BISMARCK — As COVID-19 surges through North Dakota at an unprecedented rate, the state remains "in the green," according to Gov. Doug Burgum.

The first-term Republican said Wednesday, July 29, the state is staying at a "low risk" pandemic designation even as the positive test rate rises, new infections mount, and other cities and states deem North Dakota a hot spot for the virus.

Evaluating the state's risk level is a complex task that requires his administration to consider multiple constantly changing variables, Burgum said. The governor noted that "the numbers are not moving in the right direction," but he said officially jumping up a risk level is not a decision to be made lightly because it affects businesses and schools in the state.

Burgum's Democratic-NPL challenger, Shelley Lenz, said he is misleading residents by refusing to acknowledge the growing severity of the outbreak.

"There is a lot of confusion behind the risk (of COVID-19), and we’re going to be making some pretty big decisions as schools start to reopen," Lenz said. "They’re making a fatal mistake by not making an accurate assessment of the risk."

Color wars

When Burgum unveiled a COVID-19 risk level gauge in May, he said the dial could move to a higher or lower risk level depending on the spread of the virus in the state, but the dial on the five-color pandemic barometer hasn't moved from "low," or green, since May 29 when he announced that businesses could safely enter a new phase of reopening.

The gauge, which sits near the top of the state's main COVID-19 webpage , is meant to inform the necessary level of restrictions on businesses, schools and public gatherings to maintain public safety, according to a 25-page document that outlines the state's reopening plan.

At the "critical" red level, unchecked community spread of the virus, strained hospital capacity and rising deaths would lead to the state imposing "the most significant mitigation strategies," like a stay-at-home order. On the other end of the spectrum, the "new normal" blue level implies that the virus is under control and pre-pandemic business activity can resume.

A theoretical move from green to yellow would mean the recommendation for capacity in bars and restaurants decreases from 75% to 50%, while the recommendation for banquets and weddings decreases from 75% occupancy and as many as 500 attendees to 50% occupancy and up to 250 attendees, Burgum spokesman Mike Nowatzki said. The recommendations are not required by law.

Despite North Dakota's current designation, the state doesn't meet at least two of its own criteria for either the green or yellow levels of risk, according to the reopening plan.

The criteria say that the green and yellow levels feature downward trajectories for documented COVID-19 cases and positivity rate over a 14-day period, but both trends have pointed upward in the last two weeks. The state has also seen active cases hit new record highs on a near-daily basis over the last month.

Nowatzki said "all of the criteria are taken into account, and they are one component of the decision-making process," but certain variables, like hospitalizations, deaths, positivity rate and active cases, are weighted more heavily. Burgum said Wednesday there also needs to be a "human factor" in judging the variables, rather than pre-defined automatic thresholds for moving up or down the scale. Nowatzki added "we want to confirm a longer-term trend before changing the risk level."

Burgum could also designate a county or city with a more severe outbreak at a higher risk level, but he has so far opted instead to form task forces in the Fargo and Bismarck areas, which have been the state's hardest hit.

Lenz, who holds a Ph.D. in neuropharmacology and a doctorate of veterinary medicine, said the governor's application of the color gauge is "unscientific" and out of touch with the current pandemic conditions.

"Burgum is using an arbitrary measure that he made up himself. He has no clear criteria from moving it one level to another," Lenz said. "It’s meaningless like a marketing gimmick."

Lenz pointed to North Dakota's designation as a high-risk state by other governments around the country as an example of the dissonance between Burgum's evaluation of the state's outbreak and the rest of the country's. At least 10 cities and states have recently instituted mandatory quarantine orders for visiting North Dakota residents — moves that Burgum has criticized as penalizing the state for emphasizing testing and contact tracing.

A federal report obtained by the New York Times earlier this week also put North Dakota among 21 states in the “red zone” for the virus because it has recently reported a daily average of more than 10 new cases per 100,000 residents. The report notes that North Dakota is in the “green zone” for its rate of positive tests, supporting Burgum's assertion that a high volume of testing is contributing to the state’s designation as a COVID-19 hot spot by outside governments. Still, the state's 14-day moving average positivity rate has more than doubled in the last month.

Lenz said that by being "dismissive" of the real risk level, Burgum is causing confusion for parents who now have to make the complicated decision of whether to send their children back to school for in-person instruction this fall.

She said the governor's interpretation of the risk level is leading to poor policy decisions, adding that she would have mandated mask-wearing in public weeks ago in acknowledgement of how fast the virus is spreading. Burgum has strongly encouraged mask-wearing, but he has so far said he will not require they be worn by residents.