Letter

Ghoti & Co.

April 12 2006 Certified Mail #7005 0390 0005 3401 9749

Alan Quan Forest Supervisor
Prescott National Forest
344 South Cortez
Prescott Arizona 86303
Phone: 928-443-8210
Fax: 928-443-8208
aquan@fs.fed.us

Dear Alan Quan,

This is a request for your review and settlement of these issues concerning residential use of the road the Prescott National Forest mistakenly designated "Trail 67" in 1992. All parties now agree this road is "Old Spruce Mt Road" . This road has served residential properties and patented mining claims continuously since the 1860's.

This road now serves two subdivisions of private property. It has been determined by the Prescott National Forest to be the only practical route available to the 17 individual residential properties collectively known to the Prescott National Forest as the "Lonestar" subdivision (1994) and the Mohawk subdivision (1943) . These subdivisions historically used the road for access to and between these properties.

It is essential these roads remain open and maintained. This is best accomplished by periodic use.

History

From 1863 to 1995 Old Spruce Mt road lead from Walker community at Lynx Creek to the summit of Spruce Mt, one of two mountains flanking and forming the valley Walker was established in, in 1863. The road was continued northward towards Prescott, joining with Senator Highway. The Senator Mine camp along the Senator Highway (52) was staked in 1865.

The Prescott Forest Reserve, predecessor to the Prescott National Forest, was established on May 10, 1898. The Reserve consisted of 16 sections of land laying southwest of Prescott. Generally, its boundaries were Copper Basin on the west, Aspen Creek on the east, Bootlegger Spring to the south, and Williams Peak to the north.

In October 1899, the Reserve was enlarged to offer additional protection for the timberlands. The Reserve then stretched from Granite Mountain to the north to Black Canyon City to the south. In 1908, the Reserve was renamed "The Prescott National Forest" This route, in continuous use since 1863, connects mining claims 1863 - present. The road was constructed and maintained by the miners, then later, residents.

In 1976, patented mining claims Mohawk 3&4 (1943) was subdivided and sold. A section of the road crosses the parcels owned by Hopkins and Delany. The road continued to be maintained by the residents of Spruce Mountain from the summit (now called 52A), to Lynx Creek (now called Walker Road. An unlocked cattle fence secured the upper fence line crossing the road.

For 137 years the Prescott National Forest spent very little, if any, money to manage this road.

1995-2006 Prescott National Forest USDA Forest Service Actions. An Annotated Account of Prescott National Forest Management Practices

In 1995, the Prescott National Forest staff D. Vandergon and D Franch suddenly barred this road, and our access to our homes. In doing so, the Bradshaw District Ranger destroyed a private gate and constructed a new, un-gated fence blocking the road from all use.

Residents protested the action, met with the Prescott National Forest staff at Bradshaw District Ranger Station, provided copies of easements, and pointed out the prominent road depicted on the map on the wall behind the desk of the District Ranger Ernie Del Rio (copy attached). The District Ranger agreed to review the information.

The closure and barring action of "Old Spruce Mt Road was completed by the Prescott National Forest staff without notice, without consultation with affected owners, and without the requisite public process defined in the Prescott National Forest Plan.

From 1995 - present the Prescott National Forest has authorized considerable expenditure and effort to try to ensure the road remained closed, although no explanation was offered as to why this was important, or what public benefit would accrue. The record of action by the Prescott National Forest was obtained gradually of the years through the Freedom of Information Act.

The Prescott National Forest initially denied responsibility for this 1995 fence construction but later explained it had the authority to close roads used by residents for access. This action violated the conditions set forth in the Prescott National Forest Plan , Executive Orders , Arizona State law, ANILCA , 43 CFR 36.10 , 36 CFR 212.6 , and the wishes of the community . At the time, no explanation was offered. The Prescott National Forest Service District Ranger simply said, "We'll get back to you." Eventually, several conflicting explanations were offered.

Alternatively, between 1995 and 2001, the Bradshaw District Ranger explained that the private landowners of the Lonestar subdivision had closed the road, or the Prescott National Forest had in a prior administration's decision. The Prescott National Forest alternately decided that the road was open and/or that the road was closed. The Prescott National Forest also concluded that the road had been closed and was, alternately, a motorized or non-motorized trail. At one time the District Ranger concluded the road did not exist at all, despite the map on the wall, over his desk. Residents complained to the responsible staff, then the District Ranger, then the Prescott National Forest Supervisor, and finally to elected officials.

