Complaint about North American Coal (NAC)

Public Service Commission (PSC) photos taken on:
   6 Mar 2008 photos before North American Coal (NAC) damage
   31 Aug 2011 photos after NAC damage
   16 Sep 2014 photos after more NAC damage and NAC land modification
   26 Apr 2018 photos after more NAC damage and more NAC land modification
Original road ditch, 6 Mar 2008

Road ditch, deepened by NAC, too deep for grain trucks, 26 Apr 2018

Original diversion ditch, 6 Mar 2008

Diversion ditch deepened by NAC, 16 Sep 2014

North American Coal (NAC) is required to obtain a permit to dig on NAC land.

Per the PSC Commissioners, NAC is allowed to dig on land that someone else owns without a permit.

Per the PSC Commissioners, NAC is allowed to block access to farmland. Clyde Eisenbeis did provide NAC with written authorization to install an approach - pdf document.

A North American Coal (NAC) sedimentation pond overflowed which damaged farmland and farmland crops in 2011 and 2014. Sedimentation pond netting was found in multiple places on the farmland.

NAC dug a deep drainage ditch on the farmland in 2012 and 2014 without authorization from the land owner.

NAC also dug the road ditch deeper without authorization from the land owner, and without authorization from Mercer County. The ditch is so deep that grain trucks can no longer cross the ditch. The combine needs to travel across the ditch to unload the grain onto a truck. The land owner and county did not know, until 2016, this occurred.

NAC discharged sedimentation pond water into the farmland creek on the north end (water flows north into Lake Sakakawea). The volume of water caused the water to also flow south. This raised the water table elevation to the farmland elevation. See Appendix A, page 4 listed below in section 5.

This elevated water table flooded Wayne Eisenbeis farmland south of our farmland, the flooded the SW corner of our farmland over a span of many years. It also flooded a neighbor’s farmland and basement north of our farmland.

The Public Service Commission (PSC) took photos of the farmland in 2008, 2011, 2014, and 2018 These photos document the damage and land modifications by NAC.

NAC verbally agreed to install an approach across the deep road ditch on 13 Apr 2016. NAC did not install the approach. On 28 Apr 2017 (a year later) NAC stated the approach was not installed because there was no written agreement. Clyde Eisenbeis immediately emailed a written authorization to NAC and the PSC.

A Formal Complaint was submitted to the PSC on 15 May 2019. The PSC decided this is not related to coal mining. The PSC ignores that fact that:
1) Sedimentation ponds are related to coal mining.
2) Sedimentation pond netting was found on the farmland.
3)The water table elevation measurements (a half mile south of the farmland) show the elevation was raised to the farmland elevation which flooded farmland.
4) NAC dug the deep drainage ditch and deepened the road ditch.

The PSC is ignoring:

North Dakota Century Code 38-14.1-02 (35 b) - pdf document - "Surface coal mining operations means: … The areas upon which such activities occur or where such activities disturb the natural land surface. Such areas shall also include any adjacent land the use of which is incidental to any such activities”

North Dakota Administrative Code 69-05.2-01-02 (1) - pdf document - "Adjacent area means land located outside the affected area or permit area"

PSC Memorandum 6 to Mine Operators, March 8, 1995 - pdf document , March 8, 1995 - “Listed below are specific activities and types of disturbances which are included under the scope of ‘Surface Coal Mining Operations,’ as defined in NDCC Section 38-14.1-02(33). These activities and disturbances must be conducted within the boundaries of a surface coal mining permit.”

Clyde Eisenbeis exchanged emails with the PSC staff and met with them at the farmland and at the PSC office multiple times starting in 2016. The PSC received a response letter from NAC dated 19 Jun 2018. That NAC letter was not given to Clyde Eisenbeis until 10 Jun 2019. That NAC letter has many errors (Appendix C).

Clyde Eisenbeis filed a Formal Complaint with the PSC in 2019. The PSC Commissioners met to discuss the complaint.

Clyde Eisenbeis was not allowed to speak at that meeting when the PSC Commissioners made a decision. Not allowing Clyde Eisenbeis to speak violates Due Process as defined in the US Fifth Amendment and Fourteenth Amendment.

