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Other Views: ND open meetings law tested

FARGO -- North Dakota’s attorney general is in error regarding his office’s handling of an open meetings law violation by the State Health Council. Wayne Stenehjem’s conclusion in the case is curious because his tenure has been distinguished by vigorous enforcement of open meetings and open records laws.

In the Health Council matter, it was determined the council violated the open meetings law during a meeting to consider and act upon a change in the radioactive levels of oilfield waste that could be deposited in landfills. The oil industry requested the rule change, and after three quiet meetings in winter, the state Health Department took testimony. The council met last fall to review the testimony, and then approved the rule change. That’s the session that was ruled an illegal meeting by Stenehjem.

So far, so good. What followed, however, was a non-remedy that has the potential to undermine the open meetings law. The AG said the council only would have to provide minutes to interested parties, not redo the illegal meeting. In other words, the door was opened for any arm of state or local government to in effect conduct a closed meeting and get away with it if the offending government merely provided minutes to people who objected. If ever there was a dismissal of the spirit of the open meetings law, the AG’s wink-wink finger wag at the Health Council is it.

At minimum, Stenehjem should have ordered the council to redo the original meeting. Furthermore, a question can be raised as to whether a decision made to approve higher radioactivity levels in oilfield waste is illegal in itself, since it was made at an illegal meeting.

This is no small matter. It’s not about a township supervisors meeting at the town cafe to buy road gravel. In some very limited cases, providing minutes could satisfy the law. But not the Health Council meeting.

The oilfield waste debate involves public health, the environment and the consequences of converting tracts of western North Dakota into what opponents of the rule change characterize as radioactive Superfund sites.

The debate should be as open and transparent as possible. Meetings should be held at easily accessible locations and scheduled at times that encourage public participation.

To that end, the Dakota Resource Council and the North Dakota Energy Industry Waste Coalition filed a lawsuit to force a redo of the illegal Health Council meeting. Part of the case will be heard in court on Monday, July 18, in South Central District Court in Mandan.

The basic issue seems clear, but anything can happen in a courtroom. The AG’s remedy for the violation is not enough. At minimum, the illegal meeting should be redone with a guarantee of adequate public notice. Anything less threatens the viability of the open meetings law.

The Forum of Fargo-Moorhead’s Editorial Board formed this opinion.

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