Or 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.
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.
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.
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.
An 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...
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.
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.
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.
“Landowners protest plan” screamed the big headline across the top of the front page of The Bismarck Tribune today.
I stand in awe of how well the oil industry’s public relations team does its job. I spent a lot of years in the PR business in my career, but I was never as good as this bunch. Of course, I never had the kind of money they have at their disposal. But still.
The fact they were able to sell the Bismarck Tribune on that headline, although not surprising given the way the Tribune is written and put together these days, gives Ron Ness and the North Dakota Petroleum Council an A+ for PR work in my book. Damn, they’re good. I am so envious. Landowners? This is no landowners’ group. This is a straight–on PR arm of the oil industry, funded by big bucks from the industry’s biggest player in North Dakota, Harold Hamm’s Continental Resources. Don’t believe me? Look at their membership page, here. Not a single North Dakota landowner there. Not even a single North Dakotan.
President: Julie Musselman, “Royalty Owner.” Royalty owner? Really? Take a look at this. “Julie S. Musselman manages oil and gas properties for JMW, LLC, and the Trust of Raleigh W. Shade in Tulsa. Musselman previously worked as a landman for Houston Oil & Minerals, Blocker Petroleum and ZG Exploration.”
Secretary: Candice Brewer, “Royalty Owner.” Really? Take a look at this. “I manage the mineral and royalty interest owned by the (Arizona State University) foundation,” Brewer said. “Our assets surpass about $96 million right now. The foundation receives monthly royalty revenue from oil, gas and other minerals in 16 West Texas counties.”
Director: Bill Sinclair, “Royalty Owner.” Really? Take a look at this. “Sinclair is currently the founder and CEO of Agelio Networks, Inc., a software development company which provides web-based solutions for the oil and gas industry. Its flagship product, MineralFile, released this past February, helps mineral and royalty owners better manage their assets through its patent-pending web-based land and revenue management system.”
Director: David Sikes, “Royalty Owner.” Really? Take a look at this. “David is a native Oklahoman and the third generation of his family to work in the energy industry. David earned his Professional Certified Mineral Manger status from NARO in 2006.”
The remainder of the group’s board of directors represent Apache Corporation, Continental Resources, Inc., Devon Energy Corporation and Newfield Exploration Company, Inc., the same four companies which fund the organization.
The Tribune’s story under the bigheadline, similar to one written by a Forum Communications reporter for all four of the company’s newspapers (Dickinson, Fargo, Jamestown and Grand Forks) was reasonable, but neither took a look at who this organization really represents. It represents the oil industry, and the industry is spreading its scare tactics about a proposal by Attorney General Wayne Stenehjem to develop some reasonable guidelines for drilling oil wells near sites on a list of important scenic, cultural, historical or recreational landmarks. The industry’s press release from which the story was drawn is total bullshit. Here’s how it starts:
“Attention royalty owners, leaseholders, farmers/ranchers, property owners and North Dakotans! Your property rights and royalty checks are at serious risk!
“If you think your property and the decisions about how and when to use it belong to you, then you should think again. Nearly a million acres of private land across the Peace Garden State may soon be restricted or even condemned. If you thought a royalty check was coming your way, your wells may not be drilled.
“Out-of-state interests are pushing their anti-development agenda in Bismarck all in the name of protecting so-called “Extraordinary Places,” places that are ALREADY protected by existing regulations!”
“Out of state interests!” Are you kidding me? This press release from an organization based in Oklahoma with no North Dakota members? Damn, these guys got balls.
Meanwhile, let me tell you another interesting story.
A week ago, I got a call from Jayne Solinger, a producer at Minnesota Public Radio, asking me to appear on an hour-long daily radio program called “The Daily Circuit,” which airs statewide in Minnesota and drifts a little bit into the North Dakota side of the Red river Valley through transmitters in Moorhead, Fergus Falls and Thief River Falls. It’s MPR’s morning public affairs show. Outside the Valley, you can listen to it by going to their website and clicking on “Listen Now.” The producer said the hosts wanted to do a show on the oil industry in North Dakota, and I had been recommended to her as a good guest to talk about that. I said sure, I’d be glad to do that. Then she said “Who would you recommend we put on this show to represent the other side.”
