Agate Fossil Beds Administrative History

The Threat of Condemnation, 1973-1974

Condemnation proceedings overshadowed nearly all other activities in 1973. An interpretation of past negotiations by Robert Simmons and his clients, however, added further controversy to the already complex situation. In a June 1973 letter, Simmons stated that the late Fred Fagergren promised that "I could assure these ladies that at no time during their lifetime would the Park Service ever attempt to take their land or any part of it to prevent them from using the land for ranching purposes." When Homer Rouse became superintendent, he wanted the verbal agreement formalized, warning that if a new proposal was not accepted before July 1, 1970, condemnation proceedings would be initiated for a scenic easement. When this happened, Simmons claimed he telephoned Fagergren who said he had no intention of pursing condemnation, but that the action was done in order to obligate funding while negotiations continued. Fagergren assured there would be no litigation. Simmons said Fagergren's good faith in the matter was evidenced by the lack of any established trial date. Upon Fagergren's death, however, new leadership both in Omaha and Scotts Bluff saw scenic easement requirements become more demanding and some parts of the proposed scenic easement east of Highway 29 became fee acquisition. Because the Service wished to restrict modification of ranch buildings, the Cook heirs asked for substantial damages if they could not use their property like other area ranchers. Simmons believed the demand for fee acquisition evolved because the Service thought "if they were going to have to pay substantial damages, they might as well own the land." Simmons concluded:

Not only because of Mr. Fagergren's assurances but because they need the land in their operations of the ranch, my clients have directed me to resist in every possible way the taking of the fee but to cooperate in every possible way for the acquisition of the scenic easement that would protect the land and keep it in the same general condition for such future time as the Park Service may need it in some future generation [sic]. [30]

A careful review of Park Service records failed to reveal evidence corroborating Simmons' contentions. Apparently, these verbal agreements were just that, and not committed to paper. Upon receipt of Simmons' letter, however, the Park Service investigated the history of land negotiations, but the files do not indicate that any specific new information was uncovered. [31]

As far back as January 30, 1973, the Meades informed Superintendent Harper and Management Assistant Turay that they would oppose any "National Park Service actions to obtain interest in Agate Springs Ranch land and that condemnation would be the only way the Government could proceed if it wished to obtain ownership of their lands." [32]*

As court dates were set, more conferences were held. In a June 9 meeting at Scotts Bluff with Superintendent Don Harper, the Meades requested that the Park Service dismiss its condemnation suit in exchange for scenic easements. Harper refused. [33]** In a June 15 meeting at the ranch, the Meades and Margaret Hoffman again tried to persuade Harper to change his recommendation and not proceed with condemnation. Harper presented reasons why the land should be within the National Monument: "1) Red Cloud's campsite, 2) Devil's corkscrew area, 3) Right-of-way for access road, 4) Historic trails, 5) River fishing (stated as a very minor point), [and] 6) A good managerial unit." [34] Civility broke down when the superintendent stated he would not change his recommendation for fee simple title even if permitted to do so: "[They] immediately requested the Regional Director's name and address and stated that they would contact him, since the local people would not cooperate. Statements of letters to Congressmen and their ensuing investigations were also made." [35]

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*Dennis Turay later recalled of that meeting: "I had the impression the Meades were trying to convince Mr. Harper and myself to take up their point of view and do what we could to help dismiss any action being taken by the National Park Service to obtain interest in their lands. I felt they had intellectually and emotionally taken the cause of battling "Big Government" and preserving the "Historic Cook Ranch" for the Cooks and they were convinced their point of view was good and just and, if anyone viewed the matter in any manner contrary to their conviction, they would fight them to the finish." See Management Assistant to Superintendent, 7 August 1973, L1425.

**Don Harper confessed to Regional Director Leonard Volz: "I do not understand why the Meades approached me since their lawyer has written a letter requesting dismissal of the suit, unless this is an attempt to delay proceedings or cloud the situation. At this time I cannot recommend any change in our acquisition program." See Harper to Volz, June 14, 1973, L1425.

