Tuesday, February 5, 2013

Killdeer Mountains threatened by process


Killdeer Mountains threatened by process

It is time for more light and less heat on the issue of petroleum development in northern Dunn County. The leasing by the state of certain school trust lands in the Killdeer Mountains locality for petroleum development has sounded alarms among historians, archaeologists and all friends of antiquities.
Those questioning the development make three points:
First, the Killdeer Mountains area is a site of religious and cultural importance to several native peoples of the region. Second, it was the site, in 1864, of one of the most significant military engagements in the history of Indian-white conflict on the northern plains. Third, the Killdeer Mountains environs are known to be rich in archeological material. Heedless development, thus, may imperil irreplaceable heritage resources.
Is this, then, heedless development? It is not, but neither is it well considered. Public scrutiny prompted by the proximity of development to such a noteworthy site as the Killdeer Mountains has exposed problems with the processes for conserving our heritage.
The state trust lands at issue are school lands, a legacy of federal frontier land policy, granted to the state for the support of public schools. The Department of Trust Lands, under direction of the Board of University and School Lands, manages them for revenue that the Legislature then appropriates for education. We are fortunate to have these lands. We have been wise to retain them.
The process with reference to heritage resources on the state lands works this way: Before the land board lists tracts for potential leasing, it calls for the Historic Preservation Office of the State Historical Society to provide records of historic and archeological resources known to be present. Land Commissioner Lance Gaebe takes these records into account as leases are bid and negotiated, and again, especially, when the Land Board negotiates with an oil company the surface damage agreement that will govern how development proceeds and collateral damage is compensated. The Land Board has considerable leverage at this point in the process.
Agreements with the Land Board in hand, the oil company still has to go through the well-permitting process with the state. The Department of Mineral Resources’ Oil and Gas Division has a hearing (done last October for the Killdeer Mountains land) and makes a recommendation to the state Industrial Commission. On Jan. 24, the commission adopted the recommendation by Mineral Resources Director Lynn Helms to proceed with permitting on the state trust lands in the Killdeer Mountains.
In addressing the issue of heritage resources on state trust lands, there is a need for reasonable good will by state officials and by the public. We, the public, need to want to solve these problems, not exploit them for some perceived advantage.
There are two obvious issues illustrated by how the Killdeer Mountains situation has unfolded.
First, Helms, in public statements and personal communications, does not take cognizance of state law (55-10-09 of the state Century Code), which requires all state agencies to cooperate with the state Historical Society in the preservation of historic and archeological sites. The law is imperative, and it is crystalline. It is qualified somewhat by a 1988 opinion of Attorney General Nick Spaeth, but that opinion by no means absolves any agency of its obligations under the law
Second, and in the long run more important, there is a hole in the process at the leasing stage. The information that the Land Board gets from the State Historical Society is incomplete to nonexistent. This is not the fault of either the Land Board or the Historical Society. Information exists only if some previous, likely federal, development has generated earlier cultural resource survey work. There is no provision in the process, as there should be, for physically going over the ground to determine what heritage resources are there. Consequently, leases and agreements can be concluded that directly threaten significant heritage resources. This happened, despite technical adherence to law by all parties involved, in the matter of the Killdeer Mountains.
With respect to a heritage site as profoundly significant as the Killdeer Mountains, we should move deliberately, reset if necessary, and address public concerns. As for the general process _ that wants reform, which requires legislative attention.
(Tom Isern is professor of history, university distinguished professor, and director of the Center for Heritage Renewal at North Dakota State University. Opinions here expressed are not necessarily those of NDSU.)