I responded that I don’t think there are really “sides” in this story—that we all are excited about the good things the oil boom had brought to us, but that some of us are more cautious about the pace of development. I said any show dealing with the oil industry ought to include Ron Ness, executive director of the North Dakota Petroleum Council, the man who knows more about the oil industry in North Dakota than anyone else. After confirming that the show would air Thursday, Jan. 24, at 10 a.m., she said she would call Ron and see if he could join the show. Later in the day she called me back to tell me Ron had a conflict on Thursday, but was available Wednesday, and could we reschedule? Sure, I said. 10 a.m. Wednesday works for me.
Fast forward to this morning, when I opened the paper and saw that the North Dakota Industrial Commission had scheduled a special meeting for Wednesday (tomorrow) at 11 a.m. to discuss Stenehjem’s proposal. Uh oh. I sent an e-mail to Jayne, with a copy to Ron, asking if we could reschedule, because I was pretty sure that both Ron and I would want to be at that meeting. She responded that she would try to have the show done by 10:30 or 10:45 so we could both get to the meeting. I said fine.
But then I got another e-mail from Jayne that said she would be calling me about 10:30 to go on the air. WTF? I thought the show started at 10. So I called her to inquire about details of the show, why the change in schedule. Well, she said, Ron doesn’t want to be on the air with you, so we’re going to talk to him first, and then after he hangs up we’re going to talk to you.
WTF? Jayne, I was the one who recommended that you put Ron on the show with me. You really are saying that now he won’t go on the air with me? Yep. I almost told her where she could put her show, but that would serve no good purpose, so we arranged for me to actually get on the phone, with my microphone shut off, while Ron is talking, so I can listen in, and then when he leaves, to get up to the Capitol for the meeting, they would turn on my microphone. For 15 minutes or so. So be careful what you say, Ron, because even though it’s not broadcast here, I’ll be on the phone listening. And I get the last word.
I guess I’ll do it from a coatroom, or some empty corner of the Capitol, so I won’t be late for the meeting. I don’t want Ron to get a better seat than me. I’ll probably sit down beside him and tell him what he missed after he left. And then we’ll sit through the meeting and see if his phony “landowners” group is successful in scaring Jack Dalrymple away from supporting Wayne Stenehjem’s proposal. I hope it doesn’t work. Dalrymple is pretty close to the oil industry, but I think he’s smart enough to see through this scheme.
Nothing. They never were preparing one, despite what they told the newspapers. Maybe a "white wash paper" is (or was) being prepared by oil companies; but these guys never lifted a finger to get an objective one done.
First, let's clear something up: Wayne Stenehjem, Doug Goehring and Jack Dalrymple make up the State Industrial Commission. "Oil & Gas" is a division within the State Industrial Commission. The head of the Oil & Gas Division is someone named "Lynn Helms." Lynn Helms is not an elected official; he is an at-will employee whose every action is authorized, controled and monitored by Wayne Stenehjem, Doug Goehring and Jack Dalrymple. When Lynn Helms does or says something, he is doing it or saying it because Wayne Stenehjem, Doug Goehring and Jack Dalrymple told him to. If he didn't have their permission to do so, they would fire him.
Second, there's a bit of recent history that's part of this, so I'm going to try to do my best to walk you through it as part of the story. This is long-ish, but it's probably just "part one." You'll have to come back for the rest. Here's what you should know:
On July 6, 2013, a runaway train carrying millions of litres of crude oil derailed in the heart of Lac-Mégantic. The tangled wreck exploded, transforming the town’s main drag into a river of fire. Many of the 47 people who died in the disaster were inside the Musi-Café, a popular bar packed with friends, lovers, neighbours, husbands and wives.
The oil on the train that killed 47 people in Canada was Bakken oil, onloaded at New Town. But the oil didn't act like normal crude oil.
“The explosions and everything, I didn’t think crude oil did that,” said Ed Pritchard, a former accident investigator with the U.S. Federal Railroad Administration.
