At Villa Montana, Joe Montana does not talk about football. At all. Meet the man on his Sonoma County getaway and all he talks about are his wife, their two girls and two boys, and the memories they share on their breathtaking 503-acre estate. And Italy. The one thing the guy will not stop talking about is Italy.

“If you can believe it, some idiot drove across the Ponte Vecchio in his rent car,” Montana says. As his face lights up in a contagious smile, it’s clear that the idiot Montana is referring to would be the four-time Super Bowl winner himself.

“I’m looking at my GPS, and it said to get back to the villa where Jennifer and I were staying I needed to turn right. The pillars weren’t up on the Ponte Vecchio, so I follow the GPS and I turn right,” he says. And with that, the Hall of Famer etched his name in the history books yet again by driving across one of the most celebrated landmarks in all of Florence.

“I get to the other side, and this cop has his hands up” – Montana raises both hands in a mock “Have you lost your mind?” sort of look – “and he gives me a tongue lashing in Italian. I didn’t understand a single word he said, but I knew exactly what he was saying.”

Stories like this and his amazing wine country estate are two of the new chapters in his life that have been written since he hung up his helmet and retired from the NFL in 1995. With his football career behind him, kids and family became his life, which is why Villa Montana turned into such an important project for him and his wife.

Conveniently located just an hour and a half north of San Francisco, the ranch became the family’s great getaway. Cookouts and campouts quickly replaced practices and game days. Acres and acres of rolling hills were explored. So, too, were the year-round creeks that wind their way through the hollows and the draws that crease the terrain.

A full-size basketball court was built for Nate and Nick, and Alexandra, Elizabeth, and Jennifer got their own professional-grade equestrian center, complete with 17 heated stalls. A skeet shooting range was built in a secluded pasture. Naturally, Joe was the only member of the family who engaged in all of the above. Although he’s in his mid-50s now, his boundless energy is readily apparent. The natural athlete makes time to work out four or five times a week.

Building Villa Montana was an epic undertaking, a monumental, three-year labor of love for Joe and Jennifer. Joe’s mother was born in Italy. He treasures these strong ties, and during his playing days the couple brought back only memories from their trips overseas. “Actually, the truth is on every trip I always brought back a few extra pounds. Jen is one of the lucky few who can eat anything she wants and actually lose weight. Different story with me,” he says.

The couple built a home in Atherton, a Bay area community south of San Francisco, and they infused it with their shared love of all things Italian. By the time they decided to embark on Villa Montana, they were old pros in the Tuscan tradition. When their Atherton builder got a call about a villa that was being torn down, he and Jennifer were on the first flight out of San Francisco. Not long afterwards, hand-hewn beams, Baroque wood portals, and artifact Italian fireplaces were en route to Northern California.

By the time the Montanas broke ground on their new country home, it was clear that a masterpiece was in the works. Although the house itself is almost 10,000 square feet, its three bedrooms and the adjacent studio where Jennifer likes to paint offer an intimacy that personalizes it in a family-friendly way. That’s especially obvious in the kitchen, which may well be the busiest intersection on the property.

Throughout the main residence, a fascinating array of old and new presents itself: hand-worked iron elements and flat-screen TVs, ancient stone floors, and a state-of-the-art outdoor grill. In the massive great room, the 22-foot-tall ceiling compels your gaze upward and outside to stunning views of Mount Saint Helena, the tallest point in the Mayacamas. Beneath the imposing massif, a tapestry of vineyards and pastures unfolds across Knights Valley, one of Sonoma’s original American Viticultural Areas.

Despite its artistic feel, Villa Montana is user-friendly, built with an active, energetic family in mind. An endless array of patios, terraces, and courtyards encircle the villa and give it a great indoor-outdoor feel. A bocce court, a swimming pool, and a Jacuzzi can all be found in close proximity to one another just a few steps from the kitchen. Drain spouts emerge from hand-plastered walls. Potted plants and crawling vines bring color to pale stone. It’s wonderfully relaxing, which is ultimately the most inviting—and appealing—aspect to Villa Montana. It’s definitely made for entertaining: two people, 20, or 200.

