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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?

ND Treasurer Kelly Schmidt: War Is For Oil
Written by Chet   
Friday, 30 May 2014 08:08

Even though it's really not the most offensive thing about State Treasurer Kelly Schmidt's pandering to shamed former General David Patraus recently, I was blown away yesterday when I saw, for the first time, this video of Schmidt 's introduction of Patraeus at the National Guard facility in Bismarck.  I mean, we all know America has been in its longest war ever -- this war against the fictional country called 'terror" -- but there's always been this Code of Omertà among Republican elected officials that they would never admit it in public.  Until Kelly Schmidt came along.  


But Kelly Schmidt apparently didn't get that memo.  She amazingly presents the Palin-like deer-in-headlights look on her face as she passionately tells the soldiers in Bismarck they've been killing and and their friends have been dying for oil.

“David and I have been out in the western portion of North Dakota where we have shared with him the challenges we've been facing to help make our nation and our world an energy independent country so that you and your fellow officers and enlisted folks never have to go over there again in order to fight for the oil we all need.”


You should really read the DesmogBlog stories about Schmidt's conflict of interest problems and her shallow pandering to Patraeus and KKR, the company Patraeus works for that's courting North Dakota officials to try to get money and tax breaks from them.  Schmidt's office and KKR colluded to have the Office of the Treasurer issue a press release written, entirely, by KKR to promote Patraeus' visit to North Dakota.  She flew around, lifestyles of the rich and famous-style, in the KKR jet. She helped conspire to hide Patraeus from local media people who might have -- though probably would not have -- had the courage to ask Patraeus what it's like to visit the hometown of the paramour who shamed him into retiring from government service.  

It amazed me at the time that David Patraeus -- who resigned in shame from being head of the CIA just a couple years ago after it was discovered he'd been having an extra-marital affair with Bismarck native Paula Broadwell -- was able to swoop into Bismarck and North Dakota, jetset around the state like some kind of superhero, and never be asked by anybody what it's like to publicly visit his paramour's hometown.  Not once.  Now maybe we know.


The DesmogBlog stories are interesting reads and are something you'll never read about in a North Dakota newspaper because it has investigative journalism -- something foreign to North Dakota journalists -- and raises too many questions about the cozy, incestuous, corrupt relationship between oil companies, our state government and even the media.  Read Part One by clicking here and Part Two in what could be a long and ugly series is here.

North Dakota June Primary Ballot Measure #1 Is Horrible
Written by Chet   
Thursday, 29 May 2014 08:32

If you're voting in the June Primary this year -- and you should -- and you haven't already voted, please consider giving Constitutional Measure One a great big "No" vote.  Why?  Let me try to explain.

On your ballot, all you're going to be told is this:

Constitutional Measure No. 1
  • Relating to changing the filing deadline for initiated petitions and to providing a timeline for challenges filed with the supreme court.
    House Concurrent Resolution 3034

Okay, so what does that mean?  What does it do "relating to changing the filing deadline for initiated petitions"?!?  How does it "provide a timeline for challenges filed with the Supreme Court"?  The ballot description is horrifically vague and innocuous.  But the constitutional change is far from innocuous.

Let's take a look at that.

Here's the relevant text of the section and changes dealing with the deadline for filing initiated petitions:

SECTION 1. AMENDMENT. Section 5 of article III of the Constitution of North Dakota is amended and reenacted as follows:

Section 5. An initiative petition shall be submitted not less than ninety one hundred twenty days before the statewide election at which the measure is to be voted upon...

(Source) (stricken words will be removed; underlined words added)

So you ask yourself, "What does that do?"

Here's what it does:  When our government doesn't act and the people finally get so disgusted with the government that they decide they want to change the law by submitting signatures and voting on an issue, right now they can just put together their petition and circulate it and submit the petition with all the signatures in early August.  Anybody involved in these signature drives knows that the best time and place to get signatures is at large, Summer gatherings -- like the State Fair in Minot, or the July 4th Parade in Mandan or the Red River Valley Fair in West Fargo.  

So, when are those things?

