ARIZONA ~ WATER AND YOUR REAL ESTATE TRANSACTION


ARIZONA ~ WATER AND YOUR REAL ESTATE TRANSACTION

Ground Water |   Surface Water | the Adjudication Process

Understanding the Many Roles of this Important Aspect in Real Estate Transactions

It all starts with the land… When the land was originally patented from the US Government, it had all the “Bundle of Rights” that went with it.   More here —Land Patent.

Without water, the land is basically not very useful. More here–The Land Is Perfect but there is No Water.

The Real Estate Transaction~ getting title insurance does not insure your water rights! The ownership of water rights is decided through the water courts. More here.

Surface Water Arizona is a prior use law state and putting the water to beneficial use is the key.

Ground Water follows the Reasonable Use Doctrine

Arizona State Water Rights Basics~

Arizona, like most other Western states, follows the prior appropriation system for surface water and it has since the enactment of Arizona’s first territorial water code in 1864.  In those days, a water user acquired a right to use water by putting water to beneficial use.  Now, a permit is required.  Groundwater, however, is not generally subject to a prior appropriation system, and follows the “reasonable use” doctrine where it is not regulated under the Groundwater Management Act in specific areas of the state. Water rights are administered by the Arizona Department of Water Resources (DWR).

The distinction between surface water and groundwater was judicially defined in the 1932 case Maricopa County Water Conservation Dist. No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369, modified and  denied, 39 Ariz. 367, 7 P.2d 254 (1932).  The Southwest Cotton court defined appropriable water to include the “underflow, sub flow or undercurrent … of a surface stream.”  The “sub flow” was defined as “those waters which slowly find their way through the sand and gravel constituting the bed of the stream, or the lands under or immediately adjacent to the stream, and are themselves a part of the surface stream.”  39 Ariz. at 96.

Groundwater not “immediately adjacent” to a stream is not appropriable, and it is referred to as “percolating groundwater.”  Although later courts have acknowledged that this division of water underground is a legal fiction that does not make sense hydrologically, they have refused to change the distinction.  In an opinion issued last September, the Arizona Supreme Court attempted to further refine the definition of sub flow in the Gila River System to a particular hydrologic unit in the system, the saturated flood plain Holocene alluvium. In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, Ariz. 9 P.3d 1069 (2000) (Gila River IV).[2]

To further complicate groundwater matters, the Arizona Supreme Court issued an opinion in 1999 that federal reserved water rights, notably for Indian reservations, transcend and trump state water law.  In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 195 Ariz. 411, 989 P.2d 739 (1999), cert. denied, 120 S.Ct. 2705 (2000) (Gila River III).  The high court ruled:  (1) federal reserved water rights extend to groundwater that is not subject to prior appropriation under Arizona law to the extent that groundwater is necessary to accomplish the purpose of a federal reservation, and (2) federal reserved right holders are entitled to greater protection from groundwater pumping than are water users who hold only state law rights.  This means the holder of a federal reserved right to either appropriable surface water or non-appropriable percolating groundwater may be able to enjoin pumping of percolating groundwater that interferes with the use of the federal right, even though a state law user of either appropriable surface water or non-appropriable percolating groundwater would have no similar right to enjoin an interfering use of percolating groundwater.

A statutory system to regulate surface water was adopted in 1919…after which, water users must apply for permits to appropriate surface water.  Most surface water was appropriated early on, and some judicial decrees were issued, but they did not explicitly quantify the reserved rights held for Indian reservations. Two large general stream adjudications (on the Gila and Little Colorado rivers) are now under way to sort out the relative rights of most of the water users in Arizona.  Technically, people can still apply for surface water rights, but very little is available.

New groundwater developments are possible in the Active Management Areas (AMAs), as detailed below.  Outside of AMAs, reasonable use is still the standard, except that some people believe Gila IV expanded the definition of “sub flow” to the point where no percolating groundwater is left.

If water rights are not put to beneficial use for five years, they may be forfeited. As in other Western states, rights may be abandoned if the user fails to use the water and intends to abandon the associated water right.  Gila Water Co. v. Green, 29 Ariz. 304, 241 Pac. 307 (1925).  Changes in the point of diversion, place and purpose of use require application to the DWR and are subject to public notice and protest.  More here–State Water Rights Basics.

Water Right Ownership and Title Examination~ In Arizona, there are several different types of surface and groundwater rights, with several different types of proof of the rights.  In general, except for decreed rights, the DWR has ownership and assignment records.  However, for surface rights in particular, due diligence should include a title search of the land associated with the water right.  Title to groundwater rights can be held separately from the land, and title can be searched through DWR records only.

Arizona state law provides for four types of surface water rights~ All types of surface water rights should be conveyed by deed, not a bill of sale. Notice of the conveyance should be filed with DWR using the DWR’s forms, except for decreed rights.  The first type of a surface water right is one acquired before June 12, 1919, which is evidenced with a statement of claim filed with DWR. The second type of surface right is one acquired after June 12, 1919, pursuant to an application and permit to appropriate water. DWR issues a Certificate of Water Right as evidence of these rights.

The third type of surface water right is a stock pond right. DWR evidences these rights with a Registration of Stock pond filed with DWR and, on rare occasions, with a Certificate of Stock pond Right.  The fourth type of surface water right is a decreed right. These rights have been adjudicated and confirmed by a court. No readily accessible repository exists for these rights, although DWR often has information regarding decreed rights.

Groundwater in Arizona is heavily regulated~ even though the state generally follows the “reasonable use” doctrine instead of the prior appropriation doctrine for groundwater. The Arizona statutes designate AMAs in areas where groundwater aquifers are at risk of being rapidly depleted and provide stringent regulations in those areas. The AMAs include the Phoenix AMA, the Pinal AMA, the Tucson AMA, the Prescott AMA, and the Santa Cruz AMA. Elsewhere in the state, areas have been designated as irrigation non-expansion areas, In these areas, groundwater use is not as heavily regulated as in the AMAs, but new irrigated acreage cannot be developed.

