Why, Oh Why, Has Attorney General Drew Wrigley Been So Lame on Enforcement of the North Dakota Anti-Corporate Farming Law?
By now, it is pretty clear that entities linked with Bill Gates are buying farmland in North Dakota. It is also pretty clear that Drew Wrigley, appointed as North Dakota’s Attorney General by Governor Doug Burgum, isn’t interested in enforcing North Dakota’s anti-corporate farming law, North Dakota Century Code, Chapter 10-06.1.
I’ve called this law the soul of North Dakota. It was passed by initiated measure in 1932 during the depths of the Great Depression of the 1930s. It is now at risk and here is why.
Image from https://www.telegraph.co.uk (article linked below)
In 2021, an entity called the Red River Trust bought a huge North Dakota potato farm from the Campbell brothers farm partnership for $13.5 million. The deeds were quietly filed on November 4, 2021 without fanfare. On the surface, nothing changed. The Campbell brothers leased the land they had sold and continued to farm.
A few months later, on February 15, 2022, the Campbell brothers filed the name Red River Trust with the Secretary of State’s Office, swearing — under penalty of perjury — that the name Red River Trust was a fictitious partnership name and the purpose of it was to “own and manage real estate.” The address that they gave the Red River Trust was the same as the Campbell potato partnership and their farm in Grafton.
This happened without a peep of publicity.
But then, in June 2022, Mikkel Pates, ace reporter for Agweek and the Fargo Forum, heard some gossip about Bill Gates buying land from the Campbells and did his own investigation. He quickly discovered that “[n]obody involved in the deal seems eager to talk about it”, but he persisted. His story disclosed that the trustee of the Red River Trust was a “Peter Headley” and Peter Headley’s name was on the deed. He found out that Peter Headley’s business address was in Lenexa, Kansas, and Headley had the exact same address as huge corporate entities called Cottonwood Ag and Cottonwood Farms. Mikkel’s research also showed that Cottonwood Ag was the investment arm of Bill Gates and it was spending vast amounts of money to buy farm land all over the United States.
Mikkel’s June story hit North Dakota like a bomb and many people – including me – wondered if this sale is legal under the North Dakota’s anti-corporate farming law. Others were livid about Bill Gates buying farmland in competition with real farmers.
On June 21, the Attorney General’s office (under newly appointed Drew Wrigley) sent letters to the Red River Trust’s address in Grafton and to the Red River Trust address in Kansas. The letters were signed by a paralegal, sent by US mail, and asked both entities to respond within 30 days to her questions as to whether these sales complied with Chapter 10-06.1.
On June 23, the paralegal received an email from Matthew Thompson, an attorney with the Fargo Vogel Law Firm (BTW: the Vogels in this law firm are not relatives of mine) asking for a copy to be emailed to him so he could email the letter to his client, the Red River Trust, at its Lenexa, Kansas office and she did. (To the best of my knowledge, the “Red River Trust” of the Campbell Brother’s fictitious partnership never responded to the paralegal’s letter.)
The next day, on Friday, June 24, Mr. Thompson sent an email back to the paralegal, advising her that Red River Trust’s ownership of the land was legal under N.D.C.C. Section 10-06.1-09.1 — as a “trust for the benefit of an individual.” He also said that the Campbell brothers’ fictitious partnership name filing of Red River Trust was done without the knowledge of his client, the actual Red River Trust. (By the way, the “Red River Trust” filed by the Campbell brothers is still the only Red River Trust that has any presence on the ND Secretary of State’s website. It would seem, therefore, that the “real” Red River Trust has ratified this use of its name.)
On June 29, 2022, the paralegal sent an email to Mr. Thompson saying that “we are satisfied … that Red River Trust’s current ownership and lease of the land to Campbell Farms … is in compliance with N.D.C.C. ch. 10-06.1. Accordingly, we are deeming our inquiry file inactive.”
