JIM FUGLIE: View From The Prairie — Elkhorn Ranch Update No. 2

Based upon the analysis contained within the Elkhorn Gravel Pit EA, and taking into consideration the applicants private property rights, my regulatory authority, and considering public comment received, I have decided to implement Alternative 2 as described in the EA (pages 23-25) for Elkhorn Minerals LLC’s development of the proposed Elkhorn Gravel Pit. Under this decision the Forest Service will issue to Elkhorn Minerals LLC, special use and road use authorizations for use of the existing road system and a Surface Occupancy Permit for the development of the private mineral rights authorizing surface occupancy on National Forest System (NFS) lands.

          (signed) Karen E. Dunlap, Acting District Ranger
          (dated) January 6, 2015

With those words, and that signature, the most imminent threat to the integrity and solitude of Theodore Roosevelt’s Elkhorn Ranch site became a reality.

I started writing Saturday about the threats to the Elkhorn, Roosevelt’s home on the Little Missouri River in the North Dakota Bad Lands, now part of Theodore Roosevelt National Park. The most serious threat is the potential for a bridge across the river adjacent to the ranch. That could happen in the next couple of years.

But the gravel mine across the river from the ranch could happen this spring. In North Dakota, caught up in the most massive industrial explosion in the state’s history, nothing is sacred any more. And so our giddiness over economic prosperity and a sound financial future for our state is tempered by a sense of hopelessness over the sacrifices we’re being forced to make to achieve that prosperity. That makes me sad. And angry.

To review: The Forest Service was given the land directly across the Little Missouri River from Roosevelt’s home site in 2007 by a group of conservation groups that raised the money to buy it from the Eberts Family. The conservation groups would have preferred to make the land part of the National Parks system, but it is a whole lot more complicated to give land to the National Park Service than to the Forest Service. The whole idea was to stop the land from being subdivided into ranchettes serving as summer getaways for rich folks, thereby preserving the viewshed and soundscape from the ranch.

It probably should be noted, somewhat ironically, that Roosevelt was one of those rich folks who came here and built what might have been called, in those days, a ranchette, as a summer getaway. But Roosevelt went on to become one of our most important presidents, certainly the one who can claim to be the true champion of conservation among those who preceded and followed him. He later said he would never have been President if it had not been for his time here. So we’re OK with that.

When the Forest Service got the land, they failed to get the rights to the minerals underneath it — that would have taken more time and money than the conservation groups could afford — so those who own those minerals have the right to develop them. That’s the law. Generally, it’s a law we can live with. The Forest Service owns a million acres in western North Dakota, and many of those have private mineral owners, and the system has worked, as oil has been extracted over the years, regulated by Forest Service rules to protect as much as possible the integrity of the land.

That could have been the case here, except for one mineral owner who turned out to be a real asshole. His name is Roger Lothspeich and he owns about a fourth of the surface minerals — sand and scoria — and he’s discovered that there is a rock layer under the ground on the hill directly across from the Elkhorn Ranch that would make really good gravel if it were mined and crushed up into a size that would work on roads in western North Dakota. Gravel has been in high demand these days because of the oil boom. The oil industry is building thousands of miles of gravel roads and leveling thousands of acres for well sites that need to be covered in gravel. The cost of gravel has gone up more than 500 per cent in the last six or seven years. So a few years ago, Lothspeich filed notice with the Forest Service that he was going to commence a mining operation in full view of the Ranch, unless someone was willing to give him $2.5 million not to do that.

Of course, no one was going to do that. So various ideas were tossed around to prevent the mining operation, including trying to find some land or minerals somewhere else that the Forest Service could trade him, but nothing worked. So the Forest Service went ahead and processed his application for a permit to commence mining, and a couple weeks ago, on Jan. 6, they signed the papers giving him permission to start mining this spring. And he says he’s going to do that.

