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ND Treasurer Kelly Schmidt: War Is For Oil
Written by Chet   

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.”

YouTube

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.

David_Kelly_and_Paula

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   

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   

(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   

badlands

(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   

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...

NDGOP2012

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

NDGOP2013

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....

Gravity.

Yeah, that's the ticket.  

Gravity.

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   

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.

Cornell.edu

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."

AlJazeera.com

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.

 
North Dakota's Rough Rider Business Award
Written by Chet   

Stern_PortraitAn observation:  Thirty-nine people have been awarded the “Rough Rider Award” since the award first came into existence in 1961.  Of the first 10 recipients of the Rough Rider award, exactly Zero of them received the award for being a “business leader” and/or “entrepreneur”.

Of the most recent 10 recipients of the Rough Rider award, 7 of them are “business leaders” and/or “entrepreneurs,” and I could make an argument that the real number is 8 of 10.  (One is listed as an "educator" but spent a fair amount of time on the MDU board of directors.)  Only two (2) of the most recent (10) recipients are women. Two (2) of the first ten (10) recipients were women.  (You've come a long way, baby.)

From 1961 to 2002 there were only two “business leader”/”entrepreneur” Rough Rider Recipients.

Of the thirty-nine (39) recipients, nine (9) [or ten (10), if you count the "educator" MDU board member] are “business leader” or “entrepreneur.”

Before 2002, recipients came from many different walks of life.  Minister. Military personnel. Artist. Author. Actor. Educator. Doctor. Humanitarian.

Apparently those things aren't honorable anymore. Apparently the most likely path to being honored by North Dakota's governor is if you are a "business leader" or "entrepreneur" today.

Today Governor Dalrymple, a Minnesota native, awarded North Dakota's top honor to the family of a "businessman and visionary" named Herman Stern. I'm sure he was a nice enough fellow. But I still have to ask the question... 

Where are our priorities?

 
A New Look At A Couple Of Old Problems
Written by Jim Fuglie   

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

SURFACE OWNER PROTECTION

Okay, I know I said I was done writing about this “Special Places” thing Wayne Stenehjem has going, but people keep bringing it up to me and there always seem to be some new ideas floating around, so I’m going to take one more whack at it. Not that I really think it will help, but every idea should at least be looked at.

So here’s a suggestion for Agriculture Commissioner Doug Goehring, who maintains that Stenehjem’s search for a common sense solution to stop the oil industry from just putting oil wells, and the roads that lead up to them, and the infrastructure it takes to service them, any damn place they want to put them, is trampling on private property rights: You might want to consider Stenehjem’s proposal in a different light, Doug. If it is really farmers and ranchers you are worried about, you might want to consider Stenehjem’s ideas as surface owners’ protection.

Because it’s a pretty well-known fact that most landowners don’t own the minerals under their land. And that leaves them vulnerable to the absentee mineral owners who don’t give a shit about our farmers and ranchers, who don’t care if an oil well is going to get plunked down in the middle of their winter pasture, or if the road being built to accommodate a thousand fracking trucks is going to run right past their feedlot.

I’ve read that only 25 per cent of landowners in North Dakota actually own the minerals under their land. And in North Dakota, mineral ownership trumps surface ownership. So if you’ve inherited the minerals under a section of land that grandpa left to you when he quit farming and sold the land to someone else, you can go get your oil no matter what the guy who’s now farming the land says.

But under Stenehjem’s proposal, if you’re a rancher and you own land that is near one of the 18 places he’s picked out for special consideration in the siting of an oil well, or a road, or a tank battery, you’re going to get some help from the Game and Fish Department or the State Historical Society in deciding where the oil well is going to be located, and where the road is going to be built. I’d think the state’s Agriculture Commissioner would be pretty happy about that. Because under Stenehjem’s proposal, no one is going to be told that they can’t go get their oil. But they are going to be told where experts think the best location for that oil well is. And it’s a darned good bet that those experts are going to consult the rancher who is going to have to live with that well before they sign off on a drilling permit application. The oil company and the absentee mineral owner may or may not do that, but you can bet the biologists for the state’s wildlife agency are going to ask the rancher if there is some critical wildlife habitat on their land that they’d like protected.

