Forest Service officials try to find something that’s like Berlaimont proposal
That question was deceptively simple — What is like Berlaimont?
“The words we use in our regulations are ‘similarly situated properties,'” said Scott Fitzwilliams, a White River National Forest Service supervisor. “The question is what is similar to this inholding?”
An inholding is private land that’s surrounded by public property.
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If the answer to that question had been “Fulford” — the former mining camp located southeast of Eagle, which features a cluster of private cabins mainly accessible in the summer — the Berlaimont plan would look a lot different today. Fitzwilliams noted the answer could have been “Cordillera,” noting that high-end residential development in the Eagle Valley is common.
“There is nothing unusual about a Berlaimont-type development, they are on both sides of the highway,” said Fitzwilliams.
“In the immediate area of Berlaimont, there aren’t any inholdings that are identical,” Fitzwilliams continued.
However 30 miles to the north, he believes a good comparison does exist at Lake Agnes.
According to a 2007 story published by the Steamboat Pilot and Today, Lake Agnes is a national forest inholding located roughly 23 miles from Steamboat along U.S. Highway 40 in the extreme northwest corner of Grand County where Routt, Grand and Jackson counties come together. The lake is a natural body of water measuring 110 acres, surrounded by 19, 35-acre single-family lots. Some of the lots have cabins on them, some have larger homes and some are still vacant.
“I would have had to find some compelling reason why Berlaimont is different (than Lake Agnes),” Fitzwilliams said. “I would have had to find a pretty good reason why the Forest Service had allowed that development, but would not allow it here.”
Not everyone agrees with that assessment.
Federal law is steering the Berlaimont review, and as with the determination of “similarly situated” properties, there are other subjective decisions that come into play.
Under the provisions of a 1980 federal law called the Alaska National Interest Lands Conservation Act, owners of properties such as Berlaimont, which are surrounded by USFS land, are entitled to “reasonable use” of their land. The act also requires “adequate and feasible” access to in-holding properties. That is the impetus for the White River Forest’s environmental impact statement on Berlaimont — to analyze and disclose the environmental effects of providing access to the private property.
The proposed access to Berlaimont is a paved, year-round road. Eagle County granted a variance to allow the road plan, noting the approval did not signal support for the development but rather provisions for the type of road that would be required if the proposal is built.
According to Peter Hart, conservation analyst and staff attorney for the Wilderness Workshop (a non-profit group that is spearheading the Berlaimont opposition), the road issue is a prime example of why the Berlaimont plan isn’t reasonable. The access to Berlaimont is the type of road that you would expect to access a mountain subdivision, not a national forest in-holding, Hart argued.
“This project is more grandiose than what is normally seen on inholdings,” Hart said. “Look at Fulford, for example. There is a whole community up there that doesn’t have plowed access in the winter.”
Piney River Ranch is another inholding example, Hart said. At that location, the only winter access is by snowmobile.
Hart believes the Lake Agnes example also supports the argument against Berlaimont. He said that 35-acre parcel development doesn’t have paved access and the road through Forest Service lands is only about a mile long, not four miles long.
“When you think about an inholding, there is one defining characteristic and that is that is it completely surround by federal land,” Hart said. “There is nothing comparable (to Berlaimont) and that would lead me to the logical conclusion that what’s being proposed here is not reasonable. There is nothing like it.”
Road to debate
Fitzwilliams knows that the Berlaimont proposal is not popular locally, with residents urging the Forest Service to reject the proposal because of its impact on wildlife populations, recreational uses and other concerns. But an outright refusal to allow access to the inholding isn’t really something the Forest Service can do.
Fitzwilliams said there is a lot of nuance involved in the Berlaimont review, which requires him to consider previous decisions nationwide. He cited a case from Minnesota where the Forest Service followed the provisions of the ANICA with a proposal for a dirt access road that traversed national forest and landed in an inholding swamp area. That case went to court and the Forest Service lost.
“The judge ruled that wasn’t reasonable use,” Fitzwilliams said.
In looking at the provisions of ANILCA and court decisions related to the law, Fitzwilliams believes that year-round access to the Berlaimont parcel is necessary to meet the reasonable use requirement. That provision has been part of the draft Environmental Impact Statement and the focus of opposition to the plan.
“The owner bought that property with seasonal wildlife closures in place and they bought it with a dirt road access,” Hart said.
Hart said the Forest Service has broad discretion to address the mandate of ANILCA and said the agency could rule that a dirt road access, similar to what currently exists, meets the adequate and feasible standard when compared to similarly situated parcels such as Fulford, Piney River Ranch and Lake Agnes. In contrast, Hart argued paved two-lane roads access areas such as Wildridge, Singletree and Cordillera.
“They used those areas to come to the conclusion that Berlaimont is a reasonable use and those conclusions and the framework for that analysis just doesn’t follow to me,” said Hart.
Litigation on the horizon
The Berlaimont debate has become one of the most prominent local issues in Eagle County and residents have been outspoken in their opposition.
“Frankly, I can’t imagine that the Forest Service isn’t hearing that,” Hart said, “and until the Forest Service makes its decision, nothing is final.”
Working toward that final decision, Fitzwilliams anticipates the Berlaimont Final Environmental Impact Statement Draft of Decision will be released this summer. After the final EIS draft is presented, there will be an objection period.
The final say on the Forest Service’s Berlaimont decision will be a Record of Decision. Once that document is adopted, objectors can take their case to court, provided they have previously submitted comments on the plan.
“You can’t have just sat on the sidelines and then file a lawsuit,” said Fitzwilliams.
Looking down the road, it seems as though a Berlaimont lawsuit is inevitable. If the owners are not granted access they deem reasonable, they can take the Forest Service to court. If the plan proceeds with a paved, year-round road, opponents appear poised to litigate the matter.
“I try not to get myself into a situation where I am working backwards from a potential lawsuit,” said Fitzwilliams.
Instead, he said he has committed himself to listening to the public, conducting a transparent process and proposing the best plan possible.
“My job is to try to take all the emotion out of the decision. Eventually what you will be litigated over is this: Did you follow the law?” he concluded.
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