Within the AMAs~ all the types of water rights should be conveyed by deed and the Notice of Conveyance must be filed with the DWR The first type of groundwater right is an irrigation grandfathered groundwater right, which allows the right holder to withdraw and use groundwater for irrigation purposes on a specific piece of property. The DWR issues a certificate of irrigation grandfathered groundwater right as evidence of the right.  Irrigation rights are appurtenant to the land that was historically irrigated and can be conveyed only with that land.[113] In some circumstances, irrigation rights can be retired and converted into Type I non-irrigation rights (discussed below) or can be extinguished to obtain credits that can be used in proving an assured water supply.[114]

Type I non-irrigation grandfathered groundwater rights originate from retired irrigation acreage. The DWR issues a certificate of Type 1 non-irrigation grandfathered groundwater right for a specific amount of water. The right is appurtenant to the historically irrigated acres, but it can only be used for non-irrigation purposes.[116] In limited circumstances, the water withdrawn pursuant to a Type 1 right may be used on land other than the appurtenant acreage.[117] Type 1 rights sometimes can be extinguished to obtain credits that can be used for proving an assured water supply.[118]

The use of Type II non-irrigation grandfathered groundwater rights is less restricted than other groundwater rights in an AMA. The DWR issues a certificate of Type 2 non-irrigation grandfathered groundwater right for a specific amount of water for non-irrigation purposes.  Type 2 rights are freely transferable within the AMA subject only to well spacing requirements.  The right can be leased in whole or in part.[119] In some circumstances, Type 2 rights may be extinguished to obtain credits that can be used to prove an assured water supply.[120]

Within an AMA, it also may be possible to obtain permits to withdraw and use groundwater for the following purposes, general industrial use, dewatering, mining, poor quality groundwater use, temporary electrical generation or dewatering, drainage, and hydrologic testing.  These permits generally are of a short (less than 50 years) duration and are, in most cases, transferable.

The final type of groundwater right in an AMA is a withdrawal from an exempt well.  An exempt well is a well with a maximum pump capacity of 35 gallons per minute.  Exempt wells drilled (or in progress) before April 28, 1983, can be used to divert up to 56 acre feet per year for non-irrigation purposes. Exempt wells drilled after April 28, 1983, can be used to withdraw up to 10 acre feet per year for domestic and stock watering purposes.

Water Rights Due Diligence~ If you are not on municipal water be sure and check out your property whether you have a well or not.  Check with the professionals to find out if there is adequate water in the area, a good well driller educated in the area you are purchasing in is a great source of information to you.  The Arizona Department of Water has lots of informative information about the area and records of wells that perhaps are close to where you will be purchasing.  Know what quality of water is in the area, if a well exists on the property you are purchasing be sure to get a water test for drinking purposes and what systems are recommended to add to your water to make it safe and potable.  A well driller can tell you the GPM, depth and condition of the well.  They can do testing for you.  Records of your well should be on file with the ADWR with a file number – these records can be downloaded for your reference.  A well will need to be transferred at the time of sale to the buyer and there should also be a transfer of the Statement of Claimant which gave notice to the court during the Adjudication process ongoing that the well was transferred to the new buyer.  This form must be signed by the seller to the buyer.  If there is no record of filing then a late filing needs to be filled out and filed with the ADWR.  Their forms are easily accessible on their website. Arizona Department of Water

Surface Water Rights also should be on file with the Arizona Department of Water and need to be transferred as well.

If you are purchasing property with surface water rights or a property that has grandfathered water rights to be transferred be sure a consult with a good water attorney to make sure your Due Diligence check list has been done when it comes to the water rights.  A couple of excellent firms below:

Schroeder Law Offices “We do Everything Water”

Excellent Water Attorney Carlos D. Ronstadt

 

edited by

Letter from Rep. Paul Gosar


 

eagle logo
UntitledgosaarOctober 26, 2015

Ms. Esther Talbert
PO Box 565
322 S Main St #B
Cottonwood, AZ 86326-0565

Dear Ms. Talbert,
Thank you for contacting me about the proposed Sedona Verde Valley Red Rock National Monument. I appreciate your thoughts on this issue and welcome the opportunity to respond.
First and foremost, I strongly oppose any effort that seeks to have the proposed 160,000 acres of Sedona/Verde Valley land designated as a National Monument under the Antiquities Act. President Obama has exceeded the intent of this law and abused the Antiquities Act more than any other president in the history of this country. To date, he has designated or expanded 19 national monuments. These designations have locked up more than 1.25 million acres of land. Arizona already has 18 national monuments, more than any other state. Only 18.2% of Arizona land is private land and the federal government already controls more than 30 million acres of land in our state.
Unilateral designations that circumvent Congress typically result in devastating consequences for rural Arizona and our state’s future economic prosperity. For every new acre claimed for the federal government, there is an acre of private land lost. Such actions exacerbate challenges for our local communities to fund things like education as lands that are added to the federal rolls can no longer be taxed. National monument designations can also significantly harm hunting, fishing, OHV and other recreational activities. These declarations typically result in restrictive land-use designations and regulations. Furthermore, national monument designations under the Antiquities Act typically have significant consequences that negatively impact grazing rights, water rights, wildfire prevention and other land management activities.
Designations under the Antiquities Act also don’t have to follow the environmental process required under NEPA and aren’t required to solicit public input prior to declaration. I could go on and on about why the Antiquities Act is so bad for our communities and why I have been fighting so hard to reform it. Last Congress I introduced the Arizona Land Sovereignty Act which sought to prohibit National Monument designations in Arizona without express consent of Congress. Any effort that seeks to designate 160,000 acres of Sedona/Verde Valley land as a National Monument should go through Congress. Having said that, I have significant concerns about this proposed National Monument and would not support its passage.
For generations, Arizonans have enjoyed responsible, multiple-use recreation on these public lands, and have been active participants in conserving this amazing public resource. Efforts in managing this pristine area are currently being handled appropriately, and locking up even more land would be a step backwards. The proposed monument designation would erode the extensive cooperation and success that federal and state agencies in Arizona have achieved to date.
At a time when the National Park Service, which is one of the federal agencies responsible for managing our national monuments, is already struggling with an annual budget shortfall, why would we burden them with new responsibilities? In July, the House passed my amendment to prohibit public land management agencies from carrying out declarations under the Antiquities Act in counties where there is significant local opposition and blocked the proposed Grand Canyon Watershed National Monument. I have heard from a considerable amount of people since that time who are opposed to the potential designation for Sedona/Verde Valley. If this misguided proposal moves forward then I will likely attempt to block it as well. Rest assured that my colleagues and I will also continue to take steps to rein in the President’s overreach and abuse of the Antiquities Act.
Again, I appreciate your thoughts and concerns. It is a pleasure to serve Arizona as part of its congressional delegation. Your suggestions are always welcome, and if ever I may be of assistance, please do not hesitate to contact me. To receive the latest legislative updates and news you can sign up for my e-newsletter by visiting http://www.gosar.house.gov.
Sincerely,