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The Service did agree to renew negotiations, but not renounce condemnation unless an agreement was reached. [36] Letters appealing to legislators followed [37], and were answered by Leonard Volz on July 10, 1973. Volz admitted that administrative reorganizations and the absence of key individuals had indeed hampered the Service's effectiveness, but it continued to make every effort to accommodate the Cook heirs while complying with the Congressional mandate. Because the heirs had declared the Service "would never get any interest in their land except by condemnation," Volz stated, "It was at this point that we proceeded with Eminent Domain action in fee." He continued:

The tract in question contains formations known as "Devils corkscrews" which are an integral part of the unit. Chief Red Cloud's camp-site is also located thereon and the access road to the Visitor Center traverses the parcel. To acquire anything less than fee would make an unmanageable situation and possibly costs of nearly fee value, leaving the visiting citizens very little if anything useable for the funds expended. [38]

Volz, Assistant Regional Director for Operations Ken Ashley, Regional Lands Chief John Wright, Legal Assistant Alfred Suarez, and Superintendent Harper met with the Cook sisters and Robert Simmons at Agate on July 13, 1975. Grayson Meade led the group to various devil's corkscrew's on Service lands, stating that the quantity was more than sufficient for park purposes. The negotiations reached an impasse after the heirs insisted it was not Congress's intent to include the ranch headquarters and that their stepmother had misrepresented the property which she had the authority to donate or sell to the government. Following a lunch break, Volz presented five alternatives:

1) Complete acquisition in fee simple

2) Fee acquisition with possible adjustments in the taking

3) The Park Service would do nothing

4) A scenic easement

5) Taking all the ranch property including that west of the highway.

Volz stressed the need for a manageable unit. Simmons countered with a proposal for a scenic easement for the entire area with cattle grazing and irrigation continuing as before, Service maintenance of the road and fencing, and a damages fee of $15,000. The meeting adjourned with Volz asking for Simmons' offer in writing at which time Volz would consider it in the interest of favorable park operations. [39]

On July 15, while both sides considered their respective positions, Dennis Turay inspected daemonelix specimens on the former Buckley tract and then crossed over onto the Agate Springs Ranch land on the pretext of fire protection patrol and to check on boundary monuments. He did not receive permission from the Meades prior to the inspection. Turay operated under a suspicion that the Meades, two days previously, had not shown Park Service personnel all the daemonelix existing on the tract. Turay researched file information and found the bulk of these fossils could be found on disputed Tract 01-103. Crossing the boundary monuments, Turay searched for daemonelix:

Just by walking a short distance south and west, a tremendous quantity of outstanding Daemonelix were visible. I was very elated, and felt that these spacimens [sic] were the best to be found within our proposed boundary (I had been looking all over our lands for the previous 3 months and could find nothing to compare with what I saw in a short 20 or 30 minute look on Tract 01-103). I had a feeling Grayson Meade was trying to keep the facts about the Daemonelix on Tract 01-103 [a] well-guarded secret and had tried to steer our attention to the few Daemonelix on Highway 29 and the few poorly exposed specimens on our own lands. I did not feel I was trespassing or going beyond my duties during the process of discovering what earlier N.P.S. studies had said was there all along. [40]

Without acknowledging that a previous inspection had occurred, Paleontologists J. Reid and Laurie Macdonald; Midwest Region Interpretive Specialist Jim Schaack; and Don Harper and Dennis Turay inspected the Cook tract on July 26 with Grayson Meade. Schaack determined the daemonilix deposits merited Park Service control and only fee acquisition could provide adequate preservation of all the historic and geologic sites. [41]

When Grayson Meade discovered it was Turay's clandestine investigation which prompted the Macdonald and Schaack visit, he became enraged and confronted Turay for his "low and despicable act." [42] Such was the volatile state of area public relations.

Hopes raised by the July 13 Volz-Simmons meeting were dashed in early September when the National Park Service rejected the Cook heirs' terms. On September 10, Superintendent Harper refused an interview with a local television news reporter who had been contacted by Dorothy Meade. Harper, on the advice of the Midwest Region and Washington Office's, declined to comment because to do so might prejudice the outcome of the trial set for October 1 in North Platte. [43] Two days later, Dorothy Cook Meade issued an open "Situation Statement" to friends and neighbors. It accompanied a petition directed at Senator Roman Hruska to intercede and stop condemnation of fee title to the disputed 565 acres. The five-page letter outlined the history of "our struggle with the National Park Service," and the last four paragraphs succinctly summarize its tone and objective:

For some years the NPS has been getting a reputation in many states for its ruthless land grabs and dictatorial approach to the taxpayers. In Nebraska, up to now, the image of the benevolent Service and its friendly rangers has remained unscarred, largely because almost no one in Nebraska has had direct experience with NPS power plays. If this case gets into court, it will be the first condemnation of land by the the NPS in the state of Nebraska.

