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Groups want 2 men off South Heart Coal mine permit review panel who accepted campaign contributions from company

BISMARCK -- Two North Dakota organizations are threatening to sue if Public Service Commissioners Kevin Cramer and Brian Kalk don't remove themselves from making decisions about the South Heart Coal mining permit application.

Kalk said the notice of intent to file a lawsuit "has no basis in fact and is nothing more than a political attack."

The Dakota Resource Council and the Dacotah Chapter of the Sierra Club say it's a conflict of interest that Cramer and Kalk accepted campaign contributions from officials connected to the coal mining company.

South Heart Coal is looking to create a coal-to-hydrogen plant and associated 4,600-acre mine near South Heart in western North Dakota.

According to a letter to the federal Office of Surface Mining Reclamation and Enforcement, Cramer accepted $11,150 in donations from 2008 to 2010 and Kalk received $5,500 between 2008 and 2009. The groups said they did not find a conflict of interest for Commissioner Tony Clark.

A 60-day notice of intent to file a federal civil lawsuit was filed Monday. The organizations request not only that Cramer and Kalk be removed from deliberations but that they return the campaign contributions.

"When public officials take money from those who will benefit from their decisions, it means our government isn't working the way it should," Wayde Schafer of the Dacotah Chapter of the Sierra Club said in a statement.

Cramer and Kalk ignored a previous request to recuse themselves voluntarily, he said.

"We are now taking the next step to make sure that mining companies don't have the opportunity to simply buy their way into a permit," Schafer said.

Kalk said the complaints are "a politically timed and motivated attack."

Both Cramer and Kalk are Republican candidates for the U.S. House.

"This lawsuit is frivolous and political," Kalk said in a statement. "They were lawful and legal donations made by an individual to my campaign. They were reported as required and, as with all contributions, transparent for all to see."

All Public Service Commission cases are decided after a thorough record is developed, the public has a chance for input and all issues are considered, Kalk said.

The application process is complex and involves review by PSC staff, public hearings and recommendations from an administrative law judge before it gets to the Public Service commissioners, Cramer said.

If people disagree with the commissioners' action, they can appeal to the PSC and ultimately to the courts, he said. Cramer said he's personally never been overturned by the courts.

He said the campaign contributions aren't new and were disclosed prior to his re-election in 2010. Cramer said the donations were a small percentage of the money he raised and the American political system is designed for people to make contributions if they choose.

"I don't like this notion that somehow certain citizens shouldn't be allowed to exercise their First Amendment rights by making contributions, but other citizens get to," Cramer said. "That's why transparency and the disclosure laws put it out there for the public to decide."

But Schafer questions how Cramer and Kalk can be fair and balanced about the project that has raised concerns about its environmental impact and its proximity to Theodore Roosevelt National Park.

He wasn't sure what the procedure would be if Cramer and Kalk were removed, leaving only Clark to decide on the application.

Attorney Carrie La Seur of Plains Justice, based in Billings, Mont., said there could be temporary appointees chosen by the governor. Attorneys for the governor's office and the Public Service Commission did not have an immediate answer Monday of how such a situation would be handled.