Paul A. Gosar, D.D.S.
Member of Congress
PG/CB

The Unanticipated Consequences of a Non-Rural National Monument


There are many unintended consequences to owners whose private property adjoins a National Monument, National Park, National Scenic Area, National Heritage Area or any other intensively managed federal land; more so, if said properties should become landlocked inside such federally designated areas, especially a National Monument. A National Monument is the second highest designation in the National Park System; it has the most restrictions and carries with it one of the highest levels of unintended consequences. National parks have the highest designation, and what’s more, many national monuments are eventually converted to National Parks.

Leading up to those unintended consequences are various factors– ignorance and error are the most common.  In the quest for an ideology of “protecting land” that is already protected, (and much of it Wilderness already) citizens have been misled and many of those doing the misleading want the intended consequence so badly that they are purposefully ignoring any of the unintended consequences. This type of willful ignorance is quite different from true ignorance. For example, the city council has not hired an expert attorney to prepare an impact statement, to the community, addressing all the complications and legal ramifications for homeowners or the city.

In their zeal, to turn Sedona, VOC and Oak Creek Canyon into a National Monument, Keep Sedona Beautiful, Inc. has repeatedly told us, “nothing will change.” But it has been clear in all other cases where National Monuments have been established adjacent to populated areas: Things WILL change.

What are the obvious visible consequences of a National Monument landlocking our Private Property in the Verde Valley?

Infrastructure demands that increased tourism will bring, such as wear and tear on roads, additional parking, lodging, and restaurants. Increased demand on police, rescue, and utilities, leaving the local community to pay for the increased costs and live with the traffic burdens. The only method to truly control traffic would be to restrict how many people can come here using gates in the affected areas.

Indirect control and why National Monuments and National Park Areas are such a Threat

The management plan for the Columbia River Gorge National Scenic Area (which is a lower designation compared to a National Monument), regulates nearly every detail of private property use, including the color landowners can paint their homes and the species of trees they can plant in their own yard. Living in an area full of near-endangered species leaves us particularly vulnerable to eminent domain abuse and land use losses should we become landlocked in a national monument.

A Verde Valley National Monument Commission would be created to carry out the National Monument’s Management Plan; it would also be responsible for monitoring and hearing appeals of land use decisions. Local counties will be responsible for drafting and enforcing land use ordinances to implement the Federal Management Plan. This is an expensive burden that they can hardly afford.

Zoning and land-use policies become corrupt by adding federal dollars, federal mandates, and federal oversight to the local ordinances, along with an army of special interest groups who call themselves “Stake Holders.”

It must be understood that being inside a National Monument affects all the land in  and around the designated area, not just the federally-owned land! The designation requires a form of contract between state and local governmental entities and the Secretary of the Interior or Department of Agriculture. That contract is to manage the land-use of the region for preservation. That means federal control and zoning, either directly or indirectly under the terms of the “management pact”.

Such “indirect” control is the real danger. In spite of the specific language in the bill which states, “property rights will be protected,” the true damage to homeowners often comes from private groups, non-governmental organizations (NGOs), and preservation agencies which receive public funds to implement the management policies and partnerships. Remember that it is a non-profit, environmental group that has decided what they want our fate to be and has taken away our voice in this illegitimate, faux-public process, while usurping the real elected officials for 80,000 citizens.

Groups in at least forty nine National Heritage Areas convert money THEY receive into political activism to encourage local community and county governments to pass and enforce strict zoning laws.

While this tactic makes it appear that home rule is in force, removing blame from the federal designation, the control is covertly accomplished and is indeed because of the federally designated area. The net result is that private property owner’s rights are usurped, conditional use permit holders, lease holders and other permit holders lose their right to land use and much of the local land use is brought to a standstill.

Verde Valley has Been Selected for a Great Experiment

Not content to merely create a long list of federally owned and managed lands across America, Big Green has selected the Verde Valley to be site of the first and only cities landlocked inside a National Monument. No such area currently exists! History shows that inholders inside National Parks and National Monuments are evicted through eminent domain or forced into what is effectively theft by creation of regulations that home and property owners find too onerous and expensive, and they are therefore effectively forced to sell.

LAND-USE ORDINANCES

All new development and land uses must be reviewed in the National Monument to determine if they are consistent with the implementing land-use ordinances. The development guidelines of the Management Plan are implemented through land-use ordinances which must be consistent with the Management Plan. Counties must adopt and enforce land ordinances that are consistent with the Management Plan. For counties that do not yet have a consistent land-use ordinance, the Commission will adopt and enforce ordinances.

