Access issue pits public against private interests

A look at Idaho law governing public rights-of-way crossing private propety to access public land.

By John O’Connell

Capital Press

Published on August 20, 2014 12:38PM

Rick Fellows, a partner in a small holdings company that owns a dryland farm where Bannock County may forcibly validate a public right-of-way, walks the primitive road in question.

John O’Connell/Capital Press

Rick Fellows, a partner in a small holdings company that owns a dryland farm where Bannock County may forcibly validate a public right-of-way, walks the primitive road in question.

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POCATELLO, Idaho — The Bannock County Commission has proposed to validate a mile-long, overgrown farm road through residential and agricultural land as a public right-of-way to access national forest, against the wishes of the affected private land owners.

The county’s action pits the private property rights of landowners against the government’s power to establish public easements.

The commission is seeking to validate an old farm road as a public right-of-way to U.S. Forest Service land in the Bell Marsh drainage of McCammon, arguing a so-called prescriptive easement exists because the public has used the access for several years.

The right-of-way would pass through four private parcels, including a dryland farm owned by a small holdings company. The land owners emphasize two other public accesses to the recreation area exist within a mile of their land.

As it stands, they’ve dealt with litter, teenage parties, vandalism and fires started by catalytic converters.

The county has offered no financial compensation for the right-of-way, contending it’s existed since the late 1940s. Bannock County’s general counsel, Ian Service, argues a prescriptive easement exists simply because people have used the access for so many years.

McCammon resident Michael Bartlett, for example, testified at a recent hearing on the proposal that he’s used the road for hunting and family outings since the 1960s.

Idaho Falls attorney Lance Schuster, an expert in property rights, considers the applicable law to be “murky.”

Schuster said judges will give great deference to old maps in making their determinations.

“I’ve seen cases swing on whether these roads appear on old maps,” Schuster said. “I’ve seen courts rely on old surveyor maps even from when the county was first surveyed to decide if there’s a county road or not. Those cases are hard to predict. It will often hinge on some map that nobody’s aware of until they dig it up and bring it to court.”

The Forest Service maintains the access has appeared on several of its maps over the years, and “Bell Marsh” made a 1990 county list of 47 public-land accesses.

But attorneys representing the landowners say the proposed right-of-way does not appear on county land-use maps as required by Idaho code.

County maps from 1925-1955 show a Bell Marsh Creek Road, but it follows a different route than the southern access the county now proposes to validate, Tom Holmes, a Pocatello attorney representing one of the landowners, said.

Holmes emphasized both public use and county maintenance are required for a prescriptive easement to exist.

He acknowledges county maintenance can be extremely minimal to qualify.

But he filed a public records request seeking any evidence of county maintenance on the mile-long farm road in question, and the county produced no records.

Further evidencing that the road isn’t public, T.J. Budge, an attorney representing one of the property owners, said it’s been gated for years, and neighbors have long sought permission before using it.

Rick Fellows, a partner in the holdings company, said validation of the access would impact 25 acres, and could place him in violation of an ongoing Conservation Reserve Program contract. Based on the county’s letter, Fellows said his title company pored through decades of records seeking evidence of an easement and could find none.

Deb Tiller, recreation and trails supervisor for the Forest Service’s Pocatello office, explained the Bell Marsh issue originated when her agency asked surrounding counties to clarify their lists of active public land accesses.

Title 40-203 of Idaho code grants any county resident, the state of Idaho or federal agencies the right to petition the board of a county or highway district to initiate public proceedings to validate public right-of-way, including those that access public lands. The petitioner is required to pay a reasonable fee to cover costs of proceedings.

Commissioners may also initiate proceedings, provided that doubt exists about a right-of-way due to “omission or defect,” location of a right-of-way cannot be accurately determined, or the location doesn’t generally conform to the location expressed on maps or public records.

Residents may appeal a county’s decision to the district court with jurisdiction over the county.

Idaho code determines a right-of-way may be deemed abandoned if a right-of-way was not recorded in the official records of an Idaho county, the land doesn’t provide the only means of access to public lands, the right-of-way has not been used by the public or maintained at the public’s expense for at least three of the previous 15 years, or if a right-of-way was never constructed within 20 years of its dedication.

Following a heated hearing on the issue Aug. 13, the commission tabled a vote to allow time for additional written public testimony and legal briefings. A second hearing has been scheduled for 1-4 p.m. Nov. 19 at the Bannock County Courthouse.


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