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Patrick Springer, Published October 06 2012

Legal battle over building roads on protected grasslands heats up

FARGO – A legal battle is intensifying to decide if roads can be built in areas of the Little Missouri National Grasslands now managed as roadless and eligible to be protected as wilderness.

The dispute started this summer when four North Dakota counties sued the federal government, asserting they have the legal right to build roads along section lines.

Advocates of a proposal to designate as wilderness several pristine pockets of federally owned grasslands have said the lawsuit, if successful, would nullify the suggested Prairie Legacy Wilderness, which so far lacks congressional sponsors.

Now the state of North Dakota has entered the battle, with a separate lawsuit claiming a similar legal right to build section-line roads on the three national grasslands in the state.

Both lawsuits are playing out in U.S. District Court in Bismarck amid rapid oil and gas drilling in western North Dakota’s Bakken Formation, part of which lies within the 1.2-million-acre Little Missouri National Grasslands.

The U.S. Forest Service, which manages the federal grasslands, recently denied permission to some state mineral lease holders to build access roads to drill for oil or gas.

The Forest Service has not recognized what the state contends is its right to build section line roads, authorization North Dakota claims under an 1866 federal law as well as a state law dating back to territorial days.

Wilderness advocates said the state’s entry into the legal feud is discouraging. The Prairie Legacy Wilderness proposal could include state or school lands adjacent to national grasslands holdings.

“This is very disheartening,” said Jan Swenson, executive director of the Badlands Conservation Alliance, a group pushing the proposed wilderness.

The state appears more interested in helping petroleum companies to develop every possible area than in preserving the few small pieces that remain eligible for wilderness protection, she said.

“One can’t but believe that it goes back to what Mr. Helms has said – that they want to drill and hydraulically fracture every square mile out there,” she said, referring to statements by Lynn Helms, who directs state regulation of oil and gas.

She noted that Theodore Roosevelt National Park, which is surrounded by Little Missouri National Grasslands, was listed as one of the 10 top ecotourism destinations in the Great Plains.

“One has to wonder how long that can possible last,” Swenson said, “unless we make an effort as a state to hang on to some of it.”

Ninety-five percent of the Little Missouri National Grasslands is eligible for oil and gas drilling, and 84 percent has been leased, although not all of it has been developed yet, she said.

“Watch,” Swenson added. “It will come. They will drill.”

The U.S. Forest Service manages four parcels in the Little Missouri National Grasslands totaling almost 40,000 acres as eligible for wilderness.

Altogether, including state and private lands and one parcel in the Sheyenne National Grasslands in southeastern North Dakota, the wilderness proposal totals about 67,000 acres.

Mike McEnroe, another wilderness advocate, said he was not surprised the state has joined the four counties – Billings, Golden Valley, McKenzie and Slope – in seeking authority to build roads.

“I think the state has always wanted more say-so on national grasslands,” he said, adding that oil companies undoubtedly would prefer state regulation to federal oversight.

But McEnroe agreed with the federal government in asserting its authority over federally owned public lands.

“They are federal lands,” McEnroe said. “They are there for all the public, for the whole country. They should manage them from a national perspective, not a state perspective.”

Although both lawsuits assert the right to build section-line roads – which follow the orderly survey grid – the rugged Badlands terrain means few roads follow section lines for any length, McEnroe said.

“They call them Badlands for a reason,” he said.

Wayne Stenehjem, the North Dakota attorney general, declined to comment on the state’s lawsuit.

Similarly, a spokesman for the U.S. Forest Service declined to comment on the pending lawsuits. Federal lawyers, citing the complexity of the counties’ lawsuit, are asking a judge for additional time in answering the lawsuit, and have not yet responded to the lawsuit filed by the state.


Readers can reach Forum reporter Patrick Springer at (701) 241-5522