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Patrick Springer, Published October 28 2012

Land eyed for oil well may be on burial site

FARGO – Archeologists found scattered stone fragments in two areas, and a possible burial site on a section of land eyed for an oil well.

The archeological sites near the Killdeer Mountains in Dunn County are located on a section of land owned by the North Dakota Department of Trust Lands.

Ironically, because the sites are on state land, state historic preservation officials can only recommend that archeological or historic sites not be disturbed.

On federal land, the law requires surveys to determine whether archeological or historical artifacts are at risk from development, said Susan Quinnell, a state historic preservation coordinator.

The proximity of the stone “scatters” ignited protests from American Indians and nearby ranchers who argue that archeological and historical artifacts and sacred sites will be disturbed by oil drilling.

The archeological areas were identified in 1999 and 2007, before cable and pipeline projects were constructed, but have not been excavated, Quinnell said.

No formal archeological or historical artifact surveys have been made of the remaining areas on the two sections, or on 1,280 acres of state lands proposed for drilling.

Because of that, historic preservation officials cannot say whether other artifacts are located on other portions of state land, Quinnell said.

“It’s a concern to have well pads going into that general area,” she said.

But state historic preservation officials can only recommend that land officials steer mineral developers away from artifact sites.

Thus, when contacted last summer by state public lands officials about the drilling proposal, state historic preservation officials responded with an advisory that the two archeological sites were “to be avoided.”

Lynn Helms, the state’s Oil and Gas Division director, said at a hearing last week that he had no doubts the proposed drilling area has no artifacts.

Representatives of Hess Corp., the company that wants to drill, said it will concentrate in areas away from the two archeological sites.

“It would be away from the known sites,” Quinnell said. “But still we don’t know what may be out there.”

The Killdeer Mountain Battlefield, a state historic site, is 2½ miles east of the proposed drilling site and is not threatened by the project, she said. Dakota, Nakota and Lakota Sioux fought the U.S. Army at the historic site in 1864.

State laws are limited in the protection they afford to historical and archeological sites located on state lands – a conflict likely to surface more often as intensive oil and gas drilling continues.

By law, state lands officials have what is called a “fiduciary duty” to manage the lands for the benefit of public schools and other public land owners. That can mean allowing mineral development, since the state often owns the mineral rights along with the land.

On state lands, when state laws protecting archeological and historical artifacts are in conflict with land officials’ “fiduciary duty,” the duty to maximize the financial benefit to the schools overrides the historical preservation mandate, according to a 1988 attorney general’s opinion.

The effect is one that “ties the hands” of state historic preservation officials, Quinnell said.

But, she added, public lands officials so far have gone along with recommendations to spare known artifact sites from development.

“They’ve been cooperative,” she said. However, she added, historic preservation officials cannot request a survey for artifacts before an area is leased for mineral development.

“Our concern is that when we can’t ask for surveys, that archeological resources may be lost,” Quinnell said. “And once they’re lost, they’re gone forever. They can’t be replaced.”

Lance Gaebe, North Dakota’s commissioner of public lands, said his department works with mineral developers to avoid areas where there are concerns about artifacts or wildlife habitat.

“That doesn’t work in all cases,” he said, but it works in most cases. Also, he said, horizontal drilling techniques give flexibility to place wells to minimize adverse impacts.

The law’s preference of maximizing returns on state lands over protecting artifacts handicaps historic preservation, said Fern Swenson, the state’s deputy historic preservation director.

“What this is basically saying is we already have to know about the sites and know their significance,” she said.

Ideally, given the rapid pace of petroleum drilling, the state will be able to obtain grant funds to survey “high probability” historic or archeological sites so they can be protected, Swenson said.

Before developing an area, Swenson said, “It’s always better to know what’s out there, so there’s no surprises.”

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