‘Extraordinary places’ policy OK’d: Comment process limited to public land
BISMARCK — The state Industrial Commission removed the most controversial part of a proposed “extraordinary places” policy before unanimously approving it Monday, deciding that permit applications for oil and gas drilling on private land shouldn’t be subject to a special public comment process.
The policy had undergone several revisions since Attorney General Wayne Stenehjem introduced it in December, and the three Industrial Commission members — Stenehjem, Gov. Jack Dalrymple and Agriculture Commissioner Doug Goehring — were inundated with more than 500 comments after delaying action at their Jan. 29 meeting to allow for more feedback.
The draft policy considered Monday would have created 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.
Dalrymple, who chairs the commission, said the proposal was a good idea but that allowing public comment on private land is “a very serious policy question” that hasn’t been addressed by the state Legislature.
He offered an amendment to allow public comment only on applications to drill on public lands within the areas of interest, which he said would apply to about 600,000 acres, or half of the 1.2 million acres covered under the original proposal.
After discussion, the commission unanimously approved the amended policy. It will take effect May 1.
Dalrymple said the commission will evaluate the process at the end of the year and then may involve the state Legislature in the discussion in January.
“I think that it is potentially a policy question and not one that we should take lightly,” he said.
Stenehjem said the commission must strike a balance between its duties to maximize oil and gas production in North Dakota and reduce the environmental impacts of drilling, and his proposal “was never intended to interfere with anybody’s private property rights.”
Eighty percent of surface landowners don’t own the mineral rights under their land, Stenehjem said, and he asked Dalrymple if he had considered allowing surface owners to “opt-in” to the public comment process at their choosing.
Dalrymple said he did, but he thinks that those who have standing and are the most interested in surface usage “have all of the input opportunities that they need.”
The public comments will be summarized for Department of Mineral Resources Director Lynn Helms, who may consider them for the purposes of attaching conditions to permits to mitigate potential impacts to the sites, which include Theodore Roosevelt’s Elkhorn Ranch, the Killdeer Mountain Battlefield State Historic Site and Lake Sakakawea.
Goehring reiterated that mineral owners have a constitutional right to develop their minerals, “and we have to be a little careful how we step into that area.
“Viewscapes are not constitutionally protected. They may be beautiful, we like them, but there’s still a right that exists with that property owner,” he said.
While the final policy wasn’t as extensive as he proposed, Stenehjem said it had the advantage of being something that could pass and be tested.
Dalrymple called it “the best approach at this point in time.”
“And I would not rule out the possibility that at some point that people would see that including private land in this is no great threat to the world,” he said.
Ron Ness, president of the North Dakota Petroleum Council, whose members strongly opposed the inclusion of private land in the public comment process, called its removal and the plan to review the policy “a more prudent step to take.” He said the formal comment process on public land is still a “pretty broad expansion.”
Western North Dakota counties, mineral owners and legislators “spoke pretty loud and clear” on the issue, Ness said.
“I would think that by and large … people recognize the fact that the public has the right to comment on public land,” he said. “On private land, I think there’s a great debate.”
Wayde Schafer, conservation organizer for the Dacotah Chapter of the Sierra Club, said Dalrymple showed a lack of leadership and that private landowners, farmers and ranchers who don’t own their mineral rights “now have no say as to where wells will be.”
“This was an opportunity to kind of try to protect what was left, and I think it’s a missed opportunity,” he said.
Theodore Roosevelt National Park Superintendent Valerie Naylor said it’s important to include all lands around the park for special consideration. She said that while she respects people’s rights to develop their minerals, “it just seems that the park needs to be considered more heavily if we’re going to preserve that for future generations.”
Naylor said the Badlands are a checkerboard of public and private land, and moving wells from public land to private land doesn’t help the park or private landowners.
“It may not have any positive effects whatsoever unless all the land surrounding the park were included,” she said of the policy.