Many uses that were once unregulated (such as new cultivation) would require permits in the National Monument Area. Landowners would be forced to seek permission from their county or the Commission before initiating any new land use or development; even a garden!

LAND ACQUISITION AND EXCHANGES

The Proclamation will direct the Forest Service to acquire and exchange lands to achieve the purposes of the Act if the owners wish to sell or exchange their lands. The Monument mandate is to expand.

Unintended consequence:

The federal government installs a new layer of bureaucracy in your life in a highly complex way the average citizen has no comprehension of. The federal government has the final say over what you can or cannot do on your own property. Unintended consequence: The federal government is more likely to reserve land for near-endangered species (meaning it is off limits to you), stop local building and use eminent domain to seize desirable land plots (as with Petroglyph Monument).

Unintended consequence: The amount of privately held land shrinks the population of Sedona and the surrounding area becomes smaller and consists mainly of timeshare visitors and guests at hotel rooms.  Our communities become shells of their former selves, existing to serve the needs of a growing tourist base.

Unintended consequences: Loss of senior water rights (do your own research to find out why you want to keep your senior water rights); potential to have meters installed on your well by the federal government leaving you to pay a bill for water by the gallon. (Tom O’Halleran, the initiator of this move, worked on a plan to install water meters on people’s private wells in VOC.)

Unintended consequences: Loss of conditional use permits by local property and business owners. Loss of heritage cattle ranching in the area. Loss of land use by dogs = your lost enjoyment. More fees and permits to use our public land for activities such as photography and weddings. Loss of some currently existing roads, less access to land. If roads are removed the land can be converted into Wilderness. Loss of currently existing hiking, biking and equestrian trails. Lack of parking for trail access in west Sedona may force the use of eminent domain to create parking lots. Forced use of shuttle systems to visit areas accessible on unpaved roads that you can currently drive to. Make no mistake, if this area becomes a National Monument, it may become a National Park, in time, and it is highly likely over the course of a decade or two to become depopulated, unless you fight back now!

Please get active and visit Preserve Sedona on Facebook for more meeting dates!

https://www.facebook.com/groups/preservesedona

A Public Forum – Pros & Cons

Save the Date!  When ~ Sept 21, 2015 | 2:00 – 5:00 PM

Where~ Sedona Elks Lodge, 110 Airport Rd., Sedona, AZ

Limited Seating – RSVP today~ gmiller@stewartaz.com

 

Who Created the Trails in Sedona?


The mountain biking community has constructed a large number of the current very popular trails used by hikers, equestrians and mountain bikers. The fairly new Dry Creek Vista trailhead is surrounded by mountain biker created popular trails. Chuckwagon is now a major connector to the Devil’s Bridge formation which is a close second to the West Fork hike. The several year old Adobe Jack trailhead is at the base of the Soldiers Wash multi-use trail system. The majority of those popular trails were created by the mountain biking community in the late 90’s and early 2000, most of those early trails have been adopted by the US Forest Service.

Trail Chart of Mountain Biking-Hiker Trail History Present 3-30-14- Trail Opportunity Hiking, MTB, Equestrian (1)

The most popular iconic hiking/mountain biking system trails in Sedona are Hangover, Hog Heaven and Hiline. Those three trails were constructed by the mountain biking community and would never exist today if the mountain biking community wasn’t involved with the project.

Prior to the mountain biking community being involved with the construction of popular hiking/mountain biking trails there wasn’t the USFS will or resources available to build a comprehensive trail system like we have now. Due to those efforts the USFS has decided popular well constructed trails are good for the local community and individuals visiting Sedona. Currently existing popular trails in the Carroll Canyon and Schuerman Mt. area are in process of being adopted. In the Dry Creek area there is an effort to adopt existing trails and construct a new system of beginner trails for Sedona families and visitors to enjoy.

My hope would be to have the local Sedona community who enjoy the popular trail system more involved with the maintenance of their favorite trail. There were over 50 trails that had been adopted by local citizens, but according to recent FS emails the Adopt-a-Trail program is floundering. I believe with a different approach the Adopt-a-Trail program could be more successful. My idea would be to have a point person help motivate the 50 trail adopters to go out and do some maintenance on the trail they had adopted. The motivation to work on the adopted trail would come from the point person joining the trail adopter and sharing the maintenance experience with them. With a little on hand instruction of simple maintenance practices the trail system could be much better maintained.

Sincerely,

John Finch

“A Deeper Look”


“A Deeper Look”  

Proposed Sedona Verde Valley National Monument Status– AZ

Proposed National Monument–APPROX. 160,000 Acres of Wilderness, Scenic and National Forest LANDS surrounding 25,000+ Acres of Private Lands, to include Sedona, VOC and close by properties, plus 2 state parks & a fraction of state Land.

Impacts & Challenges~

  • Access to private lands within a National monument.
  • Impact on private lands bordering designated National monuments.
  • Tourists, existing roads, traffic, added visitors, community, Coconino Forest usage, and property values, positive and negative aspects of growth.
  • Usability of the land– for recreation, walking, biking and jeep tours.
  • Another layer of US Government overlay with monument status vs current national forest, scenic & wilderness lands.
  • Other designated monuments and what has occurred there, in AZ, and close to us.
  • What kind of US $$ has been provided to sustain these lands vs. what was provided prior to Monument Status.
  • What has the US Govt. done with monument status in order to protect the lands in Arizona?
  • How monument status may change the way we enjoy the National Wilderness & Forest as it is being used now under current management.
  • What impact the two (2) state parks and some state lands have will have within national monument and private lands located within the boundaries of the proposed national monument.
  • The impact on county government and how it serves these areas now vs monument status.
  • Schools and colleges that are possible within the current status of Govt. or State lands may be lost with the change.
  • How the AZ State and the county budgets may change for this area with monument status.
  • Could this area turn into a National park from monument status? How national park status would bring additional restrictions for the intended overall purpose.
  • Water -This proposed area encompasses some of the head waters of the richest water resource in the State of AZ – and water rights seem to be a real issue here and mineral rights.
  • Mining – affects with the change and more. What is the AZ legislation doing about the recent monument designations in AZ and the Western States?

