The Saga of the Elkhorn Continues: What’s a FONSI?

About ten years ago, Ken and Norma Eberts decided to sell their Bad Lands ranch and retire. The ranch is directly across the river from the Elkhorn Ranch Site, home to our 26th president, Theodore Roosevelt. It is where he developed his famous conservation ethic, before becoming America’s greatest Conservation President.

Ken and Norma knew the area’s history. The Elkhorn Ranch Site is part of Theodore Roosevelt National Park, and they wanted to make sure that their own ranch, which sits on the bank of the Little Missouri River, was not bought by a developer and broken up into 40-acre parcels as summer getaways for rich folks with four-wheelers and jet boats. That kind of development would have ruined the solemnity of this quiet, peaceful place.

They offered it to the National Park Service and the North Dakota Park Service, but neither had the wherewithal to make a deal. Then, in 2007, a group of more than 30 national conservation organizations, representing more than 40 million members, headed up by the Boone and Crockett Club, which was founded by Theodore Roosevelt in 1887, pooled their resources, bought the ranch, and donated it to the U.S. Forest Service, which manages more than a million acres in North Dakota’s Little Missouri National Grasslands. The Forest Service named it the Elkhorn Ranchlands, and it became a National Historic District, a fitting partner to the National Park Service site across the river.

The deal was put together in a hurry, because the Eberts had already postponed their retirement by several years waiting for something like this. Resources were finite. As a result of those two things, the Forest Service did not become the owner of what are called “surface minerals” on the property. Surface minerals in North Dakota’s Bad Lands are generally coal, scoria and gravel. The surface mineral ownership was divided over the generations into the hands of more than 40 people. To try to track them all down and do a deal would have taken years (the process is underway now, and still not complete, seven years later).  We know the Eberts family owned 50 per cent. Another family, which previously owned the land, owned about 25 per cent. The remainder was divided among many owners, some with less than one per cent interest. No one really believed it would be a problem if the mineral ownership remained that way, instead of being transferred to the Forest Service.

And then this asshole named Roger Lothspeich came along. He had lived in the area at one time, and knew the family that owned a quarter of the mineral rights, and bought them for some undisclosed amount, probably a pittance. He owns a four-wheeler dealership in Montana, and someone jokingly (or maybe not) said he probably traded a couple of four-wheelers for them. And then he announced that he was going to mine the gravel on the land directly across the Little Missouri River from the Elkhorn Ranch Site, in full view of the National Park Service site. Unless the government was willing to buy him out for a couple million dollars. Blackmail. Extortion.

The government told him to go jump in the lake (or river), so he put together his mining plan and presented it to the Forest Service. He had the right to develop his minerals—mineral ownership trumps surface ownership—but because the land is in a National Historic District, he had to present an operating plan, which triggered an Environmental Assessment (EA) process. The EA was completed in 2012. Then it was open for public comments. Many people (including me) questioned the findings of the EA. The Forest Service then considered those comments, and in April of this year, the District Ranger, Ron Jablonski, the man charged with overseeing the process, released a Finding of No Significant Impact (FONSI). Which, after a public comment period, will give Lothspeich permission to start mining the gravel.

Jablonski, in his decision memo, admitted that this is going to cause quite a disruption for a few years. It’s going to be ugly and noisy and busy and will affect tourism, but it will go away after a while. But, he said, I am powerless to stop it.

Well, somebody who knows a whole lot about this process, and the National Grasslands, and the Elkhorn Ranchlands, disagrees. His name is Dave Pieper, and he was the Dakota Prairie Grasslands Supervisor—Jablonski’s boss—for ten years, now retired, and he was the man who put the deal together to get the land into public ownership and protected from development in the first place. And Dave is pissed.

As the end of the 45-day comment period on the FONSI approached this week, Dave sent his letter objecting to Jablonski’s findings to Dennis Nietze, the man who succeeded him as Supervisor. With copies to Nietze’s bosses, Faye Kreuger, Regional Forester and Nietze’s immediate supervisor, and Tom Tidwell, the big boss, Chief of the U.S. Forest Service. Pieper knows them both well, and he minced no words.

