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Published October 26 2013

Stenehjem says he'll release list of 'extraordinary places' for protection from energy development soon

BISMARCK – North Dakota Attorney General Wayne Stenehjem has been meeting with people behind the scenes to compile a list of what he calls “extraordinary places” that deserve protection from energy development and other impacts, drawing criticism from a former Democratic Party leader who believes the discussions should be held publicly.

Stenehjem said he has sought input from a variety of people and hopes to have the list ready for the state Industrial Commission, which grants oil drilling permits, for consideration at its Nov. 18 meeting.

“I think there’s a view that we need to do more to assure the public that we’re protecting some of those pristine areas,” said Stenehjem, who sits on the commission with Gov. Jack Dalrymple and Agriculture Commissioner Doug Goehring. “And we do a lot of that now, but it’s not on a formal basis.”

Stenehjem first proposed such a list at a commission meeting in January. The idea gained steam after a public uproar in March when news broke that an oil company had staked out a site near the entrance to the historic Elkhorn Ranch in Theodore Roosevelt National Park.

The company, XTO Energy, withdrew its permit application, and on Tuesday the Industrial Commission approved a new permit for XTO that will keep drilling activity about two miles away from the Elkhorn Ranch entrance.

Stenehjem said an oil rig right next to Elkhorn Ranch “was never going to happen,” and he hopes the new list will assure the public that such places will be protected. While the list isn’t finalized, some of the places Stenehjem said he’d like to consider for protection are Bullion Butte, Killdeer Mountain battlefield and wildlife management area, Elkhorn Ranch, White Butte and Little Missouri River State Park.

All of those places were included in a list of about 40 areas of historical, cultural or biological interest that was compiled from various sources earlier this year. It didn’t receive any official designation from the Industrial Commission, but it provided a list of places for commissioners to tour, which they decided to do individually because of their schedules.

To help him compile his own list, Stenehjem has held two meetings in his conference room with what he describes as “kind of an informal grouping,” adding, “I’ve had lots of other meetings just with other individuals.”

Jim Fuglie, a former executive director of the state Democratic-NPL Party who now writes “The Prairie Blog,” has criticized Stenehjem in recent blog posts, referring to the group as a “secret task force” holding “secret meetings.” He questioned whether the state’s open meetings laws are being followed. Fuglie did not return a phone message left at his home Thursday.

Stenehjem said he organized the group and meetings by himself, and the Industrial Commission didn’t delegate authority to him to do so.

“If it were delegated by the Industrial Commission, then of course it would likely be an open meeting,” he said. “But this is just me using people whose judgment and knowledge I respect to offer suggestions.”

Jack McDonald, a lawyer for the North Dakota Newspaper Association, said there must be direction given or an act of creation by the governing body to make it a task force subject to open meetings.

“Of anybody in state government, (Stenehjem) has been so hyper about open meetings and stuff and so vigilant … I just can’t imagine that he’s deliberately violating the law,” McDonald said.

Stenehjem said that after his list is compiled and presented to the Industrial Commission, the idea is to develop a policy and rulemaking process for protecting the extraordinary places.

He said the rules to be considered for development in those areas might include requiring an impact mitigation plan; prohibiting the flaring of natural gas or requiring that pipelines for capturing it already be in place before drilling begins; setback requirements; or painting oil pumps to camouflage them.

While the commission wants to protect the state’s special places, Stenehjem said he’s not talking about an outright ban on energy development.

“Private people own those minerals, and they have a legal right, a constitutional right, to have them developed, and so we have to respect that,” he said. “But at the same time, we also have an obligation to the citizens of North Dakota and the future to make sure that everybody is comfortable that we’re doing what we can to protect these areas as much as possible.”

The concept also will entail a process for public comment on proposed developments “at a meaningful time,” he said.


Readers can reach Forum News Service reporter Mike Nowatzki at (701) 255-5607 or by email at mnowatzki@forumcomm.com.