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.
With more than 15 million acres of military bases, training centers, and maneuver sites, the US Army ranks as one of America’s 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 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?”