The foundation of Senate Bill 18 is the provision that private land can not be seized and then redistributed for private use. The bill also calls for good faith negotiations and fair compensation. The amendment passed the Senate on a 31-0 unanimous vote and is now before the House, which is considering a separate amendment. If approved by the House, it would go before Texas voters in November.

Also in the bill are several procedural definitions that call for transparency and accountability in the process.

The language is as follows:

• Spells out objective criteria for courts to follow to determine good faith negotiations. Requires condemning entities to follow those criteria, or risk paying attorney fees and court costs for the landowner.
• Creates a “Truth in Condemnation Procedures Act,” which requires a bona fide offer in writing.
• Requires any condemnation procedure to be done in public and by a record vote.
• Allows a property owner or their heirs to repurchase condemned property, at the original price paid for the property, if it is not utilized for public use after a 10-year period.
• Requires all condemning entities to register with the state Comptroller. This will give the state a handle on how many and the kinds of entities having eminent domain power.
• All of these provisions apply to all entities, not just governmental entities.

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Salazar is no stranger to readers of The Land Report. As you may recall, the Colorado native has been one of the staunchest opponents of the Pinon Canyon expansion in the southeast portion of the Centennial State. The proposed expansion of the Fort Carson training ground includes doubling the size of a military exercise area by acquiring land owned primarily by locally owned cattle operations.

Salazar and his brother John, a U.S. congressman, are fifth-generation Coloradans who grew up working on a family-owned ranch in the San Luis Valley of Southern Colorado. After studying political science at Colorado College and earning a law degree from Michigan, he rose to political prominence as Colorado’s attorney general. He won his Senate seat in 2004.

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After the blaze, Louden told the Trinidad newspaper: “I was covered by insurance, but I also cancelled much of that insurance two weeks ago. All of our company records were stored in there. If the IRS ever asks us about our records, we’ll have nothing to show them.”

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Rep. Doug Lamborn (R-CO) led the effort to allow the Army to circumvent the spending ban. Lamborn is the Colorado representative who attached language to the House version of the 2009 Defense Authorization Act that allows the solicitation of “willing sellers.” But Rep. Marilyn Musgrave (R-CO) and Rep. John Salazar (D-CO), who back ranchers and other expansion opponents, say Lamborn’s attachment conflicts with the expansion moratorium.

Last year, the House and Senate sided with the Pinon Canyon opponents, so how that will be worked out remains to be seen. But John Salazar said the continuing moratorium would prevent the Army from acquiring land even if officials go ahead in soliciting landowners. “I am proud to report that this bill continues the funding ban to prevent the Army from expanding Pinon Canyon,” Salazar said in a statement to the press after the House version was passed.

Lon Robertson, a rancher and the leader of the Pinon Canyon Expansion Opposition Coalition, says he’s furious about Lamborn’s maneuvering. “(Salazar and Musgrave) authored legislation banning all funding for any expansion of the Pinon Canyon Maneuver Site; a majority of the U.S. House and Senate approved the bill; and President Bush, the commander in chief, signed it into law. Is Army Assistant Secretary Keith Eastin that unfamiliar with the chain of command that he believes he can go ahead and spend taxpayer dollars anyway? The Army cannot explain why they need this land and why they can’t train on the 25 million acres already owned by the military,” Robertson says.

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Salazar made the following statement condemning eminent domain just weeks after the Democratic National Convention.

“I continue to strongly oppose the use of eminent domain to expand Pinon Canyon in southeastern Colorado,” Salazar said. “The Army has said it would not use that power if the expansion were approved, but I support any measure that would put this promise into law.” He added that the Army must follow due process with all the attendant studies and impact statements, something ranchers say hasn’t been the case thus far.

“Before any acquisition occurs with taxpayer dollars, we must honor the process we put in place last year to get answers from the Army on whether they even need the land or, if they acquired the land, what effect it would have on southeastern Colorado,” Salazar says.

