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HomeMy WebLinkAbout3.01 Correspondence - James Beckwith 06.28.2002JAMES A. BECKWITH Attorney and Counselor at Law 7910 Ralston Rd., Suite 7 Arvada, CO 80002 303-431-9966 // FAX 303-431-2803 / E -Mail Ithamer@aol.com June 28, 2002 Board of County Commissioners Garfield County Garfield County Courthouse 109 Eighth St. Glenwood Springs, CO 81601 RE: Tepee Park / Forest Management Plan COMPLAINT OF GEORGE BAUER Dear Commissioners: As you are aware, I represent Mr. Norman A. Carpenter ("Carpenter") and Intermountain Resources, LLC ("IMR") regarding the harvest program being conducted in Tepee Park. On June 27, 2002, Carpenter and IMR received notice of Mr. George Bauer's complaint regarding the Tepee Park Project ("The Project"). This letter will be our written reply. GENERAL COMMENTS At the outset, the Commissioners should understand the purpose for harvesting timber within Tepee Park. The timber is largely composed of Engelmann Spruce, at altitudes greater than 9,500 ft. Tepee Park has not experienced a major or catastrophic fire in over 300 years. Tepee Park has not been significantly logged, or managed, at any time in recorded history. As a result, the Spruce stands are incredibly dense, with an overabundance of "understory" (the brush and smaller trees underneath the Engelmann Spruce). In addition, there is significant Spruce Bark Beetle infestations which have killed trees, and continue to kill Spruce trees. In short, Tepee Park is a virtual deathtrap for a wildland firefighter. There would be crown fires, understory fires and trunk fires. Professional forest management requires that the Spruce stands 1 1 be selectively harvested', together with reduction/elimination of understory build up. As we know from the Hayman Fire, Coal Seam Fire and Missionary Ridge Fires, this thinning must occur immediately to reduce the potential for wildland fire. The Project was originally proposed in 1997 by Tucker & Frase. As a condition of that application, a Forest Management Plan ("FMP") was filed with both US Forest Service and Garfield County. Due to extended litigation with Ms. Katharine Honea involving "VonDette Road" (the public easement across her property), neither logging nor road construction within Tepee Park were performed until Fall, 2001. As relevant here, the Porcupine Canyon Fire occurred in July, 2001. In response to this fire, certain roads were needed by US Forest Service, Garfield County Sheriff, Colorado State Forestry and INR in order to suppress the fire. The most direct access was across lands owned by Mr. Bauer. However, Mr. Bauer adamantly refused any access across his property. Circuitous routing was therefore required, resulting in 3 additional days of bulldozing (paid for by Garfield County Sheriff through the State Emergency Fund) in order to have access to suppress the Porcupine Canyon Fire. The Garfield County Extraction Permit was granted to IMR and Carpenter in Fall, 2001. Mr. William Gherardi is the inspector/forester designated in the Permit. Since roads had been cut for the Porcupine Fire, it was deemed most prudent to retain and improve those roads, rather than constructing new roads. Logging trucks and equipment could still negotiate the roads as needed for the harvest operation. In fact, the emergency fire roads exceeded the road standards for log transports as set in the FMP. Use of the fire roads, in lieu of creating new roads, was given written approval by Messrs. Gherardi and Bussone. Both Carpenter and IMR are aware that The Project lies within the Beaver Creek Watershed. The necessary Watershed Permit has been obtained from the City of Rifle. Mr. Paul Bussone, the water inspector designated in the Watershed Permit, has inspected The Project on repeated occasions to ensure compliance with the Permit. The Project has never failed to meet the Permit requirements. Mr. Carpenter disputes that there is an historical road or trail through Tepee Park. Nonetheless, an agreement has been reached with U.S. Forest Service for the creation of a hiking and equestrian trail across Tepee Park. This trail, however, will not be open for use by motorized vehicles (i.e., ATV's and snowmobiles). In exchange, Mr. Carpenter will receive a permanent easement over U.S. Forest Service Road 824 for access to Tepee Park. U.S. Forest Service is expecting to survey the hiking trail in 2002 and build the hiking trail at some future time, depending upon available funds. Obviously, the U.S. Forest Service has had wildfire suppression as its dominant priority during these past weeks. 