Canada’s Transportation Safety Board agreed. During an August briefing on its investigation into the crash, Ed Belkaloul, head of the federal TSB in Quebec, said the oil carried to Lac-Mégantic is undergoing testing because the crude reacted “in a way that was abnormal.”
The potential explosiveness of the crude should not have been such a mystery. An investigation by The Globe into the Lac-Mégantic explosions shows there were warning signs that crude from the Bakken region straddling North Dakota and parts of Manitoba and Saskatchewan was not like other oils.
In New Town, N.D., where the ill-fated train was loaded with Bakken crude, locals like to boast that the honey-coloured oil is so light they can take it right from the well and pour it into truck engines because it requires little refining. Long before the crude exploded at Lac-Mégantic, there were signs that shippers, regulators and rail officials did not appear to consider the variable characteristics of oil loaded onto trains that travel through towns and cities.
On December 5, 2013, Justin Kringstad, director of the North Dakota Pipeline Authority, became concerned about Bakken crude. He wasn't so much concerned that 47 people had been killed in Canada, or that a dangerous explosion had happened in Alabama too, polluting sensitive wetlands. He wasn't concerned that trains full of this same explosive oil travels through downtown Bismarck, Jamestown and Fargo every day.
No, Kringstad was concerned about the "almost daily reports" about Bakken oil's "volatiility, corrosiveness, etc." He had read a story at "NewTimes.com" about a lengthy report relating to a proposed California oil refinery, in which it was noted much of their oil would likely be "volatile" Bakken crude oil. The story was about how locals in California were upset about the dangerous Bakken oil coming through their communities. Opposition was mounting.
Kringstad was so concerned that he decided to contact Ron Ness -- President of the North Dakota Petroleum Council -- to suggest that Ness work on getting a white paper put together, promoting the idea that Bakken crude is safe for unicorns and butterflies to drink.
I wonder how helpful it would be for someone like the EERC [the UND Energy & Environmental Research Center] to publish a formal report about exactly what Bakken crude is or isn't (also compare WTI, heavy Canadian, ethanol, gasoline, etc.)? I would suspect that there are many companies with big projects hanging in the balance would benefit from such a report and be willing to support it financially.
See, because the best people to put behind a study of the explosiveness of Bakken crude are big companies that have "big projects hanging in the balance." Keep in mind, too, that if the results of the study aren't good for the businesses that paid for it, the results of the study/research never ever ever ever sees the light of day.
Kringstad copied the email to Lynn Helms who is, as noted above, Dalrymple, Stenehjem and Goehring's hatchet man. Kringstad apparently didn't think the Sierra Club or the Dakota Resource Council -- or the citizens of North Dakota -- would have an interest in funding such a report. Of course the oil companies "with big projects hanging in the balance" were more likely to want to control the study process.
On December 16, the Associated Press released a story about how "North Dakota officials are considering crafting a report that the state's top oil regulator said will disprove that hauling crude by rail from the rich Bakken and Three Forks formations is dangerously explosive." (the Billings Gazette) Helms said the purpose of the study was to "to dispel this myth that it is somehow an explosive, really dangerous thing to have traveling up and down rail lines." (the Billings Gazette). Kringstad seemed to downplay the status of the report, noting "It's just discussion at this point."
On December 30, 2013, a train loaded with Bakken crude oil passed through downtown Bismarck, downtown Jamestown, looped around the north end of Valley City, and crossed the highliner bridge. Just before it pulled through downtown Casselton, it hit a grain car that had derailed. The deadly Bakken oil spilled everywhere. The oil that didn't spill all over the rail-side acreage exploded hundreds of feet into the air in an amazing mushroom cloud.
A few days later, on January 2, 2014, the Pipeline and Hazardous Materials Safety Administration (a department of the US Department of Transportation) issued a "Safety Alert." The warning included the following:
Based upon preliminary inspections conducted after recent rail derailments in North Dakota,Alabama and Lac-Megantic, Quebec involving Bakken crude oil, PHMSA is reinforcing the requirement to properly test, characterize, classify, and where appropriate sufficiently degasify hazardous materials prior to and during transportation. This advisory is a follow-up to the PHMSA and Federal Railroad Administration (FRA) joint safety advisory published November 20, 2013 [78 FR 69745]. As stated in the November Safety Advisory, it is imperative that offerors properly classify and describe hazardous materials being offered for transportation. 49 CFR 173.22. As part of this process, offerors must ensure that all potential hazards of the materials are properly characterized.
