In North Dakota The Law Favors Drilling

by John Pendleton  |   Friday, November 02, 2012

In North Dakota, Hess Corporation is looking to drill for oil on four 1,280-acre spacing units near the Killdeer Mountains. They have their eye on a patch of public school land owned by the state in Dunn County and want to drill as many as 8 wells. Loren Jepson, who owns nearby land, and another man who is a member of the Three Affiliated Tribes are trying to stop Hess from drilling by claiming that increased road traffic will be dangerous for local residents and that Native American artifacts might be lost. It seems that in 1997 and 2008 stone fragments and a possible burial site were found at two locations on the state land. Hess Corp. says it has no plans to drill near either site, but that hasn't stopped the rancher and the Native American activist from raising objections. Although there is no evidence that there are any "historical artifacts" on the four lands parcels. Ironically, the oilmen have the upper hand in this battle because state law is on their side this time. In several other states, like California, the mere suggestion that an American Indian had even cooked a meal at a particular spot would be enough to get a court order to halt drilling. In contrast, North Dakota's laws specifically state that the state has a “fiduciary duty” to manage the lands for the benefit of public schools and other public land owners. That means the law gives preference to maximizing financial returns on state lands. However, according to Susan Quinnell, a state historic preservation coordinator, "It [the drilling] would be away from the known sites, but still we don’t know what may be out there." By law, state historic preservation officials can only "recommend" that land officials steer mineral developers away from artifact sites, and that recommendation does not have the force of law. It's kind of like a traffic cop who can only ask you to slow down because he isn't allowed to write you a ticket. State Mineral Resources Director Lynn Helms is likely to make a recommendation on Hess's plans to state regulators next month. http://www.righands.com/news/news-detail/in-north-dakota-the-law-favors-drilling-214

Some Things Never Change

Posted on November 1, 2012 by Jim Fuglie

The stories of the selling out of the North Dakota Bad Lands to the oil industry by our state’s leaders continue unabated. Almost daily now, there are more and more stories of shoddy management of cultural and natural resources in the name of greed. Readers ofThe Bismarck Tribune aren’t getting good coverage of the things going on out west. They are being covered by reporters for Forum Communications and The Dickinson Press in particular—much the same as in the coal boom years of the 1970’s. Some enterprising journalism is taking place at The Forum’s papers, but the Tribune runs only capsules of the stories provided by the Associated Press in abbreviated rewrites of The Forum stories. This week, for example, The Forum and Grand Forks Herald carried a Patrick Springer-bylined story about the Hess Corporation wanting to drill wells on a section of state school land which contains significant archeological sites. The section is near the Killdeer Mountains.

The state Historical Society is recommending that the sites not be disturbed by oil wells. Here are three telling paragraphs from Springer’s story:

            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.

            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.

The Historical Society has had neither the time nor the resources to do a complete archeological survey. Earlier archeological work in 1999 and 2007 identified areas on the section with archeological value, but no formal archeological or historical artifact surveys have been completed. Sue Quinnell with the Historical Society says historic preservation officials cannot say whether other artifacts are located there.

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

            Not a concern to Helms, the state’s official cheerleading team captain for the oil industry, though. He has “no doubts” there are no artifacts there. Sheesh.

Footnote: If the land in question was owned by the federal government, a complete archeological survey would be required before drilling began. But it is state-owned land and there is no such requirement in state law. So far, neither the governor nor any of his appointed officials have announced they will introduce a bill in the next session of the North Dakota Legislature to enact such a requirement.  Even if they do that, (yeah, right) by the time it is enacted, the bones will be over in a pile in a corner of the well pad.

Meanwhile, residents of Dunn County are taking matters into their own hands. Using a little known law, which my lawyer friend David Thompson says hasn’t been used since the 1920’s, they collected enough signatures on a petition to summon a grand jury to investigate bribery charges against Jack Dalrymple. Thompson prepared a report connecting more than $80,000 worth of campaign contributions to approval of an oil industry proposal to drill for oil in Little Missouri State Park, located in Dunn County. You can read NorthDecoder.com’s detailed story and the full report by going here. The report so enraged Dunn County residents that they are now calling for a grand jury investigation. It won’t play out until after next week’s election, which Dalrymple is certain to win. But North Dakota also has a recall law on its books, which, coincidentally, hasn’t been used since the 1920’s. It was used once, though. Successfully. Who knows?

Meanwhile, week after week, the rape of the Bad Lands marches inexorably forward. Legitimate rape. No “morning after” pill will erase the problems facing the land, the people and the animals of the Bad Lands.

I think I’m beginning to understand the feeling of the Plains Indians in the 19^th century, as they watched the march of progress across the prairie, a civilization completely foreign to them squeezing out their cultural heritage little by little, until by the 20^th century they were relegated to tiny patches of the vast landscape that once was theirs to roam free. At least they fought back, often to the death. We seem to be going down with nothing more than a whimper.

We’ve arrived at almost a hopeless point in the Bad Lands now. We’re waging an effort to save a few small pieces of undeveloped Bad Lands with what is known as the Prairie Legacy Wilderness proposal, but that is now being threatened by the lawsuit filed by the State of North Dakota which, if successful, will destroy the last few remnants of land that remains pristine (you can read about that here).