According to the ranchers caught in the middle of all this, Salazar’s opposition is good but not good enough. They say a checkerboard land grab would make the acquisition of other ranchers’ land a certainty because it would devalue adacent parcels as well as those in the immediate vicinity.

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More than a century ago, his type settled the Great Plains. In the decades since, they have gone off to war and then returned home to run family-owned ranches. Now Louden and many other Coloradoans are engaged in another protracted struggle as they oppose the U.S. Army’s planned 420,000-acre land grab in southeast Colorado.

“The people are losing the government,” he says. “The Pentagon is going ahead with their plans despite all the studies they’re supposed to be doing. It affects everyone in this region, and they’re not even following their own rules.”

Louden’s face and hands show the wear and leathering of a lifetime of ranch work. He walks with his head high, and he looks you square in the eye when he talks to you. A man with more years behind than ahead, he still has the fierceness of spirit of men half his age. So this is a man who doesn’t give up once he sets his mind to a task, and yet on an August afternoon, he’s finishing out the scutwork of closing his feed store in Trinidad about an hour away from his 30,000-acre ranch. He couldn’t run the store, look after his herds of Red Angus, and continue his battle against the Army’s eminent domain plans. The fight alone takes 50 hours a week. Something had to give, and the feed store went first.

“When it comes down to it, this is what’s important,” he says, sitting upstairs in the feed store. The bulk of the inventory downstairs has already been cleared. He spits a little Copenhagen into a cup as if to put an underline on it. “It’s driving my wife crazy how much of my time this has taken, but no matter what it costs me I’d fight it again if I had the chance.”

But Louden is not alone. In recent years, the movement opposing the Army’s planned expansion of the Pinon Canyon Maneuver Site (PCMS) has grown stronger. It’s a broad coalition of ranchers, archaeologists, paleontologists, tribal leaders, and business owners who oppose the expansion, but the ranchers are far and away the backbone of this domestic insurgency. (The current PCMS is 245,000 acres along and around the Purgatoire River. It was taken or purchased – after eminent domain proceedings – in September 1983 at a cost of about $26 million plus $2 million for relocating some ranchers and their  families.)

While the opposition is strong, political support in Denver and Washington is actually weak. Initially, Colorado’s two U.S. Senators – Republican Wayne Allard and Democrat Ken Salazar – gave lip service to the ranchers. Now both have backed off, offering lukewarm support at best. Only U.S. Rep. Marilyn Musgrave (R-Colorado) has been a staunch ally.

Louden and the rest of the ranchers are using every avenue they can. They’ve even employed the government’s own environmental and preservation laws to stymie the Defense Department’s plans. And opponents are also looking into what they say are suspicious connections between military contractors, Pentagon brass, Colorado senators, and some powerful interests in the state’s capitol.

Louden has already proven he’s willing to make this, his last fight, one he carries to the end. “We’ve already pledged it – not one more acre,” he says.

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For more than a year The Land Report has been tracking the largest proposed seizure of private property by the federal government in modern history: the Battle for Pinon Canyon. It pits ranchers in southeast Colorado against an opponent that’s not used to losing ground wars: the U.S. Army. 

The stakes are high. The U.S. Army’s Fort Carson, which is based more than 100 miles away in Colorado Springs, wants more than 420,000 acres – that’s more than 600 square miles of land currently in private hands – to expand an existing training ground known as the Pinon Canyon Maneuver Site (PCMS). The U.S. Army already has 20 million acres of training grounds, but it says it has to have the land in Pinon Canyon.

Local ranchers, meanwhile, are refusing to give in, and they say they won’t just lose the land the Army wants but their entire way of life. The military’s land grab will disrupt their way of life, disturb neighboring ranches, cut some ranches off entirely, and decimate the economy of nearby ranching communities such as Trinidad.

