Via Brandon Siegfried: Friends of Access, The future of public land access in Western Colorado is being defined right now. No time in our history has Mesa County and our neighboring Counties in Western Colorado ever seen such an assault on legal motorized access to our public lands. Jurisdiction and the State laws behind ROW’s and RS 2477 are very clear, however, our elected state and many local officials are not joining the fight. In the past year, I have helped worked with our Mesa County Commissioners regarding the BLM’s Grand Junction Draft Resource Mgt Plan (DRMP). It threatens to close 2100 to 3000 miles of road access in Mesa and Garfield Counties and in about 1 year we will receive their unelected “official” decisions. We are fortunate that County Commissioners like John Martin (Garfield), Rose Pugliese (Mesa) and John Justman (Mesa) joined the fight. However we are going to need more help from our State Representatives, County Attorneys and the Sheriff’s Department. Steve King, Senate District 7 (Mesa County) did nothing that I am aware of to help us protect our legal access to our public lands during the BLM Grand Junction DRMP in 2013. Now Steve King wants to become our County Sheriff??? We need a Sheriff that is willing to stand up to the Federal Gov’t not bow down and be a cooperating subservient agency. The Sheriff election is one of the most critical elections in 2014 for those who want to protect public land access. The County Sheriff must be willing to stand up for the county residents when the Federal Gov’t oversteps is jurisdictional authority! I personally sat down with Representative Jared Wright, House District 54, (Mesa and part of Delta County) and discussed the impacts that the road closures in the GJ BLM DRMP will have on our local economy ($250 million per year) and our local family heritage. He said he would help, but in the end, did nothing in 2013. I sat down with Mark Udalls (D) local representative, Jerry Otero, they expressed interest in helping but did absolutely nothing in 2013. I will reach out to Representative Ray Scott, House District 55, in the upcoming weeks and find out what he is willing to do as he is now running for Senate District 7 in 2014. I am hopeful since he is a public land hunter, that he will join the fight. I did not reach out to him in 2013 regarding the matter. With leaders like Garfield County Commissioner John Martin and David Justice we have hope, but during the upcoming 2014 elections we all need to be asking those running for elected offices, “Where were you and what did you do in 2013 to help protect our LEGAL access to our public lands”? Please read David Justice’s letter below to the Montrose County Commissioners regarding the recent reopening of Cushman Creek Road near Olathe. Montrose County passed a RS 2477 County Resolution in 2000 and Mesa County needs to do the same ASAP! We will be fighting the Federal Gov’t for the next 20+ years regarding accessing our public lands, the RS 2477 Resolution is a tool needed to help define and defend our legal right to access our public lands. Best Regards Brandon Siegfried -------------------------------------------------------------------------- Via David Justice August 4, 2013 Dear Commissioners, (c.c. Sheriff Richard Dunlap) Greetings, I appreciate your consideration of my position relative to my involvement in the recent Cuchman Road reopening. What follows is my understanding of the law and the facts. Jurisdiction over Cushman Creek Road, a right-of way in the State of Colorado providing access to public lands, has not been ceded to the Federal government by the State of Colorado. If it had been, the cession of jurisdiction would be found in Colorado law at C.R.S. Title 3. Absent a specific cession of jurisdiction, and acceptance of that cession by Congress, jurisdiction belongs to the State of Colorado, and therefore delegated to Montrose County. It is my understanding that the Bureau of Land Management (“BLM”) does not have jurisdiction over the road. Regardless, the BLM blocked the road by putting a barrier limiting access to the road. As will be shown below, the blocking of a county road by the BLM is illegal, but neither the commissioners nor the sheriff did anything to negate this action. The fundamental principles of American law vest sovereignty in the people. Power, not sovereignty, is delegated to the government through the constitution. The Colorado constitution reserves the right to the people to “alter or abolish their constitution and form of government whenever they deem it necessary to their safety and happiness.” The declaration of independence secures to the people the power to “throw off” a government when a design is evinced, evidenced by a long train of abuses and usurpations, to overthrow the people, and to reduce them under a government of absolute despotism. It is a maxim of law that the greater power includes the lesser. If the right and power is reserved to the people to alter, abolish