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Federal judge says PSC didn't violate federal law

James Macpherson, Associated Press

BISMARCK, N.D. (AP) -- A federal judge on Tuesday denied a request from environmental groups to strip North Dakota's Public Service Commission of the ability to govern surface mining in the state.

U.S. District Judge Daniel Hovland's order said the federal government lacks the jurisdiction to remove the state's oversight.

The Bismarck-based judge also said campaign contributions that were questioned by the groups — though likely legal — raise "legitimate questions as to the appearance of impropriety."

The Dickinson-based Dakota Resource Council and the Sierra Club filed a lawsuit last year aiming to stop the PSC from regulating the mining industry. The groups accused North Dakota Public Service Commissioner Brian Kalk and former commissioner Kevin Cramer — now the state's sole member of the U.S. House of Representatives — of taking improper campaign contributions from coal mining officials. Kalk and Cramer, both Republicans, have maintained that the donations were legal and properly reported.

North Dakota is one of about two dozen coal-producing states that are allowed under federal law to regulate surface mining operations. State laws must be at least as stringent as federal law, and the federal government can intervene if states aren't following their own or federal law.

North Dakota's surface mining oversight was approved by the U.S. Office of Surface Mining and Reclamation Enforcement in 1980, after meeting provisions in the federal Surface Mining Control and Reclamation Act, or SMCRA.

The advocacy groups' attorney, Carrie La Seur, said North Dakota's regulations concerning conflict of interest issues are "insufficiently stringent compared to federal law."

But Hovland, in his order said that North Dakota's laws and oversight have been approved for decades and if the groups had "wished to challenge the enacted state program, the appropriate time for doing so has now long passed."

The judge cautioned against construing his order as "an endorsement of the practice of PSC Commissioners accepting campaign contributions from individuals or political action committees closely associated with coal companies and coal mining activities."

He said that while accepting such contributions maybe be legal, the decision to do so is "ill-advised, devoid of common sense, and raises legitimate questions as to the appearance of impropriety."

The environmental groups allege $50,000 had been funneled to the commissioners from coal industry officials since 2006. According to the lawsuit, Cramer received more than $10,000 in donations from Houston businessman Corbin Robertson Jr. and his wife, Barbara, from 2008 through 2011. Kalk got $5,500, the suit says.

Robertson manages Great Northern Project Development LP in Houston. A subsidiary, South Heart Coal LLC, has been developing a massive coal mine complex near South Heart, about 15 miles from Theodore Roosevelt National Park. The company's mining application with the PSC is pending.

Paul Selby, a Denver attorney hired by the state to defend the lawsuit, did not immediately return telephone calls to The Associated Press.

Kalk said Tuesday that he had not seen the judge's order and would not comment on it.

Rep. Cramer said Hovland's ruling on the facts in the case was correct but the judge's stance on the campaign contributions "was one man's opinion and has no bearing on anything."

Wayde Schafer, a North Dakota spokesman for the Sierra Club, said it was unclear Tuesday whether the judge's ruling would be appealed. Schafer said he was encouraged by Hovland's position on campaign contributions.

"I think the judge's statement clearly shows he doesn't think this was appropriate," Schafer said. "No way should the commission be taking money from coal companies they are regulating."


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