest,” might be subject to special conditions designed to “mitigate potential impact to the sites.”

There is no visible indication that the state’s Oil and Gas Division is paying any attention to it, although as of last week, a North Dakota Industrial Commission spokesperson said “There have been no applications for drilling permits on public lands within an area of interest since the policy was implemented on May 1.” We’ll see if Stenehjem, the state’s Attorney General and a member of that three-person Industrial Commission which regulates oil and gas drilling in the state, decides to follow through on his initiative to try to offer some protection, or “mitigate” the damage, to places like national parks and wildlife refuges. Parks, both state and national, as well as all federal refuges and state wildlife management areas in western North Dakota, are on the “Special Places” list.

Including Little Missouri State Park in the North Dakota Bad Lands, about which I want to share a few thoughts. I’ll be as blunt as possible at the outset, and then try to “mitigate” my remarks: The oil industry is on a path to totally trash one of the most spectacularly scenic areas of North Dakota. All in the name of oil company profits. Specifically, ConocoPhillips and Burlington Resources profits. There. I’ve said it. I am not exaggerating. That is what is about to happen. And then they are going to try to mitigate the damage.

Some background. Forty-some years ago the North Dakota State Parks Department decided the people of North Dakota deserved to have a state park in North Dakota’s Bad Lands. They chose one of the most scenic areas of the Bad Lands, a rugged area where the waters of the Little Missouri River stop flowing and become the Little Missouri Arm of Lake Sakakawea. Here there are hundreds of square miles on either side of the river that are virtually roadless, inaccessible except on foot or horseback. There are likely still places here where no white man has ever stepped. A few ranchers use parts of it to graze cattle and cut hay. Back in 1970, North Dakota converted part of a school section there to a state park, and a couple of those ranch families agreed to lease some of their adjoining rugged ranch land to the State Parks Department so the Parks folks could put some riding and walking trails through the area for the enjoyment of hikers and horse people.


Ever since, thanks to those ranchers, it has been a place of pure escape into North Dakota’s most rugged wilderness for those who choose to take advantage of what the state has provided them in its most spectacular, largely undeveloped park.

Besides the park entrance road off Highway 22, about 20 miles north of Killdeer, there are just a couple of roads into the area on the south side of the river, used by the families who ranch there. Otherwise, except for some two-track trails the ranchers use to get to their cows, the 5,000-acre park is pretty much God’s country. The north side of the river is the Fort Berthold Indian Reservation, and there are virtually no roads to the river for 20 or 30 miles. On the south side, only because of park access, you can hike or ride through the breaks down to the river. But that’s the only river access. No roads.

Until now. Until the oil boom. Soon, this formerly forever-undeveloped area, sculpted by God and wind and water over the ages, unmarred by man, will become North Dakota’s newest oil field. Thank you, ConocoPhillips, Burlington Resources and the North Dakota Industrial Commission. Burlington Resources, the latest incarnation of the minerals division of the once powerful Northern Pacific Railroad, owns nearly half the minerals in a giant oil field created by the Industrial Commission a couple years ago. Enough to dictate how the oil field is developed. The NP acquired the mineral ownership from the federal government when it planned a railroad through the area a hundred and fifty or so years ago, and through independent purchases in later years. It has partnered with ConocoPhillips to develop them (there’s a connection: Warren Buffet’s Berkshire Hathaway company owns the Burlington Northern Santa Fe Railroad and is a major shareholder in ConocoPhillips). They got the go-ahead from the Industrial Commission in a somewhat controversial unitization plan back in 2011. Initially the Commission required Conoco to drill their 80 planned wells in four years and then get the hell out of there and let the oil flow. But now it looks like there could be many more than 80. Plus a couple of huge salt water disposal sites (one is built, one is pending nearly-certain approval of a building permit by the—you guessed it—the North Dakota Industrial Commission) at the entrance to the park, a new landmark for travelers looking to find Little Missouri State Park: “Turn east off Highway 22 at the new Dunn County Industrial Park.”

There’s a pretty good gravel road leading two miles into the state park, but there’s another road just across the fence paralleling the park entrance road. That dirt road leads past the park’s campground, past a private campground and down into a drainage where a brand-spankin’ new scoria-covered oil pad sits waiting for the drilling rig to arrive.


