By Dan Schroeder
I'd encouarage everyone to read this article from today's Standard-Examiner about Box Elder County's ongoing attempt to force the Selman family to open their ranch to ATV recreationists. It's a classic story of abuse of government power, with a good measure of incompetence mixed in. In this case, all levels of government (including the State Parks Department and the Forest Service) are lined up against the private land owners.
I got involved in this issue because of the Sierra Club's interest in the adjacent Forest Service land. Bret Selman called me when he saw my name in the paper a few years ago, and we've become good friends. The Selmans have been terrific stewards of the land and have been extremely generous in giving permission for interested groups to enter their property for nonmotorized recreation and wildlife viewing. They just don't want it to become a motorized thoroughfare.
The disputed route is on property that the Selmans have owned since 1952. The county is claiming a prescriptive right-of-way along the route, but I think this claim is unlikely to hold up in court because the route has been gated and posted closed to the public for several decades. In fall 2005 the county brought criminal charges against Bret Selman for placing a lock on one of the gates that block the route. Those charges were finally dropped in January of this year when a new County Attorney took office and apparently decided to try the different tactic of simply sending the bulldozers up and ripping out the gates. Meanwhile, the Selmans have incurred thousands of dollars of attorney's fees.
As the article says, the county passed a resolution a couple of weeks ago and informed the Selmans that it would be removing their gates. However, the map that's part of the resolution actually shows a different route that's blocked where it enters a parcel of Forest Service land before crossing onto the Selman property. So the Selmans weren't even given any notice that the county would be bulldozing this particular route.
Reader comments are welcome, as always.
Update 5/14/07 8:33 a.m. MT: We link here a supplementary web article, fleshing out more of the background facts concerning the Selman situation. It would appear from a reading of this article that the various federal and state government agencies mentioned are actively driving a perverted modern version of manifest destiny from the political backstage, with absolutely zero regard for the law of real property as it pertains to property owners like the Selman Family.
Why are these government entities seemingly hell-bent to build a road through the Selmans' land?
Surely it can't be all about ATV access.
Don't let the cat get your tongues.
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11 comments:
We did a little googling and came up with some interesting additional information, Dan:
Apparently Bret Selman's family has entered into an agreement with the Nature Conservancy, to protect the present agricultual use of their ranch property for future generations. According to this 2006 KSL article, they've sold their entire future development rights, for a very low $3.7 million price, (our guess is not more than 20% of its market value,) in part to protect grouse habitat, among other things.
Notable is this article exerpt:
"Under the terms of the deal, the family gets to keep on ranching forever, but they're legally prohibited from ever selling the land for development.
Joan Degiorgio: "And as Cache Valley develops, in 100 years, this is going to be a jewel, even more than it is now."
The money puts the family on a firm financial footing to follow their instincts, by NOT selling to developers.
Bret Selman: "Oh, I don't know, it would be like selling your soul to the devil. It is just something that goes deep with us."
Another web article reports that the ranch comprises some 6,700 acres, a pretty fairly significant chunk of ground in the area straddling Box Elder and Cache Counties.
This situation has to be driving the central planners, grand schemers and developers in both counties nuts.
Talk about putting you money where your mouth is!
Perhaps this would partly explain Box Elder county's ham-handed and aggressive approach.
Tnanks for the article heads-up, BTW.
I wonder if we’re mixing issues here. The first is whether the public has the right to drive across the Selman’s land. It would appear that there are two pieces of public land that are surrounded by the Selman land. If so, then the Selmans would need to provide access to it, unless the owner of the land (the Forest Service?) allowed them to close the road. The other access issue is that a road cuts across their land to allow the Avon road to connect across, and to allow access to an area of public land. But that public land has other means of access, so if the Selmans have been posting no trespassing, they should be able to close that road.
The more interesting issue is the involvement of the Nature Conservancy, and the governor’s interest in conservation. It would be wonderful if we could change from the mindset that pouring concrete and spreading asphalt is what humanity is all about, to a mindset of preserving priceless natural places before they are gone. This is the vision we need for the future. And what more priceless natural places are there than the Ogden benches and the Malan’s Basin parcels? What a great thing it would be if we could elect, support and encourage our officials to become conservation minded and to preserve these assets. The time will come when everyone will see the importance of that vision. The hope is it will come before these places are already gone.
danny,
I don't know what the law says about access to small parcels of Forest Service land that are surrounded by private land. Neither of the two parcels that you refer to are open to motorized travel. The smaller parcel is indeed entirely surrounded by the Selman property, but access to it has never been an issue as far as I'm aware. The larger parcel is accessible from the west by the undisputed public portion of the Rocky Dugway road, although it's gated at that point and you'd have to climb over the fence to enter the parcel. When the county passed its resolution a couple of weeks ago, the accompanying map indicated that the claimed right-of-way was across this parcel of Forest Service land. But the bulldozers went the other way (southeast), across the Selman property. This route also crosses eventually onto National Forest land, but by that point it's in Cache County and the Box Elder road crew stopped at the county line. Also, as you said, that National Forest land has much better public access from the east. Traditionally, most National Forest users have been content to have access from just one direction. But the ATV riders seem to want loops, so now the idea is to create a through route for ATV's between Mantua and the Liberty-Avon road. Actually there would be two through routes; the other one is farther south, across Devils Gate Valley and Public Grove Hollow.
