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HomeMy WebLinkAboutCorrespondence Regarding BLM Right-of-Way 10.13.2016BLOCKWICK EISENSTEIN KRAHENBUHL, LLC DAVID G. EISENSTEIN dge@bek-law.com t/ , 2672 NORTH PARK DRivE, SurrE 200, LAFAYETTE, COLORADO 80026 PHONE (303) 449-4400/DIRECT (303) 4434434 October 13, 2017 VIA email only to gharimann@garfield-county.com Glenn Hartmann, Senior Planner Garfield County Community Development Department P.O. Box 791 Glenwood Springs, CO 80306 RE: Zurcher ADU (GAPA-04-16-8444) Dear Glenn: I am writing to you on behalf of my client, Antonia Zurcher, to explain that the BLM Right of Way grant provided to her as reflected in the documents I previously provided to you is the only and the best "easement" that can be provided to a private property owner from the BLM to confirm access over and use of the federal lands in question. The Right of Way grant from the BLM authorizes Ms. Zurcher to use the "public land" for the driveway that has been in a place, as we have discussed, for many years, at least since the original farm house was constructed on the property. The federal laws and regulations governing the granting of these kinds of rights of use do not allow a conveyance in fee or a permanent easement to be granted. Rather the grant of use, in this case in the form of a Right of Way grant, is for a specified term. The Federal Land Policy and Management Act of 1976, as amended (FLPMA), is the federal law governing the BLM's authority and ability, among other things, to grant rights of way over federal lands. FLPMA requires a right of way grant be limited to "a reasonable term in light of all circumstances concerning the project." The grant of the right of way must also specify whether it is or is not renewable and the terms and conditions applicable to the renewal. See FLPMA, Section 504 (43 U.S.C. 1764). As per the BLM Manual governing terms and conditions applicable to FLPMA grants: "[t]he term of each grant shall be specific and is primarily dependent upon a reasonable period needed to accomplish the purpose of the authorization" and "no term should exceed 30 years" except for certain specific instances that are not applicable to this situation, such as grants to governments for highways and roads, reciprocal grants, and where lands are being transferred out of federal ownership. Glenn Hartmann, Senior Planner Garfield County Community Development Department RE: Zurcher ADU (GAPA-04-16-8444) October 13, 2017 Page 2 In this instance Ms. Zurcher has obtained a grant of 30 years, the longest term allowable, and the grant is renewable, as specifically stated in Section 2.d. of the approval. The renewal is essentially automatic so long as the applicant applies for the renewal at least 120 calendar days before the grant expires and is in compliance with the terms and conditions of the grant. The renewal is a very simple process, involving filling out a form and submitting it to the BLM with the application fee. All fees due to the BLM for the full term of the Right of Way Grant have been paid by Ms. Zurcher, including the application and processing fee, rent and the monitoring fee, so the Right of Way Grant is fully "vested" and in place and cannot be taken away. It is as permanent an approval and right of way and the best form of "easement" as can be obtained from the BLM. Please let me know if you have any further questions in this matter. Otherwise please confirm the BLM Right of Way Grant is acceptable "documentation of an easement granted from the Bureau of Land Management for the existing access driveway shown on the site plan" and that Condition 6 of the Decision by the Director of the Garfield County Community Development Department regarding the above referenced application has been satisfied. Thank you very much for your help and cooperation in this matter. Sincerely, . )aaai C'. Ehieafecn David G. Eisenstein ec: Toni Zurcher Bridger Smith IN REPLY RIJLR TO: COC 78653 281001 United States Department of the Interior BUREAU OF LAND MANAGEMENT Colorado River Valley Field Office 2300 River Frontage Road Silt, Colorado 81652 September 21, 2017 CERTIFIED MAIL 7015 0640 0006 5780 6621 RETURN RECEIPT REQUESTED Antonia Zurcher 4110 County Road 243 New Castle, CO 81647 Decision Right -of -Way Grant Serial No. COC 78653 Right -of -Way Grant COC 78653 Issued Rental Determined Monitoring Fee Determined Enclosed is a copy of your right-of-way (ROW) grant, serial number COC 78653 which allows the use of public land for a access road. It was approved by the BLM on 9/21/2017. The advance rental for the ROW is determined to be $195.42 for the period from 10/01/2017 to 12/31/2047. BLM has received your advance rental for this period. All subsequent rental billings will be due at the beginning of the calendar year starting 01/01/2048. Future billings will be based on the rent schedule in