Running Hard to Stay in Place

Essay by Ed Quillen

Land Use – September 2000 – Colorado Central Magazine

IF A PRIVATE CITIZEN like Ted Turner owned 3 million acres of Colorado — about 4.5% of the state’s area — his every known action would doubtless fall under close public scrutiny. Whenever he built a barn or tore down a fence, bought some bison or sold some horses, we’d know about it.

But there’s an agency that controls 3 million acres of Colorado, and hardly anybody pays much attention to the State Land Board.

Its origins go back to August 1, 1876, when Colorado became a state. For that to happen, Congress had to pass an “enabling act” which set the boundaries and approved the state constitution.

A provision of the enabling act — one that was present for most states that entered the union after the Civil War — consisted of a gift from the federal government. At that time, there wasn’t a Forest Service, Park Service, or BLM. The feds had set aside some land as Indian or military reservations, but all the rest was “unappropriated public domain.”

By and large, this land had been surveyed into townships — squares that are six miles on a side — and each township thus had 36 mile-square sections of 640 acres apiece. Congress decreed that section 18 and section 36 of each township would be given to the state for the support of “the common schools.”

That’s where we get phrases like “land-grant college” and “school section.”

The state could keep title to the land, and use the income from leases and royalties for schools, or it could sell the land “at a public sale at a price of not less than $1.25 per acre.”

That gift at statehood forms the state’s School Trust Lands, and those lands are administered by the State Land Board. Traditionally, the Land Board’s job was to get the maximum possible income for state schools.

That changed after 1996, when Colorado voters passed a constitutional amendment. Previously, the board had three full-time paid members. Now it would have five part-time members, each representing an interested segment of the public: education, agriculture, local government, etc.

The board was no longer required to consider only the immediate maximum income for schools in how it managed or sold lands. It could instead consider “reasonable and consistent income over time.”

The amendment also directed the board to set aside an initial 200,000 acres of Stewardship Trust Lands by the end of 1998, an additional 100,000 acres of Stewardship Trust by the end of this year. These lands cannot be sold or developed unless four of five commissioners approve (as opposed to three out of five for normal sale or development).

The Land Board meets every month, in varying locations around the state; in July it met in Denver, in August in Meeker, and the next meeting is scheduled for the Chaffee County Fairgrounds in Poncha Springs, with a comment session about Stewardship Trust nominations at 7 p.m. on Sept. 7, and a regular meeting at 8:30 a.m. on Sept. 8.

It should be an interesting meeting on Sept. 8. One item is a request by Hard-Rock Paving to lease 1,000 acres west of Buena Vista for gravel mining, a prospect that has alarmed the neighbors and inspired the Chaffee County Commissioners to write a letter of opposition.

THE OTHER ITEM of local interest may not come up for discussion. That depends on a court case that was scheduled to be heard in Chaffee County District Court on Aug. 24 — shortly after this edition is supposed to go to the printer.

It concerns a parcel known as the Little Cochetopa School Section, about five miles south of U.S. 50 on Chaffee County Road 210.

From 1876 until about 1998, there wasn’t much of a story in that school section. It’s wooded and scenic and attractive to wildlife, but so is much other mountain land. Nobody found gold or silver there or nearby, or at least not enough to matter. It didn’t attract serious loggers. In the 1960s, the Western Slope Gas Co. ran a pipeline over Marshall Pass, and instead of following the railroad grade all the way down the east side, the pipe veered south to U.S. 50 and crossed the school section on its way.

The school section was leased for grazing to area ranchers. Ron Jones, who raises longhorns just outside Salida, used to have a ranch on the Little Cochetopa just below the School Section.

“We never leased it for grazing,” he recalls. “We wanted to, because it’s a good summer pasture, but the grazing permit was pretty well attached to another ranch. It wasn’t fenced all that well then, so once in a while, one of our bulls would get up there and visit the cows. I can’t say whether it was the grass or the social life that attracted our bulls.”

The fences got better after the arrival of Thomas J. and Margie Smith — they’re from Kansas City, and he’s a real-estate developer.

They bought the 233-acre McNeil Ranch in 1997 for $1 million, to use as a second home. Although it is accessed via Droz Creek off the Marshall Pass road, the land adjoins the school section for a few hundred feet.

They didn’t want the old ranch house, so they worked with the South Arkansas Fire Protection District to burn it down as a practice exercise for firemen. The Smiths also drained a small lake on the property, with the intention of building a bigger reservoir.