Proper characterization will identify properties that could affect the integrity of the packaging or present additional hazards, such as corrosivity, sulfur content, and dissolved gas content. These characteristics may also affect classification. PHMSA stresses to offerors the importance of appropriate classification and packing group (PG) assignment of crude oil shipments, whether the shipment is in a cargo tank, rail tank car or other mode of transportation. Emergency responders should remember that light sweet crude oil, such as that coming from the Bakken region, is typically assigned a packing group I or II. The PGs mean that the material’s flashpoint is below 73 degrees Fahrenheit and, for packing group I materials, the boiling point is below 95 degrees Fahrenheit. This means the materials pose significant fire risk if released from the package in an accident.
The press got hold of this Safety Alert, of course. Rather than contacting Public Citizen or the Dakota Resource Council or non-oil-industry hacks, the media immediately contacted cheerleaders for the oil companies. Because that's what they know how to do. They were apparently asked about the status of the "white paper."
North Dakota regulators had said last month that they were considering crafting a report to disprove that hauling the state's crude by rail is dangerously explosive. On Thursday, a state official said those plans had been dropped in the aftermath of the Casselton derailment.
"We have no plans to go forward with anything," said Justin Kringstad, director of the North Dakota Pipeline Authority.
Sidenote: The Bismarck Tribune also carried this exact same AP story. When the published it online, it contained the highlited quotation from Justin Kringstad, above. I know this is true because on January 2nd -- the day the story was published online -- a friend of mine copied and pasted those two paragraphs from the Tribune's website and sent it to another friend. That friend sent it to me. So -- without question -- the Tribune altered its story after it published it, removing Kringstad's quotation. But it gives no explanation as to why it did so. If you go to the Tribune's website today and read this same AP story, you'll see the Tribune's version of the story, which they've altered without explanation.
I don't know why they would do this. If you Google any uncommon phrase from the story, you'll see the same story went out on the AP Wire and appears all over the internet - over twelve hundred times - with Kringstad's quotation in it. I'm not sure why the Tribune felt compelled to delete that quotation from its story.
So last week Friday I asked Lynn Helms to provide copies of all of the public records in his office that relate, in any way, to drafting, researching, preparing, etc., the alleged "white paper" he had mentioned in the December 16th AP story about "dispelling myths."
Tuesday (January 14th), Helms apparently participated in some sort of press event responding, among other things, to questions about the "white paper." During his comments, he claims his earlier statement about "dispelling the myth" of Bakken oil being dangerous was made not because he thinks it's a myth, but because he's such a big fan of the TV show "Myth Busters." (Audio of Press Event at approx. 16:20) (See, also, the Fargo Foolums coverage of the press event.)
. o O (Sometimes I wonder if Lynn Helms realizes how obvious it is to everybody around him when he's lying.)
Yesterday (January 15th), in response to my request for records at the Oil & Gas Division relating to the drafting, etc., of the "white paper," I got a pdf file. It's the email I mentioned above. It's the email from Justin Kringstad to Ron Ness (oil industry advocate), which was copied to Helms. Other than that, the Oil & Gas Division has no records that would show it had any involvement in drafting a "white paper." (Translation: It received an email about a possible white paper. It was not actually working on one.)
Because the Kringstad email more or less suggests the possibility of getting the EERC to prostitute itself out to oil industry financiers, I sent a FOIA request to the EERC, asking for records it may have relating to any possible "white paper" drafting. The response, so far, has been disappointing. I've been using the exact same public records request format for about six years. For the first time, ever, some character at EERC has apparently decided to make things extra special difficult for me. Considering the EERC is supposed to be a government funded non-profit, working towards the public good, it would be an understatement to say I'm disappointed. But I'm going to wait this one out and see how they do. My full expectation is that they are going to tell me it's going to cost a LOT of money to satisfy my request, and they're going to want to bill me for all of that. And then they're going to give me a minimal amount of heavily redacted nonsense.
