ND Wary of Non-Profit Land Use Groups

Liberty News Service

Posted 3/3/09

Clois Hetletved had his mother’s farm on the market for over a year before he received an offer to his liking – from Ducks Unlimited (DU). 

Proceeds from the sale were to be used to pay for his 87 year-old mother’s care in a Bismark retirement home. 

But before the sale could be finalized, it had to be approved by the Natural Areas Acquisition Advisory Committee, an eight-member panel of agriculture and conservation representatives.  North Dakota has fiercely protected private property in the state for over a century, beginning with anti-corporate farming laws enacted in the 1930s. 

Non-profits were originally labeled corporate entities and were not allowed to own land until the mid-1980s, when the state legislature voted to allow some of those groups to buy land.  But first, the sale must be approved by the Advisory Committee. 

The Hetletved/DU deal didn’t make the cut.  The Advisory Board voted 6-2 against the deal, citing a lack of public benefit. 

The Kidder County Commissioners voted 2-1 against it.  Governor Hoeven followed the Committee’s recommendation and denied DU’s application to purchase on February 12.  Brian Kramer, North Dakota Farm Bureau director explained,“Most of the time these folks [non-profits] come in and try to say there’s something new or unique or whatever about this land purchase…In our minds, they’re just looking to buy up more land and take it out of production.”  

Jim Ringleman, DU’s director of conservation for the Dakotas and Montana, was disappointed by the decision.  However, he recognizes that DU’s stated intention to establish a permanent easement on the land through the U.S. Fish and Wildlife Service was a big factor in the denial.  

North Dakota is the only state in the U.S. that prohibits selling perpetual easements.  State law limits easement agreements to no longer than 99 years.  The ND state Senate voted overwhelmingly last week to uphold that ban.

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N.D. law complicates nonprofit land purchases
Brad Dokken , Grand Forks Herald
Published: 02/22/2009

When Clois Hetletved set out to help his aging mother sell 598 acres of land in Kidder County in central North Dakota, he did what any landowner would do:

He tried to get the best price he could.

Judith Hetletved turns 87 in March and lives in a Bismarck retirement home. According to Clois, 61, who lives in Grand Forks, his mother is a proud woman who doesn’t want to take social assistance.

Selling the land would allow her to keep paying for her care.

Clois listed his mother’s property through a Realtor, and it was on the market for more than a year before he received an offer to his liking.

This past fall, Hetletved finally got the offer he wanted.

The land is located in the heart of the Prairie Pothole Region, an area of rolling hills and sloughs and grasslands that has earned it the nickname of North America’s “duck factory.”

In an effort to preserve a chunk of that habitat, conservation group Ducks Unlimited offered to pay the Hetletved family $335,000 or $560 an acre — more than twice what anyone else offered for land that includes a mix of pastureland, wetlands and acreage enrolled in the Conservation Reserve Program.

Much of the land is unsuitable for farming, Hetletved said, but ideal for wildlife.

“They looked at the land, and they wanted it,” Hetletved said of DU. “They told us 80 pairs of ducks nested on that land last year, so they were watching it.”

Selling the land to DU wasn’t that simple, though. DU is classified as a nonprofit group, and under North Dakota law, an eight-member panel of ag and conservation interests must recommend whether nonprofits can buy land.

The committee then forwards that recommendation to the governor, who makes the final decision.

In January, the Natural Areas Acquisition Advisory Committee — which meets only when land sales to nonprofits are pending — voted 6-2 against allowing DU to buy the Hetletved land, citing a lack of public benefit and concerns about taking farmland out of production to preserve the natural resource base. The Kidder County Commission also voted 2-1 to oppose the sale to DU.

Gov. John Hoeven sided with the committee’s recommendation and denied DU’s purchase Feb. 12.

The decision has left Hetletved and DU officials scratching their heads.

“This was just a major offense to my mother as far as I’m concerned,” Hetletved said. “Does my mother have to live off social service? Probably not; my sisters and I could probably take care of her, but she would never allow it.”

Deep roots

Hetletved’s dilemma — he’s now trying to decide what to do with the land — has its roots in North Dakota anti-corporate farming laws that date to the early 1900s.

Nonprofits historically were classified as corporate entities and banned from owning land in North Dakota until the mid-1980s, when the Legislature passed a bill that provided for an exception to anti-corporate farming laws.

Nonprofits can buy land, but there’s a caveat: They have to get past the acquisition committee and the governor first.

Critics say the makeup of the committee — which is mandated by law — stacks the deck against nonprofits. The state ag commissioner chairs the committee, which also includes representatives from the North Dakota Farmers Union, North Dakota Farm Bureau and North Dakota Stockmen’s Association, along with the directors of the state Game and Fish Department, Parks and Recreation Department and North Dakota Forest Service.

The chairman of the county board in which the land is located rounds out the committee.

“We think the way the Legislature has designed this advisory committee, it’s pretty much preordained to vote against us,” said Jim Ringelman, DU’s director of conservation programs for the Dakotas and Montana. “What we operate under is an exception to corporate farming law, which sounds like it’s gracious. But the point of fact is, if you never approve their applications, what’s the point?”

Historically, Ringelman said, farm groups, the county boards and the ag commissioner vote against allowing nonprofit purchases to proceed. He said North Dakota has the most restrictive laws in the country when it comes to buying land.

North Dakota also is the only state in the U.S. to ban landowners from selling perpetual easements, in which the property owner keeps the land but grants someone else the right to use or restrict the property. The state Senate just this week overwhelmingly voted down a bill to repeal that ban.

Easements in North Dakota can be no longer than 99 years.

“I don’t know what happens when you cross the Red River and go west, but the attitude changes quickly,” Ringelman said. “The irony is, we have such a rich hunting and fishing culture in this state. But unfortunately, the public policies don’t seem to reflect the need for the very features to sustain that culture.”

