PARSHALL - Control of more than 800 miles of Lake Sakakawea shoreline could transfer from the U.S. Army Corps of Engineers to the Three Affiliated Tribes if a request by tribal Chairman Tex "Red Tipped Arrow" Hall is approved.
In a July 12 letter to North Dakota's congressional delegation and Gov. Jack Dalrymple, Hall contends the "lands were part of Fort Berthold Reservation until the flooding of our homelands pursuant to the 1944 Flood Control Act and 1948 Taken Act."
The letter followed a March 20 communication from Hall that described "the MHA Nation's past and ongoing efforts to have our land returned." Furthermore, stated Hall, "we have nearly resolved all known concerns and are ready to move forward."
According to the North Dakota Game and Fish Department, 7,500 acres of Wildlife Management Area land could be lost if the U.S. Army Corps of Engineers grants a request to return land to the Three Affiliated Tribes.
A fisherman helps guide a boat down the ramp at Deepwater Creek WMA. The water level shown here is 1,834.2 feet. The Three Affiliated Tribes has asked the Corps of Engineers to return all land above 1,854 feet that lies within tribal boundaries.
The expansive Deepwater Creek Wildlife Management Area is on Corps of Engineers land leased by the North Dakota Game and Fish Department. The public use area could fall under the jurisdiction of the Three Affiliated Tribes chairman if a land transfer request by Chairman Tex Hall proves successful.
Dalrymple thinks otherwise.
In an August 2013 reply to Hall, Dalrymple raised several issues of concern. Among them "that a large fraction of the lake could be surrounded by trust lands, leaving public access to the water severely restricted and subject to the unfettered discretion of the MHA (Mandan, Hidatsa and Arikara) tribal business council."
The request by TAT is for return of all "excess" lands above the elevation of 1,854 feet that lies within reservation boundaries. 1,854 is considered the maximum pool elevation of Lake Sakakawea.
"Nowhere in America do we transfer land on elevation lines," said Ladd Erickson, McLean County state's attorney.
Much of the land sought by TAT lies within McLean County. The North Dakota Game and Fish Department has a lot at stake too. The land requested by TAT includes 36,000 acres of Game Management Area leased by Game and Fish from the Corps. Access to eight well-used boat ramps would also be transferred to TAT. In some cases the proposed 1,854 feet elevation boundary would cut directly across existing parking areas to those ramps.
Among the disputed issues raised by Hall's request is the future management of land developed by Game and Fish and boat ramp access.
According to a statement released by Hall, "The Tribe will invest money in roads and recreation infrastructure to provide improved recreation opportunities for everyone."
The latest request for the transfer of lands above 1,854 from the Corps to TAT mirrors a 2004 request which, in turn, is similar to a 1994 request that was rebuked. In 2005, then-Gov. John Hoeven, now Sen. Hoeven, R-N.D., responded that transfer of the land "raises questions about access to the property, and the lake. Public access should be perpetual and free of charge."
In 2005, the Corps maintained it had the legal authority to transfer the land. The state countered that any transfer would trigger a lawsuit against the Corps. Today the TAT request for transfer of lands could be very close to happening.
"Federal legislation is already in place. It just needs a signature. That's what concerns us," said Jeb Williams, NDG&F wildlife division assistant chief.
"I would actually be surprised if it was imminent, but wouldn't be shocked," added Erickson. "It gets emotional. Every time this comes up it's like the first time they've ever heard of it. We are perpetually looking at one-third of Lake Sakakawea going into chaos."
The 2004 request for a land transfer referred to lands "no longer needed." The most recent request cites "excess" lands. It is the position of Game and Fish that such excess lands do not exist.
"Fish and wildlife recreation is also a use under the Garrison Dam project purpose," stated Williams. "Saying there is excess lands that people recreate on every year is just false in our minds. All these public acres on Corps land, or Game and Fish Management Areas, are used one way or another for public consumption - hunting, fishing and lake access. They are being utilized. That's all there is to it. There is a strong demand from the public to recreate. We don't feel there's any excess lands. That sums it up for us."
The exact status of the TAT request remains unknown to Erickson and Game and Fish, and both have expressed their concerns about what they feel is a lack of openness on the issue.
"We're very disappointed in the transparency of this. This is a big issue, a huge issue for the public," said Williams. "Nobody is being real helpful with information."
"The Corps is amazingly secretive about this," added Erickson.
Since July 18, Erickson has repeatedly used the Freedom of Information Act in requests to the Corps for additional information regarding the possible transfer of lands to TAT. He has encountered several lengthy delays.
Maggie Oldham, chief of the Public Affairs Office, Corps' Omaha District, recently responded to a request by Tim Sandstrom, Minot, for additional information, past and present. Oldham responded by e-mail, saying, "The Army Corps of Engineers is committed to transparency in its processes. If this process restarts, it is our intention to keep the public informed."
In the same communication Oldham wrote, "The Assistant Secretary of the Army for Civil Works has asked the Corps to review the Tribe's request and provide feedback. We are currently in the process of completing that review."
Public comment was obtained following the 2004 request, which was rebuffed. However, wrote Oldham, much of that information is no longer available.
"The Draft Effect Report is no longer available because our website was updated in the summer of 2012," wrote Oldham. "This was not tied to any specific issue other than we were required to remove web pages that were no longer relevant or hadn't been updated for several years."
How close the Corps was to approving the proposed transfer and how soon the issue will be resolved is uncertain. According to Erickson, the August response from Dalrymple, coupled with action being taken by Ryan Bernstein, Hoeven's Washington, D.C., attorney, has been influential in bringing the state's concerns to forefront.
"I've said repeatedly, get everybody in one place and put a bill in Congress so everyone understands. Lay out the project purposes of the reservoir and get it done legislatively," concluded Erickson.