When they do (or don't), you should expect I'll be writing about this again. In anticipation of the possiblity (probability?) that EERC is going to want a bunch of money from me, I'd ask that you consider making a donation to NorthDecoder.com. You can do that by clicking the orange colored "Donate" button over in the right-hand column, under the words "Support NorthDecoder." Keep in mind they might grab some sense and tell me they're not going to charge me. If they do that, I'll just sock your money away to pay web hosting fees or to buy myself a beer or something.
“The lawlessness, big money and complex business dealings of the North Dakota oil fields likely prompted the shooting death of a South Hill man in his home last month, according to investigators. Spokane police detectives stitched together an intricate web of speculative business deals by Doug Carlile, who solicited hundreds of thousands of dollars each from several investors to get in on the ground floor of a piece of Indian reservation land with the potential to produce billions of dollars worth of crude, according to one speculator. Carlile was found dead of a gunshot wound in his home at 2505 S. Garfield Road the evening of Dec. 15.”
–Spokane Spokesman Review, Page 1, Wednesday, January 15, 2014
The last trace of the age of innocence in the North Dakota Oil Patch trickled down the drain this week amid charges of a likely murder-for-hire scheme and an unfulfilled assassination plot on legendary Three Affiliated Tribes Chairman Tex Hall.
Got your attention now? Well, this story sure has mine. Tuesday morning I saw what looked like an innocent, but interesting, Facebook post from an old acquaintance (and Facebook friend) of mine, Calvin Grinnell, who’s a tribal elder and historian, and the curator of the Three Affiliated Tribes Museum at New Town. It was a link to a website called the Ripoff Report, which is a fairly sophisticated site that is designed to “Help you, the consumer…Search the Ripoff Report before you do business with retail stores with bad return policies, checking & credit theft, rebate fraud or other unscrupulous business policies such as phony auto repairs, auto dealer bait-and-switch tactics, restaurants with bad service or food, corrupt government employees & politicians, police corruption, home builders, contractors, unethical doctors & lawyers, online stores that sell non-existent products, dead beat dads & moms, landlords & tenants, fraudulent employment & business opportunities, and individual con artists who scam consumers.”
I know, that covers some big ground, but it really is a very credible site. Consumers are invited to write reports about companies that have ripped them off, and submit them to the Ripoff Report, and they are posted to help other consumers. Here’s what was on the page that Calvin sent the link to:
BRIDGEWATER ENERGY AND JAMES HENRIKSON
Bridgewater Energy,Blackstone Crude and its affiliates are trucking, construction and service companies in the oil industry located in North Dakota. These companies are owned by James Terry Henrikson and his wife Sarah Creveling. James and Sarah are con-artists and thieves and should be considered extremely dangerous. James is a convicted felon with dozens of arrests including fraud, theft, drug trafficking and rape. They currently owe millions of dollars to vendors, former employees and investors whom they refuse to pay and may be involved with the “disappearance” of an employee and the murder of a business partner.
This post is dedicated to protecting the people of North Dakota, especially those who work in the oil industry, from dangerous people like James and Sarah . . . In this website you will find a timeline of James’ criminal history and the fraud that he and Sarah are perpetrating in North Dakota, especially on the Fort Berthold reservation. There are also several court documents included. At the bottom will be a list of contact information for the various courts and/or probation offices where James’ criminal history can be verified.
Our goal is to expose the fraud that James Henrikson (he goes by the alias Henricksen) and his wife Sarah Creveling have committed in North Dakota in an effort to prevent them from stealing from honest companies and harming innocent people working in the oil industry in this great state, and to keep our people safe from these dangerous convicts and con-artists (Robert Delao, a manager at Blackstone and James’ right hand man, was convicted of double homicide for killing two rival gang members in cold blood – and he’s working in the Blackstone office on the Fort Berthold Reservation!)
Let’s get these people out of North Dakota so they can’t continue their crimes here.
Well, okay, I thought, I’ll bite. So I read the report. Indeed, the first few paragraphs had summed it up well. You can read the whole thing by going here. I was kind of intrigued, so I Googled around a bit, but I didn’t find much more, so I moved on to writing a story about the pinochle game I had played the night before.