The Act does not mention specific land to be acquired; only township and range. If it is legal to condemn our 565 acres, as distant and irrelevant to the Monument as they are, the NPS could equally well under the Act condemn any land within the township, on any equally capricious excuse. If they force sale of our 565 acres, they may well decide to acquire another 585 acres, to complete their permissable 3,150 acres.

My father, Harold Cook, originally interested the NPS in making a Monument of the fossil quarries, and building a museum to house the donated collections of fossils and Indian artifacts, shortly before his death. He has placed us in the position of the Bedouin who let the camel put its head into the tent: we have been trying ever since to heave the rest of the camel out.

There is no question that the Monument, as it exists today, would not have been possible without the care and forethought of my father and grandfather in preserving the collections and developing and protecting the fossil quarries. It would be a poor return, indeed, for their public spirit if the National Park Service were allowed to dismember the ranch that they built. [44]

The Meade letter and petition enjoyed wide publicity throughout the region. [45]

The land acquisition litigation, "a situation requiring careful treatment," took precedence over all other administrative concerns. Don Harper remarked that the four sisters and their lawyer were masters at using "all forms of news and communications media in their effort to cancel, avoid, or delay the proceedings." [46] While the condemnation controversy continued to swirl, local park highlights were the beginning of construction of the storage and maintenance building on October 23, and submission of Dr. James Reed Macdonald's manuscript to Harpers Ferry Center for a park handbook.

Several trial dates had been set only to be canceled by a request for a delay. The persistence of the Department of Justice prosecutors, however, convinced the defendants to seek a negotiated settlement. A critical element was introduced on November 20, when Deputy Assistant Secretary of the Interior Douglas P. Wheeler wrote to the Cook heirs. Wheeler designed the letter to reach an agreement. Rationalizing the area was not vital to the purpose of the national monument, Wheeler admitted there was no condemnation action being pursued against the ranch headquarters area or any land west of Nebraska 29. Wheeler added a qualifier to his remarks:

Although we would be reluctant to make a formal, written commitment that this portion of the Ranch would never be acquired for the Federal project, we can definitely say that there are no present intentions of acquiring this land west of the highway. [47]

Deputy Assistant Secretary Wheeler's letter was the capstone of the eight-year struggle. Accomplished in December 1973, the official settlement was filed the following month in U.S. District Court in Omaha. The government agreed to pay $40,000 for title to 300 acres and scenic easement on 264 acres. Fee title land lay north of the county road at the park entrance off Nebraska 29 and included approaches to the Devil's Corkscrew area. The scenic easement encompassed land directly south of the county road and east of the Agate Springs Ranch headquarters. The decision left all land west of Highway 29 in the hands of the Agate Springs Ranch. [48]

Both sides compromised on their previous positions. The Cook sisters gave up more land than they wanted, and were bound under the scenic easement not to sell, build, or make any other changes without Park Service approval. Lawyer Robert Simmons told reporters, "The National Park Service wanted 500-plus acres of clear-title land when they started out, but we contended that would hurt the ranching operation." He added that while his clients were not pleased with the settlement, they felt it was more equitable than the original offer. [49] Another positive development from the settlement was the withdrawal of the lawsuit to regain possession of the Cook Collection.