A new oil pad in Little Missouri State Park awaits the drilling rig. Up to 5 wells will be placed on this pad just down the road from the nearby campground, inside the park.

It will come in November and drill up to five wells less than a mile from the campground. Up to 5,000 truckloads of fracking water will pass by the campground next winter if all goes as planned. The good news is, the campground is closed in the winter. ConocoPhillips has agreed to do the drilling over the winter so the park will see less disturbance than if it happened in the summer. Still, there’ll be plenty of traffic in and out just from normal well service once the oil is flowing. It’ll be a much less desirable place to camp.

But I started to write about mitigation, and I want to get back to that. The campground is just one small area of the park. The major activity in the park is use of the trails on the private land leased to the Parks Department down into the breaks. And the trails are going to be heavily impacted. In fact, some of them will be destroyed by the new roads down to numerous well sites scattered throughout the park. Park officials tell me that there is now a map of where all the wells will be. And where the access roads to those wells will be. I don’t want to see it. As someone who has hiked those trails, I am afraid it will break my heart. But rather than abandoning the park’s major use, those backcountry trails, the State Parks Department is going to sit down with the ranchers from whom they lease the land and seek permission to build new trails. Remember, those ranchers still run cows here, and that is their livelihood, so they’re going to be pretty careful about where any new trails go.

Conoco will pick up the bill for any new trail construction. Where roads and well pads are visible from the trails, the parks people will try to move the trails to areas where, hopefully, the development is less intrusive.  If it all works out, beginning next summer, park users will find new views and experiences awaiting them. The oil development won’t be invisible in the park, one parks department official told me, “but we’re going to do the best we can.”

That’s mitigation, and Conoco is being pretty magnanimous about it, including opening their checkbook. But the mitigation will only satisfy the humans. You can’t mitigate the damage to the land that is going to be disturbed for the first time ever by roads designed to carry thousands of trucks, or the destruction of wildlife habitat and temporary wetlands and game trails and raptor nests. The damage to them is going to be permanent, not just from the new roads and the well pads, but also from the new trails being built to accommodate humans. You can’t mitigate the noise and dust those thousands of trucks will bring, disrupting the critters’ lives.

Because mitigation doesn’t make things whole. It just makes the best of a bad situation. Little Missouri State Park is one of those “special places” that isn’t going to be so special any more.

You can’t mitigate greed.

Where The Hell Is Kevin Cramer?
Written by Chet   
Friday, 27 June 2014 09:38

Seriously.  Where is North Dakota's missing freshman congressman, Kevin Cramer?

It appears Cramer has closed his office in the Federal Building here in North Dakota's capitol city.  Here's a photo of what his office door has looked like for a couple weeks now:


The sign says to call a number for an appointment.  Call that number and you're routed to his D.C. office.  It's kinda sad.  Cramer pays people to staff his Bismarck office, including his church pastor. You'd think the least they could do is keep the office open.

Here's what his voting record -- his record of not showing up to vote -- looks like.   (Spoiler: It looks bad.):


Source: GovTrack.us.

Here's what that says (in summary):   From Jan 2013 to Jun 2014, Cramer missed 60 of 980 roll call votes, which is 6.1%. (He missed 25 in this quarter alone). This is worse than the median of 2.4% among the lifetime records of representatives currently serving. The chart above reports missed votes over time.

He's missed 6% of the votes we pay him to make.  His voting record -- his record of showing up to vote -- is apparently worse than 90% of the members of Congress.

Now, to be fair, I personally would prefer Kevin Cramer never be allowed to vote, so his unexcused absence from the job we pay him to do is -- in some twisted way -- okay with me.  But, at the same time, if I have an employee who locks his office door to me and doesn't show up as much as Cramer, do I really want him on my payroll at all?  I think not.  Cramer closing his office now when the rest of the government is open is especially screwed up when you consider that during the big federal government shutdown Cramer wanted so badly, he kept his office open and kept paying himself, his pastor and everyone else on his staff while many other federal offices had to shut down. 

Regardless, from all outward appearances it seems Kevin Cramer has closed his official office in North Dakota's state capitol, Bismarck.  He's missing an inordinate number of votes. It seems fair to ask the question: Where the hell is North Dakota's missing freshman congressman Kevin Cramer? 