Then Wednesday morning I was back on Facebook and a couple of people, including my friend Jeff and the folks at Bakken Watch, had a link to another story that sounded interesting, titled “Bad blood, black gold and the death of Doug Carlile.”
Well, I thought I recalled seeing the name Doug Carlile in Tuesday’s Ripoff Report posting, so I checked back to see if I remembered correctly, and sure enough, I found this in the timeline history of James Henrikson:
“An intruder broke into the home of Douglas Carlile at 2505 S. Garfield Road, and killed Douglas Carlile in what the police are calling a”targeted” killing which may be “linked to a business dispute involving the victim’s dealings in North Dakota.”
Well, sure enough somebody at the Bakken Watch, another public service website (from their website: “Bakken Watch is a group of citizens from North Dakota (and around the world) who are keeping an eye on oil and gas development in North Dakota and all the issues associated with it: health, infrastructure, surface rights, and other topics.”) had made the connection between a murder in Spokane and the oil fields of North Dakota. The reason Douglas Carlile’s murder was included in James Henrikson’s record in the Ripoff Report is because the two were business partners, and Henrikson may be a suspect in Carlile’s murder.
Well, now I was fully engaged, thanks to “social media” and the two websites, so I started looking further. Here’s what I found.
A wealthy Spokane businessman, Douglas Carlile, opened the door of his house in a trendy Spokane neighborhood last December 15 and was greeted by a man with a pistol who shot Carlile numerous times in the head, killing him instantly. After some very good detective work by Spokane police, Tuesday, almost a month to the day after the murder, they arrested 50-year-old Timothy Suckow and charged him with the murder. Suckow is in jail in Spokane. Here is the lead sentence from the lead story on the front page of Wednesday’s Spokane Spokesman-Review newspaper:
“The lawlessness, big money and complex business dealings of the North Dakota oil fields likely prompted the shooting death of a South Hill man in his home last month, according to investigators. Spokane police detectives stitched together an intricate web of speculative business deals by Doug Carlile, who solicited hundreds of thousands of dollars each from several investors to get in on the ground floor of a piece of Indian reservation land with the potential to produce billions of dollars worth of crude, according to one speculator.
“Carlile was found dead of a gunshot wound in his home at 2505 S. Garfield Road the evening of Dec. 15.
“Police used DNA evidence from a leather glove left at the scene to arrest Timothy Suckow, 50, on a first-degree murder charge early Tuesday”.
Pretty much everybody who knows anything about the case believes Carlile’s death was a murder for hire, and that Suckow was hired by Henrikson to do the job. Henrikson denies any involvement. As far as I know, Henrikson still lives in Watford City, and has not been charged.
“Henrikson also is a suspect in the 2012 disappearance of Kristopher “KC” Clarke, who had worked as an operations manager for one of Henrikson’s companies, according to court records.
“And federal investigators are investigating Henrikson for bilking an energy company run by the Native American tribes for millions of dollars, according to police.”
The reference to an energy company run by the Native American tribes likely refers to a company named Maheshu Energy LLC, owned by current Three Tribes chairman Tex Hall.
Tuesday, Spokane television station KXLY reported that a witness whose identity is being protected by Spokane police, but is likely a North Dakota employee of Henrikson’s, told him in mid-September 2013 that Henrikson had approached a fellow employee, Eric Guerrero, “to see if he knew anyone that could kill Tex Hall, the elected leader of the MHA Nation.”
The TV station reported that Henrikson and two others who had done work for Hall’s company are under federal investigation for defrauding Hall’s company out of millions of dollars.
Henrikson is also suspected of hiring someone in early 2012 to kill one of his employees, Kristopher D. Clarke, who may have been his partner in a drug operation in Texas before coming to North Dakota with Henrikson. The Ripoff Report says this:
“Blackstone Employee Kristopher D. Clarke, Nickname-K.C., disappeared after an argument with James Henrikson. KC was a long-term friend of James and may have been involved with James in the Texas drug manufacturing operation. KC was owed $600,000 by James Henrikson, who refused to pay him, so KC decided to quit working for Blackstone (one of Henrikson’s companies). KC was leaving to work for another company and was taking Blackstone’s subcontractors with him. KC was last seen in an argument with James at the Blackstone office building. James is a suspect and was questioned by BCI Special Agent Steve Gutknecht, but he refused to take a lie detector test. Currently, there is no concrete evidence linking James to KC’s disappearance.”