effect at that time. The monitoring fee for this ROW is determined to be a Category 1, which is $123.00. BLM has received your monitoring fee. This decision may be appealed to the Interior Board of Land Appeals, Office of the Secretary, in accordance with the regulations contained in 43 CFR, Part 4 and the enclosed Form 1842-1. If an appeal is taken, your notice of appeal must be filed in this office (at the above address) within 30 days from receipt of this decision. The appellant has the burden of showing that the decision appealed from is in error. If you wish to file a petition (request) pursuant to regulations 43 CFR 2801.10 or 2881.10 for a stay (suspension) of the effectiveness of this decision during the time that your appeal is being reviewed by the Board, the petition for a stay must accompany your notice of appeal. A petition 3 for a stay is required to show sufficient justification based on the standards listed below. Copies of the notice of appeal and petition for a stay must also be submitted to each party named in this decision and to the -Interior Board of Land Appeals and to the appropriate Office of the Solicitor (see 43 CFR 4.413) at the same time the original documents are filed with this office. If you request a stay, you have the burden of proof to demonstrate that a stay should be granted. Standards for Obtaining a Stay Except as otherwise provided by law or other pertinent regulation, a petition for a stay of a decision pending appeal shall show sufficient justification based on the following standards: (1) The relative harm to the parties if the stay is granted or denied, (2) The likelihood of the appellant's success on the merits, (3) The likelihood of immediate and irreparable harm if the stay is not granted, and (4) Whether the public interest favors granting the stay. If you have any questions contact Monte Senor, Realty Specialist, at (970)876-9053. Enclosure(s) ROW Gram BIN Form 1842-1 (Appeal Form) 2 Sincerely, G1ibbetts A Field Manager Form2800-14 (August 1985) UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT RIGHT-OF•WAY GRANT/TEMPORARY USE PERMIT Issuing Office LLCON04000 Serial Number COC 78653 I A (right-of-way) (permit) is hereby granted pursuant to a 0 Title V of the Federal Land Policy and Management Act of October 21, 1976 (90 Stat 2776, 43 U S.0 1761), b. ❑ Section 28 of the Mineral Leasing Act of 1920. as amended (30 U S C. 185): c El Other (describe) 2. Nature of Interest a. By this instrument, the holder Antonia Zurcher right to construct, operate, maintain, and terminate a Access Road on public lands (or Federal land for MIA Rights -of -Way) described as follows Sixth Principal Meridian, Colorado T. 4 S., R. 91 scc. 35, SEI/4SE1/4. b. The right-of-way or permit area granted herein is 20 feet wide, 30 Tess. Ifa site type facility, the facility contains N/A acres receives a feet long and contains 0.01 acres, more or c This insuumcnt shall terminate on € 2/31/2047 30 years from its effective date unless, prior thereto, it is relinquished, abandoned, terminated, or modified pursuant to the terns and conditions afthis instrument or of any applicable Federal law or regulation d This instrument0ntay❑may not be renewed. If renewed, the right-of•way or permit shall be subject to the regulations existing at the time of renewal and any other terms and conditions that the authorized officer deems ncea'ssary W protect the public interest, c Notwithstanding the expiration of this instrument or any renewal thereof, early relinquishment, abandoment, ortcrmination, the provisions of this instrument, to the extent applicable, shall continue t effect and shall be binding on the holder, its successors, nr assigns, until they have fully satisfied the obligations arrdror Iiahilities accruing herein before or on account cf the expiration, or prior termination, of the grant (Continued on page 2) 3 Rental For and in consideration of the rights granked, k W holder agrees to pay the Bureau of Land Management fair market value rental as determined by the authorized officer unless specifically exempted from such payment by regulation. Provided, however, that the rental may be adjusted by the authorizedotMeer, whenever necessary, to reflect changes in rhe fair market rental value as determined by the application of sound business management principles, and so far as practicable and feasible, in accordance with comparable commercial practices 4 Terms and Conditions o This grant or permit is issued subject to the holder's compliancewith all applicable regulations contained in Title 43 Code of Federal Regulations pans 2800 and 2880. b. Upon grant termination by the authorized officer, all improvements shall be removed from the public lands within 120 days or otherwise disposed of as provided in paragraph (4Xd) or as directed by the authorized officer c. Each grant issued pursuant to the