Unfortunately, Villa Montana sits in silent splendor much of the time these days. No longer can Nate and Nick be found playing on its hills. Nate has just moved to Bozeman where he will play ball for Montana, and Nick is a Washington Husky. With Alexandra and Elizabeth in San Francisco and Los Angeles, their papa admits that his days on the ranch have dwindled to a shadow of their former number. “Jennifer and I are too busy chasing our kids to give this property the time it deserves,” he says.

With that in mind, the Montanas have listed Villa Montana with Avram Goldman and Tim Hayden at Pacific Union International’s Sonoma and St. Helena offices for $35 million.

“It’s a Picasso,” Goldman says. “A rare jewel. A once-in-a-lifetime opportunity. The antiquities and artwork make you feel like you’ve come upon a 500-year-old Tuscan villa. Yet it has every convenience and amenity imaginable. I’ve been in real estate more than three decades, and I promise you that you would be hard-pressed to find a home like this anywhere, Italy included.”

In addition to the 9,700-square-foot villa, the ranch includes a pool and spa, a guest house, a caretaker’s residence, a gym, an equestrian center, a basketball court, a bocce court, the skeet shooting range, and an olive farm. As Joe puts it, “It’s time someone else started making memories here.”

Learn more about Villa Montana HERE.

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BY TREY GARRISON
PHOTOGRAPHY BY GUSTAV SCHMIEGE
PUBLISHED SUMMER 2009

But Creede is no backcountry village. A tiny little Whoville of sorts, Creede boasts a slew of incredible little restaurants, art galleries, and the Creede Repertory Theatre, which has won acclaim from high-minded New York drama critics. The hunting is so rewarding that people wait years to get a permit to stalk elk, moose, and other trophy critters. The fly-fishing on the Rio Grande and its tributaries attracts anglers from around the world. And just four percent of the land in Mineral County is privately owned. The rest is controlled by the U.S. Forest Service.

Enter Al Biernat, a self-made success who worked his way up from bussing tables at the Palm Restaurant in Los Angeles to running the Palm’s Dallas locale as its GM. When a lease came up on a prime piece of Dallas real estate, he signed on the dotted line and created the dining establishment that now bears his name.

Creede was a dream come true—a place of solace, relaxation, and recreation to share with his family and friends—so he and his wife, Jeannie, bought a 30-acre plot in a delicate Alpine zone at 10,600 feet. The land is regulated by the Mineral County Alpine Zoning Commission, and Biernat has a thick stack of regulations to prove it. Everything from the size of structures to the materials he could use is spelled out. Surrounded on three sides by Forest Service land, he believed his cherished investment would be protected from the over development that has plagued other Colorado towns.

Since 2005, Biernat has put a substantial amount of his hard-earned cash into his cabin and the surrounding property. “It seemed the perfect little secret place,” Biernat says. “I had no idea what could be coming.”

But he should have.

Until the mid-1980s, Creede was a mining town, site of Colorado’s last big silver strike. Since then, however, the only miners have been tourists, picking up bits of quartz and the occasional fleck of pyrite (better known as fool’s gold). Biernat was positive this peaceful oasis was immutable.

He was so sure of it that he believed mining could never come back. That’s why he signed his deed, despite a standard print disclaimer and warning right above the signature line stating that he was not buying the patented mineral rights to his land. And yet, from 2007 through the end of 2008, mining returned—exploratory mining for untapped veins of nickel, silver, lead, and gold.

The prospect sent Biernat and a good number of local landowners into a tailspin of worry and doubt. They weren’t just concerned about the light and noise pollution from drilling operations or the heavy truck traffic on narrow, winding passes. Biernat was in a bind because while he owned the surface rights to his property, someone else owned the patented mineral rights. And the implications are enormous.

Different parties often own the surface and the subsurface rights. These interests may have been created through the reservation of the minerals by the government or may result from a decision by a landowner to sell their mineral interests.

Mining claims are initially unpatented claims, which give the right only for those activities necessary to explore and mine. Much as farmers could obtain title under the Homestead Act, miners can obtain a patent (a deed from the government). The owner of a patented claim can put it to any legal use. Bottom line? If extractable ore were found beneath his property, the subsurface rights owner can force landowners such as Biernat to sell.