The Saga of the Elkhorn Continues: What's a FONSI?
Written by Jim Fuglie   
Thursday, 12 June 2014 13:56

(Cross-posted, with permission, from The Prairie Blog.)  

About ten years ago, Ken and Norma Eberts decided to sell their Bad Lands ranch and retire. The ranch is directly across the river from the Elkhorn Ranch Site, home to our 26th president, Theodore Roosevelt. It is where he developed his famous conservation ethic, before becoming America’s greatest Conservation President.

Ken and Norma knew the area’s history. The Elkhorn Ranch Site is part of Theodore Roosevelt National Park, and they wanted to make sure that their own ranch, which sits on the bank of the Little Missouri River, was not bought by a developer and broken up into 40-acre parcels as summer getaways for rich folks with four-wheelers and jet boats. That kind of development would have ruined the solemnity of this quiet, peaceful place.

They offered it to the National Park Service and the North Dakota Park Service, but neither had the wherewithal to make a deal. Then, in 2007, a group of more than 30 national conservation organizations, representing more than 40 million members, headed up by the Boone and Crockett Club, which was founded by Theodore Roosevelt in 1887, pooled their resources, bought the ranch, and donated it to the U.S. Forest Service, which manages more than a million acres in North Dakota’s Little Missouri National Grasslands. The Forest Service named it the Elkhorn Ranchlands, and it became a National Historic District, a fitting partner to the National Park Service site across the river.

The deal was put together in a hurry, because the Eberts had already postponed their retirement by several years waiting for something like this. Resources were finite. As a result of those two things, the Forest Service did not become the owner of what are called “surface minerals” on the property. Surface minerals in North Dakota’s Bad Lands are generally coal, scoria and gravel. The surface mineral ownership was divided over the generations into the hands of more than 40 people. To try to track them all down and do a deal would have taken years (the process is underway now, and still not complete, seven years later).  We know the Eberts family owned 50 per cent. Another family, which previously owned the land, owned about 25 per cent. The remainder was divided among many owners, some with less than one per cent interest. No one really believed it would be a problem if the mineral ownership remained that way, instead of being transferred to the Forest Service.

And then this asshole named Roger Lothspeich came along. He had lived in the area at one time, and knew the family that owned a quarter of the mineral rights, and bought them for some undisclosed amount, probably a pittance. He owns a four-wheeler dealership in Montana, and someone jokingly (or maybe not) said he probably traded a couple of four-wheelers for them. And then he announced that he was going to mine the gravel on the land directly across the Little Missouri River from the Elkhorn Ranch Site, in full view of the National Park Service site. Unless the government was willing to buy him out for a couple million dollars. Blackmail. Extortion.

The government told him to go jump in the lake (or river), so he put together his mining plan and presented it to the Forest Service. He had the right to develop his minerals—mineral ownership trumps surface ownership—but because the land is in a National Historic District, he had to present an operating plan, which triggered an Environmental Assessment (EA) process. The EA was completed in 2012. Then it was open for public comments. Many people (including me) questioned the findings of the EA. The Forest Service then considered those comments, and in April of this year, the District Ranger, Ron Jablonski, the man charged with overseeing the process, released a Finding of No Significant Impact (FONSI). Which, after a public comment period, will give Lothspeich permission to start mining the gravel.

Jablonski, in his decision memo, admitted that this is going to cause quite a disruption for a few years. It’s going to be ugly and noisy and busy and will affect tourism, but it will go away after a while. But, he said, I am powerless to stop it.

Well, somebody who knows a whole lot about this process, and the National Grasslands, and the Elkhorn Ranchlands, disagrees. His name is Dave Pieper, and he was the Dakota Prairie Grasslands Supervisor—Jablonski’s boss—for ten years, now retired, and he was the man who put the deal together to get the land into public ownership and protected from development in the first place. And Dave is pissed.

As the end of the 45-day comment period on the FONSI approached this week, Dave sent his letter objecting to Jablonski’s findings to Dennis Nietze, the man who succeeded him as Supervisor. With copies to Nietze’s bosses, Faye Kreuger, Regional Forester and Nietze’s immediate supervisor, and Tom Tidwell, the big boss, Chief of the U.S. Forest Service. Pieper knows them both well, and he minced no words.