In the aftermath of the court's decision, the Cook heirs asked that all boundary markers on land not owned in fee by the government be removed. This included all land west of Highway 29 as well as land east of the highway which marked the scenic easement. [50] In referring the request to the Midwest Regional Office, Don Harper recommended the markers be retained in the scenic easement area to delineate the boundary. [51] The response from Omaha dictated that scenic easement markers be retained, but those west of the highway could be removed at the owner's expense. [52]

Other 1974 developments included the completion of the storage and maintenance building on April 25. The eighty- by thirty-foot prefabricated steel structure cost $28,620, and included a maintenance shop (twenty by thirty feet), a storage room (twenty by thirty feet) and a garage (forty by thirty feet). Adjacent to the interim headquarters development area, the new facility also featured a fenced-in propane supply tank. [53] A weekly evening interpretive program began for the first time during the summer months, and the end of the year saw yet another change in permanent onsite managers when Dennis J. Turay transferred to Lake Mead National Recreation Area. [54] The park and Regional Office rejected the request from Fort Laramie that several items donated to them by Harold J. Cook, now surplus to their needs, be reunited with the Cook Collection. No one wished to add to the unwieldy size of the collection. [55]

Harrison, Nebraska, lawyer John H. Skavdahl, a relative of one of the area ranchers, appealed to the Nebraska Congressional Delegation on August 2, 1974, for the harvesting of hay on monument lands. He cited the serious drought, depressed livestock prices, and potential economic impact should ranchers be forced to liquidate segments of their herds because of insufficient winter feed. He contended that within the Agate monument were 250 acres of subirrigated hay meadow, a potential yield of 200 tons. He asked that the Park Service allow the hay to be cut by Sioux County ranchers to curb the critical hay shortage, asserting that ranchers would follow Service regulations and pay a fair price. Skavdahl cited a refusal of his initial appeal by the Midwest Regional Office on the grounds that the park was a natural area. Skavdahl countered that the area had been harvested by the prior owner as recently as 1973, and the environmental impact on wildlife would be minimal. [56]

Senator Carl Curtis* forwarded the Skavdahl complaint to Ira Whitlock, Chief of Legislative Services, in the Washington Office. [57] The response came from Director Ronald H. Walker, who concurred with the park and Region:

The monument has initiated management programs to restore this area to a natural condition in order to perpetuate the stands of native prairie. This process of restoring a natural condition will be quite long, and the native vegetation is sensitive to activity which may disrupt this revegetation process. In order to achieve this restoration, we consulted with the Soil Conservation Service recently. That Agency indicated that the process of restoration will require that no haying or grazing be carried out for a period of another 5 to 10 years, dependent upon weather conditions.

The various forms of wildlife have been gradually returning to the former ranch area as the native species return. The action of cutting hay on this land at this time would also set this wildlife trend back considerably. Apparently, there was some misunderstanding in reference to the implication that the entire 250 acres has been cut for hay as recently as 1973. Actually, the only area which has been harvested since 1969 is the 33.9 acres located in what is referred to as the "horse pasture." The majority of the area has been in the process of revegetation since 1969. [58]

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*Senator Hruska, and likely others in the Nebraska Delegation, rejected the "parochial request." See Honorable Roman L. Hruska (former U.S. Senator from Nebraska), interview with author, Omaha, Nebraska, 26 June 1986, transcript, p. 9.

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Fortified by a strong record of resisting similar requests elsewhere, the National Park Service stood firm and upheld its prohibition of hay harvesting at Agate Fossil Beds.

Superintendent Don Harper reported in mid-January 1975 that Mrs. Dorothy Meade was using the Bicentennial commemoration in an effort to pressure the Service to return the Cook Indian artifacts for display either at the Agate Springs Ranch or the Harrison Museum. Harper noted no official request had been received from Mrs. Meade and that, ironically, most of the Indian artifacts stored at Scotts Bluff were not even in Nebraska, but were at Harpers Ferry Center for preservation treatment. [59]

Harper found himself in a difficult, but not unfamiliar, position. Having grown up on a ranch in South Dakota, he was aware of the problems and aspirations of area ranchers. Harper's Park Service training and experience prepared him to administer Agate Fossil Beds, a new area undergoing all the growing pains associated with authorization and development. He made a point of acquainting himself with the monument's neighbors,* playing poker with some, dropping by to visit others, and participating in seasonal cattle roundups. Although cognizant of the ranchers fervent desire to keep grazing lands which had been passed from one generation to the next, Harper embodied the Service's mission at Agate Fossil Beds as interpreted to him by the Regional Director and the Director. He did not consider administering the monument from Scotts Bluff, forty miles to the south, a detriment. Communication between Harper and the onsite Ranger-in-Charge (who, according to Harper, is free to be "somewhat neutral" and not the traditional Park Service "bad guy") was constant. Long-standing Service administrative policy is for the Ranger-in-Charge to keep the Superintendent informed on all matters either by telephone or by frequent mutual visits. While the Ranger-in-Charge exercises great flexibility as onsite manager, ultimate policy implementing decisions, however, rests with the Superintendent. [60]

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*For a candid discussion of the relationship of the management team of Don Harper and Dennis Turay with the principal landowners, see Mrs. Grayson E. (Dorothy Cook) Meade, interview with author, Agate Springs Ranch, 22 May 1986, transcript, pp. 22-24.