He begins his letter by saying “I am writing this letter because I am deeply concerned over the impending decision.  Reserved and outstanding minerals notwithstanding, there are other reasonable alternatives that the Medora District Ranger, Ron Jablonski, has failed to carry forward or exhaust. Rather, he summarily dismisses both the purchase and exchange alternatives. The main purpose of this letter is to request that the Forest Service rescind the decision until the Elkhorn Plan amendment and other important work is completed.”

Note the words “until the Elkhorn Plan amendment . . . is completed.” What he’s referring to there, is that once the Eberts Ranch was acquired—it is several thousand acres with a full set of ranch buildings, corrals, fences, wells, watering tanks and feed lots—it is the responsibility of the Forest Service’s District Ranger—Jablonski—to write a plan for its use, like any good rancher would for a ranch he acquired. Seven years after its purchase, the plan is not yet written. The buildings sit empty. I think someone is running cows on it, but I am not sure. It is the height of irresponsibility to ignore this important mandate.

Last fall, Tweed Roosevelt, TR’s great-grandson, and I met with Nietze and we asked him why there was no management plan written yet. He said with this oil boom going on, his staff was too busy to get it done. Well, maybe, but they weren’t too busy to rush this gravel pit proposal through. The FONSI is a lengthy, complicated government document which took someone hundreds of hours to develop and write. When they could have been, instead, writing a plan for management of the entire ranch, not just the 30 or 40 acre gravel pit. That alone seems like a good reason to send Jablonski into early retirement and put someone in charge out there who understands what’s important and what’s not. (Incidentally, I’m not the first person to ever call for Jablonski to be fired. A lot of folks who know more about what he does than me have been saying it for years.)

I am going to attach the entire text of Pieper’s letter to the bottom of this post, so those of you who want to read that far can do so.  Pieper is as articulate as he is demanding. He says this: “To be given the opportunity to work with an inspired coalition of partners to successfully acquire of a piece of history – the place where many believe Theodore Roosevelt developed his conservation philosophy – was the capstone accomplishment of my career. The conservation community coalesced with energy, resolve and resources and would not be denied in its effort to protect and preserve this nationally significant historic site.”

His passion for this place, and for the National Grasslands, clearly shows through. His former bosses will quickly affirm that this is the man who probably knows more about both the process involved and value of protecting this particular piece of the Grasslands (his civilian retirement e-mail address is “grasslands4ever@ . . .”) than anyone in America.

What is surprising about the letter is his bluntness about the failings of his former employee. You see, Jablonski’s decision caught everyone off guard. Because a process was underway to prevent this from happening. Last year, the Forest Service and Lothspeich signed an informal agreement to try to work out a swap of Lothspeich’s minerals for some land or minerals somewhere else. The Forest Service owns a million acres. That should be doable.

At the same time, a parallel process began to identify the 40-some other mineral owners, an effort funded by the same conservation partners who bought the land and gave it to the Forest Service. Bismarck attorney Robert Harms has spent probably hundreds of hours finding those people—grandsons and great-granddaughters of former ranch owners as well as oil company executives who have purchased the other mineral rights under the ranch. Robert told me this week that he was making substantial progress in working with those owners to sell or gift the surface minerals—the gravel—to the Forest Service. He believed that, given enough time, he could find a way to get all the minerals conveyed to the Forest Service, and make this problem go away.

Then, Bam! Jablonski’s decision was released. It seemed to make no sense. Both Jablonski and Nietze knew about Harms’ work. But something caused them to pull the trigger on Lothspeich’s application to mine. That’s what has Pieper so angry.  Angry enough to say, on paper, things like this:

  • Mr. Jablonski has . . . failed to adequately assess and evaluate the importance of the viewshed within the context of the National Historic District designation.
  • From a leadership perspective, Mr. Jablonski also fails to understand the strategic importance of the partnership to the Forest Service or the willingness of partners to engage in the protection and preservation of the site.
  • Mr. Jablonski’s . . . statement is misleading, capricious and calculated to lead the reader to believe that minerals acquisition is an all or nothing proposition.
  • (Jablonski’s) statement is disingenuous . . . The focus should be on alternatives to accomplish acquisition rather than arbitrary requirements to limit options.

