Farmers fight for control of Lake Oahe lands

LINTON, N.D. -- Herb Grenz looks across the expanse of his crops on the east side of the Missouri River and wonders if the 2015 North Dakota Legislature will offer any solutions for persistent weed infestation and land ownership issues he's had w...

Herb Grenz, a Linton, N.D., farmer, is active Missouri River water issues along the Oahe Reservoir. Photo taken Aug. 12, 2014, west of Linton along the Missouri River. (Forum News Service/Agweek/Mikkel Pates)(Embargo to Nov. 25, 2014, 1 a.m.)

LINTON, N.D. -- Herb Grenz looks across the expanse of his crops on the east side of the Missouri River and wonders if the 2015 North Dakota Legislature will offer any solutions for persistent weed infestation and land ownership issues he's had with the federal management of land along Lake Oahe for more than 50 years.

"The problem North Dakota has is we're the slough of the reservoir," Grenz says. "When it drops a foot, we've got 1,000 acres exposed."

The temporary weed bed exposed when the water recedes is one thing, but there also are thousands of acres the federal government took for flood management in the 1960s that have not been touched by floodwaters in decades. This land, often referred to as "excess land" should be given back to its former landowners or to the state, Grenz and others say.

Grenz's soybeans, wheat and alfalfa grow on fields about 1,700 feet above sea level and higher. In the 1960s, his family lost about 2,000 acres that are below the "take line," which starts at 1,600 feet above sea level and can extend several hundred feet, following the natural landscape.

About 800 of his acres are irrigated.


Grenz, 78, contends federal funding for weed control is inadequate, inequitable among counties and that it could disappear altogether.

"It's time the state got behind us; they've been negligent," he says. "I've never chewed out the river, but it's the people who run it I have a problem with."

Grenz is one of the few who initially negotiated with the federal government on the taking of land in 1961.

The HB 1338 study

Partly because of Grenz's advocacy, the North Dakota State House of Representatives in 2013 passed HB 1338, which initially attempted to give excess land back to the North Dakota State Land Department. On the Oahe Reservoir, the excess land is above the "full" level of the reservoir, 1,620 feet above sea level.

The bill, sponsored by Rep. Mike Brandenburg, R-Edgeley, in the 2013 Legislature, authorized a $50,000 study of the situation, run by the North Dakota Land Department. The state contracted with the Eide Bailly LLP tax and business consulting firm, which offered an analysis of various options, ranging from doing nothing to returning land to adjacent former landowners. Brandenburg says he's going to make a run at a follow-up bill this session, which starts Jan. 5 in Bismarck, N.D.

Brandenburg says the state of South Dakota addressed the issue on land along the Oahe reservoir and Lake Sakakawea. He thinks a solution might be available in North Dakota, but it could take a long time to solve the problems, and it's not likely to please everyone.

"We started the Oahe Landowners Association. I've got to keep them on their toes, and I'm sure they wish I'd hurry up and die."


Finding common ground

Four North Dakota counties around the Oahe Reservoir are involved. The largest, with almost half of the land mass is Emmons County, which has nearly 5,000 acres in excess land. Emmons County alone has 65 miles of shoreline, with about 70 acres of excess land every mile.

HB 1338 initially asked that the North Dakota land be given to the North Dakota Land Department with the ultimate intent that the department would give it back to the adjacent landowners and counties. In the end, a study was ordered instead.

Brandenburg says the history of the problem involves not just the Oahe project, but all federal lands associated with the Missouri River and other watersheds. It goes back to when the dams were put in and land was taken from Native Americans and farmers and ranchers of European extraction, he says. The bottomland, which was "some of the best land in the countryside," had been acquired from families that had farmed it for generations.

"They stole the land -- came in and stole it -- condemned it and gave them $15 to $20 an acre," Brandenburg says. "The issue at hand is that water -- the high water mark, has never touched some of the land that the Corps has taken."

Brandenburg says of the 200,000 acres of Corps land, about 50,000 to 70,000 acres could be grazed and farmed.

"They don't understand that when the land hasn't had water touch it since the 1960s, why it can't go back to the people," Brandenburg says.

Brandenburg sponsored the bill because he wanted an objective party to look at alternatives and decide whether any of them are feasible. Any solution will have to be acceptable to landowners and government entities, including tribes who might not see things exactly the same as some of their tribal members, who individually lost land to the projects. He says one of the alternatives might be to involve the state as a recipient of the land from the federal government, but that idea has detractors.


Connecting the dots

"We need to connect the dots with the tribes," Brandenburg says. "We've made progress, but not enough."

After Eide Bailly concluded its work, listening sessions were held in the region in September and October 2014. The seven options included:

Status quo (doing nothing).