Beyond that, full-scale mining would shatter the sanctity of the Continental Divide. Biernat’s 1,000-square-foot, loft-style cabin is something out of a Ralph Lauren catalog. It’s cozy, rustic, gorgeously decorated, and at night you get a better view of the stars than the Hubble telescope.

Biernat had planned to build a larger cabin and turn his existing one into a guest house. He had already added a barn-style garage for his truck, his ATVs, and the snowmobiles that are the only way to and from the cabin in winter. Needless to say, the return of mining put an end to Biernat’s construction plans. But to many longtime locals, another possibility loomed:

Was their dream of mining going to come true?

After the closure of the last active mine in 1985, Creede recreated itself as a tourism hub. But tourism is a fickle trade, which even opponents of mining admit. Ed Vita, an ex-techie who moved to Creede to get away from the rat race, owns two businesses in Creede. In the winters he runs San Juan Snowcat, and he owns the popular Old Miners Inn, where you can enjoy a mean pizza and the requisite adult beverage.

We sat outside on the inn’s upstairs deck, and Vita admitted he tentatively supports the return of mining. “It’s all exploratory. Until I see the numbers and the contracts, I’m not counting on anything. I know there will be some impact on the tourist industry, but it can be hard surviving here in the winter months when it’s just the 400 locals circulating the same dollars,” Vita says.

But businessmen like Avery Auger, president of Creede America Group, love the idea of mining coming back to Creede. Creede America is developing custom homes that start in the $300,000 range. Auger is not concerned about mining. In fact, he expects to draw potential buyers from the mining operations, at least from among those in management and high-tech positions that command six-figure salaries. His development overlooks Creede and is protected by an earthen berm that blocks sight and dampens noise. “This town needs this kind of business to grow,” Auger says. “This is only going to increase property values and bring money this town needs.”

Brian Egolf agrees. Egolf first came to Creede with his grandfather when he was only two years old. As years passed, Egolf thought someday he would relocate to Creede permanently. After finding his way he watched the mines close. He swore one day he would reopen them.

Over the last decade, Egolf gathered patented mineral rights for large swaths of land around Creede. A savvy businessman, he knew that the depressed price of minerals wouldn’t last forever and approached Idaho-based Hecla Mining. Egolf wanted Hecla to come to Creede, test the mines, and, if profitable, oversee production.

“I’m really hoping that we can revitalize Creede, so that people can stay and earn a good living and that their children won’t leave as soon as they graduate high school, because there will be opportunities here,” Egolf says.

Hecla’s exploratory plans called for three years of exploratory mining in a 36-square-mile area, an investment of more than $12 million. But when mineral prices declined, Hecla suspended operations. Although it promises to resume exploration in the near future, many in Creede are doubtful it will return anytime soon.

That’s no relief to Biernat, who is still considering a new house, a new well, and solar power. If commodity prices rebound, mining could come back. “Do I put the money in and risk losing my investment?” Biernat asks. “I don’t know.”

Active mining operations around a recreational retreat could drive down property values long before Hecla might acquire Biernat’s cabin. Although it’s appraised at $550,000 right now, it would be worth much less if mining resumed.

When Biernat first saw his land, everything convinced him his investment would be protected. Set in an Alpine zone, it is surrounded by Forest Service land. Brokers emphasized how mining was dead and that the town had been reinvented as a cultural and recreation hub. But unless an area is declared a wilderness, the U.S. Forest Service allows activities on federal land like mining, timber harvesting, and grazing.

To be fair, the fact that Biernat would not own the patented mineral rights wasn’t exactly in fine print. Biernat is a smart businessman and took a risk. And, he admits, despite all his anxieties, he doesn’t think he’d do anything different.

“I knew I was taking a little bit of a gamble,” Biernat admits. “I should have read things more closely. But I’ll be honest. If I could go back and do it again, I would, no matter what the stress and worry has been. Just the memories I built with my children and my wife make it worth it. I just wish I could be sure our investment would be safe over the long haul.”

While some of the specifics of his case are unique to Colorado law, the issue of patented mineral rights is a federal one. From coast to coast and everywhere in between, the potential for profit from subsurface minerals means that if a landowner hasn’t secured those rights, it could place their investment at risk.

