Landowners won't give up on overturning monument

Landowners won't give up on overturning monument

April 10, 2001

"No matter what we tell them, they will not believe us because it is not what they want to hear."

— Commissioner Kent Lindsay

By Jim Mimiaga
Journal Staff Writer

From a legal standpoint, Montezuma County does not have a case to try and overturn the recently declared Canyon of the Ancients National Monument, their attorney said Monday.

Responding to a contingent of vocal anti-monument landowners, the commission gave an overview of what they learned on a recent trip to Washington, organized to determine how politically feasible it might be to change the federally-imposed land-use designation.

They found it was clearly not, and their attorney, Bob Slough, said it would be unwise and unethical for the commission to fight a citizen group’s legal battle when there are no legal interests involving the county government specifically.

"For the county to pay me money to fight your battle with the federal government strikes me as inappropriate," Slough said. "Other people in the county have disputes with the federal government, but the county does not fight their legal battles."

Slough said that based on the proclamation language creating the monument on 164,000 acres of BLM land west of Cortez, he is convinced that the county as a whole does not appear to be at risk. He pointed out that oil-and-gas development taxed by the county is specifically protected, as are grazing and private landowner rights in and around the monument.

Going to court on the matter without a solid legal argument showing how the county would significantly suffer due to the monument would be futile, he said, and would be unfair to constituents who are supportive of the monument.

"I have yet to see a legal interest with the county in this situation; they are not being affected," he said. "There is a difference between a legal interest and a political one."

But that was not what the group of citizens opposed to the monument believe, or wanted to hear.

Chester Tozer, president of the Southwest Colorado Landowners Association, said that according to the Federal Land Management and Policy Act, certain steps that must be followed were not before the land-designation is changed, thereby making the monument declaration an illegal act.

"No one seems to want to follow the law on this," Tozer said.

But Slough pointed to the same statute, which states that the Interior secretary cannot modify or revoke a monument proclaimed under the 1906 Antiquities Act. While he said FLMPA may relate to the monument in some way because it is on federal land, the Antiquities Act allowed President Clinton to declare monuments regardless because the law was created earlier than FLMPA and therefore has legal precedence.

"If you try and take this to court, go ahead and watch it get thrown out," Slough said.

Commissioner Gene Story referred to the one million acres designated in southern Utah as the Grand-Staircase National Monument as an example of how unlikely it is to overturn national monuments. A group of Utah counties brought a lawsuit against the federal government for restricting coal mining on the canyonlands under the monument, a major source of school funding for local governments there.

But that case is now being settled after two years of legal haggling, reported Rep Jim Hansen, R-Utah last week.

"If any monument was set up to be overturned it would be Escalante, which is huge and was proclaimed with virtually no public input," Story said. "But after two years of fighting, it will still not be repealed."

The only way to alter the monument is to have Congress pass a bill specifying changes, but that option will not happen, according to Colorado congressional representatives. Therefore concerns and public input need to be dealt with during the management plan process, which takes years to complete, and has yet to begin.

Tozer blamed the media for "deceiving the public," on the issue and the group encouraged the commissioners to sign a resolution demanding that the monument be abolished. Nine others organizations have officially opposed the monument including the Ute Mountain Tribe, the Dolores Water Conservancy District, the Southwest Colorado Cattlemen Association, the Navajo Nation’s Aneth Chapter, and Arizona, New Mexico and Utah county commissioners.

"The management plan is a Trojan Horse," asserted Art Requena. "If you really represent the county, then you would help us fight this."

Added Sherman Zwicker, "These things are not always legal; they just have the big stick. When a monument goes through fascist elements start to come forward."

He pointed to grazing permits that have already been cut within the monument as proof. "They said it was not because of the monument, but we say it is."

But the commissioners will not likely sign the resolution, preferring instead to focus on dealing with issues through the management plan and the still-pending local advisory group, they said. Commissioners expressed disappointment that the monument could not be overturned, but were equally frustrated by the stubbornness of some that still hope it can somehow.

"No matter what we tell them, they will not believe us because it is not what they want to hear," said commissioner Kent Lindsay.