Highest And Best Use

A little perspective on the stories in the papers recently about the State Land Board and the state’s mineral leasing policies is in order, I think.

There are more than a million acres of public land in western North Dakota’s oil patch. Most of them are owned by The People of the United States, and are managed on our behalf by the U.S. Forest Service. Some are owned by The People of North Dakota and are managed on our behalf by the North Dakota Board of University and School Lands, better known as the State Land Board.

All of those public lands have oil under them, somewhere, down deep. Some of that oil is now being pumped, more will be pumped in the future. On more than 95 per cent of those public lands, the right to drill for the oil under them has been sold at auction to an oil company, in what is called a mineral lease auction. The lease is generally for five years, giving the oil company that buys the right to drill, that long to go get the oil. That five-year deadline is what is driving the oil boom right now—once the oil companies pay to lease the land, they need to get it drilled in five years or they have to go back to another auction and pay for the same rights again. It’s an aside, but perhaps that is a policy that needs changing. Maybe if they had 10, or 15, or even 20 year leases, the boom would slow a bit and let us catch our breath. The oil will still be there.

The right to drill for oil has been withheld on about 5 per cent of the public lands in the oil patch. These are the most pristine areas of the Bad Lands, some of the most scenic and spectacular lands in our state. They include massive Bullion Butte south of Medora, the butte you see when you stand at the top of the Burning Hills Amphitheatre. It’s North Dakota’s third-highest point, a butte so big it turns the Little Missouri River nearly 30 miles out of its course. For the most part, these areas are managed by the Forest Service as “roadless” areas. The right to graze these lands has been leased to ranchers, and generally, the only roads into them are the two-track trails that the ranchers use to tend to their cattle. No one else is allowed to drive on them.

They are, however, used by hunters, horsemen and hikers, and photographers, campers and wildlife enthusiasts, who walk into and through them, and who appreciate the quiet and the solitude, the critters and the landscape. Not only used by those folks, but cherished by them.

Aside from Theodore Roosevelt National Park, there are five of these areas in the Bad Lands, totaling about 60,000 acres. Because they are generally roadless and have been protected from mineral exploitation, they remain pretty much as they have always been, and are classified as “suitable for wilderness” by the Forest Service. And so, as oil development roars through the Bad Lands, there are these five small areas being preserved in their natural state, mostly for the benefit of wildlife. In fact, there has been much discussion between North Dakota’s Congressional Delegation and wildlife supporters about introducing legislation to grant these special lands permanent wilderness designation one day. (If you’d like to read about this wilderness proposal, go here and click on the Prairie Legacy Wilderness box in the bottom left hand corner of the home page.)

There are some small in-holdings, owned by the state, and managed by State Land Board, inside these Forest Service areas.  They’re called “school sections” because they were given to the state at statehood to be managed for the benefit of the state and its school children. Those state lands also have generally not been leased for mineral development because they are inside the roadless areas and are not easily accessible to the oil companies.

Now, most people, including most North Dakotans, agree that open spaces like this have value, and that in a vast sea of drilling rigs and fracking trucks, it is a good thing to protect some small areas in their natural state. Mule deer and antelope and grouse need a place to play too. More importantly, they need a place to procreate. Like humans, they don’t like to mate in full view of crowds of people, or with trucks driving through their bedrooms. They don’t find the clatter of an oil well at all nice background music for their romantic trysts. And so they don’t mate. And their populations decline. And that makes us humans sad.

A couple of weeks ago, the State Land Board’s administrator, Lance Gaebe, announced that the board was going to hold an auction to sell the right to drill for oil on some of these state-owned lands. And some people whose passion is looking out for wildlife, headed up by Mike McEnroe of Bismarck, director of the North Dakota Wildlife Society, noticed that some of the “school sections” on the auction block for the February 7 sale were inside those roadless areas managed by the Forest Service.

McEnroe called that to the attention of the Land Board, and also the public, and people started asking the Land Board to withhold those sections, totaling about 1600 acres, from the lease sale. At about the same time, the North Dakota Game and Fish Department decided it might be a good idea to withhold some sections in southwestern North Dakota which are critical habitat for sage grouse. North Dakota’s Lieutenant Governor, Drew Wrigley, had been to a meeting in Wyoming regarding the future of sage grouse, which are threatened because of declining habitat, and are a candidate for listing as an endangered species. A listing as an endangered species could pose real problems for the oil and gas industry, and Wrigley has taken an interest in doing what he can for the grouse in order to prevent that (and because he cares about the grouse, too, I think). Wrigley, and the Game and Fish Department, apparently felt that holding back on drilling in some of this sage grouse habitat would send a good signal that North Dakota was concerned about this.

And so, the State Land Board met a week and a half ago and voted to exclude some of the sage grouse habitat and all the land within the roadless areas from the upcoming Feb. 7 lease auction. At least board members THOUGHT that’s what they did. But because of a snafu by Gaebe (either intentional or not—some folks have said Gaebe was trying to sabotage McEnroe’s work, others said he was just incompetent) the motion the board voted on contained the wrong legal descriptions and did not remove two of the tracts in the roadless areas from the auction. But McEnroe was paying attention. After the board meeting, he e-mailed Gaebe:

“Tracts 137-101-Sec 16 and 138-101 28 E1/2 are in the Kendley Plateau roadless area, and were not withdrawn.  Correct?”