He begins his letter by saying “I am writing this letter because I am deeply concerned over the impending decision.  Reserved and outstanding minerals notwithstanding, there are other reasonable alternatives that the Medora District Ranger, Ron Jablonski, has failed to carry forward or exhaust. Rather, he summarily dismisses both the purchase and exchange alternatives. The main purpose of this letter is to request that the Forest Service rescind the decision until the Elkhorn Plan amendment and other important work is completed.”

Note the words “until the Elkhorn Plan amendment . . . is completed.” What he’s referring to there, is that once the Eberts Ranch was acquired—it is several thousand acres with a full set of ranch buildings, corrals, fences, wells, watering tanks and feed lots—it is the responsibility of the Forest Service’s District Ranger—Jablonski—to write a plan for its use, like any good rancher would for a ranch he acquired. Seven years after its purchase, the plan is not yet written. The buildings sit empty. I think someone is running cows on it, but I am not sure. It is the height of irresponsibility to ignore this important mandate.

Last fall, Tweed Roosevelt, TR’s great-grandson, and I met with Nietze and we asked him why there was no management plan written yet. He said with this oil boom going on, his staff was too busy to get it done. Well, maybe, but they weren’t too busy to rush this gravel pit proposal through. The FONSI is a lengthy, complicated government document which took someone hundreds of hours to develop and write. When they could have been, instead, writing a plan for management of the entire ranch, not just the 30 or 40 acre gravel pit. That alone seems like a good reason to send Jablonski into early retirement and put someone in charge out there who understands what’s important and what’s not. (Incidentally, I’m not the first person to ever call for Jablonski to be fired. A lot of folks who know more about what he does than me have been saying it for years.)

I am going to attach the entire text of Pieper’s letter to the bottom of this post, so those of you who want to read that far can do so.  Pieper is as articulate as he is demanding. He says this: “To be given the opportunity to work with an inspired coalition of partners to successfully acquire of a piece of history – the place where many believe Theodore Roosevelt developed his conservation philosophy – was the capstone accomplishment of my career. The conservation community coalesced with energy, resolve and resources and would not be denied in its effort to protect and preserve this nationally significant historic site.”

His passion for this place, and for the National Grasslands, clearly shows through. His former bosses will quickly affirm that this is the man who probably knows more about both the process involved and value of protecting this particular piece of the Grasslands (his civilian retirement e-mail address is “grasslands4ever@ . . .”) than anyone in America.

What is surprising about the letter is his bluntness about the failings of his former employee. You see, Jablonski’s decision caught everyone off guard. Because a process was underway to prevent this from happening. Last year, the Forest Service and Lothspeich signed an informal agreement to try to work out a swap of Lothspeich’s minerals for some land or minerals somewhere else. The Forest Service owns a million acres. That should be doable.

At the same time, a parallel process began to identify the 40-some other mineral owners, an effort funded by the same conservation partners who bought the land and gave it to the Forest Service. Bismarck attorney Robert Harms has spent probably hundreds of hours finding those people—grandsons and great-granddaughters of former ranch owners as well as oil company executives who have purchased the other mineral rights under the ranch. Robert told me this week that he was making substantial progress in working with those owners to sell or gift the surface minerals—the gravel—to the Forest Service. He believed that, given enough time, he could find a way to get all the minerals conveyed to the Forest Service, and make this problem go away.

Then, Bam! Jablonski’s decision was released. It seemed to make no sense. Both Jablonski and Nietze knew about Harms’ work. But something caused them to pull the trigger on Lothspeich’s application to mine. That’s what has Pieper so angry.  Angry enough to say, on paper, things like this:

  • Mr. Jablonski has . . . failed to adequately assess and evaluate the importance of the viewshed within the context of the National Historic District designation.
  • From a leadership perspective, Mr. Jablonski also fails to understand the strategic importance of the partnership to the Forest Service or the willingness of partners to engage in the protection and preservation of the site.
  • Mr. Jablonski’s . . . statement is misleading, capricious and calculated to lead the reader to believe that minerals acquisition is an all or nothing proposition.
  • (Jablonski’s) statement is disingenuous . . . The focus should be on alternatives to accomplish acquisition rather than arbitrary requirements to limit options.

Pieper closes his letter with this: “Finally, some may believe that the proponent will never mine the gravel for lack of resource and associated costs. That may be true. The next owner, however, may not share that sentiment. Through its partnership with the conservation community, the Forest Service goal should be to exhaust all opportunities to acquire these minerals before permitting mining operations. That will take leadership, initiative and partnership development skills; something that is clearly lacking in this proposed decision.  The Forest Service can and must do better.”

