Industrial Commission: North Dakota Will Be an Energy Sacrifice Zone

A few weeks ago I wrote here that I regarded the Special Places initiative as perhaps the most important moment of North Dakota history in my lifetime. This last week the ND Industrial Commission voted unanimously to "approve" Attorney General Wayne Stenehjem's proposal—but so stripped of its original intent as to be essentially pointless and meaningless. The original proposal (December 2013) would have designated a number of Special Places in western North Dakota and required oil companies to tiptoe around them as they extracted carbon from under both public and private land in their immediate vicinity. In its second generation (February 2014) the Initiative went from a proposed rule to a proposed process, thus seriously reducing its capacity to really protect anything. And now it has been stripped, at the Governor's insistence, of any application to private land and private minerals.

I am by nature an optimist. But for the moment I am really deeply saddened to see the Industrial Commission throw its immense weight (as usual) behind the dynamics of wholesale development—drill, baby, drill—rather than take measured risks on behalf of the commonwealth values of North Dakota. The Industrial Commission has a constitutionally-mandated responsibility to create broad policy protocols for economic activity in North Dakota. In other words, the state government of North Dakota has the right and responsibility to set the terms of industrial engagement as we strip our countryside of its immense oil shale reserves. If Governor Dalrymple and Ag Commissioner Doug Goehring had voted to adopt Attorney General Stenehjem's proposal as he originally presented it, the oil industry and "landowner groups" would have howled, but they would have soon found a way to work with the new protocols, which would have affected only a tiny fraction of the oil properties in North Dakota. Even in its original form, the Initiative would not have prevented a single barrel of oil from being extracted from beneath our soil.

So what's left after last week's vote? A list of special places—still a very good thing, in my opinion, because the State of North Dakota has now gone on record as believing that there really are some extraordinary places worthy of special care. James Madison resisted the Bill of Rights at first (1787) because he thought it would be a mere "parchment guarantee." He was wrong. The Bill of Rights has become a fundamental baseline American text around which we the people can rally when our natural rights are jeopardized. Think of the power of "invoking the fifth," or demanding respect for "my first amendment rights" (or second). The Special Places List of 2014 gives the people who love the landscape of western North Dakota official permission to rally around more than a dozen extraordinarily beautiful and fragile places that need and deserve advocates.

The effective collapse of the Special Places initiative points to a deep problem of North Dakota life. If the Special Places were Mount Rushmore, the Grand Tetons, Yellowstone Falls, Monument Valley, Devils Tower, Half Dome, Mount Rainier, or Lake Tahoe, I believe even a pro-development Industrial Commission would find ways to protect their sanctity by setting special conditions for industrial activity on adjacent private properties. If our Special Places were as obviously spectacular as the ones listed above, the people of North Dakota (and throughout the United States) would be their champions and clamor for their protection. The simple truth is that most North Dakotans have never seen the Killdeer Mountains or Pretty Butte or even Little Missouri State Park. Most North Dakotans live well east of Bismarck (the 100th Meridian), and the closer you get to the Red River Valley, where the bulk of our population lives, the more North Dakotans lean into Minnesota. They look east not west. Their idea of a special place is Detroit Lakes.

North Dakota's Special Places are not sublime in the Grand Teton sense of the term. Probably only a few dozen North Dakotans have been to all 18 of them. Most North Dakotans will acknowledge that the badlands are pretty, but when they say "badlands," most North Dakotans are referencing what you see from the Painted Canyon overlook off Interstate 94, what you see from the Burning Hills Amphitheater, or (a couple of times in a lifetime) along the loop road in the South Unit of Theodore Roosevelt National Park. Most North Dakotans have never been to Bullion Butte and only a few thousand have ever climbed it. White Butte, the highest point in North Dakota, at 3,506 feet, is hard to pinpoint as you hurtle along US 85 between Belfield and Bowman. It's not even as impressive as its more traditional cousin Black Butte (on the other side of the highway), and it generally gets talked about by way of a flatlander's smirk.