Over the next several weeks, The Land Report will examine events unfolding in this epic, sometimes tragic struggle that pits some of the most traditional, red-state landowners against one of the few institutions of government they have an undying respect for but which they have vowed to fight to the bitter end.

Make no mistake: what happens in Pinon Canyon is something that affects landowners everywhere. The Land Report will be tracking this story every step of the way.

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This latest controversy surrounding the Southern Colorado Army installation was sparked by Colorado state representative Wes McKinley (D-Walsh), who made a name for himself as the foreman of the federal grand jury that investigated the Rocky Flats nuclear weapons plant just south of Boulder. Now, according to a report in the Colorado Springs Gazette, Rep. Walsh has followed up on rumors about the dumping of toxic materials at the 238,000-acre Army facility by having four different soil samples tested. The results showed traces of uranium.

“I certainly don’t think Congress should be thinking about expanding Pinon Canyon until we get answers to the questions about where the uranium came from and whether that land needs to be cleaned up,” McKinley said last week.

On another note related to the site, Congressman John Salazar (D-CO) succeeded in inserting language into the 2009 military construction bill to block the Army from spending any money on the expansion of Pinon Canyon for at least another year.

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Grass fires, ignited by lightning strikes, have burned more than 40,000 acres of southern Colorado. The fires started on the maneuver site and then spread to federal, state, and private lands adjacent to the Army training zone. (Have a look at this story in a Colorado Springs newspaper, which in a wishful faux pas refers to the military grounds as a recreation area.)

Area landowners say the fires highlight the Army’s poor stewardship of Pinon Canyon. They single out two primary causes. The first is that the Army didn’t respond quickly enough to contain the wildfires, which escalated out of control are now being fought by hundreds of firefighters. The second reason has to do with the long term effect of the maneuver site on the prairie ecosystem. For thousands of years, native grasses have sustained cattle and bison on the American Plains, but with the acquisition of this property by the Army in 1983 the ungulates were removed. The lack of foraging animals means that native grasses now grow out of control, and the maneuver site has now become a huge safety hazard. A quick check at the Fort Carson’s website shows one press release pertaining to the fires.

Be sure to get up to speed on the backstory of one of the biggest land grabs by Uncle Sam by reading Trey Garrison’s excellent report from June 2007. 

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BY TREY GARRISON
PHOTOGRAPHY BY GUSTAV SCHMIEGE
PUBLISHED JUNE 2007

With more than 15 million acres of military bases, training centers, and maneuver sites, the US. Army ranks as one of Americas largest landowners. But when it comes to taking territory, shock and awe are not its most formidable weapons. As hundreds of ranchers in southern Colorado have learned, the big gun is eminent domain.

Mack Louden looks out over a few of the 30,000 acres of short-grass prairie his family has ranched in the Pinon Canyon area of southern Colorado for more than a century and he’s not happy. No, it’s not his cattle, mostly Red Angus. Despite the unusual April cold snap, they’re just fine. What has him swearing under his breath is that his land may be in peril. Or, if it’s not his land, it may be one of his neighbors’ land.

“This isn’t what Thomas Jefferson and the Founding Fathers had in mind,” Louden says. Age and experience weather his features. The lines in his face tighten along with the bitterness in his tone. “It rankles us because you know it’s not even necessary”

Louden has a stake in the land that runs deep. Several stakes actually. For one, his roots in southern Colorado date back to 1902. That’s when his grandfather, Dick Louden, came to Pinon Canyon, traveling on horseback from Indiana along the Santa Fe Trail and finally settling the family homestead about 60 miles east of Trinidad. And aside from his own family ranch, Louden has a second stake, a financial one. Over in Trinidad, Louden and his wife, Toyleen, own Marty Feeds, a modest feed store that has served most of the ranches in the surrounding area for generations. Some of these ranches have been up and running since before Colorado transitioned from territory to statehood, many in the same families.