What Pieper doesn’t want to come out and say, but I will, is that the Forest Service is playing a high-stakes game of Chicken. It’s a dangerous game. Lothspeich may not have the resources to actually go ahead and develop the minerals. He may have been gambling all along that he could just extort a bunch of money from the government. He’s that kind of character.

But—and there’s a big BUT—he might just be able to find a buyer with deeper pockets for the minerals he owns, recover his money, and the buyer, having determined that there really is a bunch of money in the ground in that gravel pit, could start a mining operation that could go on for years and years and years. By the time it is done, the disruption could cause permanent damage to a site so important to America that it has been called “The Cradle of Conservation.”

Well, good for you, Dave Pieper. I know it is not easy to write a letter which, by implication, is critical of the man (Dennis Nietze) who succeeded you in your position as Dakota Prairie Grasslands Supervisor. It goes against the grain. But if anyone can catch the attention of the Chief of the U.S. Forest Service, it is you. Thank you for doing that. Now, the next step is for the Roosevelt family and the conservation partners who bought the land to go even higher, to the President of the United States. I hope they will do that. This is a place worth saving. Forest Service Chiefs and Presidents have that power. Let’s hope they use it.

Here’s Pieper’s letter in its entirety. Following that are links to previous articles I have written about this issue. This is Article Number 9. Sheesh. I hope Number 10 is the one that says “Roger Lothspeich has gone away. The Elkhorn is safe.”

June 9, 2014

Dennis Neitzke

Supervisor, Dakota Prairie Grasslands

1200 Missouri Ave.

Bismarck, ND 58504

Dear Dennis;

As the Dakota Prairie Grasslands supervisor (2001 – 2011) I had the unique opportunity to manage and guide the day-to-day operations and activities of some of the Nation’s premier national grasslands.  Without a doubt it was the most interesting and challenging assignment of my career.  It was often a contentious environment. Grassland users and elected officials often disagreed with Forest Service policies and decisions. And still do today. Through it all, however, some very important and lasting partnerships evolved; the most significant of which was the coalition that successfully acquired the Elkhorn Ranch.

To be given the opportunity to work with an inspired coalition of partners to successfully acquire of a piece of history – the place where many believe Theodore Roosevelt developed his conservation philosophy – was the capstone accomplishment of my career.  The conservation community coalesced with energy, resolve and resources and would not be denied in its effort to protect and preserve this nationally significant historic site.

Over 50 national wildlife and natural resource conservation organizations worked together with the Forest Service to secure the purchase of the Elkhorn Ranchlands in 2007. The effort was lead by the Boone and Crockett Club, which Roosevelt founded in 1887, in cooperation with the American Wildlife Conservation Partners (AWCP), an umbrella organization of 41 separate national conservation groups. The Rocky Mountain Elk Foundation also played a key role in the acquisition, facilitating the final legal transaction and closing.

Roosevelt’s Pulitzer Prize winning biographer, Edmund Morris wrote, “To my mind, there is no memorial or bronze anywhere in the country that evokes the conscience of Theodore Roosevelt as powerfully as the Elkhorn bottom and its surrounding hills.” The surrounding hills, of course, comprise the “viewshed” as seen from Roosevelt’s ranch headquarters, the crown jewel of the acquisition.

The whole effort was centered on acquiring and protecting a piece of ground that many considered to be the Cradle of Conservation. Without this diverse partnership the Forest Service could not have completed the acquisition. The agency has had responsibility for these lands for nearly seven years and has yet to complete the plan amendment to guide the management of the historic ranchlands.  Now the agency is poised to approve a gravel pit operation (with unknown reserves) that is located within the viewshed of the proclaimed National Historic District, before fully exhausting all available options.

I am writing this letter because I am deeply concerned over the impending decision.  Reserved and outstanding minerals notwithstanding, there are other reasonable alternatives that the Medora District Ranger, Ron Jablonski, has failed to carry forward or exhaust. Rather, he summarily dismisses both the purchase and exchange alternatives. The main purpose of this letter is to request that the Forest Service rescind the decision until the Elkhorn Plan amendment and other important work is completed.