We North Dakotans undervalue the beauty of our landscapes, including our public lands. We compare our landscapes unfavorably with those of Colorado, Utah, and Montana, or the woods and lake country of Minnesota. For most of North Dakota's policy makers, by which I mean the Industrial Commissioners, the state's regulatory bureaucrats, and most members of the state legislature, the lands in question are something of an abstraction. The attitude of most North Dakotans is that there is not much special here, that the country west of the Missouri River is a vast and largely bleak empty quarter that should be damned grateful that it now finally has found a way to attract economic development. Matthew 6:1: "For where your treasure is, there will your heart be also."

I sincerely wonder how many of the Special Places our three Industrial Commissioners have visited. I don't mean by flying over them in a plane or helicopter or driving past them en route to somewhere else in suit and tie. I mean get out of the car and spend some time in hiking boots. I know that Wayne Stenehjem ventured quietly to Bullion Butte when it became an issue before the Industrial Commission a year or so ago. That seems to me to be exemplary leadership. I wish the three commissioners would take a weeklong Special Places vacation, with no media and no neckties, camp out on the ground (no RVs) at Pretty Butte north of Marmarth, and climb White Butte on a hot July afternoon, to watch the thunderheads gather and rumble in from the west. I'd want them to have a picnic of baguettes and cheese within the perimeter of Theodore Roosevelt's cabin site at the Elkhorn Ranch. Month after month the Industrial Commission sits in judgment of the future of North Dakota and yet they have been making profound decisions about places they know mostly from maps.

I hope everyone who is reading these words will go visit the Special Places between Easter and first snowfall. If you contact me (see below) I will give you tips about how to sequence your visit, and which ones you can legally climb. We need to build a broad protective constituency for the subtle magnificence of western North Dakota. Until you have been to the Elkhorn Ranch (no climbing required), you cannot, in my opinion, quite realize how much is at stake as we frack North Dakota.

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Praise for Attorney General Wayne Stenehjem's Special Places Initiative

We have now reached the defining moment of North Dakota life in the 21st century.

North Dakota Attorney General Wayne Stenehjem has quietly put together a very modest proposal to designate a small number of acreages of western North Dakota as special or extraordinary places, and to require oil companies to treat those few parcels with special care when they extract the oil. The Attorney General has proposed that the North Dakota Industrial Commission, of which he is one of three members, adopt a set of special rules (or processes) for the management of those few acres.

It's that simple. And here's the most important point. If the Industrial Commission votes to accept Stenehjem's proposal, not a single barrel of oil will be put off limits.

The short list of parcels Stenehjem has in mind includes such things as the near perimeter of the three units of Theodore Roosevelt National Park; North Dakota's most magnificent landform Bullion Butte (south of Medora); the inner channel of the Little Missouri River; historically important sections of the Killdeer Mountains; the confluence of the Missouri and Yellowstone Rivers; the shoreline of Lake Sakakawea; Pretty Butte north of Marmarth. And a few others.

If you ask 100 people to name the most beautiful, fragile, pristine, or sensitive parcels of western North Dakota, almost everyone's list is going to be the same for the first dozen or so places. Everyone understands that the best of the badlands are more valuable to the Idea and Identity of North Dakota than a lovely coulee near Parshall or Crosby. Public lands are inevitably easier to identify with, recreate on, and protect than strictly private properties, however beautiful those may be or special to their private owners. We take our collective identity from those things and places we especially prize (a flag, a veteran's cemetery, a church, a landscape vista), and it is in the interest of a civilized people to make reasonable discriminations about such things as they develop and clarify public policy.

When Stenehjem began to think about this initiative he said, emphatically, that any list he made would need to be shorter rather than longer (a very few very special places, not a unrestrained conservation "wish list"), and that no list would preclude oil development in those parcels. He was adamant that the state of North Dakota has no right to violate the sanctity of contract between private parties or to intrude itself between a willing mineral owner and a willing oil company.

