LINTON, N.D. - The Emmons County Commission is urging the North Dakota congressional delegation to come to a meeting to form a consensus on why some “excess” lands taken by the federal government for the Oahe Dam should go back to the state.
Donavin L. Grenz, the county state’s attorney, asked Sens. John Hoeven, R-N.D.; Heidi Heitkamp, D-N.D., and Kevin Kramer, R-N.D., to list their availability between Aug. 24 and Oct. 14 for a public meeting.
Commissioners are frustrated the three haven’t moved forward on legislation that was urged by overwhelming majorities in the North Dakota legislative chambers in the 2015 session. HB 1456 passed the state House by 91 to 1 and then the Senate 40 to 7, requiring land more than 1,620 feet above sea level, defined as “excess lands to the operation of the Oahe Dam,” and mineral rights be returned to the state.
Grenz says if the land is returned to the state, it’s likely it would be open to the public the same as other state-owned land.
Consensus
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Sen. John Hoeven, R-N.D., says he considered federal legislation to fulfill the state legislature’s wishes. “I’ll help if I can,” Hoeven says, but notes a consensus must include hunting, fishing and other recreational constituents. “There’s no way we can move a bill through Congress unless we get broad-based support,” he says.
Hoeven can’t cite particular examples of how state ownership - or even private ownership by individuals who already own private land next to the federal land - could or would necessarily impair access to the land.
“I think the point is that all of these groups want to make sure they continue to have access,” Hoeven says. Separately, Heitkamp reportedly working on analogous legislation dealing with Sioux County land going back to the Standing Rock Sioux Tribe, through the Indian Affairs Committee. Heitkamp’s office wasn’t immediately able to describe the status of that effort.
Herb Grenz, now 80, an uncle to Donavin is one of the landowners in the case, and one of the landowners who negotiated with federal officials over eminent domain. Herb says if any land is returned to landowners, it should probably include a flowage easement to the government, which would prevent the farmer or rancher from placing structures or capital investments, so that it could be flooded.
Emmons County has more than 70 miles of shoreline along the reservoirs. The Corps of Engineers has control of about 66.6 acres per mile, in a right-of-way, similar to what goes along a highway, Herb says. The county ranks fifth among counties losing land to the Oahe Reservoir through eminent domain in the 1960s, with 32,638 acres, compared to Sioux, 26,349; Morton County, 14,016; and Burleigh County, 11,077. This is just the land up to the “take line” for when the reservoir is more than 1,620 feet above sea level.
In addition there is 12,500 acres of land beyond that in so-called “excess land.” Those include about 4,900 acres in Emmons County.
Access uncertainty
Terry Steinwand, director of the North Dakota Game and Fish Department, says he hasn’t seen any draft legislation. He says there theoretically would be a number of options for returning land to the state, one of which would be the North Dakota Land Trust Department, which works with the GFD for access to other lands, including school lands.
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Steinwand says some sportsmen have been concerned about transparency in the process. But, he, too, declined to speculate how a return to state ownership would affect sportsmen’s access unless he sees the language. He says sportsmen are especially concerned about access and ability to hunt popular recreation areas, including Badger Bay, Cattail Bay and Beaver Bay, on the east side of the river.
The Emmons County Commission resolution says that since the taking of the excess lands, numerous problems have arisen which adversely affect Emmons County, its residents and adjoining property.
Herb Grenz says the excess land is “like a gun to our head.” Among other things, it requires that the government land be opened for a minimum “bid” fee if the adjacent landowner wants to use it. If they don’t lease it, nobody takes care of it, and the land can become infested with Canada thistle and other noxious weeds. Further, if the adjacent landowner doesn’t lease it, he’s responsible for keeping his cattle off it, which would mean constructing a fence. Herb’s ranch has six miles of take line and the excess land totals about 132 acres.
Last year, Herb paid $2,200 for this lease, and this year the rent increased 45 percent, to $3,200. The increase was justified based on county average rent, minus 25 percent. Grenz says the grazing capacity is not compatible with county averages because of adverse terrain and weed contamination based on uneven river level management.
Herb’s leases are for one-year periods, but some people are on five-year leases. “We’re held hostage to them, and it’s like the serf system,” Herb says, noting the farmland supports any wildlife.
He says the federal grazing permits often dictate grazing until July 15, but he insisted on a June 1 to Nov. 1 grazing date.
Festering issue
The issue has festered for many years, Herb says, acknowledging some landowners have talked about whether they could restrict access to sportsmen if they don’t get a better solution. Talk is as far as that’s gone, he says. Steinwand says there are statutory requirements for access along section lines in the state.
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Herb Grenz thinks state officials would be better at managing excess lands because they’d be more responsive to local concerns and budgets. “We can do better,” he says.
He says the Army Corps of Engineers does more to dictate access than the ranchers. Grenz operates a pipeline that has access to the river that pumps river water for irrigating crops. “Anything you want to do on the shoreline with what the Corps owns you have to get a permit and you have to pay a fee,” he says. He had to buy a 100-foot-wide perpetual easement from the Corps for the pipeline to his land in about 1970. The pipeline fills a reservoir that serves as a holding pond for irrigation.
Rep. Mike Brandenburg, R-Edgeley, who represents the Emmons County district where much of the concern exists, says any solution must protect sportsmen’s interests while providing more livable leases for farmer-ranchers.