Immediately, news stories all over the country blasted the news: “North Dakota Attorney General says Gates land purchase is legal.”
As an attorney, I found it unbelievable that an investigation would be wrapped up by a simple assertion made by an opposing counsel without at least having someone from the Attorney General’s office review the actual trust documents. It smelled of bad lawyering and bad public policy by an agent of the state whose job it was to enforce this law.
A few days later, as a guest on the Joel Heitkamp radio show, I complained about the sketchy investigation. I said that the Attorney General should have demanded copies of the actual trust documents and the documents associated with the sale and reviewed them before saying it was legal. The next day, Attorney General Wrigley appeared on the Joel Heitkamp show, defended his office and criticized me. He said that I was “uninformed” and the Red River Trust documents “were here [presumably he meant his office] or on the way.”
I waited for more news about the receipt and review of the documents, but the Attorney General’s office was mum. In August, I made another open records request and in September, I asked again. Still no trust documents! But I did learn that that the Attorney General’s office was being asked to meet with a lawyer named Mike Rodden, who happens to be the General Counsel to Cascade Investments, the investment company for Bill Gates’ multi-billion dollar personal wealth.
After learning this, I began to believe that the sketchy investigation by the Attorney General’s office wasn’t because incompetence but rather was due to a conflict of interest. North Dakotans all know that Attorney General Wrigley owes his position to an appointment by Governor Doug Burgum, who sold his software company to Microsoft and was a Microsoft officer prior to becoming Governor. I publicly called for the appointment of a special assistant attorney general.
It comes as no surprise that AG Wrigley didn’t appoint a Special Assistant Attorney General and didn’t reverse his decision that the purchase was legal.
This brings us to last week, when I made one more open records request because I was about to speak to the Dakota Resource Council about the Bill Gates land purchase. Mind you, it is now almost one year since the deeds were recorded to reflect the sale to the mysterious Red River Trust.
I asked for all records sent to or filed with or recorded by or created by the NDAG and the office of the NDAG on and after September 13, 2022 [the date of the last set of documents that had been furnished to me] with respect to Bill Gates or Red River Trust’s purchase of farmland.
I was surprised when I received a one page declaration dated August 10, 2022, captioned “Certificate of Trust” that was signed by Peter Headley. It had an appendix consisting of one sentence. To summarize, these two pages said the Red River Trust was organized under the laws of the State of Washington in 2005, that Peter Headley is the Trustee of the Red River Trust, and the Red River Trust’s sole beneficiary is William H. Gates, III.
Oddly, there was nothing indicating when this August 10 declaration was received by the AG’s office, so I followed up with yet another open records request, and asked when and how this document had been transmitted to the AG’s office. The response came back almost right away. This is what I learned.
On October 4, the Solicitor General received a voice mail saying the Red River Trust had changed lawyers and the new lawyer wanted to visit. I looked up the names of these lawyers on the Vogel firm’s website: the former lawyer (the one who assured the paralegal that the Red River Trust was allowed to own farmland in North Dakota) was Chair of the Vogel firm’s Business Practice Group; the new lawyer is a litigator. What does this shift mean? Your guess is as good as mine.
On October 12, the Solicitor General blocked off an hour and a half to meet with “the Vogel firm.” A cover memo said that the Solicitor General had “uploaded” the August 10 Certificate of Trust on October 12.
The single line Certificate of Trust
This is a very sparse response. Lawyers in private practice usually keep track of their time and write down what they do, who they speak with, and what they talk about. But even in government service, lawyers typically would send a memo that updates their bosses and co-workers, especially if it involved a big newsworthy issue like whether a controversial $13.5 million dollar sale of a farm to one of the world’s richest men was legal.