“Alternative 2,” cited above in the excerpt from the Decision Record, is the plan outlined in the Forest Service’s Environmental Assessment of how the mining is going to be done. Briefly, it gives Lothspeich the right to mine 25 acres, 5 acres at a time, reclaiming as he moves from one 5-acre site to the next, and hauling the rocks he mines away from the site to be crushed into gravel off-site. The Forest Service did its best to minimize the impact on both the land to be mined and the surrounding historic site.

Still, there’s this, from the Record of Decision:

             In consultation with the Advisory Council on Historic Preservation (ACHP) and North Dakota State Historic Preservation Office (NDSHPO), the DPG defined the undertaking’s composite Area of Potential Effect (APE) as the area of direct effect, the viewshed APE, and the soundscape APE, for the purposes of compliance with Section 106 of the National Historic Preservation Act (NHPA). Specifically, the area of direct effect is defined as the 24.6 acre gravel operation footprint, associated access roads and a buffer zone. The viewshed APE includes the viewshed equal to or greater than 70 percent probability of being seen by an observer located within the general vicinity of the proposed gravel pit. This includes the Elkhorn Ranch Unit of Theodore Roosevelt National Park and the Elkhorn Ranchlands NHD. The viewshed analysis was conducted by the National Park Service using standard viewshed analysis protocols.
             The coordinated soundscape APE utilized analysis (see Soundscape in Chapter III for further discussion) derived through consultation with the ACHP and NDSHPO. This resulted in a defined 2-mile affected area radiating from the center of the proposed gravel pit from all directions.


So visitors to the Elkhorn Ranch, the “cradle of conservation,” where Roosevelt developed his conservation ideas, are going to see and hear an ugly and noisy gravel mining operation.  The Forest Service, to its credit, was a little troubled by that. Ranger Dunlap wrote:

          Roosevelt found solace and solitude at his cabin during a very tragic part of his life and this played an important role in his thinking. Visitors to his cabin site may get a glimpse of what Roosevelt saw and heard, but Roosevelt’s soundscape and viewshed did not include modern day noises and intrusions, such as semi-truck traffic on the county and oil gas roads, oil and gas wells drilling and production, and agricultural activity. Gravel pit development may add to these various intrusions.

(If anyone wants to read the whole record of decision, all 19 pages, you can do that by going here: (http://a123.g.akamai.net/7/123/11558/abc123/forestservic.download.akamai.com/11558/www/nepa/82941_FSPLT3_2409930.pdf)

So what’s to be done? Well, I hate to say it, but somebody just might have to pay the asshole off. The conservation groups who led the original purchase effort, back in 2007, have made some effort to find a solution without writing a big check. They spent some money to hire a title lawyer in North Dakota to find out who owns the 75 percent of the minerals that Lothspeich doesn’t own, to see if there might be some solution involving others who own minerals but are not interested in developing them. It took some work, but they’ve all been located. Get this: There are a total of 35 people/parties/businesses who own a part of the minerals.

Lothspeich (actually, he gave the mineral rights to his girlfriend, Peggy Braunberger for “tax purposes” he said in an earlier newspaper story, although  he retains power of attorney — I hope the North Dakota Tax Department and the IRS scrutinize his tax returns pretty carefully) and the Eberts family each own about a fourth of them. The other half are owned by 35 different people with some having as little as two-tenths of 1 percent. Back in the 1980s before the Eberts family owned the ranch, 1,400 net mineral acres, including the acres where the proposed gravel pit is going to be located, were sold to some Williston companies owned by the Aafedt family — they were interested in the oil rights, but got the surface minerals, including sand and gravel, along with the oil — and they were re-sold and subdivided many times over the years, with the result being that there are 35 different names on the mineral title.

So far, neither the Eberts family nor any of the other 35 owners have expressed any interest in mining gravel. Nor are they likely to. But if Lothspeich goes ahead, he’ll have to keep good records, because any profits from the gravel will have to be shared with the Eberts and the other 35. I know if I was any of those folks, I’d be keeping a sharp eye on Lothspeich’s books.