So this bullshit Goehring is arguing about, taking the protection of private land out of Stenehjem’s proposal, is just plain goofy. What makes a rancher’s private land less valuable than the public land next door? The rancher is likely grazing cattle on both of those parcels. Why shouldn’t they be afforded equal protection? Doesn’t it just stand to reason that if the Oil and Gas Division is going to offer some protection to a parcel of public land but not to the private land next to it, that the oil companies are just going to plunk down that well and build that road on the private land, maybe exactly where the rancher doesn’t want it, but is powerless to stop it? And then the rancher is going to blame the government for protecting the public land, but not his land.

And as long as we’re talking about surface owner protection, do we need to re-examine all our surface owner protection laws to make sure that the state is doing all it can to help our farmers and ranchers who don’t own the minerals under their land? Right now, an oil company has to notify the farmer or rancher that they want to put a well on his property, but if the rancher doesn’t want the well there, he has no recourse except to go to court to try to stop it. Uh huh. Do you know how many lawyers those oil companies have? And how much they get paid? Good luck with that.

But if the Industrial Commission had a policy like the one Stenehjem is proposing for special places, dealing with ALL drilling permits, protecting ALL private land, wouldn’t the rancher have a little bigger hammer when dealing with the oil companies? And didn’t Goehring say recently that “all of North Dakota is special?” Well, then, let’s treat it all the same. Let’s give our farmers and ranchers who actually DO live here all the tools we can to deal with the people who own the minerals under their land but DON’T live here.

So it seems to me Goehring’s got it backwards. Seems to me he’s out to please the oil companies at the expense of his real constituents. Or just spouting the right wing drivel we’re all getting really, really tired of.

And maybe Stenehjem ought to consider renaming his idea the Surface Owners Protection Policy.

JUST MAKES SENSE

Oh, and before I go, I want to pass along a suggestion from someone who really is concerned about our Agriculture Commissioner. After reading the other day that Doug Goehring was forced to take one of his young female staff members up to his motel room to walk on his back when he was away with some staff on a business trip, a friend of mine suggested that really shouldn’t have been necessary. If the Agriculture Commissioner was having that kind of back pain, and the back-walking thing was what cured it, my friend says that he should have been able to get professional help for that and not have to rely on an inexperienced young staffer to help him. My friend says that it looks like poor old Doug fell through a crack in the health care system, and maybe there ought to be a provision in Obamacare for just such a thing, and that insurance companies should be required to pay for that. And that way Doug could have gotten the relief he needs, provided by a professional, and covered by insurance. I don’t know if there really are professional back-walkers, but if not, it could lead to a whole new cottage industry—Obamacare could take credit for creating a whole bunch of new jobs. I think my friend is on to something.

 
Daunting Toxic Spills In Western North Dakota
Written by Chet   

Check out this interactive map of all the oil and poison water spills that have happened and been disclosed in Western North Dakota over the past 13 years. You can zoom in and out on the map; I use the wheel-roller thingy on my mouse to zoom in and out. If you use your mouse to hover over the dots, you'll get a little information on each spill.  If you click on a dot, you'll get even more information.  Click on the link in the information box, and get even more information. 

Here's a screen grab from the map, to give you a little sample. 

Spills

Notice how close some of these spills are to Lake Sakakawea. Some are even IN the lake. Many are near tributaries to the lake and river.

If you live in Williston, Bismarck, Mandan or pretty much any other city along the lake or river, your drinking water likely comes from that water.

Kill some time poking around on the map while Wayne Stenehjem's oil company buddies kill the fish in our lakes. And us.

Click here.

 
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