BISMARCK — In late September, North Dakota's top transportation appointee met with three western county officials and discussed possible paths forward for a controversial, years-old proposal to build a bridge over the Little Missouri River in a remote part of the Badlands.
Billings County commissioners later recounted that during those meetings, which were held privately behind closed doors, North Dakota Department of Transportation Director William Panos expressed the state’s interest in bringing the bridge project to fruition.
At a meeting of the Billings County Commission earlier this month, the county’s three commissioners recalled a series of independent discussions held with Panos on Sept. 28, in which the commissioners avoided forming a quorum by cycling into the county courthouse one at a time, a format arranged by the county's attorney in an effort to negate the need for an open meeting.
In an interview, Panos confirmed the format of his meetings with the Billings County commissioners but said he was only looking to accommodate the local officials and never intended to skirt transparency rules.
"We often — and I mean daily — go to cities, counties and townships, and it's up to those entities" to make sure they're in compliance with meetings rules, Panos said. "We literally show up to make presentations."
But one specialist in North Dakota’s transparency laws said the arrangement, which was explicitly meant to avoid a quorum, “just drips of a violation.”
“Unfortunately, it was all being done by people who should have known better,” said Jack McDonald, an attorney for the North Dakota Newspaper Association. “It is very difficult given what the circumstances were to say it wasn’t the intention.”
McDonald said there are numerous North Dakota attorney general opinions addressing similar circumstances, most notably a 1998 response to an incident in which the Board of Higher Education chairman sought to avoid the open meetings law by driving around the state for discussions with individual members about firing the University of North Dakota president.
A spokeswoman for the attorney general's office said there has been one request for an opinion submitted on the Billings County case, by Bismarck blogger Jim Fuglie, who first detailed the meetings with Panos in a post.
Present for each commissioner’s meeting with Panos was Billings County State’s Attorney Pat Weir, who told The Forum he arranged the discussions and their format.
Weir said at the commission meeting on Oct. 7 that he felt the private, one-on-one discussions would allow for more of a free exchange with Panos. The attorney, who has previously served as legal counsel for The Forum, added in an interview that he believes the meetings with the transportation head were within bounds and noted that all three commissioners readily recounted their discussions during the recent public meeting.
Billings County Commissioner Lester Iverson, who was elected to his post last year, said he didn't see any problem with the set-up but added that "if any of us felt that it was a violation of an open meetings law we wouldn't have attended."
Commissioner Dean Rodne similarly said he doesn't believe he and his colleagues committed any violation and questioned how the three-member body could conduct business without similar arrangements.
"We should be able to meet with whoever we want to meet with," Rodne said. "If you can't talk to them, how else do you get them involved?"
McDonald acknowledged that the handful of North Dakota counties with only three commission members are in a tough position when it comes to complying with transparency laws but added that the one-at-a-time arrangement was more complicated for everyone involved.
"It would have been far easier to just have one (open) meeting with the three," he said.
Advocates for the Little Missouri bridge in Billings County, a project that dates back at least to the mid-2000s, have long argued that it would benefit local emergency responders who currently have to drive 70 miles north from Medora to Watford City before they hit the next public river crossing. Conservationists and other opponents looking to preserve a picturesque and remote stretch of the Badlands have alleged that the true motive behind the proposal is to facilitate more oil truck traffic in the area.
The dispute grew heated in recent years as Billings County sought to invoke eminent domain to push the project through on private ranchland. A recently reconstituted commission voted this summer to abandon that plan and look for alternate crossing points.
Though all three commissioners, Rodne, Iverson and Mike Kasian, said at their October commission meeting and in interviews that they came away from the one-on-one conversations with the impression that the state wanted the bridge to be built. Panos, however, disputed this interpretation. The transportation head said he visited Billings County for a routine discussion of the county's needs and prepared to discuss a variety of possible road projects.
During the October commission meeting, Weir said the discussions with Panos were initiated because Gov. Doug Burgum heard that the previous plan to build the bridge using eminent domain had fallen through. Weir told The Forum that he first met Panos at a recent gathering in Medora, in which the governor suggested that the transportation director could help the county determine new options for the bridge.
The county attorney characterized the meetings with Panos as preliminary and informational.
“By no means did he come in and make an announcement” that the state was going to take over the project, he said. “In all innocence, it was just, ‘Hey, this guy has offered to come out and answer your questions. Are you interested in that?’”
Some North Dakota leaders have previously indicated support for the bridge. Last year, Billings County submitted an application for more than $12 million in federal grant funding to build the Little Missouri crossing that included letters of support from North Dakota’s Congressional delegation as well as Panos.
Burgum spokesman Mike Nowatzki said the governor would only be interested in lending state support to the Little Missouri bridge if the proposal has the backing of Billings County.
But while the current iteration of the Billings County Commission is still looking for avenues to build the bridge, a majority of members have said they do not want to have to resort back to eminent domain.
And at their recent commission meeting, Kasian and Rodne expressed wariness about the state getting involved with the project.
“Them coming into Billings County, that’s just crazy,” Rodne said. “There’s no reason for them to come into our county and do something. Absolutely no reason.”
Readers can reach Forum reporter Adam Willis, a Report for America corps member, at firstname.lastname@example.org.