To see some context and the extent of the threat to private land owners, take a look at this out-of-date web page which has a three-year-old map of the "Shoshone Trail" as it was then proposed. (At that time the intent was to connect Mantua to Avon by a more northerly route.) All the areas shown in white are privately owned, and most of the proposed routes across the private land are disputed by the land owners.
The Selmans are certainly doing everything they can to preserve both wildlife habitat and their rural lifestyle.
We agree, Danny, that the Nature Conservancy easement presents a fascinating additional wrinkle to this story. Governor Huntsman's apparent embrace of the Nature Conservancy easement process is encouraging too.
Whereas we'd earlier viewed this long-developing story as being limited merely to basic issues surrounding the law of prescriptive easements, it's obvious that this story is far bigger than initially meets the eye.
The Selman family's conservation ethic is quite refreshing; and it's also becoming obvious to us that it is not unique to the Selman family:
The Salt Lake Tribune is running an interesting article concerning a Boulder, CO ranching family this morning, which has also transferred its development rights and created a Nature Conservancy conservation easement.
The sentiment expressed by the Colorado ranchers in this story dovetails nicely with the sentiments expressed by the Selmans.
It's our suspicion that many rural landowners in Utah would opt to preserve their "sacred land-holdings," if viable economic options such as nature conservancy easements existed to compete at least minimally with the offers of developers.
And as an aside... and just to demonstrate how "down and dirty" Box Elder County's tactics have been in the Selman situation, check out page 7 of the December 5, 2006 Box Elder County Commission minutes, wherein Commissioner Davis admits that the criminal charges filed against Selman were made in bad faith, with an ulterior motive of bring the Selman family to the discussion table:
"Chairman Davis said as far as the procedure that took place in our discussion with County Attorney
Hugie why did we file criminal proceedings against Brett Selman, what were we trying to
accomplish. She said we were hoping to get him to come to the table and recognize this was a
county road (wink-wink). We don’t think we wanted to make him a felon. We wanted to validate it is a public
road and want it to remain as a public road." (Emphasis added.)
Oppressive, heavy-handed and property-rights unfriendly Big Local Government is obviously NOT LIMITED to our dear Emerald City
You poor lost souls just don't get the bigger picture.
Here in Zion our leaders are annointed by God. Otherwise they could not be elected. God don't allow unworthies to become leaders.
Therefore, our lawmakers are actually above the law, as decreed by God. Our role is not to criticize them, as Brother Oaks reminded the world last week in the PBS series on the Mormons when he said: "You cannot criticize leaders, even if it's true".
Our role as citizens is to sustain our leaders, not point out their faults if, in our ignorance, we think they have them, which of course they don't otherwise they would not be leaders.
So private property rights be damned! These are leaders appointed by the all mighty, and they trump so called private property rights every time.
As for ATVs, well same thing applies. If God did not want ATVs on the land, he would not have allowed them to be invented. They are thus a devine right of the rich just as it is their God given right to ride them any where they want regardless of some selfish land owners.
So be it, it is God's will.
I think Oaks would have been referring to a recommendation against church members making personal attacks against church leaders rather than church members voicing policy differences between themselves and government officials whether or not those officials are church members. I believe the latter is not only allowed but encouraged in cases where we differ with them.
But it's a common misconception.
Ask yourselves why federal, state, and local officials are falling all over themselves to force the building of a road through the Selman land.
Can you say "Powder Mountain?"
ATV use has little or nothing to do with it.
Not enitrely unrelated to questions of land use, zoning and levels government involvement that seem aimed largely at accommodating developers at the expense, sometimes, of the public good, I offer this: a three-story feature in today's SL Tribune regarding building homes on highly sloped and prone to slide land, and the problems it has created for accommodaing cities and towns, and for their home-owning residents. A cautionary tale. One story, by the enterprising Ms. Moulton and Mr. Hollingshead, can be found here under the headline Cities Fighting A Losing Battle Against Landslides.
A second story, on the Mountain Green problem with landslides, can be found here. And a third, on the Cedar Hills landslide [the only one at which the developer stood up and worked with the city to make things right] and be found here. And a final story, headlined Landslide Turns Dream Into Nightmare is located here. Note: there is some overlap in the stories.