The District Ranger investigated this complaint from the closure date (July 1995) through July 26 1999 when he issued a letter to the Lone Star - Mohawk POA authorizing use, which officially reopened the road briefly.

On May 22 2001 the District Ranger decided a written permit would be required to allow a resident to maintain the road at the approved level, conflicting with all prior precedent in the Prescott National Forest, common sense, and the USDA-FS's own policy allowing maintenance necessary to maintain the approved level of use. This new access policy also conflicts with settled precedent under law for use and maintenance of existing roads.

These determinations by the District Ranger were somewhat disingenuous because the Prescott National Forest was aware that at the time that the road came to the attention of the Prescott National Forest in 1992, a major encroachment by Lone Star residents (circa 1982) had been discovered and "fixed" by the Prescott National Forest. From 1992-1994 a Small Tact Act was initiated to solve the encroachment of Lone Star. During this process, a more expedient process was substituted carried out with the cooperation of the BLM.

The property on which the road lay, patented mining claims know as "Discovery Location Lode Lone Star" and "First North Extension Lone Star", Mineral surveys 694 and 695 respectively had just been relocated to the position of Mineral survey 1842, "Lonestar." This unusual process was suggested by the Prescott National Forest staff and justified by the BLM based on a partial record of a 1905 -1911 twice rejected application made by the original mine owner Mr. Merritt, long deceased to the Government Land Office (the precursor agency of the BLM).

The Prescott National Forest and the BLM conducted boundary adjustments moving the corners of Lone Star 600 feet westward. The road came under Prescott National Forest Management at that time.

The BLM filed this change, affecting the road, in 1994. The BLM recorded a dependent resurvey of "Mineral Survey 694 and 695 [Lone Star] in Township 13 North, Range 1 West/Gila and Salt River Meridian. Arizona was accepted September 19, 1994, and was officially filed September 22nd, 1994," at the behest of the PNF supervisor Coy Jemmett.

The area of road blocked by Prescott National Forest action in 1995 was private land from 1880 until September 22 1994. Under the law cited by the Forest Service, the public retains all prior granted rights of access accrued under Federal and Arizona State laws, including the right to maintain the road for use. A recorded easement to the public was filed in 1992, prior to the movement. Since then, Pleaks v Estrada, AZ District Court (2004) has confirmed the granting of an easement to the general public as valid, according to the BLM, further supporting the Forest Service's "reasonable use" doctrine and policy.

This adjustment created new development opportunities on the once public land that were realized by a new developer and sold at substantial profit, based on the difference in value of the 1880-1994 location relative to the 1994 site. This 10-acre portion increased in value from $8,000 to $150,000 according to Yavapai County assessor records.

The new owner, and the Prescott National Forest Supervisor objected to the use and maintenance of this road by the prior existing residents of the Mohawk subdivisions. The Prescott National staff assisted the new owner in blocking the road, and preventing maintenance. The Prescott National Forest District Ranger began setting higher and higher administrative bars to maintenance and use. Why the Prescott National Forest District Ranger favored the new developer (1996-1998) over the existing residents (1976-1998) was never explained.

In response to a complaint by the new owner of Lonestar in May 2001, the District Ranger required I file a permit to maintain the road. The application was "suspended" by staff on 6/04/2001. The staff represented to reviewing supervising staff that inquired on my behalf that the "trail is still in good condition for emergency use and requires no maintenance at this time." [Photo attached]. Further protest of unfair treatment resulted in further Prescott National Forest Reviews and new determinations of "fact".

In July 2001, the Prescott National Forest determined use of the road must be authorized by a new Special Use Permit. From 1863 until 2001 use of the road was not authorized, according to a detailed letter received from the Forest Supervisor, Mike King (retired) . This letter concluded "issuing an easement for access across NFS lands can be an easy process. In your case there are some complicating factors. They are not insurmountable, however." The letter advised "The most important issue for you, Mr. Delany, is to obtain legal access across any and all private property.... "

This determination was somewhat disingenuous because at the time Prescott National Forest Supervisor Mike King was aware that the Prescott National Forest had altered the ROW and landownership . The Prescott National Forest had consulted with the BLM from 1992-1994.