APPARENTLY, THEY LIKED Chaffee County, for in 1999 they spent nearly $2.75 million buying property in the county: 41 acres of mining claims in the northern part of the county for $50,000; 125 acres from Melvin F. Vorwald for $374,500; 1,280 acres in the Maysville area from Carl Gene Koontz for $2,304,000.

Back to the McNeil Ranch. It came with the grazing lease on the Little Cochetopa School Section.

Grazing leases on state land are considerably different from grazing leases on federal land.

When the Forest Service or BLM leases grazing rights, that’s all the rancher gets — grazing rights. The rest of us are free to camp, hike, hunt, or whatever on that land.

But when the State Land Board leases land for grazing (this parcel’s capacity is 91 cow-calf units for $953 a year), the lessee gets almost total control of the property. He can’t put up permanent structures, but he can keep everybody else off. It isn’t open for other public uses, unless special arrangements are made.

In this case, the Colorado Division of Wildlife had leased hunting rights — access during daylight hours during big-game seasons — for the parcel, for $800 a year. (Thus Colorado hunters have the privilege of paying, through license fees, to hunt on land they already own.)

That was the situation until last summer, when rumors began to circulate that the State Land Board was considering an exchange. The Smiths had acquired a 3,080-acre ranch in Conejos County, amid state land near La Jara Reservoir. And the rumors were true that they proposed to trade it for the Little Cochetopa School Section.

The Conejos ranch was appraised at $1.2 million; Little Cochetopa at $1,560 an acre, or $998,400. Thus on paper at least, the state would be coming out ahead on the deal.

At its March meeting, the State Land Board began to consider the land trade — in essence, the board voted to take a closer look, rather than dismiss the possibility outright.

It was around then that I got some calls and emails from other people who lived up Little Cochetopa Creek — first Ide Trotter, then Dan Jones and Ed Rogers.

Their main worry was that Tom Smith is a land developer by profession. Under state law, the county can’t stop a subdivision if the resulting parcels are 35 or more acres.

So if Smith got his hands on 640 acres, he could carve out 16 or 17 scenic 35-acre mountain homesites, only five miles from a major highway and accessible via public road. A natural-gas pipeline ran right through it, and the electric lines come close.

Further, the school section could control access to about 4,500 acres to the east, the Cleveland Mountain Area. Close off that hunting easement after acquiring the school section, and the result is about the same as a private forest preserve, except you don’t have to pay property taxes on most of the land.

Prime development property, in other words, although even limited domestic wells might put a strain on existing water rights along the creek, and the county road is narrow and winding.

Granted, the county’s tax base would improve, since state land doesn’t pay property taxes and private land does. But so would public costs for providing roads, schools, law enforcement, and the like, and every study I’ve seen says the increased costs exceed the increased tax revenue.

SO IT DIDN’T LOOK LIKE A GOOD DEAL for Chaffee County. But I wondered. Did these irate neighbors just want Little Cochetopa all to themselves, as a sort of private enclave anchored by that chunk of state land?

My test question was whether they’d support a trade, assuming one could be arranged, so that this school section would become part of the national forest, and thereby open to all manner of visitors throughout the year.

That would be fine, they said. They didn’t mind hikers and campers; they just didn’t see the school section as a good place for development, and neither did I.

But did Smith plan to develop it? I wanted to talk to him, to hear his side of this, but finding the right “Thomas Smith” in greater metropolitan Kansas City could take months. I called Karin Adams, the local Realtor who represents him, and asked her how to contact Smith.

She wouldn’t tell me, but she did say that Smith had no plans to develop the school section — he just wanted it for a buffer on the north side of land he already owns. Tim Heiser, an Adams associate who also works with Smith on real estate deals, said that Smith “wants to put the land into his estate for his kids.”

So there are reasons to wonder about what Smith’s real plans are — not just for the school section, but also for the other 1,768 acres in Chaffee County.

But as I learned more, the real public issue became less Smith and his plans, whatever they are, and more the State Land Board and how it does business.

Smith, after all, is in the private sector, and he makes a good living from finding good deals on land. Most of us live on land that was subdivided and developed at some point in the past, and it would be rather hypocritical to say that all development and subdivision is evil.

But the Land Board is an agency of the state of Colorado. It acts in our name to protect resources we own and to provide funds for the schools our children attend. What Smith does is his responsibility, but what the Land Board does is, in the final analysis, our responsibility.