Caveat emptor should be every landbuyer’s watchwords, even if they have competent lawyers and erstwhile brokers on their side. Should you find that dream spot, it just may not be possible to acquire the mineral rights to go with the surface estate. At that point, you have to measure the risk, and decide if it’s worth it.

For Biernat, it most definitely has been. But it’s not something he takes lightly. Every time he talks about the issue, you can see the concern etched on his face and the troublesome pall on his otherwise optimistic visage.

“I love that town, I love the fact that it’s an artists’ community, and I love the people,” he says. “It’s taken me so long to really start to fit into the town, and I’d hate to have to leave it. But I’m blessed. I have that option. What about the guy who doesn’t have that choice?”

No related posts.

It was an ugly experience, but when it concluded the military made two promises: there would be no live-fire exercises at Pinon Canyon, and no additional lands would be taken. Now, a quarter-century later, both promises have been broken.

BY TREY GARRISON
PHOTOGRAPHY BY GUSTAV SCHMIEGE
PUBLISHED DECEMBER 2008

The Army broke its first promise – the no live-fire ban – in 2004. Given the lay of the land, it was a particularly unwelcome decision. The short-grass prairie that blankets Southern Colorado’s arid savannah takes on a tinderbox quality when rainfall is sparse. Not surprisingly, live artillery fire only exacerbates those conditions. That was certainly the case this summer when lightning ignited grass fires on the maneuver site. They quickly spread to neighboring ranches. The burn eventually engulfed more than 40,000 acres.

Two years after the live-fire ban was broken, word got out that the powers that be at Fort Carson wanted to break the Army’s second promise and acquire additional acreage, more specifically, 418,000 additional acres. The land the Army wants is a mosaic of private and federal lands in the Comanche National Grasslands. This time the Army promises there will be no heavy-handed eminent domain proceedings, which makes sense because since 2007 the Department of Defense has been prohibited by Congressional mandate from condemning any private land. But that has not prevented it from seeking “willing sellers.”

The problem? Hardly a soul in southeast Colorado believes the Army any more. The plan to buy from willing sellers looks more like a try at a checkerboard land grab. And, if a recently uncovered 2004 Fort Carson proposal is accurate, it looks like the Army wants a hell of a lot more than 418,000 acres; it wants 7 million. Welcome to Pinon Canyon.

THE LANDOWNERS’ PERSPECTIVE
Mack Louden is one of the leaders in the fight against the Army’s plans to expand the PCMS. It’s cost him a lot – time, money, stress on the home front. But he’s willing to risk everything, because to Louden it’s a fight worth fighting. This summer Louden closed down his feed store, a Trinidad landmark for almost a century. He could run a ranch, a business, or fight the insurgency, but not all three.

“When it comes down to it, this is what’s important,” he told me when I stopped in for a visit a few months ago. He spit into a cup to underline his point. His piercing eyes are at odds with his tired, craggy face, just as he himself seems equally cynical and optimistic. “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.”

The battleground known as Pinon Canyon is desolate country on the east side of the Continental Divide that resembles the barren environs found in much of Iraq and Afghanistan. Generations of ranchers dating all the way back to Charlie Goodnight have tended their herds here. Opponents of the Army’s plans say the 418,000-acre seizure would devastate the local economy. An estimated $20 million a year in agricultural production would be lost, and so would more than 500 ranches.

Lon Robertson is a neighbor of Louden’s. (Neighbor in these parts means he lives only 10 or 20 miles away.) Robertson heads the Pinon Canyon Expansion Opposition Coalition (www.pinoncanyon.com). To him, the proposed expansion is about much more than land. “The impact on this whole region will be monumental. It will be devastating,” he says.

The Department of Defense already owns about 25 million acres of which the Army’s share is 15 million acres. The military says it’s not enough for what it needs. Local ranchers disagree. Their response? Not one acre more. This battle cry has become the name of their legislative action committee.

“This land is not for sale at any price,” Louden says.

THE ARMY’S PERSPECTIVE
Since World War II, Fort Carson has been a Colorado Springs landmark. Located approximately 100 miles away from Pinon Canyon, it is from this base that units are trained at PCMS. The Army says it needs to expand PCMS for a number of reasons, including the 2007 Grow the Army initiative, a program that, in a surprise twist, is designed to do just what its name says. Over the course of the next two years, the Pentagon plans to expand the number of soldiers stationed at Fort Carson from 16,000 to 25,000.

