BISMARCK - Attorney General Wayne Stenehjem and the rest of the North Dakota Industrial Commission voted Wednesday to tweak Stenehjem's "extraordinary places" proposal, including one change aimed at avoiding potential legal challenges.
The current proposal would recognize 18 places in North Dakota for their physical beauty and cultural, historic, scenic, recreational or spiritual value, and add requirements to the permitting process to minimize the impacts of oil drilling on those places while also improving the public comment process.
The commission - Stenehjem, Gov. Jack Dalrymple and Agriculture Commissioner Doug Goehring, who participated by phone while on a trade mission in Africa - called the special meeting to discuss what direction they want to take on the proposal Stenehjem unveiled last month.
"I think what you've brought to us here is a very worthwhile concept, and I think we need to find a way to make this work," Dalrymple said.
Stenehjem originally called for adopting an administrative rule to implement his proposal. The rule would establish buffer zones of up to two miles around each place on the list. Developers wanting to drill within a buffer zone would have to submit a plan to address noise, traffic, disruption of scenic views and other potential impacts.
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But some people in legal circles raised a "reasonable" concern that by adopting such a rule, the commission would run the risk of creating issues of legal standing and possible litigation by people who felt that their opinions didn't receive adequate attention, Stenehjem said.
"And I don't want to encourage anybody to think that this is an opportunity for additional litigation, because quite frankly I don't have enough lawyers in my office to deal with that. But I want a policy," he said.
Some state lawmakers also questioned whether such an administrative rule would be an overreach of the commission's authority, Dalrymple said.
Commissioners agreed that considering the proposal as a policy would be a better route - and a faster one, as the process for adopting administrative rules can take six to nine months or longer, Stenehjem said.
The attorney general said after the meeting that a policy would have the same effect as an administrative rule.
"And it's also much more flexible if we need to make some changes," he said.
To improve the public comment process, Dalrymple suggested creating a "site analyst" position, someone who would collect and review comments, substantiate them and report them to the commission. The trick will be picking the right person for the job, Stenehjem said, adding that person will need to have knowledge of the oil industry. Dalrymple said it will have to be someone trusted by everybody, "which is a tall order."
The commission also agreed to eliminate the term "buffer zone" from the proposal because of how it could be construed. Dalrymple suggested replacing it with "zone of review." Stenehjem stressed multiple times that his proposal wouldn't prohibit oil and gas activity in those areas because owners have a legal right to develop their minerals.
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Goehring, who has previously voiced concerns about Stenehjem's proposal because of its potential effects on farmers and other landowners, appeared to have warmed up to it Wednesday, saying the new suggestions have value.
"I am looking forward to vetting this out and I think really wrapping our brains around this and moving forward," he said.
Members voted to assign staff from each of their offices to make the revisions so the commission can consider the proposal at its regular meeting Jan. 29. They could adopt the proposal or take other action on it at that time.
Wednesday's meeting drew a large and diverse crowd to the Capitol's Pioneer Room, including oil industry representatives, government officials and environmentalists.
Ron Ness, executive director of the North Dakota Petroleum Council, called the change from a rule to a policy "a significant step." He said an administrative rule would have undoubtedly faced a legal challenge, whether from the oil industry, mineral owners or lawmakers.
"It does take away the litigation factor," he said.
Ness also favors removing the term buffer zone, which he said "carries a designation of limitation or protection." But he said the industry still has concerns that the policy could create obstacles to regular permitting activity. The council has calculated that the buffer zones would encompass 1.7 million acres of land, 52 percent of them privately held.
Jim Fuglie, a blogger and former state Democratic-NPL Party executive director who has closely followed Stenehjem's proposal, said the proposed revision "has real possibilities."
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"It'll depend on the people that are hired to implement the policy. It's going to take more than one person," he said, noting the state is dealing with 200 to 300 drilling permits per month.
Sara Jumping Eagle, a Bismarck pediatrician concerned about the effects of hydraulic fracturing on water resources, stopped Dalrymple afterward to show him pictures of culturally sacred sites and a map of spills around Lake Sakakawea.
Asked for reaction to Stenehjem's proposal, she said, "I think it's lipstick on a pig ... because it's minimal. I'm not sure why they're so concerned about calling things a buffer zone."
Reach Nowatzki at (701) 255-5607 or by email at mnowatzki@forumcomm.com .