And there are a lot of strange things in how the Land Board has handled this. In March, the Land Board used an appraisal that set the School Section at $998,400 — $1,560 an acre — and said that price represented “the guarantees the Board has in place to ensure that the full and fair market value is received.”

And if that appraisal was indeed fair and solid, then why did the Land Board get another appraisal in July, one that put the school section at $1.35 million?

THIS SEEMS PRETTY SLOPPY. How do we know that the Land Board is getting the best price for state land on routine deals when nobody is complaining, when it wasn’t getting the best price it could here until somebody complained?

Sure, real-estate prices have been rising, but 30% in less than six months?

In March, two Land Commissioners said they would consider alternate proposals options for the Little Cochetopa School Section. It’s in the transcript of the meeting, and in letters sent out shortly thereafter, executive director Charles Bedford wrote that the board “allows for at least 30 days (and in this case 90 days) … for anyone to make alternate proposals.”

Which is what Citizens to Save the Little Cochetopa School Section did. They didn’t have much time, but they put together an alternate proposal — a nomination for Stewardship Trust Designation, endorsed by every local government in Chaffee County, as well as state Rep. Carl Miller. They believed that the Land Board would have to consider the nomination before making its designations in December, and until it had decided on that, the Board couldn’t trade the land.

But then the Land Board issued its agenda for the July 21 meeting, and this land trade was on it. Bedford told me he had “no idea” why anyone would think that a Stewardship Trust nomination might delay the trade, that neither he nor any of the five commissioners had ever even hinted such a thing.

The neighbors went to district court in Salida in early July, and got a temporary restraining order from Judge Ken Plotz.

Under the order, the Land Board could vote to approve a trade, but it couldn’t consummate the trade until after a hearing on the request for an injunction.

On July 21, the Land Board voted to make the exchange. Smith would get title to the school section, along with the right to build one residence on 35 acres. The state would purchase the rest of the development rights for $421,976, and hold them for three years, and if no other buyers appeared, Smith could repurchase the development rights for $540,000.

Whether that deal goes through is at the heart of the court hearing on Aug. 24 — one of those awkward dates for this magazine’s schedule.

The real issue is probably the question of procedure. Can the Land Board tell citizens that it will consider an alternative proposal on a land trade, and then refuse to consider that proposal?

And if the Land Board has an obligation to get the most money it can for our schools, should it be making this trade? I asked Bedford if the grazing income from the Conejos land would be higher than the $953 a year the Board gets from Little Cochetopa.

He said it probably would, since there was more land and presumably more grazing, but that he really didn’t know.

This seems like a curious way to operate — you’re supposed to be getting the maximum income for the state, and yet you don’t know whether that income will go up or down after the trade.

NOW, THIS TALE might seem too detailed, and perhaps even petty to some, but I think it’s indicative of some bigger problems:

State law sets the maximum charge for copying public records at $1.25 a page; the Land Board charged $5 to one of the Citizens, and told him that most of the records he asked for didn’t exist. Somehow the board found those records, and charged only $1.25 a page, when an attorney wanted them. You shouldn’t have to engage an attorney to be treated fairly by a public agency.

Why is it that the remote and evil federal government, when it leases grazing rights on public land, has figured out how to lease just the grazing rights, leaving the lands open to other uses, whereas the state government hasn’t mastered that yet? As something of a Jeffersonian, I’d like to believe that a state government can do a job at least as well as the feds — but that gets harder to believe all the time, especially when you compare state land management to federal land management.

If nominating the school section for the Stewardship Trust wouldn’t affect the proposed land trade, why didn’t the board just say so last March? Why did it string the Citizens along with the implication that a nomination would at least postpone the trade? If it was pretty much a done deal after the March meeting (the first time it appeared on any official agenda), then why go through the pretense of extending the comment period from 30 to 90 days and soliciting alternative proposals?

That’s not a fair or honorable way to deal with the public, and we deserve better from our state government which, after all, is supposed to be acting on our behalf.

And finally, the Citizens to Save the Little Cochetopa School Section had to drop their other pursuits and spend considerable time and money, basically to preserve the status quo if they succeeded.

And in this case, concerned neighbors had the money to employ a lawyer and the time to follow the case. Those who live near other state lands may not be so fortunate.

In other words, you have to struggle constantly just to be left alone. Government at all levels seems to smooth the way for those who want to change things around you, while it’s your burden to try to save what you cherish. That’s a sad commentary on modern life, and it doesn’t help that those who call themselves “conservatives” seldom want to “conserve” anything that matters.

— Ed Quillen