Furthermore, in consultation with the new owner and developer of Lone Star, Prescott National Forest Mike King Supervisor signed a Decision Memo 2/3/98 for a: "Private Road Easement to access private property on Spruce Mountain. The easement covers an existing roadway and will not require removing or cutting any trees greater than or equal to 9 inches in diameter. The only public participation in the process involved the applicants. No other agencies, organizations, or individuals were contacted regarding this proposal.... as a category of action identified in Forest Service Handbook 1909.15, WO Amendment 1909.15-91-1, Section 31.2, Item #3, it is categorically excluded from documentation..."

Both the Prescott National Forest and the Lone Star POA installed gates and locks, to block all motorized use of the road. The private property owners (Parker) filed a verified statement in Arizona Superior Court and a report to the Yavapai County Sheriff's office stating the Prescott National Forest 'told him to lock and gate the road to prevent Delanie (sic) from using the road'.

The Prescott National Forest required I retain an attorney to enforce the private property easements, this should not have been necessary as the Prescott National Forest is responsible for issuing the FLPMA easement conditioned on reciprocity to the public, which it eventually discovered to be true. The Lone Star POA was contacted. The USDA FS Civil Rights Division was also contacted.

On August 22nd 2001 the Prescott National Forest District Ranger notified The Loan Star POA that "Mr. Delany is entitled to utilize the FLPMA easement issued..." On August 23 2001, the Prescott National Forest issued a new determination "Forest Trail 67 is not now and has never been designated as a National Forest System Road. Until 1989 it was shown as an undesignated jeep road on Forest Service maps. Non-System roads do not constitute legal access . In 1989 as part of the Resource Access Travel Management process, the route was designated a non-motorized trail."

This was somewhat disingenuous because the Southwest Region #3 staff responsible for reviewing the (1992-1994) land adjustment of Lone Star attended the meeting that reviewed this decision, they helped draft this new determination and were cc'd on the letter. It can be shown that RA/TM does not apply to residential access, and the records supporting the Prescott National Forest's assertion in this, were never found.

During this period the Prescott National Forest staff escalated personal harassments. In addition to the repeated road closures, staff publicly called me a liar , knowingly filed a false report with the US Attorney's office alleging "death threats", disparaged me personally in conversations with neighbors and at public meetings. The staff inserted derogatory remarks into my credit record and maintained them there for more than a year after they were directed to remove them by supervising regional officials. I protested the staff's conduct to supervising officials, this generated letters approving of staff conduct.

Finally, on November 13th, 2001 Prescott National Forest Supervisor Mike King wrote, in response to inquiry from Congressman Bob Stump that "Based on another review of the information you provided and our files, we agree with you that there is confusion, misinformation, and lack of documentation of previous decisions [and actions] relating to the status of Trail 67... I apologize for the misstatements we made concerning the original status of Trail 67 and thank you for pointing them out. "

The Prescott National Forest then reopened the road, conducted a NEPA investigation 2001 - 2003 and Road analysis, and issued a decision upholding the closure of the existing road, except for emergency use.

The NEPA process found the road pre-existed the Prescott National Forest. Approximately 123 people, including three fire chiefs, the three fire departments, and all of the abutting landowners, (except the landowners the Prescott National Forest originally issued the exclusive arrangement of public land to), supported local use.

The decision was appealed.

USDA Prescott National Forest SW R3 staff upheld the decision. The USDA SW R3 staff advised closing the road. A recommendation made prior to conclusion of the NEPA analysis, (ROD Blue John Proposed Action document (154 of 244) negating the benefit of objective analysis and public participation.

These actions of the Prescott National Forest 1994-2006 have generated multiple lawsuits between private property owners and between neighbors, citizens, and the USDA FS Prescott National Forest. The complete administrative record is in the record for CIV-04-2352-PCT-VAM in The United States District Court of Arizona. The Prescott National Forest's interpretation of the intent of congress for USDA FS "reasonable use" access and "good neighbor" policy process results in actions (lawsuits) filed in Arizona Superior Courts before considering simple alternatives for access between neighbors.

On April 2003, Prescott National Forest Supervisor Mike King signed FLPMA Easement BRA193 for ROW on the road segment at issue. The permit expires 12/31/2023. It is issued to the Walker Fire Protection Association. Under the provisions of the Federal land Policy and Management Act, as amended October 21, 1976 the permit is non-exclusive (provision 19 Nonexclusive Use and Public Access). Other limits concerning use of the existing, permitted road preventing local use are not authorized by congress under the law, nor delegated to the Prescott National Forest Supervisor by the Secretary under CFR 36 251, 212, or ANILCA.6,7,8,9.

