Opinion by Karen Budd-Falen

Power of the Bureaucracy to Stop Private Property Access
By Karen Budd-Falen, Attorney, Budd-Falen Law Offices

    What started as an attempt to get access across BLM land in western Colorado for one patented mining claim owner has turned into a full scale war by the federal government to make an example out of a private landowner to “deter [actions regarding access to private property] in the future.”
    Private landowner Andrew VanDenBerg is at the center of the controversy, including now being vilified by a press release issued by the Colorado U.S. Attorney’s Office (part of the U.S. Justice Department).
    The Alaska National Interest Lands Conservation Act (ANILCA) guarantees access to private property across federal lands. Although the private landowner is required to file an application explaining the location of such access, that application cannot be denied under ANILCA. According to the Senate Committee reports regarding ANILCA, Congress intended to eliminate the federal government’s discretion in allowing adequate and feasible access to inholdings by “direct(ing) the Secretary to grant the owner of an inholding such rights as are necessary to assure adequate access to the inholding and is intended to assure a permanent right of access to the concerned land across, through or over these Federal lands by such State or private owners or occupiers and their successors in interest.”
    The problem with the application system however is that the BLM routinely, and many times intentionally and unreasonably, delays processing such applications, thereby denying access to the private property during the processing. It is more common than not to have an application for access delayed for years, all the while denying access to private property. How can a private landowner enjoy and use his property if he cannot get to it?
    So starts the story for VanDenBerg. He cannot access his private property and the federal government refuses to process his application for reasonable access. But that is not the entire story.
    In complete frustration at the bureaucratic delays and denials, VanDenBerg decided to use an existing road to get to his property. This road, noted as an existing road on the 2005 San Juan National Forest map and known as County Road 33A, has been in existence since 1886. The road was clearly visible on the ground as well as noted on the federal government’s maps. VanDenBerg cut dead fall timber from the roadway and moved it out of the way. Although he followed the tracks of the road and he did not get out of the roadway that has existed for over 125 years, the BLM charged him with civil trespass charges in federal district court.
    Not wanting to expend the money on a huge and expensive trial, VanDenBerg decided to settle with the BLM. The settlement agreement states that VanDenBerg does not admit to ANY of the claims or assertions put forward by the government and that he is simply reimbursing the federal government for the reclamation of the dead trees he cut. Although he did not want to settle with the federal government, he recognized that the largest law firm in the world, the U.S. Justice Department, represents the federal government and that he would be buried in litigation costs. He thought a settlement agreement would end the matter and that the BLM would process his application so that he could have the access to his private property that he was promised by Congress.
    Before the ink on the agreement was barely dry, the U.S. Attorney’s Office issued a “press release” that incorrectly labels VanDenBerg as a “trespasser” and claiming his attempt to access his own private property is “unauthorized.” The release also states that VanDenBerg’s actions occurred in a “wilderness.” VanDenBerg had disputed all of those statements. Even the settlement agreement itself noted that these statements are only allegations by the U.S., yet their press release states them as fact.
    When asked about the false and misleading statements in the press release (in addition to noting that VanDenBerg denied all of the allegations in the settlement agreement), the U.S. Attorney noted in an e-mail to VanDenBerg’s attorney, “While I realize that you and your client were disappointed in the press release, . . . it is routine for this office to issue press releases on these kinds of settlements, especially in cases where the conduct is of the kind that we hope to deter in the future.”
    The attitude taken by the federal government reminds me of the EPA Administrator who resigned in April of 2012 after his admission that the EPA enforcement is “like how the Romans used to conquer little villages in the Mediterranean. They’d go into a little Turkish town somewhere, they’d find the first five guys they saw, and they would crucify them. And then you know that town was really easy to manage for the next few years.”
    He then said the same approach could prod companies (and individuals) to obey environmental laws: “You make examples out of people who are not complying with the law.”
    In specifically reviewing the EPA’s tactic, often the “violations of the environmental laws” were not based upon statute or regulation, but based upon an interpretation by EPA personnel. The same holds true in these access cases.
    Congress guaranteed the right of access to private property across federal land. However, the intent of Congress is being completely ignored because individual landowners do not have the time and money to enter into costly legal battles against the massive bureaucracy to enforce their right of access to their private property. Exposing these infringements upon individual rights to the public and to Congress is a way to have these governmental agencies and the individuals within the agencies stop their unlawful coercion, intimidation and strong-arm tactics against individual citizens who have limited resources to defend themselves against these injustices.
    VanDenBerg has continually tried to gain access approval to his private property that he has owned since 2007; the BLM refused to grant him adequate access, and he still has no access to his private property. Even though the BLM and VanDenBerg settled their legal dispute with neither party proving their case and VanDenBerg specifically stating that he did not admit liability for any fact or legal conclusion, the U.S. Attorney’s Office still issued a press release to make an example out him like the Romans did to conquer Turkish towns.
    Given the magnitude of the number of private individuals harmed by these illegal types of actions, it is no wonder that so many injured individuals mistrust the federal government.