ANILCA provides: “Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment thereof: Provided, That such owner comply with the rules and regulations applicable to ingress and egress to or from the National Forest System.” 16 U.S.C. § 3210(a)
“The U.S. Forest Service is currently considering approval of a new two-lane paved road across public lands north of Edwards to facilitate development of Berlaimont Estates — 19 new mansions, 2,000 vertical feet above town. The sprawling subdivision would be developed on a parcel that is completely surrounded by National Forest.
Unlike other nearby neighborhoods (e.g., Wildridge and Mountain Star), public land managers must approve a new road across lands owned by you and me to facilitate this proposal. To approve the new road, the Forest Service must deem Berlaimont Estates a “reasonable” land use.”
How does the White River National Forest determine what is a reasonable use? Dose it matter what the surrounding use of the national forest is? Does it matter if it creates bigger WUI problems? When you buy a piece of land surrounded by public lands with no access is it reasonable to expect to build a subdivision?
These questions are intertwined (and sometimes conflated) with the question of whether the “regulations applicable to ingress and egress” (access) are reasonable. Should the Forest Service be able to say that the proposed “32-foot wide, bermed, walled, plowed and paved thoroughfare switchbacking thousands of feet up a very visible hillside,” where “the walls necessary to support this road could be more than 1,000 feet long and as tall as 40 feet” is not reasonable? The Forest Service has been upheld when it limits the kind of access to inholdings. And by the way, “The 2002 Forest Plan designated this area Deer and Elk Winter Range and restricted winter use to minimize disturbance.” It seems like a road with lots of use on it might be inconsistent with the forest plan.
It’s probably unfortunate that the local land use plan either allows a subdivision here or there isn’t any local planning. It is Forest Service policy to get involved with that process, in part to help it deal with these hard questions.
So in reverse, should private property be forced to allow access to public land? Should the public land managers take steps to prevent public use from impacting private property?
That’s a fair question, and here are a few thoughts. For the most part, a private owner can just say “no.” There are federal and state programs and non-governmental organizations that try to obtain access to public lands across private lands through negotiated purchases, reciprocal agreements or other agreements. They are not “forcing” anything. There are some cases where legal processes are being used to establish that public access already exists through an existing right of way or historic use. These might get mischaracterized as “forcing.” The one way a private owner could be “forced” to provide access across private land to public land would be through condemnation (including payment), which I’ve never heard of for recreation, but has probably happened in unique situations.
The answer to the second question is “yes” in the general sense that there are lots of factors land managers need to consider, and this will be an important one in some situations more than others. In an extreme case, a private owner could legally prevent a public nuisance.
My first thought was, I want one of these lots. Maybe I ought to help the developer walk through the process.
My second thought was this can’t be real, particularly outside Alaska with ANILCA. So I dug around the Internet a bit to convince myself that indeed it is real. So then I thought: Who the Hell built this into law, and how do we fix it? Then it dawned on me that this is 2018, and “America is open for business.” There has been no fix up to now and we aren’t getting one anytime soon. So what now?
In a more perfect Forest Service there would be programmatic guidance on this issue, maybe even cleared through NEPA, so an overwhelmed planning staff and management team on an individual forest wouldn’t have to approach this as an isolated instance. Anyone know where or if such exists?
Jon asks, “Should the Forest Service be able to say that the proposed “32-foot wide, bermed, walled, plowed and paved thoroughfare switchbacking thousands of feet up a very visible hillside,” where “the walls necessary to support this road could be more than 1,000 feet long and as tall as 40 feet” is not reasonable?” Of course the Forest Service should be able to say it. It looks like another urban-forest fire nightmare in the making. And soil and water issues alone ought to be able to put it to bed.
Over here in Utah it took an Olympic venue (2002 Winter) and an act of Congress to get a new eight-mile road built to Snowbasin ski resort—all at taxpayer expense to help out Billionaire wannabe Earl Holding. The stated reason for the act of Congress was that the NEPA process was too slow. The real reason was that the road was/is an engineering nightmare since it is built across an active and very big zone of water and soil instability, sometimes referred to as an “active landslide.” In the White River NF case at least the developers would be on the hook for access road development and maintenance costs, I suspect. In Utah the taxpayers paid the initial $14MM, as I recall, and who know how much more since, and far into the future. Another fine mess Congress has got us into.
“Then it dawned on me that this is 2018, and “America is open for business.” There has been no fix up to now and we aren’t getting one anytime soon. So what now?”
Gosh, Dave, this has been going on for a long time.. when I started here in Region 2 we had Wolf Creek (the project I used to call “reasonable access for unreasonable people”) but that one also had a long history which involved an earlier land exchange. Determined people on both sides have managed to keep anything from happening there and the FS is caught in the middle. Nothing new here. You could look at the volumes of case law on various Village at Wolf Creek litigation efforts to see how it goes when it’s contested.
We all have blind spots. This one was one of mine.
https://www.vaildaily.com/news/forest-service-process-with-berlaimont-estates-launches-public-good-versus-private-rights-debate/