However, in January 2004 the District Ranger sent another letter renewing threats of "appropriate law enforcement" for alleged "unauthorized," work. The work permitted (maintenance) fully complying with all conditions set forth in the WFPA FLPMA easement, April 2003.

This harassment and prohibition continues, prompting this new appeal for relief under EO 12630, ANILCA, 36 CFR 241, 212 et seq. for reasonable use of an existing road for lawful purpose, for local residents, as has been custom from 1880 - 1995, and under appeal from 1995 - present.

Conclusions:

The issue that remains is our local, essential, residential use of ~363 feet of a dirt road in the middle of the neighborhood. Use of this short road segment landlocked between the Lonestar Subdivision, and Mohawk is essential for all the normal actions between neighbors. The United States Department of Agriculture Prescott National Forest has spent tens of thousands of dollars to prevent minor use of a local existing road. Collectively, this persistent pattern of actions taken by the agency staff has been arbitrary, capricious, and wasteful. Most people would find the actions to be vindictive, inappropriate, and misguided, as opposed to based on facts, well reasoned and in the best public interests.

The road remains "closed" to local use since the action's implementation in 2003, pending judicial review of the administrative record recounted in part above and as attached for your review. The complete record is now before the court.

Uncontested facts:

  • The Prescott National Forest agrees the road was closed and barred by mistake in 1995
  • The Prescott National Forest agrees the road was barred by mistake in 2001, again
  • The Prescott National Forest concluded the "Blue John Private Access Easement project on November 1, 2002
  • The Prescott National Forest withdrew consent to allow full residential access April 18th 2003
  • No evidence that the road was ever closed prior to 1995 has been found
  • No evidence that the road was officially closed at any time has ever been ever found
  • The road is needed by the community
  • The road segment closed is a minor segment of a much large route
  • The Prescott National Forest has divided the subdivision and the closest abutting neighbors requiring a 27 mile round trip to reach the abutting neighbor
  • The Prescott National Forest administratively estranged the community
  • The road has been access for mining and residential uses before the creation of the Prescott National Forest
  • The road has an active mining claim, and has been a required route for the operating plan since 1994
  • The road will be maintained by permit issued to the Walker Fire Protection Association
  • The road was not closed by the RA/TM
  • No resource damage was the conclusion of the scientist employed by the Prescott National Forest
  • No biological impacts were found
  • The road is necessary in the steep canyon Ponderosa Forest for access and public safety
  • There were three major fires on this route and in this area since 2001 requiring sudden evacuation
  • The Prescott National Forest and the Bureau of Land Management have complete records of the dates and affects of the exchange of MS 1842, with MS 694 695 with respect to the road
  • The road is currently 100% motorized
  • Neither the public, nor local residents may now used the motorized route according to the Prescott National Forest

The Prescott National Forest has complied and reviewed 244 documents (at a minimum), spending 5-10 years of staff time, in order to reach a pre-determined conclusion. This happened multiple times. In order to defend a position established by actions taken 1992-1995, the Prescott National Forest staff has enlisted public resources, the Department of Justice, the Yavapai County Sheriff, the US District Court, and the Bureau of Land Management State Court System.

From 1863 - 2001 the US Government spent $0 to create and maintain this road.

From 2001 the US Government has spent close to $100,000 through various departments as detailed in the Administrative Record submitted to the courts to prevent and prohibit maintenance of 300' feet of this road.

There does not appear to be any public issue of policy satisfied by closing the road to local use, implied, inferred, stated, or sustained after 10 years of Prescott National Forest management actions, determinations, analysis and review.

There is an issue of public safety requiring unobstructed local use.

I hope you agree this is an inappropriate use of our government's time. There appears to have been serious misappropriations of resources by the Prescott National Forest, continuous abuse of authority under color of law and a lack of oversight by Southwest Region #3.

This is the second settlement request. This request is made to spare the government additional expense. The Prescott National Forest has so far declined to review and reverse admitted mistakes leading to the inappropriate closure of an active residential access route between subdivisions (attached).

I am providing the new Prescott National Forest Supervisor this request, in fulfillment of our discussion to set down a succinct "settlement request" (2nd request). I appreciate your review and support of this request.

