Whose Land Is It Anyway?

Mark Regis was trail-beaten and taking shelter from high-country wind when the angry man appeared with a gun. It was August 2009, and Regis, along with his wife and two friends, had just summited 14,023-foot Wilson Peak, about 15 miles south of Telluride in the Uncompahgre National Forest. Wilson is the 48th tallest mountain in the state, a bucket-lister for Colorado peak-baggers that’s probably best-known for its appearance on Coors cans. Even though they weren’t far from their car, Regis’ group had decided to wait for its fifth member, a Wilson Peak veteran who’d peeled off earlier that morning to summit 13,913-foot Gladstone Peak. No sooner had they agreed to rest next to a small shack than a man on a four-wheeler came barreling toward them. The guy looked to be in his 50s or 60s, and he wasn’t there to swap gorp recipes. There was a gun in a holster on his ATV. “He came up to us in a very aggressive way, got right in my face, and started yelling,” Regis says. “He was calling us idiots and saying we were on his land.”

The man was a part-time Coloradan named Rusty Nichols, and at least one of his allegations was true. Despite being on a popular trail deep in taxpayer-owned U.S. Forest Service land, Regis and his group had been standing on what’s known as an “inholding”: a piece of private property in the middle of public land. This might not seem all that significant until you realize how it became private, and how almost anyone can grab a hunk of property surrounded by public land and block access, unintentionally or otherwise, to recreation areas. What’s more, inholdings can be exploited for their natural resources by mining companies, whose practices could threaten the pristine landscapes, watersheds, and species most of us believe are carefully watched by the federal government.

The story of Rusty Nichols’ property dates to 1872, when the United States Congress passed the General Mining Law. In those days, the West was seen as a land of vast natural wealth, and all of it was up for grabs. The law allowed anyone interested in mining—for gold, minerals, whatever—to try his luck on public land, free of charge, provided no one else had dibs. Mining claims, as they were formally known, were roughly 20 acres each and usually rectangular. The claimant wasn’t acquiring the land; he was getting the exclusive right to explore and extract resources from beneath the surface. “It was basically four stakes in the ground and some paperwork,” says Roger Flynn, director and managing attorney of the Lyons-based Western Mining Action Project (WMAP), a nonprofit environmental law firm.

Faster than you can Google the etymology of “eureka,” grubby prospectors and big mining companies began acquiring and trading claims and turning federal lands throughout the Western United States into patchworks of crude rectangles that signify who owns which below-ground rights. Today, Colorado is home to nearly 300,000 acres of actively held mining claims (those that have been abandoned or forgotten are far too numerous to count). There’s a good chance that much of the designated open space in the Centennial State where you hike, bike, roast marshmallows, or throw sticks to your dog was once, or still is, a mining claim. The same goes for the rest of the West.

As if sorting through all those land allotments isn’t complicated enough, the mining law also created a problem lawmakers couldn’t have foreseen 144 years ago: Many Westerners got their parcels “patented,” which is another way of saying they acquired the pink slips. The patent process was only marginally more difficult than getting a claim in the first place; it effectively redesignated lands as private property, and, in many cases, those lands became “inholdings.” This is exactly what someone had done with roughly 600 acres’ worth of mining allotments near Telluride that were purchased, a century later, by Nichols.

Naturally, a lot of people think the law is outdated. “What began as providing individuals property rights with the aim of harvesting the nation’s mineral wealth has transformed into providing individuals with some of the highest-elevation real estate in the country,” says Justin Spring, Colorado director of land protection for the Trust for Public Land, a nonprofit involved in acquiring old claims and inholdings and handing them back to the feds. “When developed, these parcels fragment wildlife habitat and jeopardize recreational pursuits enjoyed by the general public.”

Nichols is one of countless owners of claims that were patented long before the West was seen as a place to appreciate and preserve, rather than merely exploit. “There are inholdings like this all across Colorado and other Western states,” Flynn says. Although most of the inholdings in Colorado don’t stand between you and that coveted single-track, backcountry ski route, or major mountaintop, there are plenty of exceptions. Near Alma, huge portions of Mts. Democrat, Lincoln, and Bross that were once unpatented mining claims are now privately owned by a Littleton man who tried to keep hikers out due to concerns about liability. Alma, which has a good insurance plan, eventually agreed to lease his property. In the Sangre de Cristos, Colorado’s southernmost fourteener, Culebra Peak, is the property of a group of ranchers that charges a $150 admittance fee. If you want to summit neighboring 13,908-foot Red Mountain, you’ll have to hand over another $150. Even Nichols tried charging a liability fee of $100 per hiker one summer, the proceeds from which he says he gave to a local environmental effort. “It didn’t actually deter trespassers,” he says, adding that hikers and backcountry skiers “did a great deal of damage to my property over the years. They burned one of my buildings, cut hoses, and even put sand in one of my gas tanks.”

Some owners of inholdings have sought greater sums—such as Tom Chapman, a western Colorado real estate agent and land speculator whom the Wall Street Journal dubbed the “Buzzard of the Backcountry.” In the 1980s, according to news reports, Chapman came up with an idea to help a friend unload 4,200 acres of mining claims turned inholdings adjacent to land now known as Gunnison National Park: announce a plan to develop. The feds reportedly coughed up $2 million.

Years later, Chapman and his partners acquired a 112-acre inholding in the same area for $240,000. When Uncle Sam declined to buy them out, Chapman built a 4,754-square-foot luxury home, complete with a helicopter pad, on the rim of the Black Canyon and within the park’s boundaries, making it one of only two contemporary private homes in the national park system. (The other is in Zion National Park.) The Gold Hill Development Corporation, of which Chapman holds a 20 percent principal interest, also bought inholdings in the San Juans that abut Telluride Ski Resort and closed ski access to the prized backcountry area. The ski resort didn’t purchase the land. The Black Canyon house and a 50 percent interest in the Telluride property are currently for sale.