Pieper closes his letter with this: “Finally, some may believe that the proponent will never mine the gravel for lack of resource and associated costs. That may be true. The next owner, however, may not share that sentiment. Through its partnership with the conservation community, the Forest Service goal should be to exhaust all opportunities to acquire these minerals before permitting mining operations. That will take leadership, initiative and partnership development skills; something that is clearly lacking in this proposed decision.  The Forest Service can and must do better.”

What Pieper doesn’t want to come out and say, but I will, is that the Forest Service is playing a high-stakes game of Chicken. It’s a dangerous game. Lothspeich may not have the resources to actually go ahead and develop the minerals. He may have been gambling all along that he could just extort a bunch of money from the government. He’s that kind of character.

But—and there’s a big BUT—he might just be able to find a buyer with deeper pockets for the minerals he owns, recover his money, and the buyer, having determined that there really is a bunch of money in the ground in that gravel pit, could start a mining operation that could go on for years and years and years. By the time it is done, the disruption could cause permanent damage to a site so important to America that it has been called “The Cradle of Conservation.”

Well, good for you, Dave Pieper. I know it is not easy to write a letter which, by implication, is critical of the man (Dennis Nietze) who succeeded you in your position as Dakota Prairie Grasslands Supervisor. It goes against the grain. But if anyone can catch the attention of the Chief of the U.S. Forest Service, it is you. Thank you for doing that. Now, the next step is for the Roosevelt family and the conservation partners who bought the land to go even higher, to the President of the United States. I hope they will do that. This is a place worth saving. Forest Service Chiefs and Presidents have that power. Let’s hope they use it.

Here’s Pieper’s letter in its entirety. Following that are links to previous articles I have written about this issue. This is Article Number 9. Sheesh. I hope Number 10 is the one that says “Roger Lothspeich has gone away. The Elkhorn is safe.”

June 9, 2014

Dennis Neitzke

Supervisor, Dakota Prairie Grasslands

1200 Missouri Ave.

Bismarck, ND 58504

Dear Dennis;

 As the Dakota Prairie Grasslands supervisor (2001 – 2011) I had the unique opportunity to manage and guide the day-to-day operations and activities of some of the Nation’s premier national grasslands.  Without a doubt it was the most interesting and challenging assignment of my career.  It was often a contentious environment. Grassland users and elected officials often disagreed with Forest Service policies and decisions. And still do today. Through it all, however, some very important and lasting partnerships evolved; the most significant of which was the coalition that successfully acquired the Elkhorn Ranch. 

 To be given the opportunity to work with an inspired coalition of partners to successfully acquire of a piece of history – the place where many believe Theodore Roosevelt developed his conservation philosophy – was the capstone accomplishment of my career.  The conservation community coalesced with energy, resolve and resources and would not be denied in its effort to protect and preserve this nationally significant historic site.

 Over 50 national wildlife and natural resource conservation organizations worked together with the Forest Service to secure the purchase of the Elkhorn Ranchlands in 2007. The effort was lead by the Boone and Crockett Club, which Roosevelt founded in 1887, in cooperation with the American Wildlife Conservation Partners (AWCP), an umbrella organization of 41 separate national conservation groups. The Rocky Mountain Elk Foundation also played a key role in the acquisition, facilitating the final legal transaction and closing.

 Roosevelt’s Pulitzer Prize winning biographer, Edmund Morris wrote, “To my mind, there is no memorial or bronze anywhere in the country that evokes the conscience of Theodore Roosevelt as powerfully as the Elkhorn bottom and its surrounding hills.” The surrounding hills, of course, comprise the “viewshed” as seen from Roosevelt’s ranch headquarters, the crown jewel of the acquisition.

