Montezuma County-BLM water dispute lives

Wednesday, May 29, 2013 4:13 PM

Two Montezuma County landowner groups and the county itself have told a water-court judge they’re not anywhere near settling a dispute over water claimed by the Bureau of Land Management.

The heart of the dispute is 5.25 cubic feet per second of flow from Yellow Jacket Creek that the BLM in 2009 acquired when it bought at auction 4,537 acres owned for decades by the Wesley Wallace family.

A peripheral issue for the objectors is the loss to Montezuma County of taxable land that the new BLM holding represents. An estimated 70 percent of land in the county is owned by federal agencies or the Ute Mountain Ute Tribe, neither of which pays property tax.

Opposing the BLM in the 6th Judicial District courtroom of Judge Gregory Lyman in Durango last week were Montezuma County, the Southwest Colorado Landowners Association and Water Rights Montezuma.

“We are not ready to agree,” Sheldon Zwicker from the landowners group said. “This (the claim to 5.25 cfs) is speculation. A water-right filing has to be specific.”

Montezuma County Attorney John Baxter and Commissioner Keenan Ertel were in the courtroom. Kristen Guerriero, the BLM attorney, was on a speaker phone.

The landowners raised two objections:

The BLM is violating Article 1, Section 8, Clause 17 of the U.S. Constitution, which requires state legislature approval of private-land purchases by the federal government.

This has not happened, they said.

The agency also violates Article 16, Section 5 of the Colorado Constitution, which says that unappropriated water is owned by the public.

The objectors said the BLM claim to water is speculative, and the agency has no planned use for the water nor has stated how much it needs.

Under water law, rights can be bought, sold, traded or changed. Rights are conditional until the owner satisfies a water court that the amount is proper for the intended use. Then the right becomes absolute.

Roy Smith, statewide water-rights coordinator for the BLM, said Wednesday that’s what the agency is doing.

“We acquired the water rights with the property, but they’re conditional,” Smith said. “We’ve told (Montezuma County) commissioners that we’ll probably use substantially less than 5.25 cfs.

“We’re evaluating the situation,” he said. “We could use a little water to irrigate areas that need to be reseeded, but we don’t know the rate or the volume.”

As for violating the U.S. Constitution, Smith said: “Our interpretation of the article differs from theirs. We don’t think this process applies.”

Outside the courtroom, the landowners said the BLM paid more than the going price for the 4,537 acres of high-plateau rangeland in Yellow Jacket Canyon, an enclave in Canyons of the Ancients National Monument.

The $3.3 million price tag comes out to $727 an acre, they said. Good farmland in the area can be had for $500 to $700 an acre.

Lyman scheduled a case-management conference for 9:30 a.m. July 12, and he expects an agreement then. Meanwhile, Lyman said, he wants the parties to negotiate in good faith to see if the dispute can be settled by agreement and not by judicial fiat.

U.S. Constitution

Article 1, Section 8, Clause 17
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, dock-Yards, and other needful Buildings.

Colorado Constitution

Article 16 Section 5
Water of streams public property. The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.