Environmentalists and recreation enthusiasts say Chapman has mastered a branch of the real estate business often compared to “cybersquatting”—the practice of hoarding Internet domain names with the intention of selling to someone who will one day really need them. Chapman doesn’t appreciate the comparison. He says he adheres to the rules and that the property owners he represents as a broker have been the target of “bullying” and “oppressive county regulations.” “I’m sure you are aware that in Colorado, in Telluride, in Aspen, in Crested Butte, [in] Ouray, and in numerous other places, you have full-fledged businesses—gas stations, grocery stores, commercial stores of all kinds, resorts, ski resorts, etc.—operating on lands that were birthed as patented mining claims,” Chapman wrote in an email. “Some of these families have owned their property since before there was a U.S. Forest Service. Many have owned their property since before there were planning commissions, before designated wilderness areas, before national parks, before ski resorts, biking, hiking, and backcountry skiing.”

Rusty Nichols, for his part, agreed to a buyout. In fact, the deal had already gone through by 2009 when he confronted Regis and the other hikers. Under the agreement, Nichols kept his core property but sold more than 180 acres—for $3 million—to the Trust for Public Land, which then began the process of transferring the land to the cash-strapped U.S. Forest Service. As part of the swap, the U.S. Forest Service (along with the Trust for Public Land and additional financial support from Nichols) created another Wilson Peak trailhead at nearby Elk Creek Basin. The move increased the length of the trek by a few miles but keeps hikers off the majority of Nichols’ property, and Nichols is OK with the small section of trail on the edge of his land.

In the early 1990s, Congress considered reforming the mining law so that holders of unpatented claims couldn’t turn the land into private property so easily. After all, advocates of reform said, the law hadn’t changed for more than a century. Instead, legislators imposed a nominal fee for maintaining mining claims and declared a temporary moratorium on new patents. So far, that moratorium has been renewed annually. Late last year, Colorado Senator Michael Bennet co-authored a bill that would essentially override controversial parts of the 1872 law, but most agree it’s unlikely to move forward until after the November elections. In the meantime, anyone with a few hundred bucks can still buy an unpatented claim and sit on it—or sell to the highest bidder.

Those with the abilities to gobble up the most claims and inholdings usually aren’t individuals—they’re businesses. Since the 1970s, locals in Crested Butte and environmentalists have been going to court over the future of Mt. Emmons, the 12,343-footer that’s visible from Main Street and also known as the Red Lady. Besides feeding the town’s watershed, Red Lady is a go-to spot for hiking, mountain biking, and backcountry skiing. A large portion of the mountain comprises patented and unpatented mining claims that were held or owned for decades by U.S. Energy Corp., a Wyoming oil and natural gas outfit that moved its headquarters to the Denver Tech Center last year. Emmons is already pocked with old mine shafts and tunnels that were long ago explored for silver and zinc; those efforts created collections of contaminated below-ground water that require treatment before being released into the stream that is the source of the town’s tap water.

U.S. Energy Corp. didn’t actively mine on Red Lady but held on to its interests in the hope of extracting molybdenum, an element that’s commonly mixed with steel to make everything from aircraft parts to electrical equipment. Alli Melton, director of the Red Lady Program at Crested Butte–based High Country Conservation Advocates (HCCA), says operations were at a standstill for several reasons, including financial troubles. The price of molybdenum is currently too low to make mining for the mineral profitable.

Nevertheless, U.S. Energy Corp. spent $2 million to $3 million a year to keep the water treatment facility humming. That cost didn’t scare away the Mt. Emmons Mining Company, a subsidiary of a Phoenix-based gas and mining company called Freeport-McMoRan Inc., which purchased the mining claims from U.S. Energy Corp. in February. The new ownership has stated that it plans to oversee all the environmental safeguards and “pursue disposition of the mining and mill site claims” with local, state, and federal entities “in a mutually beneficial way.” (The company declined to provide further comment.)

In other words, the future of Red Lady remains undetermined. And this isn’t a one-off. Flynn told me that on its own, WMAP has more than 20 mining-law-related cases in various stages of development throughout the West. “This is the last free ride for uses on public lands,” he says. “The mining law is left over from a different era of American history. You can’t fault Congress from back then, but to say it’s antiquated is putting it mildly.”

On the day they were approached for trespassing, Mark Regis and his group of Wilson Peak hikers knew nothing about Rusty Nichols or the land swap with the Trust for Public Land. What happened next might as well have been yanked from a Yosemite Sam cartoon: Nichols told them they could wait for the sheriff and face official trespassing charges or purchase an ad in the local paper confessing to their misdemeanor, using specific language of Nichols’ choosing. “My goal was to create consequences without making people pay a trespassing fine and clogging up the local justice system,” Nichols says.

More interested in après-summit burgers and beer than they were in dealing with the headache of a trespassing ticket, Regis and the rest of the group decided to take option number two. A few days later, readers of the Telluride Daily Planet opened the paper to find an unusual half-page ad, the text of which read: “Because we trespassed on Silver Pick Trail, we are not smarter than third graders.” (Nichols explained that the language was inspired by comedian Jeff Foxworthy’s quiz show, Are You Smarter Than A 5th Grader?)

Nichols says that over the years other hikers took out similar ads but trespassers didn’t stop showing up until the new trailhead was complete. “For 20 years, people just laughed at the situation and ignored my property rights,” Nichols says. “I appreciate what the Trust for Public Land did.” He also suggested that hikers should be grateful for how things turned out. “The route from the new trailhead might be longer,” he says, “but it’s much more beautiful than walking past all of my junk.”