    Answers Here.

For more answers, RSVP for the Public Forum “Pros an Cons” Sept 21, 2pm to 5 pm at gmiller@stewartaz.com.

National Monument Purpose

To protect, set aside and preserve lands, water, minerals and wild life.  Lands are chosen because of their special beauty and for the purpose of researching ancient history and cultures with preservation and conversation emphasis. Extra protection provided from terrorist attacks in these areas once they are a National monument or Park.

The SVV Red Rock National monument seems to be stand alone and unique in the history of the US as it relates to its location; surrounded within a thriving tourist city, contiguous to, and close by a community of around 80,000 people collectively.  Monument status is more appropriate in remote areas as its intended purpose and management plan is to keep people off of it and preserve wildlife, antiquities and natural resources.

 The Antiquities Act of 1906 was created to allow the President to designate huge amounts of acreage into National monuments with no State congressional input or review.   More Here…

There is quite a bit of ambiguity in this Act which allows for National monument designation and has posed much controversy in its nature of definition, or lack thereof.

Although the initial intention may have been good, over time present issues and unchecked authority have brought about a bigger and different picture:  one where the US Government’s Management Plan of National Monuments is aimed at setting aside these vast lands for public use, reserving water, mineral entitlements, and general preservation for the Western part of the United States in keeping them protected from enterprise, public recreation, hunting, ranching, mining, driving, roads, extension of utilities and more.  The Management Plan seems to exclude preserving the rights and liberties of the average citizen who is a resident and has enjoyed these lands for years.

The US Government seems to have a larger plan and scope- Key points are to preserve water, wildlife, antiquities and ancient history by preservation and control.  These targeted areas are vast and many in the Western United States; some of which have been entitled already and ongoing.  Water rights, minerals and lands are given over to public lands and the entitled senior rights become public for the US Government under Monument designation.

Arizona, as it relates to the US, has one of the smallest amounts of private land (only 18.3%); the rest is State or Government owned or controlled.   A substantial part of the funding for these public lands is coming from the 18.3% of privately owned property.  In Arizona, the percentage of private lands is continuing to decrease and is transferring into more public lands.  The State of AZ is having difficulties balancing their budget and many important programs are suffering, including education and schools as a result.

We have a proposed National monument before us in the Sedona-Verde Valley AZ. Encompassing around 160,000 acres, half of which is presently National Wilderness areas, scenic areas, special wetlands,  two (2) state parks, a bit of state land and huge amounts of private land, all within its proposed boundary.  Nestled up against one of the 15 most visited cities in Arizona.  Sedona is number 5.  More Here…

A significant amount of its proposed boundaries abut the Sedona city limits, stretch out to the Village of Oak Creek’s commercial and residential property boundaries and encompass unincorporated private lands nearby. In researching most of the National monument and Parks, none seem to be so close to the city limits or a town but rather isolated from them.

The implications and impacts that would affect the hustle and bustle of a city with a huge tourist center are paramount in the decision making of such a proposal.  The use of our Forest, as we know it today, will change and fees will go up and funnel through the US Federal Government (just like the Grand Canyon National Park) and some will flow back to us, here.  Many times, funds collected are spent for other things than intended.

Sedona’s life’s blood is tourism – because of its beauty – around 3.5 Million visitors come yearly to see this area and enjoy.

Presently the Coconino National Forest in conjunction with the Red Rock Ranger District manages a vast amount of the area, along with the help of local preservation and grant raising local groups and the county and cities plus the community collectively.   Tourists enjoy wonderful walking trail systems, biking, weddings, and beauty to behold.

A New Deal~

Existing laws that are in place with National Monument Status

National Monuments and Icons Sector-Specific Plan 2010  An Annex to the National Infrastructure Protection Plan (NIPP) provides the unifying structure for the integration of critical infrastructure and key resources (CIKR) protection efforts as part of a coordinated national program.

The National Monuments and Icons (NMI) SSP describes a collaborative effort among the various Federal Government agencies to have equities within the NMI Sector and will result in the prioritization of protection initiatives and recommendations investments within the NMI Sector as a whole.

NATIONAL MONUMENT NEPA COMPLIANCE ACT

In a speech in Congress by Rep. Don Young (R-AK), on Sep 24, 1999, he asks, “Why does the President of the United States have the prerogative to make a small in holder, in my state, owning just 20 acres inside a 6-million-acre park, pay hundreds of thousands of dollars to conduct extensive NEPA studies (on behalf of the Park Service) just to have access to his property? How can he justify this at the same time the public–American citizens–cannot ask for these studies when millions of acres of land are about to be declared a monument?”  More Here

No city or town has ever been landlocked inside a National monument-   The needs of a busy city are incongruent with the restrictions of a National monument.  Studies of the economic impact of National monuments on an area have stated that, “land locking a national monument may not be legal;” no one is sure as it has never been done. Real issues are water, sewer, power, roads, insecticides, herbicides, firefighting all of which may become a point of contention and may be banned or require EIS and NEPA studies costing millions of dollars.  If so we will be forced to pay for those studies, even on private land.  It would be rare that any new utilities or roads are ever allowed in a national monument and repairs may require NEPA studies.

