Chuck Roady and his family had been working for nearly 20 years to secure the right to reliably access their private parcel of land within a national forest near the U.S.-Canadian border. Then green extremists threw a monkey-wrench into everything using federally-protected grizzly bears as a pretext.
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The owner of an “inholding” – an island of private land surrounded by public land – would appear to have it made in the shade. They enjoy unparalleled peace and solitude, no pesky neighbors, unobstructed views, and direct access to the natural and recreational amenities just beyond the property line.
It’s a great place to be. If you can get there. And that’s where inholders can face challenges.
These properties frequently must be accessed through rugged and remote rural roads that cross bureaucrat-controlled public lands. If an inholder is somehow denied access, or access becomes so difficult that the property becomes virtually unusable, the little slice of paradise can become a prison – one from which an owner is locked out. A highly valuable asset is suddenly worthless. Your property rights can go “poof” in the blink of an eye.
Which brings us to the story of Bog Creek Road and the case of Center for Biological Diversity v. US Forest Service, in which MSLF represents Chuck Roady and three other families who own Continental Lands Incorporated (“CLI”).
CLI’s inholding is located within the Idaho Panhandle National Forest not far from the Canadian border. The families use Forest Service roads to access the property, and that’s where complications arose in a legal dispute involving endangered species, property rights, and border security.
Sparking conflict was a January 2020 joint decision by the US Forest Service and the US Customs and Border Protection to repair and commence maintenance on a 5.6 mile stretch of Bog Creek Road connecting several Border Patrol stations. The road repair request came from Washington, in response to increased threats posed by an extensive road network just north of the border, which has doubled in density in the last decade.
There was no new roadbuilding involved. Bog Creek Road is already classified as open to restricted use; it simply had fallen into disrepair and was no longer passible. In a bid to offset any potential impacts stemming from the project, the Forest Service also closed approximately 26 miles of nearby roads to motorized use.
In addition to the Bog Creek Road repairs, the joint decision also affirmed the CLI owners’ right to access their property from the east via several Forest Service access roads. Chuck and the other owners have been accessing their property from this route for nearly 20 years; this decision finally gave them the right of reasonable access they were legally due.
Further complicating matters, however, was the fact that the roads in question are located within designated grizzly bear habitat, leading to a predictable lawsuit from the predictable parties, led by the Center for Biological Diversity (“CBD”). CBD & Co. challenged the decision on the grounds that it violates the National Forest Management Act and the National Environmental Policy Act.
The plaintiffs assert that the road changes somehow hamper the free movement of the Selkirk population of federally-protected grizzly bears. This claim ignores all other considerations, including the ability of inholders to access their property and the need for a more secure northern border. Also ignored by the plaintiffs are the more than 40 miles of open road immediately north of the border, in Canada, which grizzlies also must cross in any north-south movements.
If the plaintiffs succeed in reversing the decision, border security could suffer. But more importantly from MSLF’s perspective, Roady and other inholders who rely on that stretch of road will be effectively cut off from their property during seasonally restricted periods. This is a flagrant violation of their property rights, since lack of access unreasonably burdens the inholders’ enjoyment and use of their property and directly violates federal statutes such as the Alaska National Interest Lands Conservation Act, which requires access to private inholdings located wholly within a National Forest.
The families that own this inholding have been working for nearly 25 years to secure access to their property, “and now this case has thrown another hurdle to complicate their efforts from this access being finalized,” says a frustrated Chuck Roady. “The Bog Creek Road case is a stereotypical example of environmental litigants attacking a project that is a proposal to simply re-open a much-needed old road for Customs and Border Protection agents who provide protection along our international border with Canada.”
Perhaps inholders are just the unintended casualties of an effort by green extremists to hinder Border Patrol operations in the area, using grizzly bears as a pretext. But organized environmentalists have never been the friends of property owners, or great defenders of property rights, so maybe they’ll count a “win” in this case as a two-fer, simultaneously striking a blow against border security and property rights.
MSLF’s imperative is to ensure that CLI inholders retain their rightful property access, regardless of what happens with the other aspects of the case.