Dunn County brings zoning issue to Supreme Court

Dunn County will ask the North Dakota Supreme Court to uphold its zoning authority over some aspects of oil and gas development.

By LAUREN DONOVAN| For The Herald

Dunn County will ask the North Dakota Supreme Court to uphold its zoning authority over some aspects of oil and gas development. The commission made the decision to appeal Wednesday after a district court judge ruled Tuesday that the North Dakota Industrial Commission has sole jurisdiction over an oil waste treatment facility in the county. State’s Attorney Pat Merriman recommended the county push back against Southwest District Judge Dan Greenwood’s decision, saying all oil producing counties are adversely affected by the ruling. McLean, Williams and McKenzie counties filed in support of Dunn County’s case. The dispute started in 2013, when Environmental Driven Solutions sued the county for denying zoning for storage tanks on property adjacent to the treatment facility. EDS said state law gives the Industrial Commission authority over oil drilling and oilfield waste and preempts local zoning. In this case, the NDIC had already issued a permit for the treatment plant. In his ruling, Greenwood said there is a “dearth of case law” on the topic and instead relied on three Attorney General opinions that support the Industrial Commission’s jurisdiction. Greenwood said the NDIC rules are so comprehensive they have an “occupy the field,” effect. Effectively, the commission controls drilling, all operations for oil and gas production, and, since 2013, the disposal of saltwater and oilfield wastes. Merriman said the ruling puts the county in a “like it or lump it” position and “changes the harmonious relationship between local and state government.” He said he’s worried about how far the ruling could extend and whether the county would lose jurisdiction over all aspects of oil and gas development, including roads or even man camps. In its argument to the court, the county said there needs to be a more precise distinction between activities that can only be performed at an oil and gas well or disposal well, as opposed to activities, like treatment, that can be performed elsewhere from oil and gas production and fall within county zoning. The county also pointed out that the Attorney General is a member of the Industrial Commission and (his) opinion(s) deserves merit, but “not controlling” interest. Attorney General Wayne Stenehjem had filed in support of EDS’s case and was the author of one opinion cited by the judge. Merriman said he agrees that the Industrial Commission rightfully regulates oil and gas activity below the surface, but said, “The impact of this activity on the surface should also be subject to reasonable zoning restrictions.” The Industrial Commission is required to give counties 15 days’ notice of a permit hearing and Merriman said that means residents who have concerns have to travel to Bismarck rather than talk locally to their zoning board. Shawn Kluver, owner of EDS, did not return two requests for comment on this story. However, his attorney Zachary Pelham said on behalf of the company, “Environmental Driven Solutions, LLC, looks forward to providing a necessary service to treat oilfield waste in Dunn County.”

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