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Hundreds comment on ‘extraordinary places’ proposal: Industrial Commission could decide on policy as early as Monday

BISMARCK — If the North Dakota Industrial Commission decides not to act on a proposed “extraordinary places” policy Monday, it won’t be because of a lack of public input.

The three-member commission has received more than 500 letters and emailed comments on the proposal since delaying a decision at its Jan. 29 meeting to allow for more feedback.

“I’ve been inundated with calls, a few emails, messages. Every time I seem to be at some public event, I’m being pulled aside and people are talking to me,” said Agriculture Commissioner Doug Goehring, who sits on the commission with Gov. Jack Dalrymple and Attorney General Wayne Stenehjem.

The proposed policy has undergone several revisions since Stenehjem introduced it in December. The latest draft would create a formal 10-day period for the public and government agencies to comment on applications to drill within “areas of interest” extending up to two miles around 18 places on Stenehjem’s list, including Elkhorn Ranch, White Butte and Little Missouri State Park.

Goehring said he respects that people are passionate about the identified places and that they believe they deserve special protection. But he said a majority of his constituents in the agriculture community, as well as private property owners and rural residents, are “very concerned” about private land use being subject to public comment.

“There’s this strong feeling that this opens the door for comments on everything else,” he said, adding the Department of Mineral Resources already has policies to minimize drilling impacts.

Goehring wouldn’t say whether he will flat-out oppose any policy that allows public comment on private land use. He said he would prefer that private landowners be allowed to “opt-in” to the public comment process “if we had to go down that road.”

“That makes perfect sense, and it respects and recognizes the private property right,” he said.

Dalrymple spokesman Jeff Zent said the governor received the comments on Thursday and plans to read through them this weekend.

Stenehjem could not be reached for comment Thursday and Friday.

Monday’s meeting begins at 11 a.m. in the Pioneer Room at the State Capitol. The drilling permit review policy is the first item on the agenda.

Goehring said he didn’t know whether the commission will vote on the proposal, adding, “Really, I’m looking for any suggestions or options.”

Comments vary

There were plenty in the comments received.

Of the roughly 531 comments, about 190 of them were identical or nearly identical versions of a letter sent by North Dakota Petroleum Council President Ron Ness, many of them signed by oil industry representatives and western North Dakota landowners and residents.

The letter asks the commission to “further define the comment process on public lands, remove private property from the public comment portion of this proposal, and allow private property owners to develop their land without interference.”

A number of policy supporters, including Ryan Krapp, North Dakota state chairman of the Mule Deer Foundation, commented that they believe it will protect rather than restrict the rights and interests of private surface landowners.

“Many surface owners do not own the minerals below their surface (and) have very little say in where a pad or road might go if they are not involved early in the planning process with a developer,” Krapp wrote.

Billionaire oilman Harold Hamm, CEO of Continental Resources, the largest mineral rights leaseholder in the Bakken shale oil play, wrote in a letter Tuesday that the Industrial Commission and state have an important decision to make about the policies and, more broadly, “their attitude toward industry and continued development.

“For the moment, (the company) remains committed to North Dakota, but a sustained commitment will depend largely upon the policy decisions being made today, which will have significant impacts on production tomorrow,” Hamm’s letter states.

The Industrial Commission prepared a fact sheet to clear up misconceptions about the proposal. It says the areas of interest would encompass more than 1.2 million acres of private and public land, and that the public comment period would delay drilling permits no more than five to 10 days.

Department of Mineral Resources Director Lynn Helms, who has the authority to place conditions on any permit as he deems necessary, couldn’t deny a permit based solely on public comments. Helms already works with operators to minimize impacts of drilling, and if those discussions result in a new drilling site, the permit review process starts over, which can result in a longer delay of up to 30 days, the fact sheet states.

Concerns linger

The Industrial Commission decided in December to proceed with developing the proposal as a policy rather than an administrative rule because of concerns that the latter could give legal standing to outside interests who felt their comments weren’t being given due consideration.

But that hasn’t cured all legal concerns about the proposal, as seen in a Feb. 18 email to the commission from Alexis Brinkman, the petroleum council’s government affairs manager.

She wrote that “the policy would still allow anyone — included out-of-state activists — to play a role in determining well placement in the designated areas and buffer zones. This could severely hinder and delay development, as well as infringe upon private property rights, mineral rights, and agricultural activities.”

Jan Swenson, writing on behalf of the board of directors of the Badlands Conservation Alliance, called the petroleum council’s response to the policy “hysterical” and unwarranted, and said the policy ultimately will benefit all parties.

“Scare tactics which suggest grain silos may become a threatened thing of the past and NDPC descriptors calling this policy ‘a gross misuse of power and a grave mistake’ are hyperbole beyond understanding and credibility,” Swenson wrote. “This is the first true acknowledgement by senior (North Dakota) government leaders that there even are extraordinary places on North Dakota’s landscape that are demanding of thoughtful development. It is perhaps this turning of the tide that the NDPC most resents and fears.”

Lawmakers, counties weigh in

Several Republican state lawmakers also weighed in against the policy, including Sens. Bill Bowman of Bowman and Joe Miller of Park River, who asked that the policy “be set aside and left for legislative consideration.”

Also commenting were Republican Reps. Alan Fehr of Dickinson, Keith Kempenich of Bowman and Chuck Damschen of Hampden, vice chairman of the House Energy and Natural Resources Committee, who called the proposal an overreach of government authority and an infringement on property owners’ rights.

“It would set a precedent that I do not want to see established and have, in fact, opposed on a number of occasions in the past,” he wrote.

Sen. Connie Triplett, D-Grand Forks, who serves as board president for the Badlands Conservation Alliance, wrote that while North Dakota’s oil and gas rules “are adequate for many purposes, and exemplary for some, they are completely lacking in the arena of public input and inter-agency consultation.”

County commissioners from several western North Dakota counties also commented against the policy, including from McKenzie, Slope, Billings and Bowman counties. The Slope County Commission voted unanimously to oppose the proposal, stating in a Feb. 11 letter, “We feel strongly that the approval of the proposed draft eliminates local control and would have a negative impact on the rights of property owners.”