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Sierra Club files lawsuit against ND public service commissioners

A citizens' lawsuit filed Wednesday by the Dacotah Chapter of the Sierra Club and the Dakota Resource Council alleges that North Dakota Public Service commissioners violated federal campaign contribution laws.

The lawsuit claims that since 2006 Commissioners Kevin Cramer, Brian Kalk and Tony Clark accepted $54,000 in campaign contributions from coal mining companies the commission oversees, including South Heart Coal Inc. LLC, which has a pending surface mining permit application with the PSC to mine coal near South Heart.

The company has being trying to mine in the area for several years.

A 60-day notice of intent was filed March 26 by the Dacotah Chapter of the Sierra Club and the Dakota Resource Council to give the commissioners a chance to reach an agreement with the organizations, said Wayde Schafer of the Sierra Club.

"They never contacted us, which forced us to take them to court with the two lawsuits when the 60 days were up," he said.

Cramer said he didn't respond because he believes the lawsuit is more about politics than the environment.

"I don't think this is a serious lawsuit. It's a political stunt by groups disguised as environmental groups," he said. "This case will not hold up the South Heart Coal application. Even if they get us to recuse ourselves, others will come in and hear the case. This doesn't change the evidence."

Cramer said the campaign contributions are legal because they equate to freedom of speech and do not impact the commission's decisions.

"People make contributions to politicians who closely reflect their views, but no result in a coal mine case is based on contributions," he said. "A decision in a coal mine case is based on the law and evidence in the record. I can't deny or not deny applications on any other basis, and my decisions have never been overturned by any court, federal or the North Dakota Supreme Court."

The Sierra Club has filed similar lawsuits in other states, but Wayde Schafer of the Dacotah Chapter of the Sierra Club said it is the first in North Dakota.

The Dacotah Chapter of the Sierra Club and the Dakota Resource Council also filed a lawsuit against U.S. Secretary of Interior Ken Salazar under the Surface Mining Control and Reclamation Act of 1977.

The lawsuit alleges that the secretary, who oversees the Office of Surface Mining, failed to ensure the enforcement of federal conflict of interest rules for mining regulators.

It asks Salazar to "withdraw approval of the North Dakota state surface mining program and institute direct federal enforcement" until the state's surface mining program is compliant with federal law.

"Truth is, we probably would not even have filed these if there had been an ethics commission in place," said Linda Weiss, vice-chair of the Dakota Resource Council.

Once a hearing date has been set, the case will go to U.S. District Court in Bismarck.

Schafer said the commissioners' conflict of interest came to light a year ago.

"We wrote to them and asked them to recuse themselves from the South Heart project and give back the campaign contributions they've received, and they ignored us," he said.

He said the lawsuits were necessary to ensure the legality of North Dakota's mining operations.

"We feel that since all three commissioners have taken campaign contributions that are illegal under the Service Mining Control and Reclamation Act of 1977, they are not qualified to make decisions about mining operations," he said. "The South Heart Coal company has a service mining permit, and the commissioners took $54,000 from coal companies, like the one in South Heart, since 2006. We feel that they can't make fair and unbiased decisions about giving a permit to someone they have received campaign contributions from."

Weiss said she wants the lawsuit to force the North Dakota Public Service Commission and the Office of Surface Mining to work properly.

The commissioners were in direct violation of surface mining laws by accepting campaign contributions from these companies, and we want them to abide by those rules," she said.