But all of that could change if the Department of Defense gets its way. The Army wants what Louden and his neighbors have: land. Fort Carson, which is based more than 100 miles away in Colorado Springs, is out to expand an existing training ground known as the Pinon Canyon Maneuver Site (PCMS) by more than 418,000 acres (over 600 square miles). That’s in addition to the 25 million acres the Department of Defense already has, including the Army’s 15 million. Local ranchers like Louden and his neighbors have an answer.

“This land is not for sale at any price,” Louden says. “If they needed it for legitimate defense of our country, I think every last one of us would give them our land. But they don’t need this land. They just want it.”

Of course, if the government can’t buy it, it’s all too willing to just take it, and it does so by using two words every landowner fears and hates: eminent domain. The power to condemn land is nothing new, nor is it anathema to American law. It is written into the last clause of the Fifth Amendment of the U.S. Constitution: “… nor shall private property be taken for public use, without just compensation.”

For much of American history, however, a key proviso limited the power of the federal government as well as state and local governments. The land had to be for public use. Time and again the Supreme Court has ruled that any land taken via eminent domain must be used by the public. Think public roadways, railroad lines, lighthouses, ports, utilities, and the like.

But in 1954, the U.S. Supreme Court opened the door to a more expansive interpretation of public use when, in the majority opinion authored by Justice William O. Douglas in the case of Berman v. Parker, it ruled that land could be taken if the goal was to eliminate public blight. According to the court, this was a natural, clear, and universal extension of the idea of public benefit.

Since that 1954 ruling, government agencies at all levels have sought to push the boundaries of public use, chipping away at property rights while expanding their own taking powers. Because most such cases are local and because issues like zoning, redevelopment, and property condemnations are equally mundane and arcane, few eminent domain cases seize the public’s attention. But then came the 2005 Supreme Court ruling so infamous it is known by a single name: Kelo.

In a 5-4 ruling that stunned legal observers, the Supreme Court affirmed the majority decision of the Connecticut Supreme Court in the case of Kelo v. City of New London. The Connecticut justices had ruled that private property could be seized by the city and transferred to private developers who would build a high-end resort hotel and conference center, a park, residential units, office, and retail space. The Connecticut court’s definition of a public use or public benefit? A higher tax base. A legal and political firestorm was ignited.

Steven Anderson, director of the non-partisan, non-profit Institute for Justice’s Castle Coalition, which is dedicated to fighting eminent domain abuse, says what followed since Kelo was a flurry of competing activity.

“Let me put it in perspective. Over a five-year period, from 1998 to 2002, we documented about 10,000 attempted abuses of eminent domain nationwide,” Anderson says. “In the one year that followed Kelo, we saw 5,000 attempted or actual abuses of eminent domain.

“What happened is many cities were emboldened by Kelo and stepped up their own redevelopment activities,” he says. And at the same time, state lawmakers, seeing the outrage in voter polls or genuinely concerned about takings abuse, moved to limit the power of their respective states. That, in turn, motivated some municipalities to step up their condemnations before the power was curtailed.

Since Kelo, 38 states have increased property protections, as have many municipalities. Still, attempted abuses are happening every day, and it’s not, as one might think, questionable cases where a decent argument for public benefit could be reasonably posited. Among the more blatant examples the Institute for Justice is fighting is one in Riviera Beach, Florida, where the city is trying to seize 400 acres to build a yacht club and other luxury amenities, and another in El Paso, Texas, where the city is trying to take 183 acres downtown to turn over to a private developer. And this despite the fact that both Texas and Florida have passed post-Kelo limits on eminent domain.

At the federal level, even when the condemnation is on the up-and-up regarding public use, the federal government isn’t above breaking its own rules when it runs into an obstinate landowner who follows procedure. Take the case of Harvey Frank Robbins of Wyoming. Robbins bought ranchland in 1994 but was unaware that the Bureau of Land Management (BLM) had negotiated an easement across the property with the previous owner. The reason why was quite simple: The BLM made a rookie mistake by failing to record the easement at the county courthouse. The net effect, according to Legal Times, was that Robbins owned the land free and clear of any easement.