National monuments have turned into national parks later- Property rights; a National monument is a federal parkland or conservation unit. Should a national monument become a national park?  Federal parklands are much more restrictive than the US Forest.  Case law shows in the last twenty years that the government uses the property clause of the U.S. Constitution to restrict what one can and cannot do on their own private property near federal park lands and you may be required at any time to perform a NEPA Study or an EIS Environmental Impact StudyThese studies cost between hundreds of thousands or even millions of dollars and take years to perform.  You may have any kind of restriction imposed upon your private land if any species of wildlife enters your area; our area is home to near-endangered animals.

The National monument will have a directive to protect wildlife and thiscicada-460x360 includes insects.

When a park land locks private property those properties are called “in holders.”  In this case Sedona and VOC homes would be landlocked inside a federal park.

The US Property Clause

The Property Clause of the U.S. Constitution states that “Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other property belonging to the United States …” (Article IV, Section 3, Clause 2).

The U.S. government owns 30% of the land within its territory, and a far higher percentage in western states. In Nevada, the U.S. government owns over 80% of the land.  More Here…

New layer of control over private property- We now have counties and city municipalities in the form of the Local Land Use Program Administration, and the Jurisdictional Inquiry Unit, which provides advice to landowners and potential project sponsors regarding Agency jurisdiction, including informal phone advice and written jurisdictional determinations? Staff helps citizens determine if an Agency permit or variance is required. Determinations often require a full deed history and other legal and factual research. The Jurisdictional Inquiry Staff also handles referrals from other agencies, telephone calls and walk-in members of the public.  With NM status we will have a whole new layer of control.

More restrictions on public land usage we currently enjoy- You have a right to be in your public land, but being inside a national monument is a privilege!

You would see a loss of mountain biking trails (99% of our trails were made by bikers) the elimination of some trails, inability to create new trails, loss of back country travel in your vehicle, more roads closures and no new roads, loss of ability to hike with your dog; dogs may chase wildlife and are mostly unwelcome inside national monuments, unless the monument is devoid of wildlife like White Sands.

Present monuments status-  Right now we have the right to enjoy OUR public lands. Monument are a privilege to be in!

National Monuments have a directive to buy up inholdings- Private organizations will start buying property in order to sell it back to the federal government.

Our Ranchers will lose access to graze cattle as they cannot comply with the new NEPA requirements.  Cattle keep our grass short to prevent wildfires and supply jobs and food.  It is an industry that will be phased out with National monument Status.  Around 6 different Ranchers and cattle operations use these lands for grazing with permits within the present proposed National monument.

Water rights Loss of senior water rights as it relates to National monument status.

Federal Reserved Water Rights

Development and Status of Federal Reserved Water Rights:

When the United States reserves public land for uses such as Indian reservations, military reservations, national parks, forest or monuments, it also implicitly reserves sufficient water to satisfy the purposes for which the reservation was created.  Both reservations made by Presidential executive order and those made by an act of Congress have implied reserved rights.  The date of priority of a federal reserved right is the date the reservation was established.

The federal reserved water rights doctrine was established by the US Supreme Court in 1908 in Winters v. United States.   More Here…

Using the Antiquities Act to turn Sedona into a National monument Keep Sedona Beautiful, Inc. has taken on the position of acting as the representative for around 80,000 residents in the entire Sedona Verde Valley area, and stepping around Congress, in order to get their agenda passed with no proper public process.

Over one thousand lawsuits have been filed against the federal government and the plaintiffs always lose to the federal government whether it is the State or a private land owner. NEPA study lawsuits occur every year and law firms specialize in dealing with NEPA lawsuits as well.

National monuments are great when they are isolated away from a city or town, probably not so great when you live inside one.

Take Action Now! Become involved~ voice your opinion on social media and or in print media contact or email your state and federal elected officials:
Sylvia Allen LD6, Sen. 602-926-5409 sallen@azleg.gov
Steve Pierce LD1 Sen. 602-926-5584 spierce@azleg.gov
Brenda Barton LD6 Rep. 602-926-4129 bbarton@azleg.gov
Bob Thorpe, LD6 Rep. 602-926-5219 bthorpe@azleg.gov
Noel Campbell, LD1 Rep. 602-926-3124 ncampbell@azleg.gov
Karen Fann, LD 1 Rep. 602-926-5874 kfann@azleg.gov
John McCain, Sen. 202-224-2235 http://www.mccain.senate.gov/public/index.cftn/contact-form
Jeff Flake, Sen 202-224-4521 http://www.flake.senate.gov/public/index.cftn/contact-jeff
Paul Gosar, CD4 Rep. 202-225-2315 http://paulgosar.house.gov/contact/
Ann Kirkpatrick, CD1 Rep. 202-225-3361 https://kirkpatrick.house.gov/contact/email-me

You may sign a petition here~

Vote “No”

Vote “Yes”

Come out to the up and coming meetings on the proposed monument. Get informed!

Calendar of Sedona Verde Valley Red Rock Proposed National Monument

Outstanding Public Forum Event- SVV National Monument Issues

Pros & Cons

Top Speakers & Panel –  Special Guest Speaker 1 hour Q&A.

Sept 21st 2015 2-5 PM Elks Lodge 110 Airport Rd, Sedona, AZ 86336

RSVP to Stewart Title Sedona, AZ  Gina Miller-  gmiller@stewartaz.com

Dinner will be served –do not miss this event sponsored by the Sedona Verde Valley Board of Realtors RSVP Now.  Free Event.

Sedona-Verde Valley Red Rock National Monument Proposal


The Sedona-Verde Valley is buzzing with discourse concerning a proposal initiated by the KSB Keep Sedona Beautiful to designate approximately 160,000 acres in, and around, the Sedona-Verde Valley into a National Monument
Recently, public meetings in both Sedona and Cottonwood initiated separate and different responses from the folks in attendance.  (See Verde Independent article here.)
While Sedona’s wilderness areas, Coconino National  Forest and some private lands would take the brunt from the proposed National Monument, additional areas which  spread from the Sycamore Canyon Verde River forested area, above Clarkdale to the Beaver Creek wetlands in Lake Montezuma/Rimrock are included.   Private lands on Red Rock Loop Road, Sedona, AZ are also included. KSB has extended the boundaries to include the Trout Farm up Oak Creek Canyon. This expansive area includes lands that our Sedona – Verde Valley depends on for water resources which feed our valley and beyond, recreation areas we have all enjoyed, and range lands with current permits used by ranchers for decades.