Mr. Jablonski has also failed to adequately assess and evaluate the importance of the viewshed within the context of the National Historic District designation. With respect to the Finding of No Significant Impact (FONSI), the viewshed is clearly nationally significant and the proposed mitigation insufficient in light of the opportunity to avoid any impacts at all.

From a leadership perspective, Mr. Jablonski also fails to understand the strategic importance of the partnership to the Forest Service or the willingness of partners to engage in the protection and preservation of the site. The agency has an obligation to its partners and public to proactively protect and preserve the outstanding ecological and historic resources of the Elkhorn Ranch. Avoidance and offset will provide maximum resource protection measures, especially with respect to the protection of important cultural and historic sites.

The decision notice (DN) rationale to not carry forward the purchase of mineral rights or exchange of mineral rights is inconsistent, arbitrary and capricious. There is no agency policy or law that prohibits the agency from acquiring partial mineral estates. The broad-brush mandate that the federal government is required to own all minerals is an arbitrary decision to justify the elimination of the exchange or purchase alternatives from further study. While acquisition of partial interest mineral estates may be rare, it may occur to accomplish management objectives (FSH 5409.13). However, without a plan amendment in place there are no site-specific management objectives on which to base decisions.

The proponent has indicated his willingness to exchange or sell the rights, the ranch sellers were willing to donate all or part of their rights, and Mr. Lowell Baier (Boone and Crockett) is currently coordinating with the other gravel owners to determine their willingness to divest their ownership. By taking the initiative, the Forest Service could incrementally acquire these surface rights through purchase, exchange and/or donation. And although the agency has determined the number of acres to be disturbed by the proposed mining, it has not provided an estimate of the volume of gravel to be mined. An inventory must be completed as a basis to inform the process.

It’s obvious that the Forest Service does not have the current funding or the legislative support to purchase “all” the mineral estates.  The issue at hand is not the entire minerals estate but the gravel within the viewshed.

Minerals acquisition funding could be accomplished through a combination of appropriated funds, partnership contributions, grants, etc.  In fact, agency policy (FSM 2830.3) states: “Consider acquisition of mineral rights…when the public benefits derived from surface values are deemed to justify the cost of acquisition.” Coordination with the delegation and governors office outlining the limited scope and voluntary nature of the acquisition would help to address their concerns. More elected officials are embracing the protection of North Dakota’s “special places”.

In 2002 Western Sand & Gravel (see attachment) estimated the value of the gravel if marketed for quick sale at $52,500. Over the life of the resource the value was estimated to be from $130,000 to $275,000. Gravel quantity and market value must be determined to provide a basis for any exchange or purchase. Hopefully Mr. Jablonski anticipated this work when he signed an Agreement in Principle in 2012 to exchange with the proponent.

The purpose of the Agreement was to work out an exchange for other federal land or mineral rights at a different location. Mr. Jablonski said, “We are going to take a look at options for some type of exchange.” However, now Mr. Jablonski (DN p. 8) discusses potential liability associated with partial mineral ownership and that any mineral exchange would have required the government to obtain 100% of the mineral ownerships from all mineral owners  (even though he signed the Agreement with only the proponent). This statement is misleading, capricious and calculated to lead the reader to believe that minerals acquisition is an all or nothing proposition.

Mr. Jablonski states the potential liability associated with partial mineral ownership proved to be an obstacle with any mineral exchange. If the basis for the potential liability issue is erionite, it appears that test results now obviate this concern.

Mr. Jablonski also states that overall timeframes to resolve and exchange minerals resulted in the agreement being withdrawn.  This statement is disingenuous. Work planning and timely accomplishment of priority work products, including completion of the plan amendment, is the core issue. The focus should be on alternatives to accomplish acquisition rather than arbitrary requirements to limit options.

In summary, I request that the Forest Service consider the following: 1) Rescind the Elkhorn Gravel Pit decision and complete the plan amendment, 2) Determine the volume and value of the gravel resource proposed to be mined, 3) Develop a plan to exchange or purchase the surface mineral rights within the viewshed, 4) Pursue donations of outstanding and reserved gravels rights within the viewshed, and 5) Coordinate meaningfully and candidly with the partnership, especially with Mr. Baier, that enabled and completed the acquisition of the Elkhorn Ranchlands.