Settlement Requested:

  • Local use of existing road restoring 1977 condition
  • Costs for appeal 1995- present
  • FS agreement to ensure routine maintenance
  • Review of Prescott National Forest road access policy per the Prescott National Forest Plan's mandate

Sincerely,

Marc Delany
P.O. Box 570
Prescott, AZ 86302
Phone 928-541-1886
Fax 928-777-0063

MLDelany@aol.com

cc:

President Bush [Appeal ]
Mark Rey Undersecretary
 Sec of Agriculture Mike Johannes
Sec of Interior
Sen. McCain
Con Rick Renzi
Dale Bosworth Chief [Appeal to the Chief]
USDA FS Civil Rights
Sally Collins
Harv Forsgren SWR3
BLM
OMB
DOJ
Center for Public Integrity
OIG USDA FS
OIG BLM
GAO
Community contacts Congressional contacts
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  1. Letter Mike King, Prescott National Forest Supervisor 1996-2004, File Code 2730-3-2 November 2001, Response to Congressman Bob Stump Blue John Private Access Project Record, November 1, 2002 DECISION NOTICE/FINDING OF NO SIGNIFICANT IMPACT
  2. Blue John Private Access Easement USDA Forest Service Bradshaw Ranger District; Prescott National Forest Yavapai County, Arizona
  3. United States Department of Agriculture Forest Service Southwestern Region November 1986 Includes Amendments 1- 12 2004 Republish Prescott National Forest Land and Resource Management Plan p 26 "Annually review and update the access policy for the forest. Access policy changes for specific roads, trails or cross-country travel require NEPA compliance with full public participation during this process. The official access policy map shall be updated to reflect any changes in access policy for specific roads, trails or cross-country travel. Monitor use of roads, trails and cross-country travel to determine the effectiveness of the forest access policy. Actively seek public participation in the access monitoring process."
  4. Appeal #03-03-00-0011-A215 ISSUE 4: The Forest Service obstructed residential access by vehicle on Trail 67 use by erecting a fence.
    Contention 4A: The FS and or FS personnel obstructed (1996, 2001) a highway or other public thoroughfare by unlawfully erecting a fence across an active road. ARS 13-2906. Response: National Forest System roads are authorized only for the administration and utilization of NFS lands. Although generally open and available for public use, this use is at the discretion of the Secretary of Agriculture. Through authorities delegated by the Secretary, the Forest Service may restrict or control use to meet road [and trail] management objectives. Commercial users, permittees, or contractors also may be required to share in the cost of developing, improving, and maintaining NFS roads [and trails] (36 CFR 212.5) (FSM 7731). Finding: Trail 67 is designated as a non- motorized trail. Although the record does not clearly indicate who put up the fence the FS has the authority to physically close the trail as a management tool to implement management direction.
  5. United States Department of Agriculture Forest Service Southwestern Region November 1986 Includes Amendments 1- 12 2004 Republish Prescott National Forest Land and Resource Management Plan p 26 Allow only one access road for subdivision access unless natural features dictate otherwise and where there is no suitable private land alternative or where additional access is needed for public safety.
  6. Executive Order 12630 -- Governmental Actions and Interference with Constitutionally Protected Property Rights, Economic Analysis of Federal Regulations Under Executive Order 12866
  7. ANILCA TITLE XI--TRANSPORTATION AND UTILITY SYSTEMS IN AND ACROSS, AND ACCESS INTO, CONSERVATION SYSTEM UNITS VALID EXISTING RIGHTS §1104. (a) IN GENERAL.--Notwithstanding any provision of applicable law, no action by any Federal agency under applicable law with respect to the approval or disapproval of the authorization, in whole or in part, of any transportation or utility system shall have any force or effect unless the provisions of this section are complied with §1109. Nothing in this title shall be construed to adversely affect any valid existing right of access. §1110.
    (a) Notwithstanding any other provision of this Act or other law, the Secretary shall permit, on conservation system units national recreation areas, and national conservation areas, and those public lands designated as wilderness study, the use of snowmachines (during periods of adequate snow cover, or frozen river conditions in the case of wild and scenic rivers), motorboats, airplanes, and non-motorized surface transportation methods for traditional activities (where such activities are permitted by this Act or other law) and for travel to and from villages and homesites. Such use shall be subject to reasonable regulations by the Secretary to protect the natural and other values of the conservation system units, national recreation areas, and national conservation areas, and shall not be prohibited unless, after notice and hearing in the vicinity of the affected unit or area, the Secretary finds that such use would be detrimental to the resource values of the unit or area. Nothing in this section shall be construed as prohibiting the use of other methods of transportation for such travel and activities on conservation system lands where such use is permitted by this Act or other law.