KSB a private, special interest group, and their President O’Halleran, a former Senator of AZ,  is working around the clock, meeting behind closed doors, seeking approval from various incorporated city and town council members to obtain their support. Current KSB meetings have taken place for the purpose of creating a Letter of Intent, which has now transformed into a “Management Recommendations In Support of the Monument Values.” KSB is moving rapidly to submit their plan to the US Department of the Interior in conjunction with the Coconino National Forest for their consideration in implementing it into the final Management plan of these proposed lands which will affect everyone who lives here.  KSB has taken on the self-proclaimed role as representatives for the voice of the public, approximately 80,000 people who reside in the entire Sedona-Verde Valley region. Their focus and thrust is to complete this process so that President Obama will sign these lands into a national monument, prior to the time he leaves office, very soon.

It would seem that “no time to waste” is their motto, and no time to answer a lot of important questions on the minds of the property owners and professionals, posed in these public meetings and elsewhere in the Sedona-Verde Valley. Many people, including those in public office, still have unanswered questions and want to be clear before making their decision because they know that there is no going back once these lands have been signed into national monument status.

Property owners in the Sedona-Verde Valley want to know how the  designation of national monument  will affect the Sedona-Verde Valley private lands which surround the proposed monument. They want to know how the boundaries will affect these private lands and the vital water resources originating on these lands which provide water to the Sedona-Verde Valley and beyond. Folks also want to know how the present designation of national forest  will change if these lands become a national monument.

The biggest question from residents has been Water Rights and how the Sedona-Verde Valley water rights, now under the adjudication process for next couple of decades will be affected by national monument status. Even though the Arizona state courts will be the ones who adjudicate the water rights and will be making the determination, there seems to be a larger more important question about how that will change if  these lands become a national monument. Some of the primary headwaters originate on these lands to form our surface waters, streams, rivers, creeks and artesian water areas that make the Sedona-Verde Valley such a wonderful place to live.

How are National Monuments Created~

The Antiquities Act, passed in 1906, authorizes the president to single-handedly designate any federal public lands as national monuments. 

The Antiquities Act is, as its name suggests, “a 100 year old law in desperate need of reform,” says some of our US Senators. WASHINGTON – U.S. Republican Sens. Jeff Flake and John McCain, Arizona, Orrin Hatch and Mike Lee, Utah, introduced a bill Thursday, S. 1416, aiming to prevent the President from changing the existing water-rights designation, of lands declared to be national monuments, to federal senior rights.

When the President federalizes land by declaring it a national monument, he can both limit public access and change the water rights associated with the land. In short, the President can unilaterally expand the federal-reserved water rights associated with existing federal lands simply by cloaking it as a National Monument.

“It is unimaginable that the president can expand federal reserved water rights simply with the stroke of a pen,” Flake says. “It’s time to veto the presidential water right – and safeguard private property rights – by limiting this kind of unchecked authority.” More HERE.

Ranching~

How will national monument status affect one of the oldest businesses (ranching) in the Sedona-Verde Valley?  What will be the affect on  the forest and BLM Lands? In talking with one of the oldest families in the Cottonwood area who has ranched here since the early 1900’s, Mr. Andy Groseta states, “if the monument is passed, that will be the end of ranching as we know it and it will potentially cause ranchers to close up shop.” Cattle graze these lands by permit from the Forest and BLM; under The Antiquities Act, that will be prohibited. Grazing is a natural way to manage the forest lands for the control of vegetation which can get out of hand and create forest fires.

Farming~

The valley is a great place and environment for farming. Cornville, Camp Verde and Rimrock are rich in surface water rights. Farming is ongoing now and planned for the future.  Our farming community and special interest groups  are already planning on creating a food source right here in the Sedona-Verde Valley and water rights and ranching are a big part of getting that very positive job done. This too may be greatly affected, or no longer an option, if the Federal government declares that the water is theirs under national monument rule and ranching is no longer allowed. Local residents realize we need industries other than tourism to have sustainable and positive growth for the future of the Sedona-Verde Valley.

Roads, Easements, Utility Extensions, 404 Permits needed to access private lands~

In talking with engineers whose business is to create plans and apply for permits for these things, it is stressful to know that the extra layer of government as Monument Lands will make it even more difficult to go through the process to provide utilities, roads and extensions needed to serve private lands.

As they put it, “you will have more environmental studies and NEPA studies than already exists as Monument Lands. It will be another deeper layer of Government Rules that will limit or in some cases stop this process through the years of environmental studies that will keep being requested or denied. “

Private lands bordering National Monuments are looked at, by the BLM and Forest Lands, as areas to limit growth and density.

monuments.-WidePar-00010-Image.WideParimage.1.2Agua Fria National Monument in Mayer, AZ is a prime example of this. With over 800 acres of private lands that have been blocked by the Forest Service and the BLM. They have turned down applications for access and utilities to these private lands. Their vision is for no growth or very limited growth on those private lands to not impact their Monument and the Management Plan in place. While the BLM states that they want to acquire these private lands, they have no funds to do so.  Meanwhile private property owners cannot sell their land for anything but grazing or ranch land because of the limited access, lack of utilities, no emergency vehicle access, and only narrow dirt private easements over floodway land of the Sycamore Creek. Private Property owners are hurt and the value of their land is diminished by the Monument Plan in place and the Forest Service following out that plan for their intended purpose. These private lands are just 300 feet off of a county maintained recorded road. None the less these obstacles exists.