 The whole effort was centered on acquiring and protecting a piece of ground that many considered to be the Cradle of Conservation. Without this diverse partnership the Forest Service could not have completed the acquisition. The agency has had responsibility for these lands for nearly seven years and has yet to complete the plan amendment to guide the management of the historic ranchlands.  Now the agency is poised to approve a gravel pit operation (with unknown reserves) that is located within the viewshed of the proclaimed National Historic District, before fully exhausting all available options.

I am writing this letter because I am deeply concerned over the impending decision.  Reserved and outstanding minerals notwithstanding, there are other reasonable alternatives that the Medora District Ranger, Ron Jablonski, has failed to carry forward or exhaust. Rather, he summarily dismisses both the purchase and exchange alternatives. The main purpose of this letter is to request that the Forest Service rescind the decision until the Elkhorn Plan amendment and other important work is completed. 

Mr. Jablonski has also failed to adequately assess and evaluate the importance of the viewshed within the context of the National Historic District designation. With respect to the Finding of No Significant Impact (FONSI), the viewshed is clearly nationally significant and the proposed mitigation insufficient in light of the opportunity to avoid any impacts at all.

 From a leadership perspective, Mr. Jablonski also fails to understand the strategic importance of the partnership to the Forest Service or the willingness of partners to engage in the protection and preservation of the site. The agency has an obligation to its partners and public to proactively protect and preserve the outstanding ecological and historic resources of the Elkhorn Ranch. Avoidance and offset will provide maximum resource protection measures, especially with respect to the protection of important cultural and historic sites.

 The decision notice (DN) rationale to not carry forward the purchase of mineral rights or exchange of mineral rights is inconsistent, arbitrary and capricious. There is no agency policy or law that prohibits the agency from acquiring partial mineral estates. The broad-brush mandate that the federal government is required to own all minerals is an arbitrary decision to justify the elimination of the exchange or purchase alternatives from further study. While acquisition of partial interest mineral estates may be rare, it may occur to accomplish management objectives (FSH 5409.13). However, without a plan amendment in place there are no site-specific management objectives on which to base decisions.

 The proponent has indicated his willingness to exchange or sell the rights, the ranch sellers were willing to donate all or part of their rights, and Mr. Lowell Baier (Boone and Crockett) is currently coordinating with the other gravel owners to determine their willingness to divest their ownership. By taking the initiative, the Forest Service could incrementally acquire these surface rights through purchase, exchange and/or donation. And although the agency has determined the number of acres to be disturbed by the proposed mining, it has not provided an estimate of the volume of gravel to be mined. An inventory must be completed as a basis to inform the process.

 It’s obvious that the Forest Service does not have the current funding or the legislative support to purchase “all” the mineral estates.  The issue at hand is not the entire minerals estate but the gravel within the viewshed. 

 Minerals acquisition funding could be accomplished through a combination of appropriated funds, partnership contributions, grants, etc.  In fact, agency policy (FSM 2830.3) states: “Consider acquisition of mineral rights…when the public benefits derived from surface values are deemed to justify the cost of acquisition.” Coordination with the delegation and governors office outlining the limited scope and voluntary nature of the acquisition would help to address their concerns. More elected officials are embracing the protection of North Dakota’s “special places”.

 In 2002 Western Sand & Gravel (see attachment) estimated the value of the gravel if marketed for quick sale at $52,500. Over the life of the resource the value was estimated to be from $130,000 to $275,000. Gravel quantity and market value must be determined to provide a basis for any exchange or purchase. Hopefully Mr. Jablonski anticipated this work when he signed an Agreement in Principle in 2012 to exchange with the proponent.