Two recurring themes in the stories are these: (a) when homes are built in steeply sloped slide areas and --- surprise! --- slides happen destroying homes, the developers are usually long gone, leaving the homeowner and perhaps the city, under danger of lawsuit for having approved the construction in the first place, to pick up the very expensive pieces. And (b) a number of homes subsequently destroyed were built after geologic and engineering firms [sometimes hired it seems by the builders] assured folks that it was safe to build there, or after they told individual homebuilders to take certain pre-construction precautions to stabalize the land, after which it would be ok to build. And in the event, it turned out not to be so.
As Mr. Scott Carter, the Davis County city's community-and-economic-development director, and a member of a governor's working group on geologic hazards, put it: "I've never had the developer come back and stand with us 16 hours a day as we try to help people." And this: Through his experiences in Layton, Carter noticed this:
Francis Ashland, a state geologist, says if one wonders which Utah communities are becoming most sophisticated in assessing the risks of building on landslides, "It's the communities that were hammered."
The story goes on to discuss Layton's new "get tough" policy for developers who want to build on geologically suspect land: Layton's new get-tough approach requires the UGS to sign off on geologic and geotechnical work by a developer's consultants. The UGS provides that service free to cities and counties.
If a developer's experts and the UGS disagree, then Layton hires a third expert - at the developer's expense.
In the end, Carter sees Layton's role as forcing the developer to decide whether "doing it right" is worth the millions it may cost.
One of the other stories revealed that homeowners had not been told that in addition to a developer-s study saying the land they were building on was stable, another study existed saying it was not. At Cedar Hills, the existence of that other, unrevealed [to homeowner] study exaplains in party why the homebuilder there came back to make things right by moving buyers to new homes at other locations. From the story: It wasn't until after the slide that Sorenson [the homebuyer] and the other displaced residents learned of another engineering study warning of potential instability on the hillside.
That original report, by Orem-based Earthtec Testing and Engineering, called the potential hazard moderate to high and advised against any development. The second report, from AMEC, greenlighted building with certain sloping and drainage measures.
"I asked three or four times if that mountain was going to move," Sorenson says, "and they [the real-estate agent and builders] said, 'No.' "
Armed with that stomach-sickening news of the first report, she was ready to press her case.
"I had leverage, and I used it," Sorenson says. "They didn't want a lawsuit. I didn't take no for an answer. There were a couple times I had to dig my heels in, and I had to play nasty."
There is lots more about engineering firms issuing "safe" reports to justify building on land that later moved and destroyed homes. Well worth picking through the stories. Well worth it. Hope the City Council and Planning Commission are reading them. C-a-r-e-f-u-l-l-y.
knows jack,
I've been following this issue for several years and I honestly don't think it has anything to do with Powder Mountain.
The Selman property is west of the Liberty-Avon road, so a road across their property would not improve access to Powder Mountain from Cache County. It would provide a more direct route to Powder Mountain from Brigham City, if an access road to Powder Mountain from the south end of Cache Valley is eventually constructed--and such a road is not in the developer's short-term plans. Even then, it wouldn't be any faster than alternative routes unless it were widened, paved, and in the winter, plowed. That would be a very expensive project and it sure wouldn't make the ATV riders happy.
Brigham CIty isn't a big enough market for anyone at Powder Mountain to care about such a shortcut, and Powder Mountain isn't even on the radar screen of the Box Elder County Commission as far as I can tell. I suppose I could be wrong, but I think this is simply a battle between off-road vehicle enthusiasts on one hand and landowners and conservationists on the other.
For those who find it hard to believe that the ATV lobby could have so much power, perhaps I should provide some more context.
The federal interest in this trail got a major boost when former Congressman Jim Hansen introduced a bill in 2002 to establish the "Shoshone" ATV mega-trail, described here. Hansen is a big ATV proponent and has never passed up a chance to piss off environmentalists. Also, prior to his retirement, he was very actively looking for "legacy" projects to honor himself. His bill died in the Senate in late 2002, but by then the Forest Service was already committed to the project.
The State Parks Department promotes ATV recreation because they profit from ATV registration fees. Also, when the Shoshone Trail plan was being developed, the head of the State Parks Commission was Jeff Packer, who I believe lives in Box Elder County and whose son, Adam Packer, was the head of a Box Elder County ATV club.
Box Elder County and Brigham City promote ATV recreation for two reasons. First, whenever the issue comes up at a local meeting, a few dozen ATV enthusiasts show up to make their views known. Second, they're hoping to cash in on ATV tourism, as some of the towns in south-central Utah have apparently done from the Paiute Trail. In fact, there's no evidence that tourists who ride ATV's spend any more money than those who prefer to hike or mountain-bike. But since the Mantua area has already been mostly taken over by the ATV crowd, I guess the tourism promoters want to build on that.
Has anyone from the Selman family contacted Utah's Property Rights Ombudsman about this matter?
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