The PSC Commissioners decided that this is "not" coal mining related (Appendix A), even though:
   1) NAC sedimentation pond water overflow caused the damages,
   2) NAC discharged sedimentation pond water
which flooded farmland, and
   3) NAC dug the ditches

It appears the PSC Commissioners are not required to enforce ND laws. No one can overrule their decisions. Only elections can replace the PSC Commissioners.

Bottom line: Is it legal for government employees (the PSC Commissioners) to ignore North Dakota laws that protect people and their land?

Complaint about the PSC Commissioners - Eisenbeis Farmland - pdf document ... Doc starts with a map.

   Appendix A - PSC Decision Letter - 13 Jun 2019 - pdf document
   ... Comments have been added by Clyde Eisenbeis

   Appendix B - North American Coal Response Letter - 19 Jun 2018 - pdf document
   ... Comments have been added by Clyde Eisenbeis

   Appendix C - North American Coal Proposed Approach Agreement - 22 Sep 2017 - pdf document
   ... Comments have been added by Clyde Eisenbeis

   Appendix D - North American Coal Threatening Letter - 5 Jul 2018 - pdf document
   ... Comments have been added by Clyde Eisenbeis

   Appendix E - Eisenbeis Farmland History Log - pdf document

A complaint was filed with the ND Ethics Commission - 1 Oct 2019 - pdf document
   Ethics Commission response via ND Attorney General Office: - 15 Nov 2019 - pdf document

Agweek article, Nov 2021
   North Dakota landowner says North American Coal owes him a field approach website
Road ditch, blocking acesss to farmland, is continuing to erode - 2021

North Dakota Legislators Try to Bail Out the Dying Coal Industry article, 2021 website

PSC Policy Conflicts, Gifts, and Gruitities - 26 Jan 2000 - pdf document - "No political contribution may be offered, solicited, or accepted for the purpose of affecting a favorable decision."

The last part of this phrase should be removed: "No political contribution may be offered, solicited, or accepted for the purpose of affecting a favorable decision."

The PSC Election Ballot should be under the No-Party Ballot.

PSC Inspection Reports:
   PSC Inspection Report - 18 Aug 2011 - pdf document
   PSC Inspection Report - 31 Aug 2011 - pdf document
   PSC Inspection Report - 16 Sep 2014 - pdf document
   PSC Inspection Report - 26 Apr 2018 - pdf document
   PSC Inspection Report - 28 Aug 2020 - pdf document NAC flooded neighbors' farmland again

North Dakota Century Code (NDCC) website
   38 Mining and Gas and Oil Production website
   38-14.1 Surface Mining and Reclamation Operations website
   38-14.1-01 Declaration of findings and intent
   38-14.1-01 (1) --- disturbances of surface areas ... by damaging the property of citizens
   38-14.1-02 Definitions
   38-14.1-02 (17) --- Permit area means land approved for surface coal mining operations
   38-14.1-02 (19) --- Permit revision mean modification of permit and includes changes in the mining plans boundary extensions
   38-14.1-02 (34) --- Surface coal mining operations means surface coal mining
   38-14.1-02 (35 a) --- activities affecting the surface of lands in connection with surface coal mine
   38-14.1-02 (35 b) --- areas where activities disturb natural land surface ... includes adjacent land
   38-14.1-14 Permit applications - Mining and reclamation plans
   38-14.1-14 (1) Permit applications ... must contain
                        (r 13) Permit applications ... must contain the location of any discharges to any surface body of water on the area of land to be affected or adjacent thereto
   38-14.1-21 (3 c) Prevent damage to the hydrologic balance outside the permit area
   38-14.1-24 Environmental protection performance standards
   38-14.1-24 (8) Minimize the disturbances to the prevailing hydrologic balance in associated offsite areas
                        (f) --- Avoiding natural channel deepening

North Dakota Administrative Code (NDAC) [Administrative Rules] website
   69 Public Service Commission website
   69-05.2 Surface Coal Mining and Reclamation Operations website
   69-05.2-01 General Provisions
   69-05.2-01-02 Definitions
   69-05.2-01-02 (1) ... Adjacent area means land located outside the affected area or permit area ....

PSC Public Awareness: Laws, Rules and Other, Interpretive Docs [Policy Memoranda] website