 The purpose of the Agreement was to work out an exchange for other federal land or mineral rights at a different location. Mr. Jablonski said, “We are going to take a look at options for some type of exchange.” However, now Mr. Jablonski (DN p. 8) discusses potential liability associated with partial mineral ownership and that any mineral exchange would have required the government to obtain 100% of the mineral ownerships from all mineral owners  (even though he signed the Agreement with only the proponent). This statement is misleading, capricious and calculated to lead the reader to believe that minerals acquisition is an all or nothing proposition.

 Mr. Jablonski states the potential liability associated with partial mineral ownership proved to be an obstacle with any mineral exchange. If the basis for the potential liability issue is erionite, it appears that test results now obviate this concern.

 Mr. Jablonski also states that overall timeframes to resolve and exchange minerals resulted in the agreement being withdrawn.  This statement is disingenuous. Work planning and timely accomplishment of priority work products, including completion of the plan amendment, is the core issue. The focus should be on alternatives to accomplish acquisition rather than arbitrary requirements to limit options.

 In summary, I request that the Forest Service consider the following: 1) Rescind the Elkhorn Gravel Pit decision and complete the plan amendment, 2) Determine the volume and value of the gravel resource proposed to be mined, 3) Develop a plan to exchange or purchase the surface mineral rights within the viewshed, 4) Pursue donations of outstanding and reserved gravels rights within the viewshed, and 5) Coordinate meaningfully and candidly with the partnership, especially with Mr. Baier, that enabled and completed the acquisition of the Elkhorn Ranchlands.

 Finally, some may believe that the proponent will never mine the gravel for lack of resource and associated costs. That may be true. The next owner, however, may not share that sentiment. Through its partnership with the conservation community, the Forest Service goal should be to exhaust all opportunities to acquire these minerals before permitting mining operations. That will take leadership, initiative and partnership development skills; something that is clearly lacking in this proposed decision.  The Forest Service can and must do better.

 Sincerely,

 Dave Pieper

Cc:  Tom Tidwell, Chief US Forest Service

Faye Kreuger, R1 Regional Forester

Lowell Baier, President Emeritus Boone and Crockett Club

Previous Posts:

October 6, 2011

October 8, 2011

October 11, 2011 (#1) 

October 11, 2011 (#2)

May 29, 2012

June 1, 2012

June 4, 2012

June 15, 2012

 

 

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6 Responses to The Saga of the Elkhorn Continues: What’s a FONSI?

  1. Michael Kane says:

    Go get ‘em Roughriders!

    Little holds more value for me than to one day have my granddaughter experience this unique place in a time that continues to allow natural processes to remain in charge rather than serve man’s pecuniary desires. and a prayer for her to so love this earth so well as to hold it in trust yet longer, for her own grandchildren, and theirs. Could we be so wise as to accomplish this?

  2. Roger Lothspeich says:

    Jim,

    Again your facts are not correct. Elbert’s own 25%, I own almost 27% on a few sections and 50% on most of the ranch. The balance is split between the 40 or so other mineral owners. I also have respect and don’t resort to name calling. Shame on you.

    Roger Lothspeich

    • Avatar of Jim Fuglie Jim Fuglie says:

      Well, gee, Roger, thanks for correcting me. I’m glad you read my blog. How about the part about trading two 4-wheelers for the minerals? Did I get that right?

  3. Bob Hulteen says:

    Thanks for this update, Jim. I do hope these details move up the ladder to President Obama. Presidents are a tight-knit group. I suspect the current President would be interested in looking out for the interests of President TR. And we all will be better off if he does. (Well, except for Mr. Lothspeich perhaps.)

  4. David Nix says:

    I have been to the Elkhorn site more than once and each time I’m struck by the beauty, isolation and the pure solitude that I experience.
    It is a shame that the incompetence on the part of the USFS may lead to forever tarnishing this unique ecological site.
    Shame on us if this gravel site is developed. It will be a permanent sign of our outrageous arrogance.

  5. Nancy Gregory says:

    Hi….I was just there doing research for a mystery book. It is so unique. I had heard reference to the gravel issue but thought it was over and done with?
    Please let me know.
    Thanks for your blog.
    Nancy

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