North Dakota State Fair 2014 -- July 18 - 26

Red River Valley Fair 2014 -- July 8 - 13

4th of July Parade -- July 4th

Right now the deadline for submitting the petitions is early August.  If this amendment is approved by the voters, the deadline will be 30 days earlier; so around July 5th or 6th or 7th, roughtly.  So if this law is changed and you wanted to circulate your petitions to get an initiated measure on the November ballot, you would no longer be able to circulate your petitions at the State Fair or the Red River Valley Fair.  You could still circulate your petitions at a big July 4th event, but you'd really have to have your ducks in a row to get them filed.

So why move the deadline up 30 days?!?

To make it harder for the citizens of North Dakota to pull the reins in on their corrupt, unresponsive government.

Will Al Jaeger or some other Republican have some bullshit reason they think the deadline should be moved up 30 days?  Sure. "It'll make flowers smell prettier."  Or "You can still get petitions signed at the State Fair; you can just make sure you get started a year earlier."  

But keep in mind that those are just bullshit. The real reason is our state government is doing everything they can to take power away from the people. See, if when the people get so fed up with our state government because of its refusal to do what we want them to do, the initiated measure process is all we have left.  That's what they're trying to take away from us; or ar trying to make hard or impossible.

So what about the part about "providing a timeline for challenges filed with the Supreme Court?" you ask.  Let's talk about that.

Here are the relevant changes the Ruling Oligarchy wants to make:

SECTION 2. AMENDMENT. Section 6 of article III of the Constitution of North Dakota is amended and reenacted as follows:

Section 6. [I've taken some gibberish out here, but you can read it by clicking on the word "source" below ]

...If proceedings are brought against any petition upon any ground, the burden of proof shall beis upon the party attacking it and the proceedings must be filed with  the supreme court no later than seventy - five days before the date of the statewide election at which the measure is to be voted upon.

SECTION 3. AMENDMENT. Section 7 of article III of the Constitution of North Dakota is amended and reenacted as follows: 

Section 7. All decisions of the secretary of state in the petition process are subject to review by the supreme court in the exercise of original jurisdiction. A proceeding to review a decision of the secretary of state must be filed with the supreme court no later than seventy-five days before the date of the statewide election at which the measure is to be voted upon.   

[More gibberish removed here]

(Source) (stricken words will be removed; underlined words added)

What does this mean?

I'm going to make this short, because this blog post is already getting too long.  But if you have questions, let me know.

What this means is that if Al Jaeger rejects your petition signatures, you might have less than 24 hours to hire a lawyer, explain the situation to that lawyer, and for the lawyer to write up the paperwork challenging Jaeger's bullshit decision.  Notice the word "might" is bolded.  You might have a little more time, but it's possible he could set you up to have less than 24 hours.  

The bottom line is this:  Your government leaders do not like the ballot initiative process because it takes power away from the Republican super-majority and gives it to the citizens of North Dakota.  Measure One is a power grab by Al Jaeger and other Republicans in North Dakota who can't stand the idea that the Citizens still have some control in this state.  Without the ballot initiative process, North Dakota would not have the oil extraction tax and huge surpluses we have now that should be (but aren't) being used to lessen the impacts of oil development in Western North Dakota, and to pay other bills. Those oil extraction taxes came about because of Measure 6 in 1980; something Democrats presented to the people because Republicans refused to act.  

The next thing to look out for is the appropriation impact measure on the November ballot. That's a second knife in the People's backs.  

Try to make North Dakota's government honest again. Vote "no" on June ballot measure #1.  

Last Dance of the Sage Grouse
Written by Jim Fuglie   
Wednesday, 28 May 2014 14:01

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

Note: This article appears in the current issue of Dakota Country magazine, a monthly outdoors publication headquartered in Bismarck. I write a regular monthly article for the magazine focusing on the oil industry’s impact on the North Dakota Badlands. You can find subscription information on the magazine’s website, www.dakotacountrymagazine.com.

I’ve shot probably half a dozen, or maybe as many as ten, sage grouse in my life. I’m likely among a small group of North Dakotans alive today who can say that. And that group is not going to get any bigger. Ever. Because there’s an awfully good chance we’ll never have another sage grouse season in North Dakota. In fact, I’ve had a wildlife biologist tell me flat out this spring that he thinks within the next three years the sage grouse will be gone from the prairie in North Dakota. Completely gone. Here’s their story.

