New Mexico ranchers fight designation on private land

Oct 26, 2012

Many producers take great pride in the historical and cultural significance of their ranches, but few would want to risk the tangle of red tape and regulations that might result from seeking official recognition on a state or federal historic registry.

One group of New Mexico ranchers, however, is worried that recognition and red tape may have shown up without an invitation.

Ranchers living in the shadow of Mt. Taylor, a 11,300-foot volcanic peak rising from the New Mexico desert some 80 miles west of Albuquerque, are currently locked in a legal battle with the state and several southwestern Native American tribes in an attempt to rid their property of a state historical designation. The designation recognizes Mt. Taylor and the surrounding landscape–some 700 square miles of mixed state, federal and private lands–as a “traditional cultural property” (TCP) on the basis of its sacred tribal significance, something private landowners fear will hamstring their ability to manage their property as they see fit.

“There is not one private landowner who wanted their property included. Not one,” said Joy Burns, whose family owns the 18,000-acre Elkins Ranch, which is located on the slopes of Mt. Taylor.

Ranchers have challenged the process used to approve the designation, and further question whether it is plausible that such an unusually vast area can be managed as a historical site. A New Mexico district judge hearing the case last year called the nomination an “unprecedented designation request.”

Ranchers are not the only parties fighting the designation of the area. Mt. Taylor and the surrounding land are thought to contain potentially millions of pounds of uranium, and mining companies are concerned that leases will be denied on the grounds that mining will disrupt the landscape’s spiritual value.

On the other side, tribes claim that uranium mining over the years has contaminated air and ground water causing significant health issues, as well as permanently altering a landscape they hold as sacred.

In a legal dispute that is five years running, the ranchers succeeded last year in having the TCP designation overturned in New Mexico District Court. An appeal

of that decision by the state was bypassed by the appellate court, and is currently being reviewed by the New Mexico Supreme Court.

The dispute stems from 2008, when Mt. Taylor and surrounding high mesas were nominated by the Pueblos of Acoma, Laguna, Zuni, the Hopi Tribe and the Navajo Nation as deserving a place on the State Historical Register. The tribes view the mountain as important to their cultural identity and traditional religious beliefs.

“Mt. Taylor plays a prominent role within our traditional world view,” said Theresa Pasqual, director of the Historic Preservation Office of the Acoma Pueblo. Named Kaweshtima, or “place of snow,” in the Acoma language, the mountain represents the cardinal direction north, which is associated with Acoma tribal origins, as well as various deities of the tribe’s religion, Pasquale explained.

In 2009, the New Mexico Cultural Properties Review Committee granted the tribes’ request, designating Mt. Taylor and thousands of acres of the surrounding landscape as a TCP. The Sierra Club claimed a supporting role in the process.

According to a press release at the time, the group claimed that it had “worked to support the [tribes’] application, helping [to] organize meetings where different tribes could get together, and testifying before the Historic Preservation board.”

Yet local landowners balked at the decision, frustrated that their desire to be left out of the designation was not heeded.

“Most of us attended the meetings and voiced our concerns, and they just did it anyway,” said attorney Mike Moffet, who is representing Burns and several other ranchers.

“What is happening is that people who do not own my client’s property are trying to list my client’s property,” Moffet continued.

“And my client, who’s a private land owner on Mt. Taylor, doesn’t want their property listed.”

Although almost 90,000 acres within the 435,000-acre TCP are private, these lands have been classified as “non-contributing,” suggesting that they will not be subject to any restrictions deemed necessary to preserve cultural characteristics. Indeed, both state and tribal authorities have maintained that the TCP designation will not significantly impact management on private land.

However, Tom Drake, public relations officer with the New Mexico Historic Preservation Division, explained that being within the TCP “would affect private land holdings … in the case that a state permit was required to pursue an activity on that land.”

In such instances, permitting clearance would not only go to the state office responsible for granting the permit, but would be subject to further review by the Historic Preservation Division, which would consult the tribes regarding the potential impact of the permitted activity.

Although tribes would not be able to veto projects outright, state historical authorities would be required to factor the tribes’ views into their decisions. For ranchers seeking to capitalize on timber, mineral deposits, or undertake other potentially visible projects like building roads, windmills, or drilling wells, the extra layer of regulation creates a huge sense of uncertainty.

“We just don’t feel that we should have to consult non-landowners about our actions,” said Burns, whose family commercially harvests timber on their ranch, an activity that requires a state permit. “Obviously, state permits come with restrictions and environmental guidelines. That’s not the problem,” continued Burns. “The problem is adding one more huge wrinkle to the process.”

Drake indicated that the state historical authorities would seek to “offer suggestions to mitigate the effect to the TCP” if a project on private land was deemed to negatively impact the protected land. The offer to help with mitigation efforts has not assuaged ranchers’ fears, however. Burns worried that even if projects were not rejected outright, such mitigation requirements might end up being so burdensome that they would make projects on private property too cumbersome and expensive to be worthwhile.

The New Mexico Cattle Growers’ Association (NMC- GA), together with the New Mexico Farm and Livestock Bureau, is supporting the ranchers by filing as an amicus in the case. Caren Cowan, executive director of NMCGA, is familiar with the impact that protective designations have had on ranchers who depend on federal lands. The state’s TCP designation, she said, is “equally scary.”

“We’ve lived through lots of designations, admittedly at the federal level, that have made a huge difference,” said Cowan. Regarding the TCP, Cowan added, “[t]here are so many unanswered questions. …It’s a further designation that people don’t know what it really means. …There’s no clarity on what the final impacts might be. Therefore, we’re going to oppose it.”

The New Mexico TCP dispute raises some new questions about property rights that are likely to unsettle ranchers. The situation on Mt. Taylor suggests that in states with statutes that allow for certain kinds of historical designations, private land can be nominated for and granted special designations even when the owner does not seek it. Moreover, it may end up that such special designations can impact how an owner can use their land.

The application of historical and cultural designations, which are usually reserved for historical buildings or special public places, to vast areas of private land, particularly when the owner objects, has resulted in more than a few jangled nerves.

“It’s alarming,” remarked Burns.

According to Cowan, it should be no surprise if restrictions follow in the wake of such designations, regardless of any assurances to the contrary.

“When somebody comes in and designates something as ‘special,’ then the next thing that happens is that they want to tell you how to use it,” said Cowan. “When you subject yourself to that possibility, you threaten your business.” — Andy Rieber, WLJ Correspondent