That’s not how the federal government saw it. The BLM demanded that Robbins grant the easement. Robbins said not just no, but hell no. According to Legal Times, the government acted like a mafioso, saying it would not negotiate and that it would give him a “hardball education” if he refused to cooperate. Thus began a campaign of harassment that included charging Robbins with interfering with federal agents, for which he was subsequently acquitted.

Robbins sued and won both in trial court and in the U.S. Court of Appeals. The case was then argued before the Supreme Court on March 19, with a ruling expected to come down by July 1.

Perhaps the most chilling revelation came about during the appelate court hearing when the government’s mindset was exposed. The solicitor general of the United States, Paul Clement, actually argued that no court has ever recognized a constitutional right against retaliation in the context of property rights. This mentality is what landowners may in fact face when federal and local governments come calling.

Of course, back at Pinon Canyon, Colorado landowners have two strikes against them. First, they’re not dealing with a local or state entity. It’s the federal government they are up against. Second, condemnation by the Department of Defense almost always falls inside the traditional definition of public interest. National defense has long been recognized as within the realm of public use.

No, what the landowners question is why their land, given that in western states the majority of land is already owned by the U.S. government. The area in question in and around Pinon Canyon comprises some 567 farms and ranches with cattle and crop operations that generate some $20 million worth of agriculture product a year. It’s a place where roots run deep and family ranches have long pedigrees. Some go as far back as the Homestead Act of 1862. This is a place where people refer to each other’s land as “his country” with all the deference that this implies.

“I’d love to look at my neighbor’s place and tell him what I think it’s worth and just take it for that price,” Louden says, his frustration not hidden. “But we have to make do with what we have. But the Army will come in here and do just that, disrupting life for all of us, whether they take our land or our neighbors’ land. They already own 25 million acres. Why do they need this land here?”

One of Loudens neighboring ranchers, Lon Robertson of Branson, has been at the forefront of the fight against the Army’s expansion plans, heading up the Pinon Canyon Expansion Opposition Coalition, which includes some 1,100 ranchers and landowners.

“It’s not just the land they take. Everything around it will be affected,” Robertson says. “The impact on this whole region will be monumental. It will be devastating. They say they need the land to help train our soldiers to fight for our rights. I thought one of our rights was the right to own property.”

For its part, the Army says it needs the land for mechanized training, especially since the area is similar in terrain to parts of Iraq and Afghanistan. The base plans to expand the number of soldiers stationed there as well: from 16,000 to 25,000 over the course of the next two years. The land in question is a checkerboard of private and federal lands in the Commanche National Grasslands.

“We need to expand PCMS (Pinon Canyon Maneuver Site) in order to ensure that our soldiers are prepared to fight and win on today and tomorrow’s battlefield,” says Fort Carson’s public affairs officer Lt. Col. David Johnson in a written statement. (Neither Johnson nor any other representatives from Fort Carson returned calls for additional details.)

“Fort Carson is committed to ensuring U.S. success in the Global War on Terrorism,” Johnson’s statement continues. “In order to meet this obligation, we must be able to provide the right equipment, the right training, and a realistic training environment that challenges our Soldiers [sic] and leaders. We must train the way we fight. And this is why we must have a PCMS that replicates, as close as possible, the real-world circumstances and complexities our Soldiers [sic] will face on the battlefield of today and tomorrow.”

Louden, who, like Robertson, is a leading voice in the local opposition, says that’s bunk. He believes the Army wants the land it’s targeting for one reason: convenience.

“It’s convenient for them. The generals can fly down, observe training and maneuvers, and fly back to Colorado Springs in time to play golf in the afternoon,” he says.