I grew up in southwest North Dakota, in a hunting family. Sometime when I was in my late teens, my dad befriended a rancher from the Rhame area in Slope County, who invited us to come and hunt sage grouse at his place. We did. (In an incredible coincidental set of circumstances, I later married that rancher’s daughter. But that’s another story. I told it a year or so ago. You can read it here if you missed it.) I don’t remember a lot of details of that first sage grouse hunt, other than it was the biggest bird I had ever shot—we didn’t have a huntable population of geese in our area in those days, and I wasn’t a turkey hunter then. We hunted sage grouse off and on over the next ten or so years. Those were my first real experiences with the North Dakota Badlands. I’ve been hooked ever since, not so much for hunting, but for the appreciation of the fragile ecosystem that provides such a wide range of outdoor experiences.

I had another one of those experiences this spring, when I traveled back to that same area to watch the sage grouse perform their Spring mating rituals. I had never seen that before. I can hardly find words to describe it. It’s one of those things you have to see to believe and understand. I got to see the ritual early one morning, thanks to the biologists at the North Dakota Game and Fish Department, who were willing to share a lek location with me and a couple of my friends.

We call it a “dance,” but it’s not so much a dance, as sharptail grouse do, but a “strut.” Males gather in early morning and perform for their hoped-for mates, spreading their spikey tails and puffing up the air-sacs in their chests to almost unbelievable volumes. I have never seen such a prideful display—pride well-deserved—in any other outdoor experience I’ve ever witnessed.

It’s a good thing I saw it. Because this spring the mood of biologists doing the annual Spring Sage Grouse Count was gloomy, and it may portend the unthinkable—the disappearance of another species from the North Dakota prairie.

Each year, in April, the Game and Fish biologists set up camp in Slope County, north of Marmarth, and spend most of a week visiting known leks to check on the population and condition of sage grouse. They’ve been doing it for 50 years. This year they counted just 31 male sage grouse. An all-time low. Down from a peak of more than 500 many years ago, down from counts of 50 to 75 in recent years.

The biologists had to halt sage grouse hunting in the state 2008 after the birds suffered a two-year bout with West Nile Virus. Prior to that, the season was a brief one, a week at most, sometimes just one weekend as I recall, with a limit of one bird per hunter per year, restrictions so limiting that few hunters actually took advantage of the opportunity to hunt.

Too bad, because it was a great hunt. It happened early in the fall, around Labor Day, when the weather was pleasant for an early morning hike in the Badlands. If you knew a friendly rancher, or had a good Grasslands map, and had done a little scouting, you could pick a dry creek bed or two to walk through, with or without a pointing dog, take a bird, and be back in Rhame for a late breakfast at the café.

Now, the population is so low that it may have gone beyond the birds’ ability to rebound. Because it wasn’t just West Nile decimating the bird numbers. It was the combination of the disease and massive oil development in the critical habitat range of the birds that led to a “perfect storm.” I spoke with both federal and state biologists after my return from my trip, and both said the same thing: West Nile Virus hit the population hard in 2007 and 2008, but at the same time, the fragmentation of their habitat range created huge reproductive problems for the birds.

“West Nile comes and goes, but the population recovers from that,” one biologist told me. “But when you destroy the habitat, they can’t recover from that.” He used the example of cutting your arm versus cutting your arm off. If you cut your arm, it will eventually heal, but if you cut your arm off, it’s gone forever.

Both state and federal biologists (I’m not going to use their names here, because they have jobs to look out for and families to feed, even though they all gave me permission do so) told me the critical problems now are fragmentation of the habitat and loss of habitat, caused by oil and gas exploration. One said that the sage grouse might be able to withstand one oil well per square mile, but in the critical habitat area of Bowman County, in many places there are three or four wells per square mile. The impact once you get beyond one well per square mile is exponential, he said. And then he surprised me with this: “Go ahead and use my name. I’m sick and tired of everyone walking on eggshells. This massive oil and gas development is bad for wildlife, and not just sage grouse. There are other species suffering just as bad.” Pronghorn antelope. Mule deer. Sharptail grouse. He didn’t mention them. He didn’t have to. We all know that.