authority of paragraph (1 Xa) for a term of 20 years or more shall, at a minimum, be reviewed by the authorized officer at the end of the 20th year and at regular intervals thereafter not to exceed 10 years Provided, however, that a right-of-way or permit granted herein may be reviewed at any lime deemed necessary by the authorized officer. d The stipulations, plans, maps, or designs set forth in Exhibit(s) A dated 07/12/2017 attached hereto, arc incorporated into and made a part of this grant instrument as fully and effectively as if they were set forth herein in their entirety e Failure of the holder to comply with applicable law or any provision of this righter -way grunt or permit shall constitute pounds for suspension or termination thereof. f The holder shall perform all operations in a good and workmanlike manner so as to ensure protection of the environment and the health and safely of the public. IN WITNESS WHEREOF, The undersigned agrees to the terms and conditions of this right-of-way grant or permit. (Signature of Holder) ignature of Authorized Officer) Actin' Field Manager (Tale) (Title) fZe) 1 ;01/ (Date) P- (Effectve Dale of Grant) (Form 2800-14, page 2) COC 78653 Colorado River Valley Field Office 7/12/2017 COC 78853 Location 0 0 0379 0 075 Iaaarm ■eaa!tleirr,aruml irrt i<191r4107 er NM% or warrarl110r Male *apt= lee aawra apa wow Kiri end Meow Oaf tea/ fte/aMA, Mxt AXIOM !A Cupl 06•EzaN 7l llR aa. t;' 015 1 4,000 alias N a 210 4 i 1 kin ix 5 Count! Road Na 243 Main Ells Creek ' gg� �rcB �# F3. `B SP' STIPULATIONS. 1. The holder shall contact the Authorized Officer (AO) at least 180 days prior to the non- emergency anticipated start of any surface disturbing activities. It is the holder's responsibility to comply with all applicable Federal, State, and local laws and regulations existing or hereafter enacted or promulgated. The BLM will determine if any surveys or inventories are required. As necessary, the holder shall demonstrate compliance in writing, i.e., with surveys and inventories completed by qualified individuals, with the following laws including, but not limited to, the Endangered Species Act (if potential habitat is determined to be present), the National Historic Preservation Act, and the Native American Graves Protection and Repatriation Act. Evaluations and inventories can be completed by BLM, or by the holder in order to meet the holder's schedule and subject to approval by the AO. Inventories may be time sensitive and may require US Fish and Wildlife Service concurrence, therefore this process could take longer than 60 days to complete. 2. Cultural Resources - Education/Discovery Stipulations. E. Pursuant to 43 CFR 10.4(g) the holder of this authorization or its contractor must notify the AO, by telephone, with written confirmation, immediately upon the discovery of human remains, funerary items, sacred objects, or objects of cultural patrimony. Further, pursuant to 43 CFR 10.4(c) and (d), the holder must stop activities in the vicinity of the discovery and protect it for 30 days or until notified to proceed by the AO. F. The operator or its contractor is responsible for informing all persons who are associated with the project operations that they will be subject to prosecution for knowingly disturbing historic or archaeological sites, or for collecting artifacts. If historic or archaeological materials are uncovered during any project or construction activity, the operator must stop work in the area of the discovery that might further disturb such materials, and immediately contact the AO. Within five working days the AO will inform the operator as to the mitigation measures the operator will likely have to undertake before the site can be used (assuming in place preservation is not necessary). G. The holder shall notify the AO at least 180 days prior to non -emergency activities that would cause surface disturbance in the lease, ROW, or TUP. The BLM will determine if a cultural resource inventory, treatment, or mitigation is required. H. A "Notice to Proceed" stipulation shall be required for any non -emergency activities as defined above that would cause surface disturbance on the lease, ROW, or TUP. Any request for a "Notice to Proceed" should be made to the AO, who shall review the proposed action for consistency with resource management concerns such as wildlife, big game winter range, paleontology, threatened and endangered species, and cultural resource protection. Additional measures may be required to protect these resources. 