I read the lawsuit complaint filed against the Forest Service by Wayne Stenehjem and Jack Dalrymple to open up all the remaining “suitable for wilderness” lands in the Bad Lands to oil development this week. In it they cite several examples of where the Forest Service has refused to cooperate with the state in granting access to oil developers. The very first example cited is a refusal to let Whiting Oil Company put a new road across a piece of Forest Service land to get to a state-owned school section where they want to drill a well.  It doesn’t say exactly why the Forest Service doesn’t want a road there, but it is just possible it is because the site is less than half a mile from the boundary of Theodore Roosevelt National Park. Do ya suppose, Jack and Wayne, you could just let one go once in a while, when it encroaches on the most important place in North Dakota, our NATIONAL PARK?

I also revisited this week the book Coyote Warrior, Paul VanDevelder’s magnificent telling of the tragic story of the taking of the Missouri River Valley by the United States government from the Three Affiliated Tribes to hold the waters backed up by the Garrison Dam.

VanDevelder writes of tribal life in North Dakota’s Missour River bottoms up through the 1940’s:

            They farmed the rich bottomlands, hunted game and gathered food that grew wild in the hills and along the river. And just as it had been for their ancestors on the Knife and Heart Rivers, the village was still the social hub for the people of the three tribes. Forty generations of their ancestors had lived in villages in this valley. They still owned half a million acres of land straddling the river—land they possessed in perpetuity by virtue of aboriginal title that was formally recognized by the government at the Treaty of Horse Creek in 1851.

But by 1948, members of the Three Affiliated Tribes were being told they must move out of the river valley to make way for the waters of the lake the government was going to create behind massive Garrison Dam. Congress was offering them five million dollars in relocation costs to leave their ancestral homes. A hostile United States Congress put a “take it or leave it” offer on the table. The dam was going to be built. Period. The tribal lands along the Missouri were going to be sacrificed for flood control, irrigation and power generation. Period. VanDevelder writes:

The tribe was face to face with a “prisoner’s dilemma.” (Tribal Chairman George) Gillette felt he had little choice but to argue in favor of accepting the offer. At the very least, he could argue that the contract guaranteed the tribes’ grazing rights, and hunting and fishing rights, in the taking area. It also protected the tribe’s subsurface mineral rights and promised that if the $5 million proved insufficient for “relocation” costs, Congress would cover the overruns. The official signing ceremony was held in Secretary Julius Krug’s office on Washington, D.C., on May 20, 1948. As Krug fixed his signature to the contract, flashbulbs popped at the moment emotion overwhelmed Chairman Gillette. He buried his face in his hands and wept. The picture ran on the front page of newspapers across the country.

            “As everyone knows,” Gillette told the press following the ceremony, “our treaty of 1851, and our tribal constitution, are being torn into shreds by this contract. My heart is very heavy. What will become of our people?”

            I can’t help but wonder what George Gillette would think of what we are doing to what little we have left of North Dakota now. I think he’d be dismayed. But probably not surprised.

http://theprairieblog.areavoices.com/2012/11/01/578/

Antelope Valley Station to Neset Transmission Project: Draft EIS Volume I and Volume 2

This environmental impact statement (EIS) prepared by the U.S. Department of Agriculture
(USDA),Rural Utilities Service (RUS) provides information about the potential environmental
impacts of the proposed Antelope Valley Station (AVS) to Neset Transmission Project. This
project, proposed by Basin Electric Power Cooperative (Basin Electric), would include a new
345-kilovolt (kV)transmission line connecting the existing AVS, Charlie Creek, Williston, and
Neset substations and the newly proposed Judson and Tande 345-kV substations. In addition to
the approximately 190 miles of new 345-kV transmission line, the project would also construct
two new 345 kV substations (Judson Substation west of Williston and Tande Substation
southeast of Tioga), and several miles of 230-kV transmission line to connect the 345-kV
transmission line into the existing area system.
In addition to complying with all applicable federal regulations, several permits and approvals
must be granted by the state of North Dakota prior to construction. The North Dakota Public
Service Commission (NDPSC) must grant a Certificate of Corridor Compatibility and a Route
Permit in accordance with North Dakota Century Code.
Basin Electric has requested financial assistance from RUS to construct the project. RUS has
determined that its decision about whether to finance the project would constitute a major federal
action that may have a significant impact on the environment, within the context of the National
Environmental Policy Act of 1969 (NEPA). RUS serves as the lead federal agency for the
NEPA environmental review of the project.
Basin Electric, RUS, and Western held public scoping meetings on November 15 and 16, 2011.
These meetings were held in Williston and Killdeer, North Dakota.
Basin Electric and RUS will hold public hearings on the Draft EIS. These meetings will occur in
Killdeer and Williston, North Dakota on January 15 and 16, 2013. The public is encouraged to
provide oral comments at the public meetings and to submit written comments to RUS by
January 21, 2013. This Draft EIS evaluates the environmental consequences that may result
from the proposed action along two route alternatives. In addition, the EIS also analyzes the noaction alternative, under which RUS would not approve financial assistance for the project.