Gaebe wrote back tersely: “That is correct, neither of those tracts was postponed from the February offering.”

The thing is, the board members believed they HAD removed those tracts. Now, I haven’t talked to any of those board members personally since the meeting, but the impression I got from newspaper stories, phone conversations and talk on the street is that they were pretty pissed off by that turn of events.

More importantly, based on earlier conversations with both Wrigley and Governor Jack Dalrymple about this issue (Dalrymple chairs the board), I got the impression both were pretty interested in supporting the Game and Fish Department’s request to withdraw some of the sage grouse habitat land AND withdrawing the land in the roadless areas.

And so, over Gaebe’s protests, Dalrymple scheduled another board meeting for this past Friday so board members could correct their mistakes. Gaebe spent the better part of a week whining, after the Bismarck Tribune carried a story saying “He (Dalrymple) said the land board’s job is to optimize the value of school lands for the state’s children, but the value of the land may be in conservation.”

To which Gaebe responded, in a subsequent Tribune story, “Conservation doesn’t support education for my kids and grandkids.”

Hmmm. Wonder how the Governor felt about that.

That was followed by another outrageous Gaebe statement in the Tribune: “The trust, not the public, owns state land and minerals, he (Gaebe) said.”

Someone needs to remind Gaebe that the trust IS the public.

Another interesting element to this story is the work done by State Senator Connie Triplett of Grand Forks this past week. Triplett found a forgotten section of North Dakota law which “requires the State Land Commissioner (Gaebe) to classify all land owned by the state or its instrumentalities according to its highest and best use,” as she said in a letter she personally delivered to each member of the Land Board this past week. You can read §15-02-05.1 of the North Dakota Century Code here.

Triplett wrote: “The statute defines ‘highest and best use’ as ‘that use of a parcel of land which will most likely produce the most benefit to the state and its inhabitants, and which will best meet the needs of the people.’ It is clear that the highest dollar value is not the only consideration, because the statute goes on to require the commissioner to consider ‘soils capability, vegetation, wildlife use, mineral characteristics, public use, recreational use, commercial or industrial use, aesthetic values, cultural values, surrounding land use, nearness to expanding urban areas’ and any other relevant information. It is my understanding that such land classification has never been formally accomplished . . .” Triplett concluded her letter by saying “I urge the land board to convene a special meeting prior to February 7^th and cancel the sale scheduled for that date. If the board is not willing to cancel the entire sale, at a minimum it should withdraw all 5,344 acres which have been requested for withdrawal.”

Well, the board did have a special meeting, last Friday. It did not cancel Feb. 7 sale, but it did withdraw all 5,344 acres from it. Likely the sale will go forward on the remaining acres listed by Gaebe in the sale bill. But we ought to have continued discussion of the bigger question: Absent the lack of a classification project by the Land Commissioner, is the State in violation of its own law? The law clearly says “. . . the commissioner shall classify all land owned by the state or its instrumentalities according to its highest and best use.” Granted, that is a big job, but obviously the 1977 Legislature, which passed the law, meant for it to happen. Isn’t it interesting, by the way, that the law came out of the 1977 Legislature? Those were the days of Governor Art Link, and Legislative leaders like Richard Backes and Buckshot Hoffner and Rick Maixner, the days of the coal boom, when we were passing good laws to deal with environmental impacts from rapid energy development.  The days when we had two-party government (which almost always means GOOD government) in North Dakota. Well, now that we have another energy boom, which is putting an unprecedented amount of pressure on fragile lands, pressure those leaders in 1977 could not have even imagined, and now that we can afford to do this kind of work . . . but sadly we have one party government here now. Wouldn’t it be something if that party rose to this challenge?

And so, where are we today, at the end of the first stage of this fiasco? Here’s my analysis. I don’t know Lance Gaebe—wouldn’t recognize him if I saw him on the street. Just never had the opportunity, I guess. But it’s obvious he is about to become a big player in this stage of North Dakota history. And he likes that. A lot. Month after month, we read in the paper about the U.S. Forest Service auctioning off minerals for millions and millions of dollars. And the Forest Service puffs up its chest about how much money it is contributing to the national treasury. And the dollar amounts just keep getting bigger and bigger. And then along comes the little old state of North Dakota with its own mineral sale, and now Lance Gaebe gets to hang out with the Big Oil Boys and his big brother, Lynn Helms, and now HE’S a player too. And he doesn’t want to give up even one of those acres, a thousand of those dollars, to something as worthless, in his mind, as conservation. I’m sad about that.

But it’s more than that. Those of us in the conservation community have not done our job well. We have not explained to those who see only dollar signs that land has other values as well. We have not persuaded them to look beyond the bank account. If we have tried, we have not tried hard enough. There was a day in North Dakota when we cared. When we had real leaders. And when we followed those leaders into environmental battles, and won those battles, and our state is better off because of them.

This week we won a little skirmish. We talked to our leaders. They listened. And it wasn’t so hard, was it? Let’s do it some more.