“Local governments shall be encouraged to designate areas and activities of state interest and . . . shall administer such areas and activities . . . and promulgate guidelines . . . “ From CRS 24-65.1-101
At a public meeting Oct. 5, the Montezuma County Commission was sharply criticized by two residents for its refusal to endorse – or possibly even participate in – an effort to examine the need for a Master Leasing Plan, a BLM-initiated process that would provide increased scrutiny of certain public lands regarding oil and gas development.
Supporters of the MLP process have said the plan could offer protection for key areas in the county, including the Phil’s World mountain-biking trails east of Cortez.
Soon after these comments, the commission voted to add a new section to the county’s land-use code designed to provide increased protections for the popular biking area.
“This is about local control,” Commissioner Larry Don Suckla told the critics. “We just gave you what you wanted.”
However, the critics were far from satisfied – one accused him of trying to put words in her mouth, and said the MLP would consider other public lands in the county for protections as well.
Suckla responded that although the motion would apply only to Phil’s World, other areas could be designated for protection in the future.
County attorney John Baxter explained that a provision of state law commonly referred to as HB 1041 allows counties to impose stricter rules for the permitted use of designated areas than state or federal regulations.
“If we say, “No drilling on Phil’s World,’ then it would have to go in front of the commission,” Baxter said, adding 1041 “is a tool to bring local voices into management.”
Suckla’s motion, which was quickly passed, initiated the process of crafting a 1041 section for the land-use code. It will require consideration and a recommendation by the Planning and Zoning Committee – a workshop is scheduled for Thursday, Nov. 12, at 6 p.m. — and then a public hearing before final approval can be decided by the commissioners.
Phil’s World, a set of trails crossing more than 3,000 acres of public lands near the county fairgrounds, has grown – along with the sport it hosts – from modest beginnings in the 1990s and now includes 27 miles of single-track one-way trails. Along with 2,400 acres of BLM land, the trail system encompasses more than 700 acres of state trust land.
“Our main goal here is to make sure that Phil’s World – the BLM ground and state ground – stays intact as a mountainbike trail,” Suckla said in a recent interview with the Free Press, “and that there’s no drilling – or access roads – in the middle of it.”
The land is leased and maintained by the Southwest Colorado Cycling Association, which is currently seeking approval from the BLM to construct additional trails that would double the system’s length.
“Our feeling is that (because) Phil’s World has been named one of the No. 1 trails in the United States, not only would it work for a 1041 for Colorado, but it’s known internationally, so that’s why we feel the 1041 applies as well,” Suckla said.
Passed in 1974, HB 1041 gives counties powers to designate areas and activities of state interest in more than a dozen categories – such as wildlife habitat or mineral resource areas – and then to regulate them through a permitting process.
In a often-cited case that ended up in the state Supreme Court, Eagle County used HB 1041 powers to deny a permit for a major water project known as Homestake II, which the cities of Aurora and Colorado Springs had proposed to build in the Holy Cross Wilderness Area. In that instance, the applicants refused to meet the county’s conditions for mitigation, relying instead on having the permit denial overturned by the courts.
“The cities basically were assuming they would win in the Supreme Court,” explained environmental lawyer Barbara Green, with Sullivan Green Seavy in Boulder, “so they gave very short shrift to the local process.”
In the end, however, the county’s denial was upheld.
Suckla believes Phil’s World easily qualifies for special protection.
An avid mountain-biker himself, the commissioner said riding the Phil’s World trails is a vastly superior experience compared to others in the Four Corners.
For instance, he said, “Alien Trail (near Aztec, N.M.) has oil and gas all around it – one part has a compressor station (near it) – but there’s a big difference. “Phil’s World is surrounded by private property on all sides except near the fairgrounds and Alien Trail is surrounded by BLM land.”
And, according to the priorities in the BLM’s mission statement, Suckla said, even though public lands are managed for a variety of uses, including livestock grazing, recreation and timber harvesting, “the first thing they mention is energy development.”
And while a Master Leasing Plan also might protect most of the trail system from energy development, the Phil’s World staging area, or entrance, is on located on state trust land over which the BLM has no control.
“It could be like going to a Denver Broncos game and having no place to park,” Suckla said. “The state ground is critical to Phil’s World.”
And to protect that, “we’re of the opinion 1041 would be the way to go.”
In the past, seven wells that turned out to be dry holes were drilled on the outskirts of Phil’s World, he said, the last one being on Cedar Mesa in 2001.
“However, because of the new technology it doesn’t mean that in the future they couldn’t figure out a way to drill on Phil’s World.”
Suckla said during a recent on-site meeting with private landowners whose properties border on the proposed expansion area, some objected that its use by mountain-bikers would destroy the “wilderness” atmosphere that now exists. But public lands belong to everyone in America, he noted, and if people bought property adjacent to the BLM land with the expectation it would remain forever pristine, they had been misinformed.
The draft of the addition to the landuse code should be ready for perusal by the Planning and Zoning Committee soon, Suckla said, and a public hearing will then be held during which any objections can be aired.
“The sooner the better for us,” he said. “Speaking for the commissioners, I believe all three think Phil’s World is worth putting a 1041 on to keep that bike trail in place – as well as the expansion – because of the economic benefits.”
Mountain-biking meccas such as Moab, Utah, attribute millions of dollars in annual revenue to the sport.
Still, the process of adopting 1041 regulations may be more complex than it appears at first blush.
For one thing, Green said, “You can’t deny the use of federal or state land – you can only regulate it, and you can’t just go after one activity.
“You cannot say, ‘You can’t do oil and gas (development),’” because “among the list of matters of state interest is not ‘the conduct of oil and gas’ that you can regulate on its own the way you can regulate a nuclear detonation site or waterdiversion project.”
And such regulations apply to anyone wanting to engage in any activity in the designated area.
“So you have to designate an area based on either geological hazards or wildlife habitat or one of the areas, and then for anything that happens in that area you have to get a permit.
“That is true whether it is on federal land or state land,” she said, but “what you can’t do is dictate the use of federal land.”
For instance, she said, “The county could not say, ‘You can’t use the land for oil and gas.’ You can’t zone federal land, you can only regulate the impacts.”
Suckla said Baxter, along with the planning and zoning department, is working on a draft of the 1041 regulations to be considered by the P&Z committee later this month. However, Baxter said on Nov. 3 that deciding just which particular area or activity of state interest is designated will be left up to the committee members and the commissioners to decide.
But Green was skeptical that the county could succeed in protecting Phil’s World through a narrowly defined 1041 regulation that would stop only energy development.
“There’s another important, important wrinkle here,” she said, “and that is if you’re going to designate ‘mineral resources area’ as an area of state interest, the COGCC (Colorado Oil and Gas Conservation Commission) has to agree to the area, so that’s why most counties don’t do that, because they can’t believe the Conservation Commission would actually agree.”
Green said there already has been some public discussion of Montezuma County’s proposal to use 1041 regulations on Phil’s World.
“People are saying the commissioners want to stop oil and gas on state land,” Green said, “and the amount of publicity has already made it more likely than not that they couldn’t successfully designate an oil and gas area as an area of state interest.
“The idea that some county is trying to ban oil and gas makes (the COGCC) very nervous to say the least.
“And they’ve sued over similar things.”
She said other counties looking to protect remote or undeveloped areas often designate them as wildlife habitat.
Green emphasized that she is not representing the county nor offering legal advice, but commenting only in the interest of clarifying 1041 powers and applications
