Montezuma County has bowed out of a complex water dispute on Canyons of the Ancients National Monument, but negotiated stipulations on water use for Yellow Jacket Creek.
In 2009, the monument purchased an inholding – the 4,500-acre Wallace Ranch – for $3.3 million. The property came with a conditional water right of 5.25 cubic feet per second from the intermittent desert stream.
The county, along with Southwest Colorado Landowners Association and Water Rights Montezuma, opposed a routine water-court procedure by the BLM regarding the due diligence on eventual use of the water rights.
“When the BLM acquires conditional water rights, they file for a six-year diligence period, an internal process that gives us time to determine how the water will potentially be used,” said Roy Smith, a BLM water specialist.
Conditional status is a precursor to absolute (perfected) water rights, which are awarded once specific uses and development for the water, such as diversion structures, are identified and in place.
Uses of the water could include irrigation for reseeding rangeland, fire suppression, water for livestock, and use at campgrounds.
The county has been critical of the monument buying private inholdings, fearing it will diminish historic ranching opportunities in that area.
Commissioner Keenan Ertel argued that Article 1, Section 8, of the U.S. Constitution requires the state legislature to approve federal purchase of private property. Permission was not granted by the state, and BLM officials do not believe it is necessary.
The BLM filed a request for summary judgment on the case May 30, which asks the Durango water court judge Greg Lyman to rule in favor of the BLM because the objectors’ legal dispute is presented in the wrong court venue. The decision is pending, and if denied would trigger a trial.
The BLM argues due-diligence procedures have narrow parameters in water court and that those specific facts are not disputed in the case. Special Assistant U.S. Attorney Kristen Guerriero states claims of objectors are irrelevant in water court.
“Specifically, opposers assert Constitutional claims alleging that the United States does not have authority to purchase property own water rights in any state,” writes Kristen Guerrieo, Special Assistant U.S. Attorney. “These are not claims that challenge the validity of BLM’s diligence activities, but rather reflect Opposers’ desire to utilize the Water Court proceeding to advance other objectives.”
Montezuma County officials want water use out of Yellow Jacket creek to be decided on sooner than within the 6-year period requested by the BLM.
“They need to have a plan on what they will do with that water,” said commissioner Ertel.
Montezuma County attorney John Baxter told the commissioners the stipulation agreement drops them as official objectors in the BLM request for the six year diligence period on the Yellow Jacket water rights. But they will still have a say on how the water should be used when the BLM seeks absolute status of those water rights.
“Whether we win or not, they still have to go through us when they perfect the rights,” he said. “The BLM wants to kick the can down the road,” on deciding how to use the water.
The stipulation agreement states that when Yellow Jacket water rights are converted from conditional to absolute they can only be used for public recreation, BLM housing facilities, fire suppression, irrigation use, and livestock use. It further stipulates the water cannot be used to grow crops, that what is not used be available for downstream users, and that the BLM does not file applications to convert the water to instream flow uses or for uses on other properties.
Remaining objectors in the case, Southwest Colorado Landowners Association and Water Rights Montezuma, have until June 24 to respond to the request for summary judgement filed by the BLM.