Subject: Road Access for Residents in the Prescott National Forest Meeting notes

Date: Tue, 7 Mar 2006 11:34:25 -0700

Ghoti & Co.

Dear Folks,

Yesterday I had a meeting with the Prescott National Forest Service. Alan Quan, PNF supervisor, Cynthia Moody (engineer), Jamie Kingsbury (New Bradshaw District Ranger - temp. maybe), and Ken Simeral (Supervisor, lands staff) attended for the PNF. There were no other members of the public.

The meeting had a somewhat different tone from prior meetings with former Forest Supervisor Mike King and our former District Ranger Ernie del Rio. There was real discussion, and the issues presented were considered on the facts and merits. We looked at the problems with past PNF road management of residential access together. Many of you have remarked to me, in the past, the PNF has informed you of what had occurred, what would occur, and what the facts are. This was different.

I asked for this meeting to discuss several items of concern all having to do with the current Prescott National Forest road/residential access policy and status of roads. Specifically:

1) There have been many road closures since 2001, 119 Federal Land Policy Management Policy Act private road easements issued, and a general prohibition of any and all maintenance of every road in the Prescott National Forest.

2) Many residents have been asked to spend thousands of dollars each to retain the legal right to access homes. Those who have taken the easements find they are responsible for all maintenance, an annually increasing access fee, and have assumed full liability for all accidents on federal property.

3) The underlying Prescott National Forest policy is unclear.

4) Which residents are affected has been unclear.

5) The policy appears to have been changed from that outlined in the current 1988 Prescott National Forest Plan (Land Resource Management Plan) and amendments. Something the plan plainly states cannot occur without public participation and a "full NEPA" process.

6) The actions seem to have violated federal laws, state laws, county agreements, USDA FS policy, and the intent of Congress - which has been to allow reasonable (existing) access to residential property with the national forest at no cost.

These policies and changes were implemented by the previous administration. These collective grievances where communicated to the PNF at this meeting.

They have agreed to these specific steps and further discussion:

1) There is an existing agreement with the county regarding the Right of Way (ROW) across all roads and routes in the Prescott National Forest recorded in 1991. The PNF feels this agreement may be limited in scope. They have agreed to have the agreement reviewed by their Office of General Counsel (the USDA FS's attorney) and will respond to our assertion that this ROW agreement covers all roads that predate the PNF, not covered by new agreements in writing, within a reasonable amount of time. I will take it up with the county after that.

2) Ken Simeral and myself will meet with the county coordinator Beth Federico and review the counties copy of the map recorded with the 1991 agreement.

3) There is settled law, federal and state policy, and other doctrine that allows anyone to maintain and existing road across any jurisdiction within the State of Arizona. The PNF is responsible to maintain all those roads in the forest to allow residential access to property, on the federal portion of the routes. If they do not, residents are allowed to keep the road maintained to allow this. For example, if a tree falls across the road, if there is a pothole, a resident must necessarily maintain the road. Maintenance above this ('deminimus') minimal amount, or other changes such as widening, or cutting trees, requires a permit form the PNF on PNF land. The PNF has not (since 2001) agreed that this is true. The current PNF administration may not agree this is true, but they are reviewing and will respond in writing so the policy and the application of the policy is uniform and clear, within a reasonable amount of time.

In the past the PNF policy was "no permit is required to maintain the road as is... you can't widen, cut any trees down, or change the grade (by more than two inches)..." As you all know that has changed, somehow circa 2001. The PNF will review this.

The current PNF will (has always?) issue(d) permits (not easements) for maintenance of your road. I believe they called them "Road Maintenance Agreements" in the past they were also under "Special Use Permits" although it's not a special use. For those of you that need to show you have legal access, this permit should suffice.. ask your lender. The permit does not require a centerline survey, an incorporated road association, or any other cost associated with the FLPMA easements, those are a different instrument for demonstrating legal access, available from the PNF.

The PNF is aware that the Alaskan Native Lands Claims Settlement Act applies to PNF residents too. This settlement (drafted by our local former Congressman Sam Steiger) assured residents of reasonable access to homes located within any national forest at no cost new costs to the property owner. This would apply to routes created at anytime, not just historic roads predating the forest as the FS-County agreement references.

The outstanding issues still under discussion are:

1) FLPMA easements do not allow anyone to place a gate, fence or otherwise bar a FS road used for residential access. The PNF will review this. I assume they will review any reported violations of this too. This has been an issue with the fire departments. When a landowner bars, blocks or gates a road on private land it can be resolved in AZ Superior Court. A locked gate cannot be on the forest, ever. Cattle fences (barriers) do exist across roads in the PNF, this is proper, they are not locked. The USDA FS Civil Rights Division already reviewed this prior policy and dis-allowed the prior supervisor's decision awarding exclusive use of federally managed road segments to easement holders.

2) The cost of FLMPA easements was established by congress and a fee schedule was established. The fee was usually adjusted up to meet the minimum fee set by the USDA Southwest Region's adjustment. This was $45 when they started. Some people pay less, most people now pay $67 some 4 years later - a substantial increase with no limit. The fee must be calculated as allowed by law. It is not clear if the USDA FS SWR3 accounted properly for the fee increases in universally raising them annually/periodically.

3) It appears there are many residents, satisfied with the current access conditions, only want the PNF to maintain the existing routes. This appears to be the current law under ANLCSA.

4) The PNF is not funded by congress to close roads "except ancillary to another funded action... e.g. building a new road." Residents want the PNF to stop closing the roads they use. The PNF response has been that the roads were closed by the 1989 Resource Access/Transportation Management amendment to the current forest plan.

5) We briefly reviewed the RA/TM map in the FS records, discussed the _" scale 1988 visitor's map - the official access map in the 1988 plan and amendments. The discussion seemed to agree that the RA/TM map did not apply beyond trails and ATV's (OHV), and that the visitor's map was available for consultation. We did not get beyond that in this discussion.

This RA/TM issue will come up in the pending court case (Delany vs the Forest Service), which the judge pretty much said I will lose (on procedure). The courts discussed an alternative; a court mandated mediation, I agreed to this and asked for it, the Forest Service objected to mediation.

These are discussions the PNF has not wanted to participate in. If the mediation is ordered the public will get to respond the interpretation of the RA/TM decision which according to the last PNF administration closed all unclassified roads and many thousands of miles of classified roads with an additional 17miles closed each year in perpetuity.

6) The requested current compilation of all the open roads in the PNF, or maps thereof.. It is still not available. The requirement for this compilation, known as the Transportation Atlas, was not discussed, nor was the outstanding FOIA request, made under the electronic Freedom of Information Act in 2002, for these maps to be posted on the website. This posting was promised by Mike Baca for January of 2005. Mike Baca is no longer with the PNF either.

I think that covers all that was discussed. I offered that I felt there was discussion and that as long as there was forward movement, in a reasonable time period, I'd continue discussion until the issues were resolved. I felt that all those present were very sincere, and that differences in opinion and interpretation would proceed fairly, or in the best interests of the public.

If there are further road issues please bring them to my attention now.

Marc Delany
PO Box 570
Prescott AZ 86302
928 541-1883