Different view

Brian Kramer, public policy director for the North Dakota Farm Bureau, said the organization he represents prefers to see land maintained in private ownership and supporting local economies rather than sold to nonprofits. And in that context, he said, the acquisition committee provides balance.

“Most of the time, these folks come in and try to say there’s something new or unique or whatever about this land purchase, and a lot of times, there isn’t,” Kramer said. “In our minds, they’re just looking to buy up more land and take it out of production.”

Ringelman disputes the “lack of uniqueness” argument that sank DU’s Kidder County proposal. Clois Hetletved says the property has 380 acres that have never seen a plow, native prairie that supports more than 300 native grasses and flowers.

“That’s pretty rare stuff,” he said.

Adds Ringelman: “From both a national and international perspective, this is increasingly unique and important habitat. We have members from all over the country focusing fundraising efforts on this part of the world” because of its native prairie and wetland habitat.

That didn’t sway Kramer.

“In a lot of cases, the land that’s native prairie now is native prairie for a reason,” Kramer said. “It’s either too hilly or too rocky or too something to be productively farmed and cultivated. And it’s probably best left in grass that’s used for grazing.”

Otherwise, he said, it would have been broken up a long time ago.

Kramer said he also has qualms with the argument that native prairie is gone once it’s plowed, calling the logic “just plain false.”

Native prairie is one of the most endangered ecosystems on the planet, and less than 1 percent remains unplowed on the northern Plains, biologists say.

“It got to be native prairie somehow in the past, and if you leave it alone, in a finite amount of time it will return to native prairie,” Kramer said.

‘Cumbersome’ law

While Ducks Unlimited hasn’t fared very well in its dealings with the acquisition committee — only one of three proposals have been approved — a review of proposed nonprofit purchases since 1997 shows the panel has recommended approval 13 of 19 times. The governor ultimately approved 14 requests and denied five.

Only once did the governor choose to deny a purchase the panel had recommended to approve. That was in January 1998, when Gov. Ed Schafer denied The Nature Conservancy’s request to buy land in Ransom County.

Despite those numbers, Agriculture Commissioner Roger Johnson said he doesn’t dispute that the process works against nonprofits.

“I think that’s true. And I’m not even sure that this statute serves much of a public purpose,” Johnson said. “I don’t think these nonprofits are really corporate farmers, but they’re prohibited by corporate farming statute, but for this exception.”

Johnson said he wouldn’t oppose an exception to the law that would give nonprofits greater flexibility in owning land, perhaps by capping the acreage a particular group could acquire. But he’s bound by law to follow the process the way the statute is written.

“I think the statute is cumbersome, and I don’t think it adds a whole lot of value to the process,” the ag commissioner said.

But, he added, “I don’t see any indication from the Legislature that they’re going to change it.”

Making sense

According to Ringelman, DU had proposed upfront to establish a permanent easement on the Kidder County land through the U.S. Fish and Wildlife Service. Despite North Dakota’s ban, the service can hold perpetual easements because federal law supersedes state law.

That intent, Ringelman said, was a factor in the county board’s opposition of the purchase.

Still, Ringelman said he’s baffled by the committee’s decision to deny the purchase when it voted in 2002 to allow DU to buy 939 acres of similar land in Kidder County just miles from the Hetletved tract.

DU later sold that property by Internet auction to a rancher who wanted additional grazing land for his cattle.

“We’re struggling to figure out what it is that creates the opportunity to approve or reject” a proposal, Ringelman said. “It appears that no matter what we do, there’s reluctance to give us approval.”

He said it appears that a small group of landowners with “axes to grind” convinced the county board to oppose the sale this time around. He said DU routinely is lumped with state and federal agencies under the generic umbrella of “wildlife.” And when any agency does something that’s unpopular, DU feels the impact even though it’s a private group.

“It spills over,” Ringelman said. “We work with hundreds of landowners, but a few don’t like ‘the wildlife,’ so they oppose us with letters to county commissioners and respective farm organizations.”

Kidder County Board chairman Marlin Kapp, who voted against the sale, didn’t return a phone call seeking comment.

Ringelman said DU also fights the misperception that it doesn’t pay taxes on land it owns. He said DU years ago supported North Dakota legislation that requires nonprofits to pay taxes.

“We control weeds and lease to local landowners,” Ringelman said. “We’re basically good neighbors. Those in opposition seem to not want to understand facts. That’s become real frustrating to us.”

Call for change

With a land sale in limbo, Hetletved says he doesn’t blame the governor for denying the deal. But his experience, he says, underscores the need for North Dakota to change what he calls “antiquated” laws toward nonprofit land purchases.

“Right now, I’m saying get to our congress people, our legislators of North Dakota, to get this changed,” Hetletved said. “If they want to keep corporate farming out, fine, limit nonprofits to how much they can own at any one time.

“It is what it is now, so we’ve got to live with it,” he added. “Now, rather than get mad at the world, as I told mother, let’s see what we can do about it.”

As for DU, Ringelman said the group will continue working to build alliances with ranchers and other landowners with an interest in preserving grasslands.

“What we’re trying to do fundamentally is keep the native prairie that exists now from being plowed up,” he said. “We don’t desire more waterfowl habitat than what’s out there.”

Ringelman said he’s learned to be a realist since coming to North Dakota 13 years ago from Colorado, where he helped launch a major land acquisition program.

“I was optimistic we could do some progressive things here in North Dakota, but I’ve learned to temper my expectations,” he said.

Dokken reports on outdoors. Reach him at (701) 780-1148; (800) 477-6572, ext. 148; or send e-mail to bdokken@gfherald.com.