But KXLY TV reports:
“Henrikson has been interviewed by detectives investigating Carlile’s murder, but authorities have not said whether or not he is a suspect or a person of interest in the killing. However, he is a person of interest in the February 2012 disappearance of Casey Clark, the one-time operations manager for Henrikson. (emphasis added)
“Detectives were tipped off by an individual who was roommates in North Dakota with Robert Delao, a known criminal in Spokane with a long history of offenses including theft and assault. Delao would often receive visits from a man identified as Todd Bates, who Spokane Police know is a friend of Delao’s.
“On one occasion the witness said he overheard Henrikson and Bates talking about a job from February 2012 and that “this job would pay the same as the last job.” The witness speculated the last job was Casey Clark, and that Bates, who court documents confirm has multiple convictions in Alaska for assault, was an enforcer for the company, who would beat up or intimidate people who caused Henrikson problems.
“The witness, concerned for his safety, left the company and moved home to Texas.
Clark simply disappeared in February of 2012, and his body has not been found, but his relatives told television station KREM in Spokane that they think Henrikson had him killed.
That’s about what I can figure out reading newspaper and television reports and the Ripoff Report. I didn’t call information to see if there is a phone listing for James Henrikson in Watford City, but I’m guessing lots of people there know him. He’s not exactly a low profile person. I also didn’t call Tex Hall to ask him how he feels about being targeted. But Tex is a pretty big boy. He can generally take care of himself. Still, this is another ugly North Dakota Oil Patch story, reinforcing casual observers’ image of North Dakota as the “Wild West.” Not the Legendary wild west of North Dakota tourism advertising, but the real deal. I think you’ll be seeing more about this whole episode on TV and radio and in North Dakota newspapers. For everyone’s safety, I hope so.
(Update: The Bismarck Tribune picked up the Spokesman-Review’s story and ran it Thursday morning. Also Thursday morning, Bakken Watch carried a link to a Spokane TV station KXLY story reporting that FBI agents raided Henrikson’s home in Watford City Wednesday, looking for evidence to link him to Carlile’s murder.)
I don't think I'm a prude. I swear sometimes. I curse. Not a lot. But I do. But not around my kids. I know I can't protect them from swearing everywhere, every damn day, but I'm pretty good at shielding them from profanity -- words they simply don't understand -- at home. I have friends who swear around their kids, and I don't have any desire to impose my parenting methods on them. But I like to think I get to decide things like this around my own home.
I'm pretty sure my four-year-old made it through his first four years of life without learning any curse words at home. (We once got a note from a daycare provider when the 12-year-old was younger and at daycare when he used an "inappropriate" word. We asked what it was and were relieved to find out he'd said "gosh.")
But then we trusted the TV people to run child-friendly commercials during Scooby frickin' Doo. And this is what they ran with:
(It appears they're going to try to make the video disappear.)
"Every Damn Day."
Last week, while we were out of town, our four-year-old showed his grandparents he listens to the commercials when he watches shows his parents let him watch, like Scooby Doo. The grandparents' reaction? They thought maybe one of them had let a "damn" slip at some point, but they couldn't think of when they might have done it. They had no idea the four-year-old's parents had made the mistake of letting him watch Scooby Doo. On the DVR. Not every damn day, mind you, but apparently enough so he picked up a new word.
So thank you Capital One.
Thank you Samuel L. Jackson.
I know my baby will learn curse words eventually, but I'm appreciative that you helped get it out of the way when he's four and still in preschool. This way he can help teach the other kids how to curse.
[P.S. Capitol One apparently re-cut the commercial after a grown-up at apparently realized how remarkably stupid it was for the company to do what they did.The new ad changed "damn" to "single." Thanks for too little, too late, Capitol One. Thanks, Sam.]