http://www.rurdev.usda.gov/SupportDocuments/uwpdraftEISVol1.pdf

http://www.rurdev.usda.gov/SupportDocuments/uwpdraftEISVol2.pdf

Archaeological Disturbances in Western North Dakota

10/31/2012

By Aaron Barth

I came across this October 29, 2012 article, “Land eyed for oil well may be on burial site,” through a colleague and friend, Richard Rothaus.  With the Bakken oil boom going full tilt, this article concerns oil drilling development near and around the Killdeer Mountains in Dunn County, western North Dakota. The part within the article that is incredible is from Lynn Helms, the director of the North Dakota Oil and Gas Division. Mr. Helms said, as paraphrased by theForum, that “he had no doubts the proposed drilling area has no artifacts.” Once again, this was a paraphrase, but it caused in me the following thoughts: I don’t know whether Mr. Helms physically visited the lithic scatter and possible burial, nor do I know if an archaeologist explained it to him. In the event that he did not physically visit the site, there are quite a few of us that would be happy to explain to him the processes, and why they are necessary. But his lack of doubt is  disturbing. This is why.

The very nature of science and our legal system necessitates constructive and deconstructive doubt. Without this doubt, a case cannot be made one way or another. And without this kind of doubt, and without verifying one’s assertions, a statement is simply a statement sans substance (this is often captured in the saying, “You have no case here.”) Further inquiry into Killdeer is indeed necessary. Numerous archaeologists are concerned with these high profile sites, as they should be, and we are quite interested in showing Mr. Helms why and how. Education is powerful that way. That’s all. Back to it on this end.
http://theedgeofthevillage.com/2012/10/31/archaeological-disturbances-in-western-north-dakota/

Stone fragments and a possible burial site eyed for oil development.

Posted 2012-10-29 09:53:00

KILLDEER, N.D. (AP) - A North Dakota historic preservation coordinator says stone fragments and a possible burial site have been identified on land near the Killdeer Mountains that is being eyed for oil development. Susan Quinnell says that the areas were identified in 1999 and 2007 and have not been excavated. Hess Corp. wants to drill in the area. A father and son who own land in the area and a member of the Three Affiliated Tribes have objected to the plan. Hess says it will concentrate in areas away from the two identified archaeological sites. State Mineral Resources Director Lynn Helms is likely to make a recommendation on Hess's plans to state regulators next month. Historic preservation officials have recommended that the two archaeological sites be avoided.
http://keyzradio.com/north-dakota-news-blog/42053
http://www.crookstontimes.com/article/20121029/NEWS/121029601/1001/NEWS

Published October 29, 2012, 09:01 AM

North Dakota land eyed for oil well might be on burial site

KILLDEER, N.D. (AP) — Stone fragments and a possible burial site have been identified on land near the Killdeer Mountains that is being eyed for oil development, but that discovery won't necessarily stop the project.

KILLDEER, N.D. (AP) — Stone fragments and a possible burial site have been identified on land near the Killdeer Mountains that is being eyed for oil development, but that discovery won't necessarily stop the project.

The areas on state land in Dunn County were identified in 1999 and 2007 and have not been excavated, state historic preservation coordinator Susan Quinnell told The Forum newspaper. State officials can only recommend the sites not be disturbed.

"Our concern is that when we can't ask for surveys, that archaeological resources may be lost," Quinnell said. "And once they're lost, they're gone forever."

Hess Corp. is seeking permission to drill up to eight wells in the area. A father and son who own land in the area and a member of the Three Affiliated Tribes have objected to the plan. Hess says it will concentrate in areas away from the two identified archaeological sites.

State Mineral Resources Director Lynn Helms is likely to make a recommendation on Hess's plans to state regulators next month. Historic preservation officials have recommended that the two archaeological sites be avoided.

State law gives preference to maximizing financial returns on state lands — such as through mineral rights — over protecting artifacts. 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.

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

http://www.wday.com/event/article/id/70649/publisher_ID/29/

http://www.devilslakejournal.com/article/20121029/NEWS/121028867/196/features
http://www.minotdailynews.com/page/content.detail/id/570339/ND-land-eyed-for-oil-well-might-be-on-burial-site.html?nav=5583

Hess to work with Jepson

KHRT ND NEWS - 10/25/12 - NOON EDITION

     BISMARCK, N.D. (AP) - North Dakota's Mineral Resources director says he likely will make a recommendation to state regulators next month on whether to allow oil drilling near the Killdeer Mountains Wildlife Management Area.  Hess Corp. wants to drill up to eight wells. Local rancher Loren Jepson and his son, Ross, have hired an attorney to fight the proposal they say will lead to a dangerous increase in traffic.

     The Mineral Resources Department's Oil and Gas Division on Wednesday held a hearing. Hess officials said they plan to work to reduce safety issues and also questioned Loren Jepson's assertion that there are historical artifacts on the land.  Mineral Resources Director Lynn Helms says a decision on the sites will be "a very difficult balancing act" but he thinks a solution can be found.

http://www.khrt.com/apps/articles/default.asp?articleid=82277&columnid=6928