“Changes to unit organization in the past year, upgrades to technology, and a decision to add a fifth BCT (brigade combat team) under Grow the Army have all pushed the doctrinal training land requirements up, not down, at Fort Carson,” says Army spokesman Dave Foster at the Pentagon.

As to why the Army doesn’t use some of the millions of acres it already owns, Foster says part of it is because the terrain isn’t right. There are also cumbersome federal restrictions. But what it really boils down to – and he admits this – is convenience.

“In order to support Fort Carson-based soldiers, other federal lands must not only be suitable and available, they must also be within 200 miles of Fort Carson/PCMS,” Foster says. “If the federal lands are further away than 200 miles, the burden on soldiers and families to use the land regularly for home-station readiness training purposes becomes so great that the Army would be forced to consider realigning units away from Fort Carson and to other installations with closer facilities.

“There are a handful of federal landholdings … that the Army is investigating further, (but) none of these are assured or problem-free. Securing permission from other federal agencies to train on these lands is a lengthy and difficult process.”

Louden’s take on the convenience angle is less than generous: “Yeah, 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.”

THE REVEAL
There’s a new twist on the saga of Pinon Canyon, one that undermines the Army’s assertion that it only needs a little here and a little there. According to a 2004 study out of Fort Carson titled “Analysis of Alternatives Study: Pinon Canyon Maneuver Site, Colorado,” the Pentagon has been planning on acquiring almost 7 million acres in southeastern Colorado, forcing more than 17,000 residents off their land, and establishing the largest military base in the world. The 2004 study states:

… Fort Carson’s Range and Training Land Program (RTLP) Development Plan, September 2003, identified the multi-phased acquisition of 6.9 million acres of land, currently owned by private land owners and the U.S. Forest Service (Comanche National Grasslands), as an option to the use of this land for large-scale, doctrinally sound Joint and Combined military training for units stationed at or deployed to Fort Carson and PCMS. Likewise, an expanded PCMS offers DoD the ability to simulate the situation in the Middle East, complete from deployment, through operations to re-deployment.

This unprecedented acquisition of almost 11,000 square miles of private and public land would result in an operations area larger than Massachusetts. The multi-service battlefield would be more than triple the
size of New Mexico’s White Sands Missile Range, which at 3,200 square miles, is currently the largest military installation in the United States.

Opponents of the expansion say it would decimate the social and economic fabric of southeastern Colorado and destroy the last intact short-grass prairie along the American Great Plains.

The Pentagon’s analysis makes clear that the land acquisition was designed to take place in many phases with the first phase matching almost exactly the Army’s current push for about 100,000 acres next to the PCMS.

“This report also shows that far from compromising its plans, the Army is actually sticking almost exactly to the phased acquisition laid out in this document,” Louden says. “Army assistant secretary Keith Eastin has stated publicly that the Pentagon will be back for more land in the future.”

It’s hard for people to get their head around how much this would affect not just southeast Colorado but much of the Southwest, he says.

“People need to understand the sheer size of this planned land grab and the disastrous consequences of letting the Pentagon get one more acre. The damage to this fragile region and the rare wildlife it supports would be catastrophic,” Louden says. “Ranchers whose relationships with the native grasslands go back many generations would lose their lands and their livelihoods. The region’s family ranching and agriculture-based economy and the communities that depend upon it would be devastated. And a vast trove of historical, archaeological, and paleontological treasures would be lost.”

Jim Herrell, a fellow opponent of the expansion, says the Army’s ongoing pursuit of expansion is a telltale sign of the disconnect between the government and the people it is bound to serve.

“Every level of democracy has voiced its opposition to the expansion of the size and boundaries at Pinon Canyon clearly and repeatedly, yet the Pentagon and its contractors refuse to heed the will of the people,” Herrell says. “Now we see why the Army plans to build extensive facilities and intensify use on the 238,000 acres they already have but have rarely used. The Army got its foot in the door in the 1980s with promises that they’d never be back and there would be no live-fire. Those promises are broken. Letting the Pentagon go ahead with their plan inside and outside the PCMS would open the gate to an unconscionable drain on taxpayers.”

