Judge will appoint a special master in Costilla County land rights case

SAN LUIS, Colo. — The latest in the 41-year-old private property suit Lobato v. Taylor has left both sides wondering how the longstanding litigation will proceed. 

More than seven months after a tense two-day hearing, Honorable Judge Kenneth M. Plotz issued the most recent response in the historic land rights case. His  Order Granting Motion to Protect Landowner Rights  filed May 17 states that neither the owner of what is now Cielo Vista Ranch nor the court can create any rules to govern historic grazing, timber, and firewood rights on La Sierra, the once communal lands in the Sangre de Cristo mountains east of San Luis. 

The order comes after Plotz had instructed the ranch and rights holders to create agreed-upon rules guiding future resource management and interactions.  

"I would hope that both parties can agree on guidelines so that this case does not have to go on in perpetuity,” Plotz said at the late September hearing. “If counsel can’t agree, well, then I’ll have to impose my own, and then we’ll go on." 

Both parties’ attorneys spent four months drafting proposed rules for rights use. 

They submitted a list of stipulated and unstipulated rules and regulations to the court January 28 totaling dozens of pages, understanding the court would next make determinations on any rules the parties could not agree on — which, the judge acknowledged, was most of them. 

Instead of issuing rules, Plotz now says he will order a court-appointed mediator, called a special master, to handle individual disputes between rights holders and ranch staff across the 78,000 land grant acres of the 83,000-acre private ranch. The mediator will be chosen by the Court, the order states, and paid for by the ranch’s owner, William Harrison. 

Jamie Cotter, attorney for Cielo Vista Ranch, made comment to Rocky Mountain PBS via phone regarding the judge’s order of a court-appointed special master to relieve future issues between rights holders and the ranch. “Our immediate reaction was frustration… I don't think there's a lot of clarity with respect to what that is going to look like, just procedurally,” Cotter said.  

Yet new terrain is old hat in a case that has long been a legal anomaly, “founded upon a unique law, upon unique rights,” Plotz noted at September’s hearing. “Suffice it to say, this [case] is one-of-a-kind.” 

In his May 17 Costilla County District Court filing, Plotz acknowledged the novelty and longevity of landowner’s rights on the mountain dating back to the 1848 Treaty of Guadalupe Hidalgo.

As stated in the Loboto v Taylor brief, “The history of this property rights controversy began before Colorado's statehood, at a time when southern Colorado was part of Mexico. The land was part of the one-million-acre Sangre de Cristo land grant.” 

The property includes the headwaters of the Rio Culebra Watershed and 14,000-foot Culebra Peak. 

Early settlers relied on La Sierra, the communal mountain land. Though the land was privatized and subdivided by Colorado’s first Territorial Governor William Gilpin in the 1860s, access to the mountain for heritage uses continued uninterrupted for over 100 years. 

Settlers and their descendants lost the ability to hunt, fish, graze livestock, and collect firewood and timber in 1960 when ranch owner Jack Taylor constructed a property fence. Legal proceedings between subsequent ranch owners and the greater community have taken place in some form ever since. 

In 2002, the Colorado Supreme Court overturned decades of prior lower and appellate court decisions. Led by the Land Rights Council of San Luis, local landowners regained access to graze livestock and collect timber and firewood on the ranch for the first time since 1960.  

Still, rules for how the rights would be managed were never defined, and left subject to individual interpretation for the last 20 years. As a result, relations between the ranch and the greater community have at times culminated in further incidents. 

The most recent hearing, reported by Rocky Mountain PBS, centered on both sides of a “campaign of intimidation and harassment” filed by Plaintiffs regarding ranch employees’ treatment of some rights holders.  

In over 12 hours of testimony, Plaintiffs alleged the community was deterred from using their hard-won traditional rights because of ranch employees’ excessive surveillance and enforcing of non-court-ordered rules. 

Ranch staff alleged that without rules or consequences, it was impossible to enforce behavior and etiquette on the mountain.  

“The conflict has always been a given,” Plotz said at the hearing. "Given that conflict is always going to exist, there are always going to be clashes between parties.”  

He then asked both sides to convene and create an agreed-upon list of regulations to manage ranch resources and interactions.  

