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
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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