THE BATTLEFIELD
The enormous swath of khaki-colored ranchland in and around Pinon Canyon is environmentally-sensitive short grass prairie. Patchy, protein rich grasses that keep herds fed in the winter are interspersed with the kind of rugged scrub and rocky flatland that also nurtures dust storms. Even today, ruts made by pioneers’ wagons traveling along the Santa Fe Trail a century ago are plainly visible. Imagine what a 67-ton Abrams or an 18-ton Stryker on maneuvers can do, much less the impact of live-fire exercises in a place where lightning strikes spark grassfires that can burn hundreds of acres at a go.

Town and county governments throughout the area – except Trinidad itself — have passed resolutions against the expansion. A bipartisan coalition of state lawmakers pushed through the Colorado Legislature a largely symbolic measure in 2007 condemning expansion plans.

For opponents, the campaign has been one of battles won, campaigns lost, brilliant strategy, lawsuits, and holding tactics. Initially, the Army planned to seize the land through eminent domain, as it did back in the 1980s. The power to condemn private land for public use is nothing new. It’s right there in the last part of the Fifth Amendment of the U.S. Constitution:

“… nor shall private property be taken for public use, without
just compensation.”

But since many Colorado ranchers had been down this road before with the Army, they mobilized immediately and started beating down the doors of their legislators. The fight has been carried on for two years now. The two primary weapons have been legal documents and official filings. In an ironic twist, the Army has been bogged down with all sorts of red tape: studies and statements on environmental effects and historical impact. In 2007, expansion opponents won their first serious victory when Congress banned on any funding for eminent domain or expansion activities. U.S. Rep. Marilyn Musgrave (R-CO), aided by U.S. Rep. John Salazar (D-CO), pushed the ban through.

At press time, the nation’s largest land grab has been reduced to a stalemate, trench warfare at its finest. Congress has approved the ban for another year, through the end of fiscal 2009. But U.S. Rep. Doug Lamborn (R-CO), whose district includes Colorado Springs, wants the expansion. Lamborn has led the effort to allow the Army to circumvent the spending ban by attaching language to the 2009 Defense Authorization Act that allows the solicitation of “willing sellers.”

“The Army believes it can buy the land it needs from willing sellers,” Foster says. “The Army has no desire to assert its condemnation authority, does not feel such authority is needed in this case, and seeks only the ability to buy on the open real estate market like any other organization.”

Opponents say that this is an end around and a dirty trick. They say Lamborn’s maneuver is a checkerboard land grab that would make acquisition of other parcels inevitable by devaluing other ranchlands. Plus, it will intimidate owners, who worry they won’t get as much compensation should eminent domain come later. Live-fire war games and demands for access easements tend to drive down the values. They also spook cattle.

“(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,” Robertson said in an email he sent me. “Is (Eastin) that unfamiliar with the chain of command that he believes he can go ahead and spend taxpayer dollars anyway?”

The most recent battlefront is over construction on the existing PCMS site. A non-profit group allied with Robertson’s organization called Not 1 More Acre! filed a lawsuit in the U.S. District Court for Colorado on April 23 to halt the construction of an encroaching 16-barrack military base on the western edge of the existing training site.

This construction is designed to demonstrate “need.” The Army plans to relocate military personnel to the area. The suit charges the Department of the Army with failure to comply with the National Environmental Policy Act of 1969 (NEPA) and failure to disclose the destructive environmental,cultural, and socio-economic impacts of the army’s proposed current expansion of Pinon Canyon Maneuver Site (PCMS) to encompass private property between La Junta, Trinidad, and Walsenburg.

Meanwhile, the Army is building its own “coalition of the willing” to strengthen its claims on the land around PCMS. Kimmie Lewis, a third-generation rancher, says the Army is cozying up with environmental groups which see potential gain in taking land from private ownership, even if some of the land would be sacrificed to the damage caused by armored and mechanized military exercises.

“The PCMS expansion plan incorporates a Private Lands Initiative, which is a cooperative effort between the U.S. Army Forces Command, The Nature Conservancy, and the U.S. Fish and Wildlife Service, which seeks to annex additional land around the borders of the installation, creating a buffer zone (and) removing even more land from productive purposes,” Lewis says. “It’s a strange coalition but it’s come together at several military sites.