With the exception of Trinidad, which has taken no formal stance, town councils and county government officials throughout southeast Colorado are opposing this. Ranchers who lost their land 20 years ago when the Army first expanded Fort Carson line the ranks of those standing against it. A bipartisan coalition of state lawmakers, notably led by Rep. Bob Gardner (R-Colorado Springs) and Rep. Wes McKinley (D-Walsh), has taken up the cause. Through their leadership, the Colorado Legislature passed a largely symbolic measure in April condemning the Army’s plans in Pinon Canyon.

THOSE IN OPPOSITION TO THE ARMY’S expansion pin their hopes on Colorado’s two U.S. senators—Republican Wayne Allard and Democrat Ken Salazar—to block expansion plans. Salazar—a fifth-generation Coloradan and rancher—has already announced his tentative and qualified opposition to the expansion as the Army plans it.

“The 418,000 additional acres [the Army] has requested is difficult enough to comprehend. That addition alone would account for a large part of our state,” he said in an April telephone press conference. “At the end of the day, there shouldn’t be any Pinon Canyon expansion unless there is a ‘win-win’ situation that allows the ranching economy to continue.”

But Salazar’s brother, U.S. Rep. John Salazar (D-Colorado), has come out with an unqualified opposition just as this magazine is going to press. He joined U.S. Rep. Marilyn Musgrave (R-Colorado), who was the first federal-elected official to flatly oppose Pinon Canyon expansion. John Salazar says the Army’s plan will decimate the local economy, and it’s just not needed.

“Pinon Canyon has been underutilized since its inception,” John Salazar said in a letter to the Army. “Simply put, the Army has neglected to make a compelling reason to acquire an additional 418,000 acres.”

This is small comfort to locals, who aren’t much for taking the word of government when it comes to their own land.

“Yeah, they’ve made promises before,” Louden says.

Worse still, many smaller ranchers in the area own smaller parcels and lease existing federal land. Even if they refuse to sell, the Army could take the government land and revoke their leases, effectively eliminating their ranches. After that, there would be less political opposition to eminent domain proceedings against the remaining holdouts, be they large or small operations.

But not all of the opposition’s hopes are tied up in wooing lawmakers. Locals are also practicing a little legal judo and are using the government’s own environmental and preservation laws to stymie its plans.

Steve Wooten, whose ranch lies a quarter-mile away from land the Army is eyeing, is helping coordinate local landowners in an unprecedented effort to make an ecological, biological, and historic assessment of lands heretofore inaccessible to surveyors, simply because they were private lands.

“Nothing of this extent has ever been done because no one ever had access to these lands but their owners,” Wooten says. “We’re getting teams of experts in here to conduct these surveys and submit them as evidence of the impact the PCMS expansion would have.”

According to Wooten, the land the Army wants to condemn includes portions of the historic Santa Fe Trail, pristine Indian sites, and even dinosaur footprints. The delicate short-grass prairie ecosystem is particularly susceptible to man’s heavy hand. Ruts made by wagon wheels 130 years ago are still visible.

“What do they think will happen when we have heavy armor doing doughnuts on this land?” Wooten asks. And how accurate is their EIS [environmental impact statement] going to be when we’re not letting them have access to the land they want to take?”

Wooten says the studies will be used to bolster efforts in the fight by pitting the Army against the environmental and preservation regulations. Completing the private studies will take about one year, roughly half the time the Army is setting aside for its own EIS assessments. That’s two years that opponents and supporters have to wage the public relations battle, two years that include the 2008 elections and a likely drawdown of troops deployed in Iraq. That’s two years of public hearings and another session of the Colorado Legislature.

If anything, time and public opinion are on the side of those standing for their land. Passion for property rights is deeply ingrained in the American psyche, and Kelo has only heightened this awareness.

“We are all Americans. We all support our country and our military. But the military is supposed to answer to the people, and to serve to protect our rights,” Louden says. “What is the military defending us from if they’re the ones who take our land?”

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