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Elkhorn Ranch gravel pit nears development as longstanding disputes continue

MEDORA -- After more than seven years of discussion, a proposed 25-acre gravel mine located near the historic Elkhorn Ranch about 25 miles north of Medora may be just weeks away from development as it continues to stir strong emotional responses ...

MEDORA - After more than seven years of discussion, a proposed 25-acre gravel mine located near the historic Elkhorn Ranch about 25 miles north of Medora may be just weeks away from development as it continues to stir strong emotional responses from individuals and organizations involved.

Shannon Boehm, a ranger with the U.S. Forest Service's Medora District, said Elkhorn Minerals LLC has valid authorization to move ahead with the project. While there is no definite timeframe, the pieces could fall into place regarding pre-work meetings within the next few weeks.

The first of those discussions will revolve around improving the road to the site, which the owner will need to complete before mining begins.

Boehm said the process of improving roads would be the "first step" and could take time due to the amount of work that needs to be completed before construction begins.

"As to when mining starts, it will all be dependent on the completion of steps that need to happen before that," Boehm said.

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The Forest Service owns the surface rights to 4,400 acres in the Badlands, including the 25-acre tract, which was purchased in 2007 from the Eberts family for $5.3 million. At that time, the agency failed to obtain subsurface mineral rights because they were not available.

Not long after the sale was made, the mineral rights were sold, some of which were acquired by Roger and Peggy Lothspeich, of Miles City, Mont., owners of extraction company Elkhorn Minerals LLC. In 2008, the couple filed for a permit to mine the land due to high demand for gravel as a result of oil development in southwest North Dakota.

Those in favor of mining the area argue mineral rights owners are entitled to make full use of the land, while opponents say it's irresponsible and shortsighted because of the area's history and connection to former President Theodore Roosevelt.

Certain assessments of the land state mining will only temporarily change the landscape. Conservationists disagree, citing the project will create devastating and irreversible effects and ruin a historically significant site. They've even gone as far as pushing to make the near Roosevelt's former Elkhorn Ranch a national monument.

Throughout the process, lawsuits have been filed and relationships strained between organizations.

Acquiring the land

Monetary funds for the acquisition of surface rights to the land were largely made up of Forest Land and Water Conservation program, which pitched in $4.8 million so the Forest Service could buy those rights.

The Boone and Crockett Club - a conservation and hunting organization founded by Roosevelt and George Bird Grinnell in 1887 - pitched in $500,000 toward that purchase under the assumption the land would be conserved for recreational and grazing purposes.

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Lowell Baier, a Washington, D.C.-based attorney and past president of the Boone and Crockett Club, said he campaigned over the course of four years to accumulate funds from aggregate donors with the sole intention of preservation of the land where Roosevelt once ranched, but never owned.

"The protections that we thought we had are being truly ignored by the Forest Service," Baier said. "The spirited intent of our gift has been totally violated."

However, Boehm said donations came with no agreement and that the agency has been consistent with its goal from the beginning, which includes "multiple use." He said the agency purchased the land with the understanding that sections of it had the potential to be mined and that all previous existing rights "have to be honored."

"They (Braunberger and Lothspeich) have the mineral rights, and by law we have to work with them to look at it and coordinate so that they could access the rights," Boehm said. "That's what it comes back to, and that's what we are required to do by law."

Delay by lawsuit

As a way to honor those rights and proceed with the project, the Forest Service conducted an environmental assessment in January to identify developmental impacts the mine would have on surrounding lands. The study admitted development would have various visual, audible and atmospheric effects varying in intensity and duration. While mining will adversely affect the environment, the environmental assessment concluded results of development are "temporary and limited in scope."

After that assessment was published, The National Parks Conservation Association, based in Washington, D.C., filed a federal lawsuit against the Forest Service in late September, stating the agency had violated three federal lawsuits, including the National Environmental Policy Act in its approval of the environmental assessment, which allows plans for the pit to move forward.

The lawsuit claims mining will cause serious disturbances to the "beauty, serenity and solitude" of the site.

