Theodore Roosevelt at Medora, North Dakota, in 1885. | Credit: Harvard Collection

When the National Trust embarked on its efforts to protect Theodore Roosevelt’s Elkhorn Ranch more than two years ago by naming it one of America’s 11 Most Endangered Historic Places and a National Treasure, we thought we would be participating in a run-of-the-mill National Environmental Policy Act (NEPA) process to help identify an appropriate location for the proposed Little Missouri River Crossing (a proposal that could include a bridge or low-water river crossing) outside of the viewshed of the Elkhorn Ranch Unit of Theodore Roosevelt National Park. As we looked more closely into the issue we quickly learned that the crossing was an indication of a much more insidious threat of minerals development that threatened to irreparably mar the serene, nationally significant landscape.

Theodore Roosevelt’s Elkhorn Ranch is located in the fantastically rugged and magnificent North Dakota Badlands. It is a striking landscape that spoke to Roosevelt in the 1880s when he first visited on a hunt. He would return to build his Elkhorn Ranch and use the place to seek solace and repair following the deaths of his mother and first wife Alice. While the ranch buildings are no longer extant, the immediate surrounding landscape remains much the same as it was during Roosevelt’s time. The core of it is the Elkhorn Ranch Unit of Theodore Roosevelt National Park, 218 acres surrounded by National Grasslands (managed by the U.S. Forest Service), state lands, and private lands. This larger area of less than 5,000 acres has been designated Theodore Roosevelt’s Elkhorn Ranch National Historic District and is the landscape the National Trust is committed to protecting.

Widely respected as one of the greatest conservation presidents in our nation’s history, Roosevelt once said, “I never would have been President if it had not been for my experience in North Dakota.” Throughout his eight years in office as the 26th president, he protected roughly 230 million acres of public lands. It was Roosevelt who signed the Antiquities Act of 1906 into law, establishing an administrative power to protect public lands of great cultural and environmental significance as National Monuments. How ironic, then, that more than a century later, the very place that rooted Roosevelt in his conservation ideals is now threatened by one of the largest oil and gas booms in our country’s history.

Oil and Gas Extraction in the Badlands

Map produced by the National Trust that indicates the different owners for Elkhorn Ranch surface land. | Credit: National Trust for Historic Preservation

The Elkhorn Ranch sits in the Bakken Formation, an area of intense oil and gas exploration that has exploded in recent years due to technology like hydraulic fracturing and directional drilling that allows for more invasive extraction of oil and gas. North Dakota is now the second largest producer of oil and gas in the country. It currently has roughly 12,000 producing oil wells that are estimated to swell to more than 45,000. It is by far the leading commercial industry in the state. The infrastructure to support this extraction has not met the demand, resulting in many negative impacts to public health, social welfare, and cultural/environmental preservation.

The effects of this development on the serene landscape are great. The truck traffic streaming along the once quiet dirt roads brings noise and visual intrusions, trailing long plumes of dust clouds. Other necessary infrastructure like the well pads (areas of scoured earth that house the equipment and structures pumping the oil and natural gas out of the ground) also introduce visual and auditory intrusions that mar the landscape. There are currently seven active wells within the Elkhorn Ranch National Historic District. Much of the development is further north of the district, but over the past couple years many more well pads have sprung up along the route from Medora to the Elkhorn Ranch Unit of Theodore Roosevelt National Park, interrupting the visitor experience and altering the peacefulness of the Elkhorn Ranch that Roosevelt reveled in. As such, we have a brief window of opportunity to save this nationally significant place from irreparable harm.

A Multi-Layered Land Ownership Structure

But efforts to protect the Elkhorn Ranch from poorly planned energy development are made more difficult by the complicated ownership structure of the surface and subsurface minerals. Surface minerals can consist of gravel, sand and scoria (porous, cinderlike fragments of lava commonly used for landscaping and on oil well sites to limit mud issues with heavy truck traffic). Subsurface minerals consist of oil and gas.