Finally, some may believe that the proponent will never mine the gravel for lack of resource and associated costs. That may be true. The next owner, however, may not share that sentiment. Through its partnership with the conservation community, the Forest Service goal should be to exhaust all opportunities to acquire these minerals before permitting mining operations. That will take leadership, initiative and partnership development skills; something that is clearly lacking in this proposed decision.  The Forest Service can and must do better.


Dave Pieper

Cc:  Tom Tidwell, Chief US Forest Service

Faye Kreuger, R1 Regional Forester

Lowell Baier, President Emeritus Boone and Crockett Club

Previous Posts:

October 6, 2011

October 8, 2011

October 11, 2011 (#1)

October 11, 2011 (#2)

May 29, 2012

June 1, 2012

June 4, 2012

June 15, 2012

Obama's ND Reservation Visit: North Dakota Context
Written by Chet   
Wednesday, 11 June 2014 14:07

GovLtGovSmIf I were a newspaper reporter, I would call the Governor's Office today.  i would get anybody on the phone that would talk to me. I would talk to the Governor or Lt. Governor. I'd talk to a press person or a scheduler. I'd talk to a chief of staff, an intern, a window washer or a dog walker.  My question would be this:

Has Jack Dalrymple or Drew Wrigley ever been to the Standing Rock reservation, ever?  

If the person I had on the phone didn't know, I'd ask for someone who might.  I'd sit on hold for an hour or six hours. Because it is my job to inform the public. And this is kind of important. I'd want do whatever I had to do to get an answer to that question.

Standing Rock makes up most or all of Sioux County, North Dakota. Sioux County is -- perhaps obviously -- part of North Dakota. Jack Dalrymple was a state senator for maybe fourteen (14) years.  He ran two unsuccessful U.S. Senate campaigns (in 1988 and 1992), asking to represent the entire state in Washington. Then he was Lieutenant Governor for ten (10) years.  He has now been Governor for nearly four years.  

Drew Wrigley was North Dakota's U.S. Attorney for about eight (8) years and has been Lt. Governor for four.  One of his most important jobs while U.S. Attorney is (or should have been) enforcing federal laws on all of North Dakota's reservations.  (More on that, here.)  As Lt. Governor, it should also be Wrigley's job to represent the entire state, including Sioux County; including all residents of Sioux County. Though it might surprise Wrigley and Dalrymple, that includes native and non-native people. 

During their combined thirty-six (36) years of public service, has either one of them EVER been to Sioux County (i.e. Standing Rock)?  

If so, did they ever go anywhere other than directly to and directly from Prairie Knights Casino? 

I'd bet they haven't.  I'd bet that, if they have, it was only to go drop a few quarters into the slot machines at Prairie Knights and maybe get a bite to eat.

Now that the President of the United States is traveling from Washington, D.C., to Standing Rock to meet with tribal officials and others, Don't you think it would give the People of North Dakota some important context to know how much time the state's elected leaders have spent in the Standing Rock Nation? I think it would be helpful to know whether our Governor and Lt. Governor have ever bothered to set foot on Standing Rock. 

Is it crazy of me to think that?

Finally, A Tax I Don't Like
Written by Jim Fuglie   
Wednesday, 04 June 2014 11:42

jail-000(Cross-posted, with permission, from The Prairie Blog.)  

I’m an old liberal who, my conservative friends say, “never met a tax he didn’t like.” Well, they’re pretty much right. Taxes generally do good things for people, especially those at the local level. The federal government is often another story. But that’s our own fault, for electing the wrong people sometimes, and leaving them in power.

But at the local level, I don’t remember ever voting against a mill levy increase or school bond issue. City Commissioners, County Commissioners, School Board and Park Board members are generally in pretty close touch with their constituents, and I tend generally to trust them with my tax dollars. The wackos get weeded out pretty fast if they get out of hand.

But I’m voting against the sales tax increase for a new jail next Tuesday. Uffda. The earth just shook under my house as I wrote that.

Burleigh and Morton County residents are being asked to approve a half-cent sales tax increase to pay for a new $70 million jail. In the big picture, that’s not much of a tax increase. If it passes, I’ll pay a penny more every time I spend two dollars at a store. It won’t apply to groceries, since food isn’t taxed in North Dakota, and I’d guess for a retired couple like Lillian and me, groceries are the biggest item in our retail spending budget. I’d be paying an extra cent and a half for a scoop of minnows or a box of night crawlers at Pony Express, and probably a nickel more for a box of shotgun shells at Runnings. Gas would cost another couple cents per gallon, so I’d pay another quarter every time I fill up. You get the point. It’s not a big burden.