Protecting of Antiquities and the history of our beautiful Sedona-Verde Valley~

Let’s take a look at this aspect. Certainly we all want to protect our heritage and history of these beautiful forests and wilderness areas we live on and around.

Do we not already have laws that prohibit the taking of antiquities or disturbing Indian Ruins? We most certainly do. The current laws prohibit and protect from such offenses already. It is redundant to add another layer of government regulations and enforcement in this regard. The Verde Valley Archeology Center presently has three grants for site Protection. Read more here.

The limiting of any forest service trade on Monument land~

If our lands become a designated national monument,  it would remove the option for trading forest land for private lands. However, let’s take a deeper look. The Forest Service already has a management plan in place. Amendment 12 has been worked on and recently finalized.  With Amendment 12 in place  they are most likely not going to allow these lands to be traded. Click for Frequently asked questions about Amendment 12.

The Forest Service works in conjunction with the county, cities and towns. Collectively they will only trade properties that are up against private lands that are needed for growth per their management plan. The forest service desires to acquire in-holdings of private land completely surrounding Forest Lands.

In years past a substantial amount of existing private lands in Sedona were created in this manner, by forest service trade. For example, the Miller family was a big part of this positive growth and developed some of the nicest subdivisions in Sedona proper, such as Foothills South and North. The Forest Service acquired lands that were inholdings in exchange for lands against private lands with a good plan in mind prior to the consummation of these transactions.

Let’s take a look at current existing Sedona-Verde Valley Groups with management and positive guided interests to protect, preserve and plan for a wonderful Sedona-Verde Valley

We have the scenic Green Preservation for the Verde River – this is funded by Grants already to go in and make these water ways healthy and there are areas that are put into preservation lands limiting development on these areas all over the Sedona-Verde Valley where it is applicable to do so and property owners have elected to go through this process.

Click here to see a list of some of these groups.

The Sedona-Verde Valley is growing in a positive and exciting way to promote a clean eco-tourism through growing of crops, grapes, embracing art, culture growth and development; providing a centralized trading center, tourist and promoting educational growth.

Having a national monument to bring in additional funding is questionable based on funding history of existing monuments that Obama has put in place.  Congress has been blocking funding because of the aforementioned concerns, on monument lands. One thing is certain however, national monuments add another layer of Government and may limit the citizens rights which they have enjoyed for several hundred years on and surrounding these lands.

Are we not already working together to build and preserve a wonderful Sedona-Verde Valley?

Let’s look again and answer that question each and every one of us.

While we continue to protect our lands, both private and federal let’s not, in the process take away more than we are hoping to receive.

Let’s think big and hard about what we are doing and what we want to wind up with. After all, we are the people and we are the government. Do we need an overseer to tell us exactly what to do and when to do it or, can we be united and do it ourselves?

You make the decision. Do not let someone else do it for you! Speak your own mind and heart. Don’t be silent; be united. It’s up to you: the people. We are a group of around 80,000 people and we need to be heard.

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Boundary for Proposed Sedona Verde Valley Red Rock National Monument Includes Diverse Areas


Boundary for Proposed Sedona Verde Valley Red Rock National Monument Includes Diverse Areas

In our research, we have found no other national monument that includes cities, towns and large tracts of private land within its boundaries.

Detailed Land Ownership Map

This map, produced by City of Sedona, shows the Amendment 12 forest service boundary in red.  This is also the boundary of the proposed Sedona Verde Valley Red Rock Monument by Keep Sedona Beautiful.

We, the public, do no know what the final boundary will be in the KSB proposal.  Statements were made by KSB at their recent meetings that they were looking at adding areas of the upper Verde River and Beaver Creek areas east of I-17.

The southern proposed boundary crosses Hwy 89A just north of the Page Springs Road. The northern and western proposed boundary goes into parts of 3 wilderness areas.

The bright red lands are state lands:  notice the large block of state land may be annexed into the city of Cottonwood city limits.

The grey-pink areas are private lands. Note the almost solid block of original pioneer homesteads along Oak Creek south and east of Sedona.

The dark purple line defines the 3 large wilderness areas on north and east sides of the planning area.  There are about 80,000 acres of Wilderness included in the Amendment 12 planning boundary.  Development is not allowed in Wilderness areas.

Diverse qualities within planning unit.

The forest service Amendment 12 plan divides this into different planning areas such as Neighbor Woods for the areas surrounding private lands, Savannah for open lands out by Bill Grey and forest road 525, and Red Cliff, Red Cliff Front Country and Schnebly Rim for the most scenic high public use areas, Dry Creek Basin Gateway, Lower Oak Creek, Transition.

I do not see detailed analysis by KSB as to why all of these diverse areas are suitable for inclusion within a national monument.

National scenic area designation was not recommended in the draft Coconino Management Plan EIS in 2011

The reasons were:

** Amendment 12 has strict guidelines to control loss of public lands and manage for scenic qualities

** A detailed scenic analysis has not been done for the Amendment 12 area.  The forest service has specialists who do intricate modeling on a scale of 1 – 5 under the Scenery Management System.  A detailed analysis scenic and other factors would guide designation of such boundaries.

Coconino Forest is managed according to the forest plan by authority of the National Forest Management Act.  Site-specific actions that are not in compliance with the forest plan require a public process with detailed environmental analysis.

National Monuments

National monuments under the Antiquities Act are created to protect specific historic or prehistoric sites such as the case of Montezuma Castle National Monument.  Important large geologic features are now also created under the Antiquities Act.  This is basis for much larger monuments such as Grand Canyon before it received national park designation.

About 30% of national monuments have been converted to national parks.

In our research, we have found no other large national monument proposed based on geologic factors that includes cities, towns and large tracts of private land in its boundaries.

Prepared by Sandra Cosentino, August 18, 2015