Much of the historic district has three different layers of ownership known as a “split estate”: one for the surface land, one for the surface minerals, and one for the subsurface minerals. In North Dakota and in most states, under common law the mineral estate trumps the surface land ownership because a mineral owner cannot be prevented from accessing what he or she owns beneath the surface. For example, a surface land owner cannot prohibit an oil and gas owner from constructing a well pad to access subsurface minerals.

An example of a homestead in North Dakota. | Credit: State Historical Society of North Dakota

The history of this split estate ownership structure hearkens back to the various homestead acts passed by Congress between 1862 and 1916. The first Homestead Act of 1862 provided 160 acres to intrepid settlers who were required to live on and cultivate the land for five years. They received not only the surface land but all the minerals as well.

In 1909 the Enlarged Homestead Act was passed, which gave settlers twice as much land—320 acres—much of which was less fertile than what was snapped up in the original Homestead Act. Around this time, Congress began recognizing the difference in value between surface land that was used for agriculture and subsurface that was used for mineral extraction. In 1910 the federal government began selling the surface and minerals separately, and by 1914 began retaining most of the mineral estate, reserving the minerals entirely under federal ownership under subsequent acts like the Stockraising Homestead Act of 1916. This meant that the farmers and ranchers owned the surface land, which they used for farming and ranching, and the government owned the minerals underneath the land.

Title to these estates could change hands, and in western North Dakota and other areas of the Great Plains, a rush of this occurred during the Dust Bowl era. An estimated 2.5 million people abandoned their small farms on the plains during the drought years of the 1930s. The federal government stepped in to help repair the submarginal farmlands and economically assist the rural residents by purchasing the lands from willing sellers. Water and soil conservation projects were undertaken and much of the former grasslands were returned to their original state and opened for grazing. These Land Utilization projects would later come under U.S. Forest Service management, and in the case of western North Dakota, become part of the largest national grassland in the U.S.—the Little Missouri National Grassland.

Protection Strategies for Elkhorn Ranch

Oil and gas well pad on the route from Medora to Elkhorn Ranch. | Credit: Jennifer Buddenborg

The complicated surface and minerals estate ownership structure created through the homestead acts and relief programs of the Great Depression within the Elkhorn Ranch National Historic District makes the identification of a one-size-fits-all solution for landscape protection difficult. Consolidating ownership under a single entity through the sale, donation or exchange of mineral rights with protective mechanisms is one solution, but is nearly impossible given the value of such rights, which are estimated in the tens of millions of dollars. As a result, the National Trust is taking a multi-pronged approach to providing long-term protection to the Elkhorn Ranch, which will include some mineral rights consolidation and other management tools like no-surface occupancy agreements with private and public minerals estate owners. Such agreements would prevent the placement of well pads and other extraction equipment directly on lands within the viewshed of the Elkhorn Ranch Unit; oil and gas could still be accessed off-site through directional drilling.

The National Trust is also working with local and state partners in North Dakota to define the cultural and environmental threats and assert a coalesced voice for the protection of this National Treasure. Key to our efforts is working with the oil and gas industry itself to build a collaborative partnership for the proper siting of oil and gas development outside the viewshed of the Elkhorn Ranch Unit. Other related threats like a proposed gravel pit within the historic district require collaboration with federal agencies like the U.S. Forest Service.

Building Awareness

An important part of our work is to build awareness for this place. It is, after all, significant not only to North Dakotans but to the country as a whole. To combat the hurdle of the site’s remoteness, the National Trust continues to find ways to share this place with a wide audience.

One such recent success is the upcoming air date of a CBS Sunday Morning segment hosted by correspondent Mo Rocca with guests Theodore “Ted” Roosevelt IV and National Trust President Stephanie Meeks.  Keep your eyes peeled for a release on the air date which is slated for November.

Jenny Buddenborg is a senior field officer in the National Trust’s Denver Field Office.

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