Friday, June 1, 2012

Landowners have right to close trails

In Idaho, property rights trump public access


By TONY EVANS
Express Staff Writer

Quigley Canyon trails that have been in use for generations were recently closed by the development group that owns the property. Photo by David N. Seelig

Hikers and bikers on the outskirts of Hailey have been surprised in recent years when well-worn trails on private property through riparian areas and steep foothills suddenly become off-limits to the public. Many are learning the hard way that public access can suddenly go away.

"The reality in Hailey is that a lot of recreation exists on private land. We have to try to protect it," said Greg Martin, director of the Wood River Bicycle Coalition and the Wood River trails coordinator for the Blaine County Recreation District. "Two out of the three most cherished recreation areas around Hailey—Quigley Canyon and Carbonate Mountain—are on private land. As we have learned with Quigley, a lot of it could go away tomorrow."

Martin said the extensive Croy Canyon trail system is on BLM land for the most part, except for Lambs Gulch and a connector to Two Dog trail from Democrat Gulch Road.

But the Croy Canyon trails system is miles from town.

The Carbonate Mountain trails, adjacent to Hailey city limits, were built surreptitiously years ago on private land at the mouth of Croy Canyon. The public was later granted license to use them by the owner of Deer Creek Ranch.

Real estate developers Dave Hennessy, Jeff Pfaeffle and Grant Stevens have flexed their legal muscle by prohibiting public access near the city of Hailey, especially when they do not get what they want from city officials.

Pfaeffle and Stevens last year followed through on a threat to fence off a 1.5-mile trail along the Big Wood River that had been used for generations to reach Colorado Gulch. The property was fenced and posted with no trespassing signs. The off-limits warnings were posted after the City Council voted not to annex nearby property for a housing development on Broadford Road.

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Last week, Hennessy cut off access at the mouth of Quigley Canyon to a few miles of hiking and biking trails on his land and public land on the north side off Quigley Canyon, one day after his four-year-long annexation request was denied by the city. Hikers and bikers now need to travel several miles into Quigley Canyon before gaining public access to trails.

Hennessy said he also plans to forbid Nordic skiing in Quigley, which has been allowed for 10 years.

The trail closures may cause anger and frustration for hikers and bikers, but there is little that can be done legally to force the property owners to reopen them, said Blaine County Deputy Prosecuting Attorney Tim Graves.

Graves said property owners can allow access on trails to anyone they want to through private easements, but securing access to the general public based on historical use without the owner's permission is unlikely. He said that would require a court to uphold a claim of "prescriptive easement."

Graves said many roads, including Quigley Road, are used and maintained under prescriptive easements. Public use of Colorado Gulch Road was secured only when a prescriptive easement on the road was upheld by the Idaho Supreme Court, said Hailey City Attorney Ned Williamson.

However, Graves said he did not know of any trails in Blaine County that had been secured in this way, and Idaho law does not provide a mechanism for the general public to do so.

In a 1979 case, the Idaho Supreme Court stated that such an easement can be obtained only by individual users.

Even that is difficult to obtain. A 2006 Supreme Court case denied a prescriptive easement to skiers who had long hiked across the property of George B. Fisher LLC to get to the Warm Springs ski lifts, on the grounds that the plaintiffs had been using the trail with the owner's implied permission and had not indicated an intent adverse to his interests.

Tony Evans: tevans@mtexpress.com




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