Why is this topic so secretive? Why was the investigation (if it can be called that) riddled with gaps? Why almost a year after the deeds were filed, has the Red River Trust been able to get away with disgorging only a one-page declaration and a one sentence excerpt from the trust document to justify the legality of its $13.5 million purchase of the Campbell farmland? Who was at the meeting on October 12? Was Peter Headley involved? Mike Rodden? Governor Burgum? Was Attorney General Wrigley there? Who called in? What documents were shared? What advice did Mr. Sagsveen get about how the matter should be handled?
I don’t know the answer to any of those questions but I do know the Headley “Certificate” does not provide enough information to show that this purchase of farmland passes muster under North Dakota law. Here is why.
The “Certificate of Trust” says that the Red River Trust was organized in Washington State in 2005. That is all it says about its origins and activities. There are many kinds of trusts in Washington State, and one of them (called a “Massachusetts Trust”) is equivalent to a corporation in terms of protecting individuals from personal liability. Washington State real estate professionals often use “Massachusetts Trusts” for real estate investments. Is this a “trust” within the meaning of the North Dakota exemption from the anti-corporate farm law? No, I don’t think it is.
Peter Headley is not analogous to a kindly advisor in the trust department of the local bank taking care of Widow Lundberg. He is the head of ag for Cascade Asset Management Company, a corporation that handles billions of dollars in investments for the Bill and Melinda Gates Foundation Trust and Bill Gates. The Cascade Investment Wikipedia entry says: “With 269,000 acres of farmland (which has been historically countercyclical to the stock market) being held through a wide network of shell companies, Cascade Investment is the largest farmland owner in the US.” Wikipedia’s source for this claim is a June 8, 2021 NBC News story, captioned “Bill Gates uses farmland as an investment outlet buying up potato, carrot and onion farmers.” That news story says, “The farmland was purchased through a constellation of at least 22 limited liability companies….”
Mike Rodden is no country lawyer who wrote the trust agreement for Widow Lundberg. He is the General Counsel of Cascade Asset Management Company. He is also the General Counsel of Cascade Investment, LLC, of which the sole member is William H. Gates III.
Headley and Rodden are high ranking corporate officers of huge corporations owned by Bill Gates. They are deft in the use a series of subsidiaries, corporations, limited liability companies and assorted corporate shell companies in order to buy hundreds of thousands of acres of farm land all over the United States, while keeping Bill Gates name off the titles. Is Red River Trust one of those shell companies? Or is it a shell of a shell company?
On October 5, 2018, Agribusiness Investor ran a story captioned “Bill Gates-linked firms ramp up bets on farm land investments”, reporting that an entity called Angelina Agriculture purchased 14,500 acres in southern Washington for $171 million. According to a subsequent story published in The Land Report, the corporate mailing address for Angelina is the same as that for Cottonwood Ag Management, an agriculture asset management team for BMGI/Cascade Investment, the private holding company for Bill and Melinda Gates. The article also stated that “the source said they believed Cottonwood to be a broader management company currently overseen by former MetLife managing director Peter Headley, under which subsidiaries like Angelina have been established around specific regions or portfolios of acquired properties.”
So what does all this mean? It likely means that Bill Gates, Peter Headley, Mike Rodden and a team of highly sophisticated legal and management executives are playing North Dakota like a fiddle. It took a whole year for the Attorney General to exhume a vague one page declaration from Peter Headley.
North Dakota does not bar rich people from owning farmland. It does bar corporations – with limited exceptions – from owning farmland.
As we approach the one-year anniversary of this secretive land purchase, Governor Burgum is likely busy readying a plan to repeal the anti-corporate farm law, opening investment to corporations such as Cascade Investments, and eliminating the need for Bill Gates’ corporate executives to hide land purchases by one of their shell companies behind the façade of a trust. A thorough investigation will show that Red River Trust is just a shell entity, a seemingly innocuous façade for Cascade Investment, a multi-billion LLC, and other corporate entities controlled or owned by Bill Gates or the Gates Foundation.