    (b) Notwithstanding any other provisions of this Act or other law, in any case in which State owned or privately owned land, including subsurface rights of such owners underlying public lands, or a valid mining claim or other valid occupancy is within or is effectively surrounded by one or more conservation system units, national recreation areas, national conservation areas, or those public lands designated as wilderness study, the State or private owner or occupier shall be given by the Secretary such rights as may be necessary to assure adequate and feasible access for economic and other purposes to the concerned land by such State or private owner or occupier and their successors in interest. Such rights shall be subject to reasonable regulations issued by the Secretary to protect the natural and other values of such lands...
  8. § 36.10 Access to inholdings.
    (a) This section sets forth the procedures to provide adequate and feasible access to inholdings within areas in accordance with section 1110(b) of ANILCA. As used in this section, the term:
    (1) Adequate and feasible access means a route and method of access that is shown to be reasonably necessary and economically practicable but not necessarily the least costly alternative for achieving the use and development by the applicant on the applicantıs nonfederal land or occupancy interest.
    (2) Area also includes public lands administered by the BLM designated as wilderness study areas.
    (3) Effectively surrounded by means that physical barriers prevent adequate and feasible access to State or private lands or valid interests in lands except across an area(s). Physical barriers include but are not limited to rugged mountain terrain, extensive marsh areas, shallow water depths and the presence of ice for large periods of the year.
    (4) Inholding means State-owned or privately owned land, including subsurface rights of such owners underlying public lands or a valid mining claim or other valid occupancy that is within or is effectively surrounded by one or more areas.
    (b) It is the purpose of this section to ensure adequate and feasible access across areas for any person who has a valid inholding. A right-of-way permit for access to an inholding pursuant to this section is required only when this part does not provide for adequate and feasible access without a right-of-way permit.
  9. § 212.6 Ingress and egress.
    (a) Policy in acquiring and granting access. To assure effective protection, management, and utilization of lands administered by the Forest Service and intermingled and adjacent private and public lands, and for the use and development of the resources upon which communities within or adjacent to the National Forests are dependent, the Chief shall as promptly as is feasible obtain needed access thereto and shall grant appropriate access across National Forest and other lands and easements administered by the Forest Service to intermingled or adjacent landowners. Construction, reconstruction or maintenance of a road or highway requires written authorization.
  10. Blue John Private Access Project Record, November 1, 2002 DECISION NOTICE/FINDING OF NO SIGNIFICANT IMPACT Blue John Private Access Easement USDA Forest Service Bradshaw Ranger District; Prescott National Forest Yavapai County, Arizona pp 12-20
  11. District Ranger Ernest Del Rio Letter File Code 2730 July 26th 1999
  12. National Forest Road Definitions from the National Forest System Road Management Rule and Policy
    Road -- "A motor vehicle travelway over 50 inches wide, unless designated and managed as a trail. A road may be classified, unclassified, or temporary."
    Forest development road -- "A road wholly or partially within or adjacent to a National Forest System boundary that the Forest Service has authorized and maintains jurisdiction over and that is necessary for the protection, administration, and use of lands under the agency's jurisdiction."
    (1) Classified Roads --"Roads wholly or partially within or adjacent to National Forest System lands that are determined to be needed for long-term motor vehicle access, including State roads, county roads, privately owned roads, National Forest System roads, and other roads authorized by the Forest Service."
    (2) Temporary Roads -- "Roads authorized by contract, permit, lease, other written authorization, or emergency operation not intended to be part of the forest transportation system and not necessary for long-term resource management." Temporary roads are required to be revegetated within 10 years of completion of their use. Temporary roads can remain active for upwards of 5 years as part of timber sales. There are no design standards for temporary roads other than location and clearing width and State best management practices (where they exist), unless the road is classified as a specified short-term road (FSM 7701.2).