Return land to original owners.

Return the land to the state of North Dakota, with the state managing it.

Return the land to the state of North Dakota and to Native American tribes, so each would manage their own land.

Return the land to the state of North Dakota, tribes and local governments, with the state managing all of it.


Continue with the Corps owning the land but turning over management to the tribes, state and local governments.

Transferring land to North Dakota and then the state transferring land to "preferential lease holders."

"We have to find a mechanism that makes sense," Brandenburg says. He says he has ideas for a follow-up bill, but doesn't yet know how to write them into legislation.

Lance Gaebe, commissioner of the North Dakota Department of Trust Lands, says the issue is complex, as it involves various tribes and constituencies. Gaebe is careful not to take any sides in the issue, but acknowledges one of the obstacles to involving his department is that its purpose is managing lands and mineral rights to provide funding for education and other state programs. He says it's likely that managing a ribbon of land along a river or lake would cost more than it brings in for those purposes.

Gaebe adds that just because the state is flush with oil-related funds now doesn't mean it always will be.

Tribes and individuals

Farmers aren't the only ones involved in the issue.

In March 2014, Standing Rock Sioux Tribe Chairman Dave Archambault II, wrote to Gaebe objecting to the HB 1338 study because it could interfere with the efforts of the tribe to reclaim lands taken by the Corps in violation of an 1878 Fort Laramie Treaty. Archambault listed situations where the state had failed to live up to agreements with the tribe. He criticized the use of Eide Bailly because the firm had no expertise in Native American treaty law, biology or other topics, and because the firm failed to give notice of its public meetings in official tribal publications.


Archambault says the Water Resources Development Act of 1999 transferred certain lands to the state of South Dakota, but notes litigation involving the Yankton Sioux Tribe and the Crow Creek Sioux Tribe indicate it is "very controversial and subject to litigation," adding, "The same result is likely in North Dakota."

Grenz says some people were allowed to build lake homes "inside the fence" of the Corps' Lake Sakakawea land in the 1970s. The Friends of Sakakawea stakeholders are opposed to any federal transfer of land to counties, tribes or other landowners.

Ladd Erickson, McLean County state's attorney in Washburn, N.D., wrote Gaebe in February, arguing there is no factual basis for determining that the only purpose of the Corps project in North Dakota is flood control and that there are no lands in their control that are "excess." He described the survey as "naively put together" and "devoid of subject-matter historical understanding" with a "triple push-pull" effect.

"Missouri (state) would love North Dakota to take that position in the annual Corps budget fights because we are all dividing money from the same pot, and they can then argue that they are requesting funding from the pot for their project purposes, and North Dakota doesn't need the funding because they have stated that our project areas no longer consider our parks, campgrounds and other recreation areas as project purposes," Erickson wrote.

Back on tax rolls?

To Grenz, it's a simple matter of putting land back on the tax rolls and putting it in the hands of state, county or local entities who he thinks would be more responsive to local concerns about management.

"I think our state has been way too lenient with the problems that the federal government has," he says. "The federal government has no resources to take care of this. They neglect it. It causes us problems."

In 2014, the Corps gave each county $14,000 for weed control for the excess lands. In years when the water isn't high, the weed problem is worse. Emmons County, which accounts for half of the land mass for all of the counties, doesn't receive proportionately more money. Burleigh County has the least amount of land and gets the same amount of money.


"We have problems like that, logistics problems, and the Corps had indicated to the counties that there may not be any resources after this year," Grenz says. "So there we sit."

Grenz went to the Emmons County commission, which authorized him to send out a questionnaire to about 100 adjacent landowners in Emmons County along the reservoir. Among other things, it asks whether the Corps has been a good steward of the land. "Ninety-nine percent said, 'No,'" Grenz says.

He also asked whether the local landowners would be "good stewards of the land, and would work with the North Dakota State Game and Fish Department or other agencies to improve it." And 99 percent said yes, he reports.

Grenz thinks the federal government is spending way too much on flood control that could be prevented if land developers and contractors weren't allowed to build in flood plains. (Don't ask what he thinks about the 38-mile-long diversion in Fargo, N.D.)

He says the federal government has free reign for control of the land since the Pick-Sloan Flood Control Act of 1944. That legislation allowed the flooding of land for reservoirs. The dams were designed for flood control, but also are maintained for recreational purposes. The payoff for farmers was supposed to have been irrigation, which hasn't happened much. He says there have been about 10,000 acres of land taken for construction of the McClusky and New Rockford canals, and less than 5,000 acres of irrigation out of the McClusky Canal has been used -- most of that in the in the past five years.

"Nothing has happened in 60 years, and it's deteriorating," Grenz says. "It's a joke."

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