1 Timber harvests are conducted in three general methods. "Clear cut" involves felling everything in sight within a specified area. "Thinning" involves felling a specific, designated percentage of all growth within a specified area. "Selective harvesting" involves felling trees meeting specific criteria (age; height; density; disease; pest infestation) within a specified area. 2 It should be noted that Mr. Bauer does not reside upon his properties in Secs. 8 and 24. (Indeed, no one resides within 1+ airline miles of the Project Site) Mr. Bauer lives in Silt, CO, and maintains a vacation trailer for occasional use. Mr. Bauer has improved the road accessing his property. However, Carpenter and IMR have not found any record of a Garfield County SUP or City of Rifle Watershed Permit allowing the improvements. Finally, it should be noted that the entirety of Tepee Park is private property, not open for public use or passage. Mr. Bauer's complaints are based upon observations which he could make only if he has performed repeated, extensive and persistent trespass upon Tepee Park. Mr. Bauer has been "caught" trespassing on several occasions, and repeatedly warned that he will be prosecuted. Mr. Bauer acknowledges, in his Complaint letter, that the property is clearly posted against such trespassing. Indeed, Tepee Park has been posted against trespassing since its purchase, by IMR, in 1997. SPECIFIC RESPONSES 1. TPFMP Existing Haul Roads As stated above, the initially planned roads within Tepee Park were modified after construction of the emergency fire roads necessitated by the Porcupine Canyon Fire (2001). These roads accommodate the needs of IMR, and its loggers, for adequate access. They meet the needs and requirements ofUS Forest Service for emergency access routes to suppress wildland fires. They have been given written approval by Mr. Bussone (Rifle Waterhsed) and Mr. Gherardi (County). Neither IMR nor Carpenter expect to realign these roads. The width, grade, benching and drainage of these roads within Tepee Park exceed the standards set forth in the original FMP filed by Tucker & Frase. In addition, IMR and Carpenter are installing a rock surface on the lower 1.8 miles of these interior roads to further improve water quality and abage possible erosion. Installation of this road base is not required in the Tepee Park Forest Management Plan. 2. Width of Roads Within Tepee Park / Outside Tepee Park In Fall, 2001, IMR improved the fire roads including the construction of drainage ditches, culverts and other requirements. IMR did reseed areas along these roads. By Spring, 2002, natural erosion and snow run-off (such as it was) had eliminated the ditches and blocked the culverts. The drought prohibited as much grass germination as IMR desired. At the elevations involved (9,500+ ft.), IMR is still encountering substantial ground moisture and surface run-off Stated simply, IMR's equipment has been working in mud. As the soil drains, IMR will be reconstructing the drainage ditches and installing new and additional culverts as needed. Roads within Tepee Park are not subject to U.S. Forest Service requirements, since USFS does not have jurisdiction over the private lands. Similarly, Garfield County does not regulate the width of our haul roads within Tepee Park. 3 Outside Tepee Park, there are three roads: (1) USFS Service Road 824; (2) "Von Dette Road" (the public easement across Ms. Honea's property); and, (3) Garfield County Road 317. The width of these roads is established and maintained pursuant to USFS and Garfield County requirements. If those requirements are 20 or 30 ft. wide, then that is pursuant to governmental directive. 3. Road Sections Greater Than 65% Slope IMR and Carpenter dispute that roads within Tepee Park are greater than 65% in slope. Mr. Bauer's calculations, of course, are based upon estimates from USGS Quad Maps but not actual measurement on site. As stated previously, these were roads cut in an emergency situation due to Mr. Bauer's lack of cooperation in wildfire suppression. Nonetheless, they are adequate for 1MR's needs and uses. It is undisputed that boulders, and felled trees, were disturbed in the construction process. The trees felled, however, are wholly on Tepee Park and not on USFS lands or Mr. Bauer's property. Contrary to Mr. Bauer's complaint, the roads are benched with drainage maintained and repaired as needed. 