But I got distracted. I asked what’s to be done. Well, I hate to say this, but given the state of things today, I can’t imagine but one outcome: someone, perhaps the same conservation groups who paid for the ranch originally, pays off Lothspeich, but a fraction of what he originally asked for. Because the price of oil has dropped drastically, and no one really knows what the ripple effect of that is going to be.

Will there still be a demand for gravel?

Will the price of gravel remain high enough to make the mining operation profitable?

Is that worth the gamble on Lothspeich’s part?

If the answer to any of those questions is “No,” then Lothspeich has spent a lot of money on lawyers and engineers for nothing, at least in the short term. (In the long term, he’s going to have to spend money on accountants too, and they don’t come any cheaper than lawyers and engineers.) He might just be happy to get out with the money he has already invested. With a little something for his trouble.

Or is this all just a big bluff on Lothspeich’s part, as a lot of folks contend, to rip off the federal government? A lot of folks, including many who do business in the Oil Patch, believe that’s the case, and are pretty angry about that. It’s a black eye on the industry, and with all the other problems out west, Lothspeich isn’t going to find a lot of sympathizers.

In fact, a number of the 35 smaller mineral owners are well-known players in the oil industry, who I won’t name here because they are pretty much innocent bystanders in this gambit. I have the list, and I can guarantee you’d recognize at least half a dozen of them.

On second thought, I’m going to name one. Because he stuck his name into this story a week or so ago. His name is Jim Arthaud. He’s the chairman of the Billings County Commission, and he was featured prominently in Saturday’s blog post about the bridge across the Little Missouri River — if you didn’t read that, stop reading this right now and go back and read that one, so you get some perspective on who I’m talking about. He’s kind of cut from the same cloth as Lothspeich.

Anyway, in the paper last week, Arthaud, who I assume was being interviewed because of his role as a county commissioner in the county in which the Elkhorn is located, said “Private property rights are a big thing in the United States of America. I have no sympathy for the people that think that they have that right to just condemn people’s mineral (rights) without just compensations. It’s beyond me how people can even think that.”

And then he went on to say, and I am quoting from a Dickinson Press story here, “there are oil minerals under the ranch, and mineral owners have a right to collect income on oil and gas. He said he thinks people will attempt to drill after this decision. ‘It’s right in the middle of an oil field,’ he said. ‘They probably are not going to do it with $40 oil, but when oil prices come back, absolutely.”

You could almost hear the glee in his voice when you read that in the paper. Rightfully so, because Arthaud is one of those mineral owners. Instead of saying “they” will be drilling oil wells on the property, he should have said “I” will be drilling. Oh, he’s just a small owner, just over 1 percent, but he’ll be getting royalties from it when someone decides to drill. So it was a pretty disingenuous statement on Arthaud’s part.

Actually, though, there’s a little less concern about the oil part, at least from the perspective of protecting the viewshed of the Elkhorn site. Oil companies have been willing to accommodate those concerned about the viewshed in the past, moving rigs back from the bluff line out of site from the ranch. Despite the fact that the Forest Service approves pretty much every well site location on their property (including the earlier one right up against the gate of the Elkhorn), and the state issues permits to drill any damn place the oil companies want to, the oil companies have shown some responsibility when approached by the Park Service. They don’t want, or need, any bad publicity.

But if your concern is trying to protect the Elkhorn Ranch and the valley of the Little Missouri River, and the Bad Lands in general, it’s the gravel operation that is troubling. Oil wells are going to happen, we know that. But as more and more of us keep a close eye on the industry and the officials who are supposed to be regulating it, I think, or at least I hope, that we’ll find them more and more accommodating, and a little bit sensitive to “special places.”

Roger Lothspeich has displayed none of that sensitivity. He’s just a bad guy. His gravel mine could be the first place where someone lays down in front of a bulldozer.

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