Piktin County, feds at odds over land-swap plan
August 4, 2008
ASPEN ” The U.S. Forest Service and Pitkin County are fighting over the best way to preserve lands in the forests surrounding Aspen.
In a case before the U.S. Court of Appeals in Denver, Pitkin County claimed the agency is taking action that threatens to undermine a program to preserve the backcountry.
The Forest Service countered that the county is interfering with its efforts to complete a land swap that the federal agency feels will greatly benefit the public.
Both sides are usually allied in their efforts to limit development of patented mining claims in the White River National Forest. And while they share the same goal in this case, their tactics are different.
The roots of this feud reach back to a 1994 land swap between Pitkin County and the Forest Service. Pitkin and Eagle counties traded 1,307 acres of patented mining claims, mostly surrounding Aspen, to the Forest Service to acquire 132 acres of the former Mt. Sopris Tree Farm in El Jebel.
The counties wanted to preserve the midvalley property for open space and recreation. Pitkin County also wanted to get little pockets of land it owned in the forest into the Forest Service’s hands for more effective management.
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Six years after that swap, 51 lawsuits, called quiet title actions, were filed by people who claimed Pitkin County traded property that really belonged to them. Fifteen of the quiet title actions were filed by Rick Deane of Aspen.
While the litigation plodded through the courts, the U.S. government reached a settlement with Deane, owner and operator of the T-Lazy-Seven guest ranch in the Maroon Creek Valley. According to court documents, the terms of the deal were as follows: Deane agreed to drop his ownership claim to 25 properties included in the tree farm land swap and convey that land to the Forest Service. In addition, Deane agreed to convey another 67 acres in the Maroon Bells-Snowmass Wilderness Area that weren’t part of the litigation.
In return for the 307 acres it received, the federal government agreed to give back 2.26 acres to Deane. That property is on the western side of Aspen Mountain and contains a small cabin. Deane agreed to limit the cabin size to 500 square feet.
“The United States viewed the proposed settlement as highly beneficial,” the federal government says in its brief filed in the court of appeals case. “The seven uncontested Deane parcels conveyed to the United States in the settlement are located in the Maroon Bells-Snowmass Wilderness Area and comprise 65 percent of the remaining private inholdings located in the wilderness area lying within Pitkin County. Properties in this area have a high priority for acquisition.”
By acquiring those parcels, the Forest Service acquires three recreational trails and a parking area used by the public without any formal easement, the brief says. The East Maroon Creek Pass and Conundrum Creek trails cross land that Deane agreed to convey to the agency. The parking area at Montezuma Basin, which provides access to Castle Peak, one of Colorado’s peaks exceeding 14,000 feet in elevation, would also be conveyed.
The Forest Service sought Pitkin County’s blessing of the settlement in 2006. The county in August 2006 objected to Deane retaining the 2.26-acres with the small cabin.
Deane and the agency moved ahead the following year with a request for a federal district court judge to approve the settlement.
“The county joined in the litigation and protested the parties’ request for judicial approval of their settlement,” Pitkin County says in an appellate brief. “The county contended that the parties’ sole motivation for obtaining the district court’s endorsement of their settlement was evading the subdivision laws.”
The federal district court judge approved the settlement between Deane and the Forest Service, finding that federal law overrides and pre-empts conflicting state laws. In other words, the judge found that the county couldn’t apply its subdivision regulations to the property Deane would keep in the settlement.
The county’s brief notes that Deane’s parcel is zoned “rural and remote,” which limits development on parcels of at least 35 acres. That zoning encourages property owners to sell transferable development rights (TDR) that can be used to increase density in other parts of the county.
“Over the years the rural and remote zone district and the TDR program have resulted in the protection of many thousands of acres in the backcountry areas of Pitkin County adjacent to, and interspersed within, U.S. Forest Service lands,” the county’s brief says.
The seven parcels in the wilderness area that Deane offered to convey in the settlement “already had their development rights stripped off and wilderness character preserved through the TDR program,” the brief continues.
The county also objected that the settlement was detrimental to its slow-growth efforts in the backcountry.
“If the Forest Service begins carving out federal lands in the rural and remote zone district and transferring them into private ownership, the entire purpose of the TDR program will be undermined, and the community balance underlying the program will be upset.”
Pitkin County on May 9 filed its appeal of the lower court’s approval of the settlement. The county claims that Forest Service regulations require that federal land exchanges follow certain regulations, including compliance with local regulations and zoning ordinances.
The county is asking the appellate court to reverse the district court’s approval of the settlement and require the lower court to hold a hearing on whether the Forest Service and Deane attempted to evade Colorado subdivision law.
The agency filed its response to the county’s appeal July 14. It said the settlement with Deane isn’t subject to county regulations.
“The Property Clause of the U.S. Constitution expressly grants the power to dispose of federal property to Congress, and Congress has vested authority to manage, acquire and dispose of national forest lands to the Secretary of Agriculture,” the U.S. brief says.
Congress has never granted states the power to regulate federal land settlements, it continues.
There is no indication of when the court of appeals will rule in the case.