It has long been the law of North Dakota that a corporate veil that is used to avoid accountability can be pierced. The North Dakota Supreme Court set out this policy more than a century ago in the case of Macfadden v. Jenkins, 40 N.D. 422, 459-60, 169 N.W. 151, 163 (1918). The court said:
No corporation can become so securely organized and protected as a legal entity as to become a cover for wrong and fraud and thereby defeat the rights of innocent parties. A corporation cannot be greater than law and equity, nor, by reason of its legal entity, be immune from answering for fraud and wrong. In such case, the protecting hands of equity will brush aside the outward forms of the corporate entity, and analyze the foundation purpose and intent of the corporation, and if the purpose and intent of the corporation are not imbedded in good faith, and are but a cover for wrong and fraud against the innocent, the corporate entity will afford no protection for such wrong and fraud in a court of equity.
The Attorney General should be familiar with this case and the legal doctrine of “piercing the corporate veil”. The North Dakota Attorney General’s Consumer Fraud Division cites this case and relies on the principles of the McFadden case when suing scammers that come through North Dakota to cheat North Dakotans using shell companies and fraudulent schemes.
The same principles should apply to investigating the validity of the land purchase by Red River Trust. We need to know if it is a façade or sham used by Cascade Investment executives to evade the laws of this state. But if our elected Attorney General isn’t interested in enforcing our anti-corporate farm law, what happens next? Are the citizens of North Dakota helpless? I think not.
Soon a new legislature will come to Bismarck. There are two simple changes that this legislature could take to stop Bill Gates’ and others’ evasion of the laws of North Dakota.
First, it can modify the law’s authority for a private right of action. The law now says that a resident of the county where land acquired by a corporation is located can commence a private lawsuit to enforce the anti-corporate farming law, but this private right of action has never (to my knowledge) been used. Why? It is because if the challenger is unsuccessful, the challenger has to pay the legal fees of the other side. Who wants to pay the legal fees of a billionaire or a billionaire’s corporation? Let’s amend the law to have both sides pay their own attorney’s fees, as is the case in most litigation, or even better, let make the challenger’s attorney fees payable by the law violator, if the challenge is successful. These cases would be simple cases for local lawyers to start. A private right of action would serve as a deterrent to out-of-state corporations who rely on “wink and a nod” response from the Attorney General as they plan to evade our laws by hiding under the name of a trust.
Second, the legislature could require County Recorders of Deeds to send to the Attorney General and Secretary of State a copy of any deed that shows farm land being sold to or acquired by an entity other than an individual, farm partnership or family farm corporation. These are already public records, and the only expense would be a stamp, an envelope, and a few minutes to copy the document. The AG’s office could then review these deeds, send form letters to follow up, and conduct random audits. This is an easy fix and can perhaps be done without legislation, but it might be prudent to do it by legislation to make sure it happens.
And, most of all, we should resist and fight any attempt by the Governor and his allies to repeal the anti-corporate farm law. There should be unity on this. Even the Farm Bureau, long an opponent of the anti-corporate farm bill, is bitterly opposed to nonprofit organizations buying or owning farmland and have put sharp limits on which nonprofits can buy farmland. See, N.D.C.C. section 10-06.1-10, “Acquisition of certain farmland or ranchland by certain nonprofit organizations.” If the anti-corporate farm law is repealed, it will also repeal the limits on nonprofits and environmental groups purchasing farm and ranch land.
Governor Burgum is likely preparing legislation now. He’s been quite open about his feelings on wanting this law repealed. But if that were to happen, we’ll see Bill Gates and shell corporations controlled by him flood into our state in order to “diversify” their portfolios. We’ll see opportunity dry up for beginning farmers. We’ll see Main Streets in North Dakota shrivel away to line the pockets of Wall Street.
Resources:
“The real reason why Bill Gates is now the US’ biggest farmland owner” NYPost.com
“Bill Gates-linked firms ramp up bets on farmland investments” AgriInvestor.com
To learn more about these issues and tangible ways you can help family farmers, wherever you live, visit the Learn More section of my website.