The shortness of Stenehjem's list and his repeated vocal insistence on the sanctity of private property rights has frustrated some members of the environmental or conservationist community in North Dakota. But Stenehjem did not undertake this initiative to please this or that constituency. He has taken the lead because he loves North Dakota, greatly appreciates the landscapes that happen to overlay the Bakken oil shales, and because he understands that reasonable regulatory protocols are as important in the oil fields as they are in all businesses that impact public health and welfare. As a member of the state Industrial Commission, he has a unique public responsibility—to uphold our laws, to promote economic development, to serve the interests of all North Dakotans, and to balance competing interests for the benefit of the broadest number of people possible.

I think Wayne Stenehjem deserves great credit for his leadership in the most critical issue in North Dakota life, the most critical moment (I believe) in my lifetime as a North Dakota citizen. My respect for him was always high, but it has deepened dramatically as this initiative has begun to unfold. The easiest thing would have been to just leave it alone, to stamp the oil permits and get out of the way. To show leadership at a time like this is to invite criticism and backlash from both ends of the spectrum, and to have one's integrity maligned by those (on the one hand) who think that any restraint on the oil industry is tantamount to confiscation and communism, and those (on the other) who believe that the special places initiative is nothing more than a public relations smokescreen behind which the "rape" of North Dakota will continue unabated.

The Attorney General is no wild-eyed liberal. He is not a "radical environmentalist," as some in the oil industry like to characterize those who do not rubber stamp all of their extraction plans. He is not trying to lock up North Dakota to oil development, or even a tiny number of parcels. Above all, he knows and respects the U.S. Constitution, the North Dakota Constitution, and the common law. He knows and condemns what would constitute a Fifth Amendment "taking" of landowners' or mineral owners' property rights, or an unfair burden on private property. He's a brilliant man. He's a Republican. He's a cheerful and serious advocate of the oil boom. He's a man of unimpeachable integrity.

The fate of the Attorney General's initiative is going to tell us who we are and what we value and where we draw the line as the first half of the 21st century unfolds in North Dakota. If his leadership prevails, it will not only help to mitigate the industrial impact on those parcels he has designated (and yet still permit oil development), but it will also reassure the people of North Dakota that the government of the state is directing this great economic boom rather than being passively directed by it, that we are sovereign, that we are in control of our own destiny. His list may seem conservative and modest, but it will make a huge difference to the spirit of North Dakota. We are awash in oil.

If Stenehjem's initiative fails, if neither Governor Dalrymple nor Ag Commissioner Doug Goehring chooses to support the Special Places protocols, it will be an unmistakable sign that nothing is sacred in North Dakota anymore, that everything is for sale, with the least resistance, to the highest bidder. It will be a license to the oil companies that they may have their way with us, because we are insufficiently committed to our own sacred landscape to make reasonable requests about how it should be stripped of its oil reserves.

Oil industry pressure on Governor Dalrymple is going to be gigantic, almost unbearable. Already a "landowners' group" has sprung up, located interestingly enough in Tulsa, Oklahoma, denouncing the Attorney General's initiative, urgently warning mineral owners that, "Nearly a million acres of private land across the Peace Garden State may soon be restricted or even condemned." This is so erroneous that it would appear to be a naked lie, both with respect to the number of acres in question, and the suggestion that lands may be condemned, which is no part of Stenehjem's proposal whatsoever. Furthermore, that "landowners' group" warns that, "Out-of-state interests are pushing their anti-development agenda in Bismarck." This would be hilarious if it were not patently untrue and unfair. The Special Places initiative was wholly the brainchild of Wayne Stenehjem (decidedly in-state!) and nobody else, and his "agenda" is in no way whatsoever "anti-development."

I find such tactics simply appalling. An initiative of this importance deserves a serious public debate. That debate will be passionate, possibly even acrimonious at times. But it ought to be a debate by North Dakotans about the future of North Dakota, and it ought to be conducted with a commitment to honesty and fair play.

In my 58 years, I have never felt more strongly about anything than I feel about this.