I can verify his claims about the loss of sage grouse habitat and fragmentation. I drove for a couple of hours through the area I used to hunt, 50 or so miles of gravel roads. Once there was only one main road through that area, and no one used it at that time of the day but me, ranchers out checking cows, and the critters.  Today it is criss-crossed with dozens and dozens of roads and home to an almost unbelievable number of oil well and tank battery sites. It’s the area mostly south of U.S. Highway 12 in Bowman and Slope Counties. It’s the southern end of our Badlands, and it is well-hidden from the highway, so no one really realizes the massive—and I do mean massive—scale of the development. We drove past a wastewater recovery site the size of a small town, as big as the town of Marmarth, where we spent a couple nights. The truck traffic is beyond comprehension. It is no wonder the birds cannot survive there.

To their credit, the biologists are not giving up on the birds. The State Game and Fish Department has written plans to try to save them. The plans have two focuses: First, to try to conserve the remaining population and its habitat—survival—and second, to try to improve the conditions the birds need to grow in numbers—recovery. The U.S. Fish and Wildlife Service is working with landowners to improve habitat in nearby areas away from the intensive oil development, trying to lure the birds to a more wildlife-friendly area where they might be able to survive, and even thrive.

There is much talk of listing the birds as an endangered species. That’s freaking everybody out—the state wildlife agencies, the ranchers, the energy industry, the chambers of commerce, and the elected officials in the states the birds call home. State wildlife agencies believe they are better equipped to deal with the problem on a state-by-state basis, rather than have a bunch of federal regulations slapped on them. Ranchers don’t welcome restrictions on what they may or may not be able to do on their own land, and especially on land they lease from the Forest Service and BLM. The energy industry and the industry’s allies in the chamber of commerce offices fear intrusive regulation of the oil and gas industry—and well they should, because that’s who’s causing most of the problems. And the politicians in these western states generally take up the side of the industry. Indeed, our own North Dakota Game and Fish Department director recently attended a meeting in Denver, a “governor’s-level meeting,” to discuss strategy that can be used by the states to avoid listing the bird as endangered.

In spite of all that, the ones we need to listen to are the biologists. But at this point, either because of, or in spite of, everything man does, the biologists say, “It’s up to the birds.” We’ll have to see if they can adapt to a new environment. Disease will continue to take a toll from time to time, and so will predators, although almost everyone told me that disease issues are fleeting, and predation is overrated as a problem for the birds. Fragmentation of habitat, and loss of habitat, will continue to be the biggest problems. Oil and gas development.

There’s a new normal. And the birds are going to have to adapt to that. If they can, they will survive and perhaps, someday, thrive. More likely, one biologist told me, “Within three years, we’ll see the last dance of the sage grouse in North Dakota.”


Sons of the Fathers
Written by Jim Fuglie   
Monday, 12 May 2014 07:00


(Crossposted, with permission, from The Prairie Blog.)

Okay I’m going to get a little preachy again. It’s about the Clean Water, Wildlife and Parks Amendment (you can read the text of the proposed amendment here). You’ll remember I said I was going to sit this one out this year because I have some differences with the measure’s authors. But at least they’re doing SOMETHING, and something needs  to be done. And they seem to be running a good campaign, and I like good campaigns. What I don’t like is what the other side is doing—running a dishonest campaign.  The other side is the North Dakota Chamber of Commerce and the North Dakota Petroleum Council, doing the bidding of Jack Dalrymple, trying to stifle any serious effort to provide real conservation initiatives in our increasingly degraded state. And doing it in a dishonest way, by using the Big Lie strategy: if you’re going to lie, lie big, and do it over and over, and soon people will come to accept it as truth. Frankly, they’re shameless.

So the Big Oil boys and the Chamber have trotted out various spokespersons using the same phrases over and over in letters to the editor, press releases, interviews and talk show conversations. Most recently, they duped the new Farmers Union president, Mark Watne, into believing they were friends of his, and handed him a letter which he unwittingly signed and sent to all the newspapers. I don’t know what they promised him in return, but it better be big, because Mark made a giant screwup by signing that letter. Still, Mark’s a big boy, responsible for his own actions, so he needs to be called to task for what he’s done.

The letter Mark sent was so bad that it is causing concern among Mark’s friends and mentors inside the Farmers Union. One of them told me this week “Mark’s letter is truly terrible. It reads like it was from a political unit of the Koch brothers. I can’t figure out why he’d sign such crap and blatant misinformation.” He went on to say that the Farmers Union is “dirtying their good reputation for being a reasoned voice for farmers by acting as a mouthpiece for fear mongering misinformation.  I’m deeply concerned about this.”