    (3) Unclassified Roads -- "Roads on National Forest System lands that are not managed as part of the forest transportation system, such as unplanned roads, abandoned travelways, and off-road vehicle tracks that have not be designated and managed as a trail; and those roads that were once under permit or other authorization and were not decommissioned up the termination of the authorization."
    Road Maintenance -- "Expenditures in the minor restoration and upkeep of a road necessary to retain the road's approved traffic service level."
  13. This grant [R.S. 2477] becomes effective upon the construction or establishing of highways, in accordance with the State laws, over public lands not reserved for public uses. No application should be filed under this act, as no action on the part of the Federal Government is necessary. 56 I.D. 533 (May 28, 1938).
    A right-of-way issued on or before October 21, 1976, pursuant to then existing statutory authority is covered by the provisions of this part unless administration under this part diminishes or reduces any rights confered by the grant or the statute under which it was issued, in which event the provisions of the grant or the then existing statute shall apply. 43 U.S.C. 2801.4 (February 25, 1986).
    In carrying out the Department's management responsibilities, the authorized officer will be careful to avoid any ction that will diminish or reduce th erights conferred under a right-of-way grant issued prior to October 21, 1976. 51 Fed.Reg. 6542 (February 25, 1976).
    Under this act [R.S. 2477] highways could be established over public lands not reserved for public uses while they remained in the ownership of the government. Congress did not specify or limit the methods to be followed in the establishment of such highways. It was necessary, therefore, in order that a road should become a public highway, that it be established in accordance with the laws of the state in which it was located. Ball v. Stephens, 158 P.2d 207, 209 (Cal. Ct. App. 1945).
    It has been held by numerous courts that the grant [under R.S. 2477] may be accepted by public use without formal action by public authorities, and that continued use of the road by the public for such length of time and under such circumstances as to clearly indicate an intention on the part of the public to accept the grant is sufficient. Lindsay Land & Livestock v. Churnos, 285 P. 646, 648 (Utah, l930).
  14. File Code 7150/5570 October 16th 1996 to Mitchel S. Medigovich signed Prescott National Forest Supervisor Coy Jemett concerning proposed Small Tract Act and a major encroachment of the Lonestar properties.
  15. District Ranger Ernest Del Rio Letter File Code 2730 July 26th 1999
  16. USDA FS Letter File Code 2730-3-1 July, 5th 2001 Prescott National Forest Supervisor Mike King
  17. File Code 7150/5570 October 16th 1996 to Mitchel S. Medigovich signed Prescott National Forest Supervisor Coy Jemett concerning proposed Small Tract Act and a major encroachment of the Lonestar properties.
  18. CIV-04-2352-PCT-VAM in The United States District Court of Arizona and Prescott National Forest USDA FS ROD Private Road Easement Lone Star-Mohawk Property Owner's Association, Prescott National Forest Bradshaw Ranger District.
  19. File code 1500 08/30/01 DDV 1508 "Delany file" Prescott National Forest
  20. Prescott National Forest Letter Cert # Z3872342666 File Code 2730-3-2 signed District Ranger Ernest Del Rio
  21. However: National Forest Road Definitions from the National Forest System Road Management Rule and Policy Road -- "A motor vehicle travelway over 50 inches wide, unless designated and managed as a trail. A road may be classified, unclassified, or temporary." Forest development road -- "A road wholly or partially within or adjacent to a National Forest System boundary that the Forest Service has authorized and maintains jurisdiction over and that is necessary for the protection, administration, and use of lands under the agency's jurisdiction."
    (1) Classified Roads --"Roads wholly or partially within or adjacent to National Forest System lands that are determined to be needed for long-term motor vehicle access, including State roads, county roads, privately owned roads, National Forest System roads, and other roads authorized by the Forest Service."
  22. CIV-04-2352-PCT-VAM in The United States District Court of Arizona Administrative record #25
  23. File code 1500 08/30/01 DDV 1508 "Delany file" Prescott National Forest
  24. Arizona Superior Court CV 20030066
  25. Letters from Eleanor Townsend SWR#3 Regional Forester, and Jack Craven WO USDA FS ADA record 107
  26. Letter November 13th 2001 File code 2730-3-2 Prescott National Forest Supervisor Mike King
  27. November 1, 2002 DECISION NOTICE/FINDING OF NO SIGNIFICANT IMPACT Blue John Private Access Easement USDA Forest Service Bradshaw Ranger District; Prescott National Forest Yavapai County, Arizona
  28. File Code 2700 PNF E Del Rio - Delany Cert # 700

 

 

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Created 13 April 2006
Modified 13 April 2006