3. Paleontological Resources — Discovery Stipulations. Page I 1 The applicant is responsible for informing all persons who are associated with the project operations that they will be subject to prosecution for disturbing or collecting vertebrate or other scientifically -important fossils, collecting large amounts of petrified wood (over 251bs./day, up to 250lbs./year), or collecting fossils for commercial purposes on public lands. If any paleontological resources are discovered as a result of operations under this authorization, the applicant or any of his agents must stop work immediately at that site, immediately contact the BLM Paleontology Coordinator, and make every effort to protect the site from further impacts, including looting, erosion, or other human or natural damage. Work may not resume at that location until approved by the AO. The BLM or designated paleontologist will evaluate the discovery and take action to protect or remove the resource within 10 working days. Within 10 days, the operator will be allowed to continue construction through the site, or will be given the choice of either (a) following the Paleontology Coordinator's instructions for stabilizing the fossil resource in place and avoiding further disturbance to the fossil resource, or (b) following the Paleontology Coordinator's instructions for mitigating impacts to the fossil resource prior to continuing construction through the project area. 4. The holder shall comply with applicable State standards for public health and safety, environmental protection and siting, construction, operation and maintenance, if these State standards are more stringent than Federal standards for similar projects. 5. The holder shall comply with all applicable Federal laws and regulations existing or hereafter enacted or promulgated regarding toxic substances or hazardous materials. In any event, the holder shall comply with the Toxic Substances Control Act of 1976, as amended (15 U.S.C. 2601, et m .) with regard to any toxic substances that are used, generated by or stored on the lease or on facilities authorized under this lease. (See 40 CFR, Part 702-799 and especially, provisions on polychlorinated biphenyls, 40 CFR 761.1-761.193.) Additionally, any release of toxic substances (leaks, spills, etc.) in excess of the reportable quantity established by 40 CFR, Part 117 shall be reported as required by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, section 102b. A copy of any report required or requested by any federal agency of state government as a result of a reportable release or spill of any toxic substances shall be furnished to the authorized officer concurrent with the filing of the reports to the involved Federal agency of State government. 6. All construction, operation and maintenance shall be within the authorized limits of the lease granted herein. 7. No construction or routine maintenance activities shall be performed during periods when the soil is too wet to adequately support such equipment. If the equipment creates ruts in excess of four (4) inches deep, the soil shall be deemed too wet to adequately support the construction equipment. Page 12 8. Prior to termination of the lease, the holder shall contact the authorized officer to arrange a joint inspection of the lease. This inspection will be held to agree to an acceptable termination and rehabilitation plan as necessary, This plan shall include, but is not limited to, removal of facilities, drainage structures, or surface material, recontouring, topsoiling, and seeding. The authorized officer must approve the plan in writing prior to the holder's commencement of any termination activities. 9. The holder shall be responsible for weed control within the limits of the ROW. The holder is responsible for consultation with the authorized officer and/or local authorities for acceptable weed control methods (within limits imposed in the grant stipulations) including pesticides/herbicides approved for use on BLM land. Use of pesticides/herbicides shall comply with the applicable Federal and state laws. Pesticides/herbicides shall be used only in accordance with their registered uses and within limitations imposed by the Secretary of the Interior. Prior to the use of pesticides/herbicides, the holder shall obtain from the authorized officer written approval of the applicant's plan showing the type and quantity of material to be used, pest(s) to be controlled, method of application, location of storage and disposal of containers, and any other information deemed necessary by the authorized officer. The plan should be submitted no later than March 1 of any calendar year to cover the proposed activities for the next growing season. Emergency use of pesticides/herbicides shall be approved in writing by the authorized officer prior to such use. 10. As directed by the authorized officer, all road segments shall be winterized by providing a well -drained roadway by water barring, maintaining drainage, and any additional measures necessary to minimize erosion and other damage to the roadway or the surrounding public lands. 