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Dennis Turay's successor, John B. Rapier III, arrived on January 19, 1975, with the title Ranger-in-Charge. A new park ranger position remained vacant. A temporary clerk-stenographer position also remained vacant until May when Jeanne E. Weber entered on duty. [61] (Jeanne Weber's temporary position became permanent a year later).

A request to resume excavations at the monument went to Midwest Regional Chief Scientist Jim Larson on March 28. The request was from Dr. Robert Hunt, Coordinator of the Division of Vertebrate Paleontology, University of Nebraska State Museum. Hunt was initially approached by Richard Strand, Visual Information Specialist, Harpers Ferry Center, to assist in making reconstructions of fossil animals for exhibition at Agate Fossil Beds. Robert Hunt used the opportunity to present a sales pitch of his own to Larson. Since 1972, Hunt and several graduate students were compiling a detailed geological map of northern Sioux County by examining all known fossil mammal materials. The study area encompassed 720 square miles with Agate and the Niobrara River the southern terminus. Hunt predicted the project would continue for five more years and believed a key element rested in uncovering the mysteries beneath the Agate hills. He argued, "Because two of the North American Land Mammal Ages are based on rocks and faunas from the map area, we believe that our work in the redefinition of these units is of fundamental importance to North American paleontology." [62] Although it did not bring results for several years, Hunt's petition set the process for approval in motion.

The 1975 visitor season saw a few maintenance improvements. The monument's power supply was improved and the roads were regraded through a cooperative effort with Sioux County. [63] The season also saw its first and only rattlesnake bite in monument history, and the victim was not a visitor, but a park employee. On August 21, Seasonal Park Ranger William W. Taylor caught a sixteen-inch rattlesnake on the Fossil Hills Trail. Taylor took the reptile back to the maintenance shop to place it in a paper sack whereupon he planned to exhibit the creature to his Gering High School science students. When he released the snake into the sack, the creature had enough leverage to strike instantly, embedding its fangs into Taylor's right index finger. After Taylor received medical attention, John Rapier, filing a case incident record, reassessed monument policy on snakes. Long-standing monument procedure was to move snakes away from the trail and headquarters area for the safety of visitors. Snakes in other areas were left alone. Rangers regularly patrolled trails and warnings appeared on trail guides, the park brochure, as well as a sign at the beginning of the Fossil Hills Trail. The system was effective, Rapier noted, because in the monument's ten years, no visitor was bitten by a rattlesnake. [64]

An Operations Evaluation Team visited the park and issued their report in July 1975. The team, made up of Hugh Beattie, Tom Weeks, and T. B. Taylor of the Midwest Regional Office, noted the Agate Fossil Beds interpretive program was "surprising for a relatively new area. The visitor center trailer is quite well conceived and the exhibits and onsite personnel provide a well rounded and professional orientation to the area." [65] As for administration, the team reported:

Agate Fossil Beds is clustered with Scotts Bluff and is operated more or less like an isolated or detached district operation. This type of arrangement appears to be effective for the present despite some slight indications that Agate might suffer from the effects of the "step-child complex" which is many times common in such groups. We foresee a time in the future when developments at Agate will require additional staffing, funding, and a dissolution of the cluster. [66]

The principal objection, however, was in the area of planning. The team stated Agate Fossil Beds lacked "any really definitive planning to provide guidance for the many developmental activities which have been going on." Further, all development at the monument should halt until a new master plan was in effect. The nearly $80,000 interim headquarters development itself—five trailers; water, sewer, and power distribution facilities; and the large storage and maintenance building—"tend[s] to preempt any future honest planning activity." The operations evaluators declared that "the cart is before the horse and the tail does wag the dog! Consequently, we feel that it is absolutely imperative that a reasonably comprehensive planning effort be achieved in the near future." [67]