Burleigh and Morton Counties have fairly new jails. I can remember when both of them were built. With local tax dollars. And we said “There, now we have places we can lock up the bad guys that will take care of us for a long time.”

We should have added “Or until we have an oil boom.”

The oil boom has brought a rapid increase in population, and a significant number of those new people are bad guys who need to be locked up. That’s just the reality. Crime is up as a result of the oil boom. Local police and prosecutors are doing the best they can to protect us from the new, bad people. They’re catching them and putting them away. And now all of a sudden there’s no room at the inn.

And, well, jails have always been the responsibility of local taxpayers. It’s time to change that. It’s time for Jack Dalrymple to pay for a jail or two (I can’t believe we’re the only ones who need one). Because he created the problem and he’s got all the money.

Our state government leaders, Dalrymple in charge, turned the oil industry loose here with no regulations and no planning. They let things get out of hand when lots of people were hollering “Slow down and figure out what the problems are going to be with this boom, and how to solve them.” The result has been an unmanageable boom, with the burden falling on local taxpayers. All across the western half of our state, people are being asked to raise their own taxes to pay for jails, schools, streets, sewage lagoons, water lines and all our other infrastructure needs, and the people to manage them. That’s not right.

Because Jack Dalrymple is collecting billions of dollars in oil taxes as a result of this boom. Oh, and sales taxes and income taxes too. And it’s all just going in the bank, while we are being asked to pay for the problems the boom is creating. That’s just wrong.

In this biennium alone, the state Office of Management and Budget said a couple months ago, our state budget surplus will be almost half a billion dollars. That’s just their current projection. I’d bet dollars to donuts that when July 1, 2015 comes around, it’s closer to a billion than to half a billion. That’s surplus. Tax money we will collect but not spend.

And I am told that by the end of the biennium, when you add all reserve funds together that are not committed to any spending project, we will have $6 billion in the bank. That’s Billion, with a B. I’m old enough to remember the end of one of the Legislative sessions in the 1970s when Democrat House Leader Richard Backes, who was trying to squeeze out a few more dollars for education funding instead of leaving it in the bank, said “Representative Strinden, there’s not an emergency we can’t take care of in the next biennium with a $10 million surplus.”

I know, that makes me a geezer, but you can see the scale of how things have changed. No one could have imagined this.

And it is not just the Burleigh/Morton County jail that bothers me. Just this morning in the paper, there was a story about the little town of Medora, population a hundred and something, needing to raise their sewer rates to pay off a $1.7 million loan for a new sewage treatment plant. WTF? A town with maybe 50 or 60 sewer hookups paying off a $1.7 million loan?  It makes no sense.

Why do they need a new sewage treatment plant? The oil boom, that’s why.

You’ve read the stories about new schools in Watford city and Williston and little towns across the oil patch. Paid for by local taxpayers. It needs to stop. It is time for the state to step up and pay for it. All of it.

What’s the state’s response? Jack Dalrymple tells his state agency heads to bring him budgets with no funding increases for the next biennium. Sorry, Jack, but that is just total bullshit. You created this mess. You clean it up.

As for us voters and taxpayers, here’s what we do. First we send a signal to the Capitol that we are sick and tired of cleaning up someone else’s mess by voting down the new jail tax. And then we ask every Legislator we see on the street and every Legislative candidate who comes to our door if they will appropriate the money in the next Legislative session to pay for stuff like this. And we vote for those who say yes. We don’t need tax increases with $6 billion in the bank. “That’s OUR money,” the right wingers like to say. Well, here’s a left-winger saying “Let’s spend it.”

I’m pretty sure my hand is going to be shaking pretty violently as the pencil approaches that “No” box on the ballot next Tuesday. But my counts even if I don’t stay inside the lines. I hope my friends in Bismarck will join me. And those everywhere else in the Oil Patch who are being asked to raise their own taxes to pay for things the state should pay for with existing taxes.

There is simply no reason that anyone in North Dakota should pay more taxes this year. Ouch! Did I really say that?

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