I’m concerned too. And so I wrote another letter to the editor of my own, one I’m going to send this time. You may recall I wrote one a few weeks ago about the same issue, responding to the same kind of letter, which I didn’t send, because the writer’s father, James Odermann, is a friend of mine. Well, history is repeating itself. Turns out Mark’s dad, Gene, is a friend of mine too. But there’s a difference this time. Mark is a public figure by virtue of his statewide office. He needs to accept responsibility for what he’s doing as president of the Farmers Union.

So I sent my letter off to the ten daily newspapers yesterday, asking them to print it if they printed Mark’s. I expect it will start showing up this week. I thought I’d share it with you first. So here it is, along with Mark’s letter, so you can see what it is I am upset about. Marks’s is first.

Dear Editor,

As a longtime farmer, I’m a big believer in protecting our state’s great outdoors and natural resources. North Dakota’s farmers and ranchers were our state’s first conservationists going back to statehood. But the proposed Clean Water, Wildlife and Parks Amendment wildly misses the mark in trying to accomplish that.

Under the amendment, 5 percent of North Dakota’s oil extraction tax would be set aside in a new conservation fund. The amendment requires that between 75 and 90 percent of this fund be spent each year.

The only conservation spending specifically outlined in the measure is that these massive funds — anywhere from $300 million to $400 million per biennium, based on current oil production projections — could be used to acquire farm land.

If nonprofit groups are given millions of dollars every year that they can use to acquire land, it won’t be long before we will see them buying and removing land from production agriculture, driving up land prices and making it harder for agriculture to compete, especially new farmers and ranchers.

The measure also is troubling because the groups supporting this amendment have a history of being hostile toward the ag industry, which still is our state’s largest industry. Imagine the impact to our state’s economy and workforce if these groups suddenly have hundreds of millions of dollars to spend to undermine the agriculture industry in the name of conservation.

Let’s be clear, folks: The out-of-state groups financially behind this measure would like to change our way of life here in North Dakota, and they see the creation of this private fund in our state constitution as their way to do just that.

The truths behind this amendment are loud and clear, and that’s why farm and ranch groups have come together in the North Dakotans for Common Sense Conservation coalition to oppose it.

Mark Watne

* * * * *

Dear Editor,

I am saddened that less than six months into his new job as North Dakota Farmers Union President, Mark Watne has really damaged his credibility and sullied the reputation of North Dakota’s most prestigious farm organization.

As a nearly lifelong Farmers Union member, I want to reassure members of the conservation community that his recent letter about the Clean Water, Wildlife and Parks Amendment does not reflect the feelings of most rank and file Farmers Union members. And I want to correct a few misstatements Mark made.

Mark charges that “out of state groups” are trying to undermine agriculture. That’s not true. In addition to being a Farmers Union member, I’ve been a member of two of the major sponsors of this measure, Pheasants Forever and Ducks Unlimited, throughout many of my years as a hunter and conservationist, as have more than 10,000 current North Dakota members of those organizations. We’re not from out of state, and we’re not “hostile to the ag industry” as Mark says. We know that farmers, who make habitat for the birds we hunt, are our best friends. We’d hardly want to undermine them.

Pheasants Forever, to my knowledge, doesn’t own any farmland. Ducks Unlimited from time to time buys small pieces of wetlands, mostly unproductive farmland, on a willing-seller basis, although not so much in North Dakota because of our state’s anti-corporation farming laws. Mark knows full well that those laws, of which the Farmers Union is the staunchest defender (one of the reasons I am proud to be a member), prevent those groups from even owning farmland here.

Mark says that the measure will create a “private fund” in our constitution and give nonprofit groups hundreds of millions of dollars to buy land. Again, that’s not true, and Mark knows it. All funds that go into the new program are controlled by a committee made up of the governor, the attorney general and the agriculture commissioner. They have to approve every penny that is spent from that fund. I’m pretty sure they are not going to allow it to be used to compete for land with farmers.

As president of Farmers Union, it is okay for Mark to have his own opinion on these things, but he represents the members of an organization, and he can’t just make up his own facts. At last fall’s state Farmers Union Convention, delegates voted to reject a statement opposing this measure. In fact, I expect there is pretty broad general support from Farmers Union members for this measure. And I would think there is a lesson to be learned from the actions of the state’s other farm organization, the Farm Bureau, when its leaders got too far out ahead of their members at the recent state Republican convention. They turned around and found no one was following them.