The Nature Conservancy has been an active partner with the Pentagon since at least 2005, when the Bush White House urged “cooperation conservation” between the two as a way to expand the amount of land “protected” by the federal government, including the creation of environmental buffer zones around military bases. Senator Wayne Allard (R-CO) and Rep. Joel Hefley (R-CO) helped TNC acquire a $7 million
grant to secure a buffer zone south of Colorado Springs to protect the fort’s northern borders. These are called Army Compatible Use Buffers (ACUB), and they are legally binding agreement between an Army installation and another party that enables the other party to acquire land or interest in land from a willing private landowner in the vicinity of Army training areas. Fort Carson and eight other installations are currently enrolled in the “Active Conservation Buffer Program.

All of this – the uncovered plans, the lawsuits, the counter maneuvers, the political infighting – it takes its toll. It’s the uncertainty that’s the killer here. Even Sen. Ken Salazar (D-CO) – who has been trying to thread the needle between his ranching constituents and the demands of the Army – is frustrated. He told The Land Report that he still thinks a compromise can be reached that satisfies all.

“I am still hopeful that there is a way to find a win-win solution that strengthens the agricultural economy of southeastern Colorado and fulfills the needs of the Army. I have suggested several ideas to the Army, including leasing land from local landowners and opening some of the existing site to grazing. The Army has shown openness to some of these concepts, and Fort Carson officials are taking steps to work more closely with local communities to hear their concerns and ideas as well,” Salazar told me. “The cloud of uncertainty, however, is still hanging over the heads of local property owners, in large part because they still worry that the Army will use eminent domain to take their land. I have supported, and will continue to support, barring the use of eminent domain at Pinon Canyon. The residents should not have to live in fear of the Army taking their land.”

Rep. Musgrave concurs. “For the past two years I’ve worked on preventing the Army from spending any money on the expansion,” she tells The Land Report. “But (the Army) is very tenacious. They have time and all the things government has on their side.”

It’s this sort of scenario that has Mack Louden worried. He thinks one of the biggest problems expansion opponents face is that the opinion makers and major media types in Washington and New York can’t fathom the scale of acreage under discussion.

“For someone who pays $1 million for a 1,000-square-foot apartment or a quarter-acre lot, they think 100,000 acres is all the land in the world. Why not give up a little?” Louden says.

But in this part of the country a rancher needs up to 100 acres to support a single cow-calf pair. In the warmer months herds are fed grain. During the harsh winters they survive on protein-rich native grasses. Louden, whose own 30,000-acre ranch supports just 300 Red Angus, says that when all is said and done a rancher with his size operation is lucky to net $35,000 a year. Most ranchers and their wives work extra jobs to make ends meet or to get health insurance coverage.

Louden and I are driving down a dirt road that runs between along the fence line of the existing PCMS. Kennie Gyurman, who lost his ranch in the first PCMS back in 1983 and is still mad about that 25 years later, has joined us. Gyurman’s beat-up Ropers, faded Wranglers, and angry disposition come across anti-military, but once upon a time he worked for the Department of Defense just outside Denver.

“You can’t trust a thing they tell you,” Gyurman says. “They’ll say they want one thing and take another. They’ll say they just want this much, and then they’ll take everything. We have to stop them.”

Opponents of the expansion such as these two aren’t worried about their land. Gyurman’s already lost his, and Louden’s ranch isn’t even in the Army’s sites. Their position is as much philosophical as it is self-interest.

As Lon Robertson told me last year, “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.”As for Louden, he sees a bigger problem than just one wing of the Pentagon making designs on a largely unknown piece of rural Colorado.

“The people are losing the government,” Louden 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.”

“This is one colossal land grab in Colorado,” says Rep. Musgrave, adding that she has little doubt the 2004 study where the Army eyes 7 million acres is the long-term goal. “And it’s always hanging over everyone. You can bet if there is (a permanent solution), we will find it. But bureaucracy has all the time in the world. They can be very patient and come back when this crowd gets worn down. I support the military with all my heart but they’re not right here. Fool me once, shame on you. Fool me twice, shame on me.”

“We are all Americans,” Louden says. “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. What is the military defending us from if they’re the ones who take our land?”

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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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