“That was unforeseen,” Cotter said, noting she was surprised when the judge asked parties to define rights because the Court has historically declined to do so. “But when that was the judge’s order, certainly that was welcomed,” Cotter said.  

After months of drafting rules, followed by months of awaiting clarification, Cotter said she was surprised yet again when Plotz reported the court would not clarify any aspects of rights use, after all.  

In his order, Plotz said that’s because Article III of the Colorado Constitution states the legislative, executive, and judicial departments of state government cannot exercise power properly belonging to any other. 

“I find that it is inappropriate for this Court to make up rules or in effect, legislate,” Plotz wrote in his order. Likewise, he ordered Cielo Vista Ranch was not allowed to “unilaterally make up rules and regulations on the property” over rights issues such as what types of firewood to cut and at what elevations, amount of firewood that can be taken, or how many animals can be grazed. He found the ranch may not decide what constitutes a commercial enterprise on the land, take authority to prevent rights holders from scouting firewood, or prevent them from camping to steward livestock on the property. 

Cotter said she was not sure why the attorneys went through the “very intense and very, from my perspective, collaborative process to try to reach some agreement and parameters for regulations” on the mountain, only to be told the Court could not make those decisions and they would instead have to request each individual instance to mediation.  

She is trying not to look at the last year as “a waste of resources” in the days after the order, “because I do think that there were positive things that came out of [the hearing process]. But not legally. I personally felt like there was so much hope to get to the point of reducing ambiguity. And if anything, more ambiguity has now been created, from my personal perspective,” Cotter said. 

Yet she also recognized Plotz is “considering the impacts on the community,” she said. “I absolutely believe that is important to him. There is no question he's trying to do the best he can, and this is complicated. It has always been complicated.” 

On behalf of the Plaintiffs, who are rights holders, attorney Sarah Wallace said, “while the Landowners were disappointed that the judge did not accept their proposed rules and regulations that they and their lawyers worked tirelessly to draft, in the end the ruling was a clear victory for the Landowners.” 

“From my perspective, the most important ruling is… [that] the Ranch cannot unilaterally make up rules and regulations,” Wallace said. “All of the harassing interactions were a result of the Ranch unilaterally deciding how the Landowners should act when exercising their rights. That is clearly prohibited in this ruling.” 

The May 17 order appointed a Special Master to individually address future access rights discrepancies. Plotz said it is an answer to the Plaintiff’s “prayer for relief” to efficiently safeguard their rights. 

Cotter said Special Masters are “appointed in litigation typically to deal with the discovery process. If you've got a really complicated case with tons of documents and the court doesn't have the time, resources and bandwidth, they’ll appoint a Special Master who is basically the referee with respect to all issues about who must disclose what, what documents have to come out, that sort of thing.” 

Cotter said she had not seen a Special Master used in this fashion. “I've never seen them in the context of a non-judicial officer effectively being appointed to adjudicate legal disputes,” she said. 

“If the Ranch wants to impose restrictions, [it] will need to go to the Special Master and get a ruling to that effect,” Wallace explained. “While there is a lot of unknowns regarding how the Special Master process will work, the Landowners look forward to having someone accessible to them that is being paid by the Ranch Owner to prevent this kind of harassing behavior.” 
 
The use of a Special Master creates “a lot of questions logistically,” Cotter added. “How is the person appointed, and what authority do they have? And if somebody doesn't like the order, what happens then? At the end of the day, all this order did is create less certainty and more questions than we even had before… And not only has that now not been answered — but we lost an entire year.” 

The defense is still processing Plotz’s order, according to Cotter. 

“I do think that there is something about continued delay and lack of clarity that is leading to this ambiguity,” she said. 

Cotter hopes the community can build on the spirit of living together and forging a new future, “which I very much felt was present in our discussions last fall and into the winter,” she said. “And so, I hope for that. But I do not think that the court's order helped accomplish any of that.” 

“The order can be read that there's no end,” Cotter added. “What's the end to this?” 

Kate Perdoni is a multimedia journalist with Rocky Mountain PBS and can be reached at kateperdoni@rmpbs.org or on Instagram at @kateyslvls.