By Kay Braddock
According to Prairie County officials a recent discovery of a 1965 Bureau of Land Management cooperative agreement made between the BLM and Prairie County has added another crinkle to the Scenic View Road ownership debate.
Prairie County Attorney Becky Convery and County Commissioner Todd Devlin met with BLM Field Solicitor Karan Dunnigan earlier this month to discuss the document and recent actions taken by BLM Field Manager Debbie Johnson.
“We wanted to know why they didn’t step up to bat,” Devlin said of the BLM, referring to the 1965 cooperative agreement.
Signed by Prairie County commissioners and the BLM district manager at that time, the 1965 BLM cooperative agreement designates “Badland View Road,” currently known as Scenic View Road, as a range improvement project, listing each section of land the road runs through, including state, federal and private lands.
The agreement outlines the county’s responsibility to provide continuous normal upkeep and maintenance of the road, specifically listing cattle guards and culverts supplied by Prairie County at that time.
County officials also contend the agreement clearly puts ownership of the road in federal hands.
“(The BLM) has basically thrown us in the hot seat when they’ve owned title to the road the whole time,” Devlin said.
But Johnson disagrees.
“I think it was a way to document each other’s portion of what they put towards the work that was being done on the road in 1965,” Johnson said. “Cooperative agreements and range improvements don’t give the BLM ownership of private land.”
But Devlin points to the federal agency’s own range improvement fact sheet that states range improvements authorized by Cooperative Range Improvement Agreements made prior to 1984 and after 1995 belong to the federal government.
The cooperative agreement between the BLM and Prairie County, dated May 21, 1965, falls within that timeline, Devlin said, which designates the federal government as owner of the “Badland View Road” range improvement.
“We don’t have a private property right issue, due to the fact the U.S. owns title to the land,” Devlin said, referring to the road.
Both Devlin and Johnson agree that “Badland View Road” has been listed on range improvement agreements signed by previous and current BLM grazing permittees who own lands that the road crosses.
Range improvement agreements are made between the BLM and those who lease BLM land when an improvement is made to BLM grounds. Typical improvements include water wells, water pipelines and fences.
Roads aren’t a usual range improvement, Johnson added, but noted that in this case, “Badland View Road,” has been listed as a range improvement and was carried forward throughout the years as such.
Johnson questioned whether the correct form was even used to record the 1965 agreement between Prairie County and the BLM.
“It’s very confusing and I think that’s too why maybe the commissioners have gotten confused,” Johnson said.
Canceling the “Badland View Road” range improvement
In an August 17, 2010 letter, Johnson approved a request made by Michael and Terry Karrels to cancel and abandon the range improvement project known as “Badland View Road” from their BLM file of range improvements. The request had been submitted to the BLM just one month prior to approval.
Johnson said the current litigation occurring between Prairie County and the Karrels, regarding Scenic View Road, had no influence on the BLM’s decision to cancel the range improvement.
“The lawsuit doesn’t have anything to do with our ability to manage public lands,” Johnson said. “We still need to be able to make decisions on public lands.”
Prairie County is currently seeking a judgement from district court on the 7-mile dirt road north of Terry that leads to a popular scenic overlook of the Terry Badlands, after the Karrels placed a gate on the road in 2007. A lock was added to the gate a year later.
Noting that the county is listed as a cooperator of the “Badland View Road” range improvement project in a “binding contract” with the BLM, county officials questioned why the BLM didn’t notify the county before canceling the range improvement project with the Karrels.
“They didn’t follow their own administrative regulation,” Devlin said. “We had an invested interest in the road.”
“They should have had public meetings, public hearings,” Devlin said. “They should have discussed it with those with an invested interest, according to their regulations because we have an invested interest in the road. And if they do get rid of it, if they still make a decision to get rid of the road then they have to compensate (Prairie County) fairly according to their regulations.”
Devlin estimates the county’s compensation would be at least $820,000.
But Johnson said the BLM was simply managing public lands. BLM grazing permittees have a list of range improvements that they are assigned to and that are tied to their grazing permits and livestock operations. When permittees no longer need the improvement, the BLM removes it, Johnson said.
Since the Oct. 13 meeting, which was also attended by Johnson and Shane Findlay of the BLM, the county has sent a letter to the BLM requesting the federal agency reconsider their decision to cancel the range improvement project from Karrels BLM file.
Devlin points to the possible future impact the decision could have on other BLM range improvement projects.
“Without input from all invested parties, does that mean the BLM, with a stroke of a pen, can get rid of any cooperative range improvement they so feel like without compensating those who have an invested interest and without abandoning it and having it removed the correct way like the regulation says?” Devlin asked. He questioned whether community pasture roads would someday be handled in the same manner.
Johnson contends there are two separate issues at hand – a range issue and a road issue.
But with Scenic View Road listed as a BLM range improvement project, it is unclear how separate the two issues are.
“Basically what you’re looking at in the cooperative range improvement that the permittee signed is actually in all purposes a right-of-way,” Devlin said.
Published Oct. 27, 2010