11. The holder shall seed all disturbed areas with the seed mixture(s) listed below. The seed mixture(s) shall be planted in the amounts specified in pounds of pure live seed (PLS) per acre. There shall be no primary of secondary noxious weed seed in the seed mixture. Seed shall be tested and the viability testing of seed shall be done in accordance with State law(s) and within 12 months prior to purchase. Commercial seed shall be either certified or registered seed. The seed mixture container shall be tagged in accordance with State law(s) and available for inspection by the authorized officer. Fire Prevention and Control Stipulations 1. The Holder shall indemnify the United States for any and all injury, loss or damage to life or property, including fire suppression costs, the United States may suffer as a result of losses, claims, demands or judgments caused by Holder's use or occupancy of public lands under this grant or permit. 2. Holder shall maintain the lease in a safe, usable condition. Page 13 4. When performing construction and maintenance (including emergency repairs) activities during the "closed" fire season (May 10 — October 20), as set by Colorado State Law, or during any other closed fire season prescribed by the BLM Colorado State Director, the Holder, including any persons such as contractors, etc. working on their behalf, shall equip at least one on-site vehicle with firefighting equipment, including, but not limited to, fire suppression hand tools (i.e. shovels, rakes, Pulaski's, etc.), a 16-20 pound fire extinguisher, and a sufficient supply of water for initial attack, with a mechanism to effectively spray the water (i.e. backpack pumps, water sprayer, etc.). 5. During conditions of extreme fire danger or when the State of Colorado and/or the BLM Colorado State Director issues a fire restriction order, operations shall be limited or suspended in specific areas, or additional mitigation measures may be required by the BLM Authorized Officer. 6. In accordance with 43 CFR 2805.12(d) (or subsequent revisions), the Holder shall do everything reasonable to prevent fires on or in the immediate vicinity of the lease. The Holder will immediately report fires to the BLM Authorized Officer or local fire dispatch (970) 257-4800 and take all necessary fire suppression actions, when safe to do so, with their personnel and equipment on any fires they cause to ignite. 7. Holder shall maintain the condition of the origin area of the fire from further damage to enable the Fire Investigator to properly assess the origin area and cause of the fire. The Holder shall report to the Fire Investigator or BLM Incident Commander and shall not enter into the origin area on fires unless given permission to do so. 8. The Holder will cooperate with the BLM in its efforts to investigate, suppress and respond to all future fires. The duty to "cooperate" includes, but is not limited to, the following duties regardless of whether BLM is on the scene: A. The duty to provide the BLM (Authorized Officer or local fire dispatch (970) 257- 4800 with reasonable and timely notice concerning all fires involving the Holder's facilities, or discovered during routine operations. B. The duty to share factual information with the BLM concerning fires, including but not limited to the names of Holder's employees and/or contractors with knowledge of the incident; and to allow employees and/or contractors to be interviewed by BLM's investigators regarding factual information relating to a fire. C. It is the duty of the Holder to preserve the point of ignition, fire scene and reasonably account to the BLM for Holders actions taken at the scene of a fire. D. The duty to minimize disturbance of potential evidence located at the scene; to not engage in any evidence collection or destructive testing without BLM and or its counsel's express written consent; to properly handle and preserve any evidence collected and to make all documents and evidence, including expert reports, available to the BLM in a rapid and timely manner upon request of BLM and/or its counsel. E. The duty to not hamper the BLM investigation of origin and cause of the fire; and to reasonably assist BLM's investigation at the scene. Page 14 F. The duty to provide information upon request of BLM and/or its counsel concerning the construction, monitoring, inspection, maintenance and/or repairs of any of Holder's facilities located at or adjacent to a fire. G. The duty to provide information upon request of BLM and/or its counsel concerning the monitoring, inspection, and or alteration by Holder of any condition on public land, including but not limited to, public land adjacent to'any of the Holder's facilities. H. The duty, during BLM fire suppression efforts: to defer to and follow the instructions of the BLM's Incident Commander regarding activities within the boundaries of the fire and checking in and out of the fire; and to recognize BLM's primary authority over the incident scene. Page 15