A proposal to protect places deemed special or extraordinary from energy development was changed to exclude private land before it was unanimously approved Monday by the North Dakota Industrial Commission.
The approval follows a monthlong public comment period that resulted in more than 500 comments. Gov. Jack Dalrymple proposed an amendment at the beginning of Monday's hearing that removed references to private land.
Dalrymple said the policy is “the right thing to do,” but “when it comes to private property … I don’t think we should include that at this time.”
The governor said he also agreed with lawmakers who questioned the Industrial Commission’s authority to set policy on private landowners’ rights. He said the issue should be revisited at the end of the year and the Legislature should become involved in the conversation next year during its session.
Supporters of the policy in its unamended form said what passed Monday lacked teeth. Approximately half of the more than 1.2 million acres of land affected by the policy is private land and is interlaced with public lands in some areas.
“It’s a checkerboard throughout the Badlands,” said Valerie Naylor, superintendent of Theodore Roosevelt National Park. “It’s very important that we include all of those places.”
The Department of Mineral Resources plans to create an updated map showing where the public land affected by the policy is located.
The policy includes a list of 18 places recognized for special protection for reasons including historical and cultural value. Among them are Lake Sakakawea, Elkhorn Ranch and the Killdeer Mountain Battlefield State Historical Site.
The policy calls for buffer zones from one-half mile to a maximum of two miles and would require an extensive mitigation plan by producers looking to drill in those areas.
It also calls for a person designated to gather comment and validate concerns raised on proposals to drill in sensitive areas and report back to the Industrial Commission and the Department of Mineral Resources.
The primary argument made by policy opponents had been that it would infringe on private property owners’ rights to develop their land.
Agriculture Commissioner Doug Goehring said he had grave concerns over private property rights ever since Attorney General Wayne Stenehjem unveiled the proposal in December.
Before Dalrymple’s amendment, Gehring said, he had been prepared to come into the meeting and propose striking a large portion of the policy’s language relating to public comment, to preserve private property rights. He said Dalrymple’s amendment was a reasonable compromise.
“I can live with this. It’s workable and we can avoid any unintended consequences,” Goehring said.
Wayde Schafer, a spokesman for the Sierra Club of North Dakota, was disappointed in Monday’s vote.
“I think we just witnessed a lack of leadership on the governor’s part,” Schafer said.
Schafer said a narrow window exists to preserve North Dakota’s most pristine landscapes and Monday’s decision was a missed opportunity.
North Dakota Petroleum Council President Ron Ness called the decision “a prudent step to take” that preserved private property rights.
Ness pointed to the comments submitted by officials in western North Dakota counties citing concerns about private landowner rights. He said the Industrial Commission also made the right decision in not deciding policy on private lands and leaving it open to potential legislative discussion.
“Anything could come up during the session,” Ness said.