Port: Land Board is making billion-dollar decisions out of the public's eye

MINOT, N.D. — Recently the North Dakota Land Board, in an existing legal dispute with Newfield Exploration over disputed royalties, asked a McKenzie County district court judge to declare a law unconstitutional about a day after it went into effect .

Yet there was no public discussion of the decision.

There certainly wasn't a public vote.

A board made up of statewide elected officials kicked off a food fight not just with one of our state's most important industries but the legislative branch of government as well.

It all happened in the shadows.

The law is House Bill 1080 .

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At issue is an error in the way those royalties were calculated. In some instances, the error went back 40 years, without a whisper of complaint from the Land Board.
After the error was discovered, the board handled the issue atrociously, sending demand letters to the oil companies giving them 90 days to calculate and remit decades worth of additional royalty payments or face draconian interest rates.

Land Board Commissioner Jodi Smith has tried to back that aggressive play by casting the oil industry as villains denying funding to North Dakota schools in her comments to the news media.

That untenable situation prompted lawmakers and Gov. Doug Burgum to step in as the grownups.

HB1080 prohibits the state from going after disputed royalties before August 2013 and limits the interest rates the state can charge on the royalties. The bill passed 82-10 in the House, 39-7 in the Senate, and was promptly signed into law by Burgum who is, I'd remind you, a member of the Land Board.

But now the Land Board, in its legal dispute with Newfield, wants that reasonable accord to be declared unconstitutional.

The legal merits of the challenge are dubious. The state is arguing that HB1080 is unconstitutional in part because the compromise represents a gift to the oil industry, an argument that, if upheld, would preclude the state from ever compromising in a legal dispute. Even more problematic is that the decision to challenge the law wasn't made publicly.

There was discussion on the public agendas for the Land Boards' most recent meetings.

There was no public vote.

If you or I might think that violates state open meeting laws, we must ask Attorney General Wayne Stenehjem to find a violation.

Stenehjem is on the Land Board and is seen by observers to be the force behind the challenge to HB1080.

What do you suppose he'd say?

The members of the Land Board owe the public an explanation. Further, we need to consider whether the attorney general should be sitting on the Land Board.

The conflicts are manifest. He's the enforcer of open meetings laws. He's the state's attorney, obligated to defend state law.

The courts will decide the after of HB1080, but the people need to decide if they like how the Land Board is going about its business.

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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at rport@forumcomm.com .