Direct fallout from this scathing report came in an August 20 meeting in Omaha between Superintendent Harper and Regional officials reviewing the exhibit plan developed by Harpers Ferry Center. Regional Director Merrill D. Beal shelved the exhibit plan, nearly a year in the making, until a master plan and interpretive prospectus were approved. [68]

In addition, Beal dispatched an interdisciplinary team to Agate Fossil Beds September 30 to October 3, as a result of the Operations Evaluation Report. The goal of the "Special Study Team" was to ascertain the viability of the 1966 Master Plan. Members included Team Captain Fred Kaas, Landscape Architect Dan Wilson, Engineer Ralph Dierks, and Interpretive Specialist T. Hewitt, all from Midwest Regional Office; Superintendent Dave Lane, Pipestone National Monument; and Superintendent Don Harper and Ranger-in-Charge John Rapier III, Agate Fossil Beds. The Special Study Report noted three major problems in the Master Plan: interpretation, access, and location of developed areas.

Of the three problems, location of developed areas received intensive attention. Complicating the issue were archeological investigations conducted in the summer of 1975. Archeologists uncovered a large site beneath the interim developed area which, under the 1966 Master Plan, was the same as the permanent development area. Additionally, the team found it to be "in one of the most visually intrusive locations in the valley." Unlike the Operations Evaluation Team, the Special Study Team did not consider the existing facilities of "such value that they will influence future planning." Rather, the trailers and maintenance building could be relocated with only the loss of concrete slabs and utilities. The team identified and evaluated five alternative sites for the permanent development area: (1) Existing Headquarters Site; (2) Cirque Site (30 to 50 feet on the north side of the county road below the water storage tank); (3) Hoffman Ranch Headquarters Site; (4) Quarry Site and Paleontological Area (University and Carnegie Hills, and Amherst Point); and (5) Nebraska Highway 29 and County Road Intersection (northeast corner).

The Special Study Report itemized the following recommendations:

The present master plan. . . be retained with updating as necessary reflecting 1975 conditions and findings of this report and the following major items to be added to or substituted for those of the 1966 plan.

1. The main developed area to be situated at the intersection of State Highway 29 and the County Road.

2. An interpretive facility at the quarry site. This structure to receive no lighting or other utilities, to be strictly interpretive in nature, and to be so sited as to be invisible from the immediate valley as well as the approach to the quarry and the Bone Cabin.

3. No split development facility. With the exceptions of the Bone Cabin and the quarry interpretive facility all development to be in the developed area as stated above.

4. The primary visitor parking area to be at the main developed area with an off-season parking area within 1/2 mile of the quarry site.

5. Transportation system. Except during the off-season there will be no visitor vehicular traffic in the valley.

6. The Cook Ranch to be restored to a yet to be determined period and retained as a form of a living history interpretive facility. No visitor entry of the house except by special arrangement.

7. The Bone Cabin to be retained, restored to the period of its historic significance, and interpreted accordingly. All other structures at the Hoffman Ranch to be obliterated and the site restored. None of the Red Cloud Collection to be housed at the Ranch, but rather in the visitor facility.

8. Relocation of the present County Road outside the monument boundary. This road connects State Highways 29 and 2 and is used quite frequently by area ranchers.

9. The Stenomylus Quarry development to be of last priority and utilized by special interest persons by permit only. No general public use.

10. The use of solar and wind energy will be considered for use in the visitor and residential facilities. [69]

The team also recommended the interim facilities be retained as is until construction of permanent development ten years in the future—but with three stipulations. First, a permanent maintenance foreman position should be established. If increasing visitation merited, enlarged visitor facilities should be considered in consultation with Harpers Ferry Center. All Service structures in the headquarters area should be repainted in buff or earthtone colors to mitigate the harsh aluminum glare. Also, the Hoffman Ranch House, empty since spring 1975, should be occupied by John Rapier and family until its demolition and the vacated trailer utilized as seasonal quarters. Finally, the quarry in situ exhibits should be upgraded with new protective covers and interpretive signs. [70]