4. Compaction of Road Fill on Roads Greater than 50% Slope As soil conditions permit, the roads within Tepee Park will be continually improved. IMR hastens to add that its road construction projects are not even finished at this point in time. 5. Winter Operations / October 15 -April 15 Pursuant to the terms of the Garfield Extraction Permit, IMR improved GCR 317 in 1999 at a cost of $250,000. Grading, turn -outs and road base materials were made pursuant to Gafield County specifications. Garfield County Road & Bridge inspected and approved the improvements in September, 2001. Pursuant to the terms of the Special Use Permit (SUP) from U.S. Forest Service, IMR also realigned USFS Road 824 (south of the Honea property) in 1999-2000, at a cost of $225,000. Again, the grading, construction and road base materials were pursuant to USFS specification. USFS inspected and approved the improvements made. Pursuant to the terms of the USFS SUP, 1 R improved "VonDette Road" in Fall, 2001, after successful judgment declaring VonDette Road open to public use by IMR and Carpenter. Here as well, the grading, fill and road base materials were pursuant to USFS specification. USFS inspected and approved the improvements made. Mr. Bauer inquires about liability for road maintenance and design. For USFS Road 824 and Von Dette Road, the regulatory entity is U.S. Forest Service. For GCR 317, the regulatory entity 4 is Garfield County. Roads within Tepee Park, however, are not open for public use. They are clearly posted as "No Trespassing". The width, course and grade of the roads are adequate and proper for IMR's use. If Mr. Bauer is injured while trespassing upon Tepee Park, then liablity would be governed by Sec. 13-21-115(3)(a), C.R.S.: [trespasser can only recover for damages willfully or deliberately caused by the landowner] 6. Watercourse Protection Zone Mr. Bauer's letter does not identify that the "WPZ" is a 50 ft. corridor on each side of Beaver Creek. IMR has not logged nor performed any timbering activities (e.g., log skidding, etc.) within the WPZ. Twice each week, IMR monitors the water quality within Beaver Creek. IMR has paid Resource Engineering (Mr. Bussone' s private firm) to do extensive water monitoring of Beaver Creek. This testing greatly exceeds the requirements of the Forest Management Plan and the Rifle Watershed Permit. It should be noted that there are existing and well established crossings of Beaver Creek to allow access to the Mamm Creek area southeast of Tepee Park. These are on USFS property and, to our understanding, will be utilized by oil and gas companies performing drilling operations on USFS lease lands. These activities are beyond our regulatory control. 7. Fire Plan / Suppression Resource Inventory The TPFMP requires that there be a "tool box" of fire -fighting equipment on site during harvesting activities. IMR, at its own expense, provides to Mr. Willard Hahn, the contract logger: back -packed mounted water pumps and sprayers; Pulaski tools; shovels and other equipment on site for immediate fire suppression. Mr. William Gherardi, supervising forester, has observed, inspected and approved this equipment on repeated occasions. The logging equipment is cleaned at the end of each work day to remove limbs, leaves and other detritus material collected around the motors during operation. This equipment, and its maintenance, is also inspected on frequent occasions by Mr. Gherardi. Contrary to Mr. Bauer's complaint, chains on the skidder tires have not created sparks which could initiate a wildland fire. There is not, at present, a water truck on site. This is due to the problems of mud encountered by existing soil moisture and surface run-off within the Project site. 8. Concentration of Fuels / Slash Piles "Slash" is composed of the treetops and limbs on felled timber. There are two primary methods for handling slash. First, under the "In Woods" procedure, timber is felled and slash left within the immediate felling site. Second, under the "Landings" procedure, timber is felled and skidded to a central work area where slash is removed and stacked for burning. The original Tucker & Frase plan was to utilize the former method. After entry, and based upon site-specific standards, 5 IMR adopted the latter method. This was approved, writing, by Mr. Gherardi. Obviously, any logging leaves slash piles. Ordinarily, these slash piles would be burned, subject to acceptable burning conditions. The conditions within Garfield County (if not the entire State of Colorado) have not allowed any burning of the accumulated slash. 9. Supervision of Project Pursuant to Garfield County's Extraction Permit, the consulting forester on The Project is Mr. William Gherardi, of Woodland Management Consultants in Fort Collins, CO. Pursuant to County requirements, Mr. Gherardi reports to Garfield County, but his fees are paid by Carpenter and IMR. Mr. Gherardi will attend the July 1" Commissioners' meeting to answer questions regarding his observations, reports and conclusions. A similar arrangement exists under the Rifle Watershed Permit, where Mr. Bussone reports to the City of Rifle, but his services are paid by IMR and Carpenter. 