Most farmers, and most Farmers Union members, don’t hold the hostile attitude towards conservation organizations reflected in the recent letter. Many of them are members of those organizations. And most sportsmen and women know that farmers are our best friends. It’s their land we hunt on. We’d never get behind any measure designed to hurt agriculture. The facts are, that much of the money generated for this Clean Water, Wildlife and Parks fund (the N.D. Office of Management and Budget says it will be about $150 million, not the made-up $300-400 million figure Mark and other opponents of the amendment have been using) will likely find its way back to farmers to help them make habitat for wildlife, much as the CRP and PLOTS programs have been doing here for years. In that case, everyone wins—farmers, hunters and critters.

Jim Fuglie

ND Republican Accounting 101
Written by Chet   
Friday, 25 April 2014 14:26

You're hoping to learn how Republicans do math?  Well, you're in luck. Lesson one is that when your "Total Cash On Hand At Close of Reporting Period" for 2012 is $97, 615.09...


... obviously the "Total Cash On Hand At Start of Reporting Period" for 2013" needs to be $8,548.36.


See, your balance at 11:58pm on December 31st of 2012 drops from $97,615.09 down to $8,548.36 as soon as the clock strikes midnight.  That $89,066.73 that's missing disappeared because....


Yeah, that's the ticket.  


Don't ask questions.

Now you understand North Dakota Republican math.

Lesson concluded.

Carry on.

I Need an Open Records Abortion Litigation Lawyer
Written by Chet   
Tuesday, 22 April 2014 07:58

WayneSOr maybe I just need a legal opinion. Or a couple of them.

This blog post is about North Dakota's expensive abortion litigation and the Attorney General's Office. I have a lot of questions and concerns and I'm seeking your expertise in sorting out these issues.

First, I want to talk about my most recent open records request made to the North Dakota Attorney General's office. I asked for "copies of the itemized billing statements for all professional fees (attorneys, expert witnesses, etc.) received by the State that relate to abortion litigation in 2013 and 2014."  I posted a brief comment about the records provided on the NorthDecoder Facebook fan page. (You missed it if you haven't given us a "Like" on Facebook.)  In response I received two things from the AG's office: (1) a summary of all expenses paid in the litigation,  which I hadn't asked for; and (2) the itemized bills I asked for. Sort of. 

Because of the Attorney General's response, I'm contemplating either (a) challenging the disclosure in Court, or (b) asking for an official "AG's opinion."  (The former would obviously be expensive [see the "Donate Here" button in the right column on the website], while the latter would likely be a waste of time considering that the AG would have a clear, unavoidable conflict of interest in issuing an AG opinion, though he'd disregard that ethics violation and issue an opinion anyway.)  A third option, I suppose, is doing nothing. I don't like that option, much. There are reasons why I'm considering these options.

I'll take the less complicated concern about the open records disclosure first. To understand what I'm talking about, I'd ask you to take a look through all of the itemized bills Wayne Stenehjem provided. Notice anything about them?  I did. Right away.  Every single word in every dated entry on every bill is redacted.  Every one. A lawyer or paralegal did a "file review"?  That's redacted. A lawyer flew to Chicago to take a deposition? Redacted. Someone took a call from the press?  Redacted.  I don't think it's appropriate for Stenehjem to redact every word in these bills. It's not all exempt from North Dakota's open records laws. I'm pretty sure of that.

To be clear, I'm not ignorant to the idea that some things in a lawyer's bill to a client -- in this context -- might legitimately be redacted from a disclosure made under North Dakota's open records law. I get that. But nobody could possibly convince me that every single word in these bills is "attorney work product" or "attorney client privilege" or otherwise exempt from disclosure.  

Here's my guess: My guess is that somebody who knows nothing about North Dakota's open records law (or who doesn't give a crap about the law) was assigned the task of deciding what to redact and what not to redact in these bills before providing to me. That person just said, "A, heck; let's just redact EVERYTHING. This clown won't know any better."  Well, I do. I've seen attorney bills before, as it turns out. I know what's included. I can state with a fairly high degree of confidence that the attorney general's office has broken the law by redacting EVERYTHING in these itemized bills.  