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The group filed the lawsuit in hopes of requiring the Forest Service to conduct an Environmental Impact Statement to provide a more thorough study and delay the development process. Boehm said the Forest Service conducted an environmental assessment rather than an EIS because of the amount of infrastructure currently on the land.

"If we know that we are working in an area that is already disturbed, then we do an environmental assessment based on how severe the impacts are most likely to be," Boehm said.

The environmental assessment reported the ranchlands are located within or near three producing oilfields developed in the 1980s, on which 140 wells have been drilled and 57 remain in production status. Improved drilling technologies have increased the number of successful wells, meaning the potential for future development of oil and gas resources is high.

Boehm said when the land was purchased, there were already oil wells, tank batteries, electrical utility lines, telephone wires and water pipelines scattered across the property.

Foreseeable actions to nearby lands also include a proposed river crossing in conjunction with upgrading existing roadways to connect the area to both state Highway 16 and U.S. Highway 85, and further oil and gas exploration and potential mineral development within the same vicinity.

Fight to preserve

But Theodore Roosevelt's great-grandson Tweed Roosevelt, president of the Theodore Roosevelt Association, said continued developments will have lasting negative consequences.

"TR's general view about this sort of thing (development) was that individuals shouldn't be enriched at the cost of the general public," Tweed Roosevelt said. "And individuals shouldn't be enriched, in this case, over a single mine at the cost of all North Dakotans. But this case could be particularly egregious because it could damage a potentially very powerful tourist attraction."

Tweed Roosevelt, who resides on the East Coast, said he supports conserving the land by making it a national monument for recreational, and potentially ranching purposes.

There are two ways a national monument can be created. The first is through a Congressional designation. The second is through the 1906 Antiquities Act, which gives the president power put land into conservation without any other input. The Antiquities Act was created by Roosevelt himself, who designated 18 national monuments. More recently President Bill Clinton designated 19, President George W. Bush created six, and thus far President Barack Obama has designated 17.

"I think North Dakota would be wise to recognize that the Elkhorn Ranch is a terrific natural resource," Tweed Roosevelt said. "It could be a tremendous boost for tourism in North Dakota."

He said it would be in North Dakota's best interest to offer an alternative site.

"There is plenty of gravel in the state," he said. "You don't have to mine gravel within this very valuable resource that is likely to become much more valuable to North Dakota."

Boehm, however, said alternative options have been explored without success.

He said obstacles include issues with split family estates, finding willing sellers and acquiring government support with available funding.

"We offered mineral rights swaps, or land swaps, which would have been a trade of land or minerals which Elkhorn Minerals could operate on," Boehm said. "He (Lothspeich) didn't want to wait any longer and we didn't find any items to swap. So, he decided to stop that process and to proceed with the permit."

Just the beginning?

At one point, Lothspeich said he would consider being bought out for $2.5 million, but has since rescinded the offer and is planning to mine the Elkhorn Ranch area.

Lothspeich spoke to The Press last week for this story, but later retracted his statements upon legal consultation.

Boehm said while there is no definite timeframe on the project, the pieces could fall into place regarding pre-work meetings within the next few weeks. The first of those discussions will revolve around improving the road out to the site, which the owner will need to complete before mining begins.

"There's a significant amount of work the owner has to do to upgrade the road," Boehm said. "That's the first step."

Boehm said he could not comment on the recently filed lawsuit, and said he was unsure how it would impact the pace of which the project is completed.

As it currently stands, the Forest Service said it is working with the Lothspeichs to draft six phases for the project, which follow it from the beginning stages to reclamation efforts until mining is completed.

"There's quality checks all the way through this operation," Boehm said.

He said the final stages will include a reclamation period that can take anywhere from three to five years to "make sure the ground is restored."

Boehm said the mining project may be just the first of many more in the area. He said out of 5,200 acres that once belonged to the Eberts Ranch, Lothspeich owns a 26 percent interest in the surface mineral rights, or approximately 1,352 acres.

How much gravel that amounts to is debatable, Boehm said, but Lothspeich said he is under the impression this 25-acre tract will only be the beginning.

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