The county questions land sales in Canyons of the Ancients

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A routine water-court procedure on a creek in Canyons of the Ancients National Monument has triggered concerns from Montezuma County officials of an expanding federal-government presence that threatens traditional ranching.

County commissioners met with BLM and monument staff Feb. 26 to discuss a water right on Yellow Jacket Creek associated with a private ranch recently purchased by the monument.

The inholding, formerly the Wallace Ranch, was purchased for $3.3 million, and totals 4,500 acres. The property comes with a conditional water right of 5.25 cubic feet per second from Yellow Jacket Creek, but the water has not been put to use, or developed, yet.

Conditional status is a precursor to absolute (perfected) water rights, which are awarded once specific uses and developments for the water, such as diversion structures, are identified and in place.

A procedural hurdle in state water court requires the BLM to file for a six-year diligence period in which specific uses for the conditional water rights granted with the property are to be finalized. Montezuma County is listed as an objector in the case, prompting negotiations.

“I am recommending that the BLM acquire the water rights and then have an internal process to decide whether or not they can be used to further the management on that property,” said Roy Smith, a BLM water-rights specialist with the agency’s state office.

Uses could include irrigation for re-seeding of native plants, fire suppression, campground or visitor services, and delivery of livestock water to tanks away from the creek.

The BLM has long sought to preserve flows in Yellow Jacket Creek. Minutes from a 2005 meeting of a monument advisory committee state that the agency was then engaged in an “ongoing effort to secure instream flows to protect sensitive fish species and riparian health in Yellow Jacket Creek,” adding that the creek has become a perennial stream through irrigation runoff from upland agricultural fields. At that time, the BLM was working with the Colorado Water Conservation Board to secure the instreamflow right to protect riparian health and sensitive fish species.

The sale of the Wallace parcels gave the BLM the water rights associated with them.

But before attempting to utilize the water, the BLM must conduct a land-health assessment on the property, a BLM requirement any time land is acquired by the federal agency. A controversial part of the process puts grazing permits in the area on hold pending the rangeland analysis.

But funding for the study is not available, a problem exacerbated by the federal budget sequester, leading to an uncertain future for cattle-grazing in that area.

The unresolved question of whether grazing will continue, along with the loss of private property to the federal government, drew the ire of the commissioners

“This is the type of thing that makes us suspicious,” said Commissioner Steve Chappell. “It has been an active ranch, so give us reassurance that this grazing permit will be reissued. Otherwise, why would we take away our objection?”

Monument Manager Marietta Eaton responded that land-health assessments are required to understand the condition of the land first.

“As a manager, I can’t in good conscience put livestock on land until I know if an allotment is going to support that permittee,” Eaton said. “The reason that the permit has not been reissued is to determine the baseline condition with a land-health assessment.”

There are many private inholdings within Canyons of the Ancients National Monument, and creating a more-contiguous landscape under the monument conservation management system is one goal. But monument officials stress that land purchases are made only with willing sellers, and depend on available federal funding.

“If the opportunity arises, we try and secure funding. Private land is at risk for development and we don’t want to compromise the rural character of the monument,” Eaton said.

Commissioner Keenan Ertel cited U.S. language in Article I, Section 8, of the U.S. Constitution that he claimed requires state legislature approval for federal purchase of private property. Such permission was not sought, and BLM officials disagreed that it was necessary.

“We’re getting squeezed on all sides by expanding federal land agencies, regulations and actions,” Ertel said.

The section of the Constitution in question lists powers of Congress, one of which is “To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.”

Tea Party activists and others critical of the federal government claim that the second portion of the clause, known as the “enclave clause,” mandates that no property can be purchased by the federal government without the consent of the legislature of the state in which it lies.

“Can any agency of the federal government come into a state and purchase land without state authorization as any other buyer would?” asked Jim Tenney of Arizona in a 2001 essay, published at www.citizensalliance. org, that typifies the argument. “Is it a private property right for a property owner to sell to the federal government? A proper reading of the Enclave Clause shows the answer to both of these questions is, NO.” Tenney is identified as the Arizona State President of Frontiers of Freedom People of the USA.

But according to an essay on the website of the Constitutional Accountability Center, a progressive think tank, that argument does not hold water.

“Let’s start by pointing out that Clause 17. . . is actually a broad grant of power to the federal government, authorizing it ‘to exercise Legislation in all Cases whatsoever,’ states writer Doug Kendall in an essay about federal lands in Utah. “The second half of the Clause – [the] so-called ‘enclave clause’ – uses the word ‘consent’ only to define the lands to which these broad powers apply, meaning the Clause applies to lands obtained with the consent of the states. . . .

Just as important, because the ‘enclave clause’ only concerns state transfers of land to the U.S. government for a limited number of purposes, it does not apply to the vast majority of federal lands in Utah. After all, Utah never had the chance to consent to federal control over these lands because they were property of the U.S. government before Utah’s statehood.”

Another inholding within Canyons of the Ancients the Rutherford Ranch, was purchased last year for almost $1 million. Whether grazing allotments there will be put on hold is too early to determine, according to Eaton.

“These federal land acquisitions are taking private land off our tax rolls, and this affects the health, safety and welfare of the county,” said Commissioner Larry Don Suckla. Regarding cattle-grazing, monument officials say it is part of the multiple-use strategy for the area. They urged patience to allow for land-health studies to determine appropriate stock levels, but the commissioners were skeptical.

“This stalling affects our economy. Young ranchers can’t wait, they are ready to go, but nothing is available because federal agencies are dragging their feet to get a study done,” Chappell said.

As a way to speed up the process, he requested BLM provide its requirements for a researcher to conduct the study, and then the county would seek a grant to pay for the position.

Potentially complicating the water-rights situation is the reported presence of rare fish species migrating from the San Juan River into Yellow Jacket Creek. Flannelmouth and bluehead suckers are listed as sensitive species, and the Colorado pikeminnow is listed as endangered under the Endangered Species Act.

Gail Binkly contributed to this report.

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From March 2013.