The more complicated issue I take with the Attorney General's disclosure is this:  I think the AG cited a completely irrelevant Federal Rule of Civil Procedure as part of his justification for withholding some of the information he has withheld. This stuff is a little complicated, but I don't think you have to be a lawyer to understand it.  Follow along.

On the form the AG provided as a cover-page to the itemized professional services open records, Stenehjem cites as part of his authority for withholding records "Fed. R. Civ. Proc 26(b)(4)(C)."  Here's a cut-and-paste of that federal rule:

(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert's study or testimony;

(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.


Now, in order to understand what this sub-part of this rule has to do with, you have to know what Rule 26 of the Federal Rules of Civil Procedure is all about.  Rule 26 provides "general provisions governing discovery."  "Discovery" is the process, in litigation, where parties to a lawsuit exchange information, compell each other to disclose information, and seek information from third parties in their "search for the truth" which they eventually will or may present at trial.   

So if you read the indented stuff, above, you'll see that Stenehjem apparently thinks three things: (a) that the Federal Rules of Civil Procedure govern requests (or my request) made by the public to the AG's office relating to open records, (b) that I am a party or an agent of a party to the abortion litigation, and/or (c) that everything contained in every itemization provided by the State's expert witnesses is exempt from disclosure under North Dakota's open records constitutional provision and laws.  Let me take each of these one at a time.

Regarding the federal court rules, I tried to figure out why the Federal Rules of Civil Procedure might apply to my North Dakota state government open records request.  I looked at a couple different things in my search for understanding. First I looked at the North Dakota Century Code. That's generally where you'll find exemptions to North Dakota's open records constitutional provision and laws.  Here's the closest thing I could find to a law that might be relevant:

6. Any request under this section for records in the possession of a public entity by a party to a criminal or civil action, adjudicative proceeding as defined in subsection 1 of section 28-32-01, or arbitration in which the public entity is a party, or by an agent of the party, must comply with applicable discovery rules or orders and be made to the attorney representing that entity in the criminal or civil action, adjudicative proceeding, or arbitration. The public entity may deny a request from a party or an agent of a party under this subsection if the request seeks records that are privileged under applicable discovery rules.

NDCC sec. 44-04-18(6)

So what's this law about?  Well, the legislature apparently thought that if a person/entity was embroiled in litigation with the State of North Dakota and wanted to get public records from the state, they couldn't do an "end run" around the normal discovery rules and process; they had to get the records using the discovery rules. This kind of makes sense. (Sort of.) But there's a glaring problem here, methinks.  See, I am not "a party" or "agent of the party" to any criminal or civil action, adjudicative proceeding (as defined). And, as such, I am not trying to do an "end run" around the discovery rules. I'm just a regular Joe -- arguably a "member of the media" -- trying to obtain public records.  So the federal discovery rules don't -- or shouldn't -- apply to me.  

I also looked in the Attorney General's open records manual.  Wayne wrote it or signed off on it, so it should provide some guidance on this issue. You'd think that would be authoritative. I looked, and found nothing inconsistent with what I've written, above. There's a section on page seven (7) that talks about discovery rules applying to parties to litigation. "Any documents that would normally be open to the public but would be privileged under discovery rules may be withheld from an adversary or agent of an adversary."  (Manual)  But, see, I'm not "an adversary or agent of an adversary." I didn't say I was. Wayne didn't ask if I was. If he had, I probably would have told him I'm not.  (The reason I might not have said that the law should prohibit him from asking me why I want it.  Why do I think that?  Gosh, because an authority on the topic told me so.  

See, Wayne Stenehjem told me so.  "A public entity cannot ask why the records are requested, ask for identification, or require a request be made in writing (or in person)."  A Public Officials Guide to North Dakota's Open Meetings and Open Records Laws by Wayne Stenehjem, at p. 2.

But I probably would have told him. I have nothing to hide. I am obviously not a party to his abortion litigation. He surely knows I'm not a lawyer for a party. And certainly not an agent. 