10. Recreation and Visual Resources Contrary to Mr. Bauer's contentions, access across or within Tepee Park has never been dedicated to public use. The road into Tepee Park is a private road that has not become a public road by operation of Colorado law. There is no road that goes through Tepee Park. If Mr. Bauer believes otherwise, he may file his own litigation regarding the legal status of the road. Until such determination, any trespassing will be prosecuted by Mr. Carpenter. Tepee Park is as much private land as Mr. Bauer's properties in Secs. 24 (T7S/R94W) and Sec. 8 (T7S/R93W). Unlike Mr. Bauer, both Carpenter and IMR have allowed emergency access for wildland fire suppression. After all, wildfires are everyone's business. 11. Logging Truck Noise / Rights of Way on GCR 317 Sec. 42-4-711(2), C.R. S., grants right-of-way to an ascending vehicle, vis a vis a descending vehicle, on "...narrow mountain highways with turnouts having a grade of six percent or more....". The statutory exception is "...where it is more practicable for the ascending vehicle to return to a turnout...". So far as is known by Carpenter and IMR, Garfield County Road & Bridge designed the turn -outs to be within sight distance of each other - and on the creek side of the road. Right of way, of course, involves courtesies on the part of both ascending and descending vehicles. Logging trucks, of course, have greater momentum when descending dirt roads. To avoid brake failure by overheating, "Jake" brakes are employed to keep descending speeds to manageable limits. Signs are posted along GCR 317 advising that logging trucks are operating on the road. We have reviewed the letter ofMr. John Bernard regarding a traffic jam on GCR 317 on June 12t. Such incidents will occur on any road used by the public for both private and commercial transportation. The load transported on that date was not an overdimension load and not subject to 6 pilot car requirements. Obviously, multiple purpose usage of GCR 317 requires cooperation by all users, not merely the commercial user. 12. Dust Control Mag Chloride has been spread upon GCR 317, as required by Garfield County Road & Bridge. Mag Chloride was spread in 2001, and will be again spread in 2002 as directed by Garfield R&B. Dust control has been applied to Von Dette Road and USFS Road 824 are required by USFS. However, in the current drought conditions, dust is a problem on any dirt road within Garfield County. 13. Axle Configurations / Maximum Loads Contrary to Mr. Bauer's Complaint, the weight limit on GCR 317 is 80,000 lbs. The weight limit on GCR 320 is 75,000 lbs. There are no posted weight limits on VonDette Road or USFS Road 824. IMR logging trucks have not been cited for being overweight. Garfield County Road & Bridge has advised Mr. Bauer that the logging trucks are handling legal weight loads. 14. Hours of Operation Logging crews do go into the Project site at early morning hours. Felling of trees is conducted within the Project site throughout the day light hours. However, the transport of logs over USFS 824, VonDette Road and GCR 317 is limited to the specific hours set forth in the Garfield County Extraction Permit. During the Frost Thaw Period, IMR did not transport logs over these public highways. Instead, IMR felled trees and "decked" them for eventual transport in accordance with the hours of hauling specified in the County Permit. Contrary to Mr. Bauer's complaint, IMR does not operate 7 days per week. Moreover, IMR does not haul logs on weekends. 15. Season of Operation The Garfield County Extraction Permit allows continued logging through Winter Months, if weather and snowpack conditions permit. IMR's continued operation was reviewed, approved and accepted by Garfield County (Mr. Gherardi) and City of Rifle (Mr. Bussone). There was more than one reason to do so. IMR and Carpenter knew, in 2001, (as did USFS, Garfield County Sheriff and other professional observers) that the drought conditions would continue to build an extreme fire danger. This necessitated continued selective harvesting to reduce, as much as possible, the fire danger caused by Tepee Park's overdense conditions. 7 SUMMARY The Tepee Park Project is a professionally conducted harvest program. It is continuously monitored for both safety, environmental and wildfire controls. It has been repeatedly inspected for Watershed Preservation and successfully passed all such inspections. Construction, maintenance and repair of public roads leading to The Project has been performed in accordance with County and USFS specifications. Transports of felled logs over public highways have been performed in accordance with governing County and State road laws, without citation by either entity for any violations of those laws. Any revisions to the original Fire Management Plan have been presented to the designated County and City inspectors, and received their written approval. Accordingly, we do not believe that proper grounds exist for revoking, or attempting to revoke, the Extraction Permit granted to Carpenter and IMR for the Tepee Park Harvest. 5::submitted, James A. Beckwith 8