Okay, so I've addressed the first two apparent Stenehjem thoughts: (a) that the federal rules apply, and (b) that I am a party.  The federal rules do not apply BECAUSE I am not a party (or agent of a party). I've already addressed the excessive redacting issue, above. I do not believe for one minute that everything -- EVERYTHING -- in the expert witnesses' billing statement itemizations is exempt from disclosure, regardless of whether the alleged authority for withholding it is a federal court rule, a state law or otherwise. I don't even think substantive information in an expert witness's billing statement is exempt from the open records law. It's not attorney work product or privileged; and no other exemption applies.

The other provisions cited in the cover sheet relate to "attorney work product" and "attorney privileged communications" and I'm not disputing that those things -- if done conservatively -- can be redacted, if they disclose work product or the substance of privileged communications. I am not saying "I spoke to my client" is a privileged communication. A description of what was discussed, on the other hand, would be privileged.  

I should note, too, that all the fighting that Republicans are doing lately about "states' rights" (besides being coded language to hide racism) is about the supremacy of state laws and constitutional provisions over Federal Law.  We -- in North Dakota -- apparently hate the EPA because it's trying to impose federal rules on us.  We hate the BLM for the same reason, apparently.  We hate Hate HATE everything having to do with the federal government (apparently) because we're a red, states' rights state.  Yet Wayne Stenehjem apparently loves Loves LOVES the federal discovery rules when he thinks he can hide behind them in his effort -- as the state's official enforcer of open records laws -- to hide public information from a taxpayer.  

So I think reliance on a federal rule of discovery to withhold records is completely unjustified and illegal.  In other words... yes, I am accusing the Attorney General of breaking the law. I just need to decide what to do about it.

Second, I'm intrigued by Attorney General Wayne Stenehjem's statements about the abortion litigation and the possibility of an appeal of Judge Hovland's most recent Order Granting Summary Judgment, in which the judge notes the patent and obvious unconstitutional status of North Dakota's law banning virtually all abortions. 

All attorneys and judges take an oath that they will protect and defend the constitution of the United States. Elected officials in North Dakota also take an oath to "support" the North Dakota constitution.  Lawyers also are obligated by law to "maintain no claim that appears to the attorney to be unjust, nor any defense except one the attorney believes to be honestly debatable under the law."  (NDCC sec. 27-13-01(2)). Judge Hovland's order points out the obviousness the unconstitutionality of North Dakota's abortion ban.  He calls it -- among other things -- a "blatant violation of the constitutional guarantees afforded to all women." (Order at p. 24)  

The "special" assistant Attorney General who handled the abortion case in federal court for the State of North Dakota was Dan Gaustad, from Grand Forks. Gaustad has made it quite clear that the state "will appeal to a federal appeals court 'and if need be to the Supreme Court.'" (ForumComm)  But now Stenehjem is apparently walking that back:

Stenehjem told The Associated Press on Wednesday that he needed to read Hovland's ruling and talk to the governor and others before deciding what the state will do next.

"There are those who believed that this was a challenge that could go to the Supreme Court," Stenehjem said. "Whether or not that's likely is something we need to confer about."


I occasionally hear legislators say cringe-worthy things that might cause one to believe legislators have no duty to understand the constitution or to enact constitutional laws. They say things like, "It's our job to pass laws; it's the Attorney General's job to defend the laws we pass; it's the Courts' job to decide whether the laws we pass are constitutional." This, of course, doesn't mesh with the fact they all take an oath to defend the constitution. But it also is an indication that Stenehjem is between a bit of a rock and a hard place. Does he defend a "blatantly" unconstitutional law and dishonor his oath to defend the constitution? Does he dishonor his obligation to defend laws passed by the legislature if he refuses to defend a blatantly unconstitutional law?

Importantly, Stenehjem -- by already defending the blatantly unconstitutional law so far -- has taken a position that he thinks it's worthy of defending. (Remember, it's illegal for him to assert a defense he doesn't believe is "honestly debatable under the law") If he changes his mind now, is he admitting he took a position that is not "debatable under the law," thus violating NDCC sec. 27-13-01(2)?  If so, will he be disciplined for violating the law and the Attorney oath and pledge?  Will -- and should -- someone file an ethics grievance against him?  Perhaps an unhappy legislator who wants him to continue to defend the blatantly unconstitutional law if he doesn't? Or a reproductive rights advocate if he does?

These are all good questions. I'm gonna make myself some popcorn, sit back and see how he sorts it all out.

For now.

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