or throw off, then any action short of these that are necessary to set off the danger, perceived or real, is authorized by the principles of American jurisprudence. The opening of Cushman Creek Road was such an action. No one was hurt. We stayed within the principles of law. We threw off the Federal Government’s usurpation of Colorado sovereignty and jurisdiction and restored access to the public lands. It is our position that we have broken no law, and have done nothing wrong. Regardless, we are being investigated by two persons representing themselves to be special agents of the Department of the Interior. I have had conversation with them and explained to them that they have no jurisdiction in the matter. They appear to be ignoring the jurisdictional principle and pursuing their investigation anyway. Operating outside the scope of their power makes them actors pretending to have power. The Question is: Who owns the Road?; and under whose jurisdiction is it? In acknowledgement of the principle of ownership, power, jurisdiction, and right, in the year 2000, David Ubell, then Chairman of the Montrose County Commissioners signed the unanimous Resolution 29-2000 (“CR 29-2000”). This resolution is a restatement of the law that the United States Congress granted the right-of-way for the construction of highways over public lands not reserved for public uses. See section 8 of the Mining Act of 1866, reenacted and recodified as Revised Statute 2477, (43 U.S.C. 932) (“RS 2477”). According to CR 29-2000, the Congressional intention of RS 2477 was to promote the settlement of the western United States by granting rights-of-way for the construction of highways. By adopting CR 29-2000, Montrose County specifically acknowledged by declaration their ownership of and right to all highway rights-of-way in Montrose County granted under R.S. 2477. Both Colorado law and CR 29-2000 define “Highway” to mean: any road, street, trail, or other access or way that is open to the public to come and go at will, without regard to how or by whom the way was constructed or maintained; and appurtenant and structures including road drainage ditches, back and front slopes, cut and fill slopes, turnouts, rest areas, and other areas that facilitate use of the highway by the public; and includes any pedestrian trails, horse paths, livestock trails, wagon trails, jeep trails, logging roads, homestead roads, mine to market roads, alleys, tunnels, bridges, and all other ways and their attendant access for maintenance. It is my understanding that according to this definition, Cushman Creek Road is a Highway. Colorado law C.R.S. § 43-2-201(1)(e) provides that “[a]ll roads over the public domain, whether agricultural or mineral” are “public highways.” It is my understanding that according to this provision, Cushman Creek Road is a public highway. By their acknowledgement in CR 29-2000, Montrose County declared that the existence of a highway establishes a presumption that the highway has continued in use in its present location since the land over which it is built was “public land not reserved for public uses.” CR 29-2000 defines “Public lands not reserved for public uses” to mean any federal lands open to entry or location. It is my understanding that a “presumption” is a rule of law made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true. In other words, according to the rule of law of presumption, the mere fact of the existence of Cushman Creek Road and all the trails and foot paths around it, establishes a presumption in favor of Montrose County that those rights-of-way have been there before land was reserved to be managed by the BLM, and to establish its claim of jurisdiction, the BLM carries the burden of proof to rebut the presumption of Montrose County jurisdiction. It appears to me that the resolution and state sovereignty together require no additional research to be done by the county to exercise power and jurisdiction. Cushman Creek Road, and all the foot paths and trail in the area near it, are RS 2477 protected rights-of-way presumed to be there before the public land was reserved to be managed by the BLM. I have spoken with Ex-Montrose Commissioner David Ubell and Brian Wilson, recent Montrose County Road and Bridges manager for the past two decades, both of whom were directly involved in the making and adoption of RS 29-2000. Both agree with me that the placement of the BLM barrier was unlawful, that Cushman is a county road, subject exclusively to Montrose County jurisdiction. Both also mentioned that they believe that “The reopening of Cushman Creek Road is a State’s Right issue.” Montrose Resolution CR 29-2000 provides that the scope of the right-of-way is that which is reasonable and necessary to ensure safe travel for all uses that occurred before October 21, 1976. The scope includes the right to widen the highway as necessary to accommodate the increased travel associated with all uses that occurred before October 21, 1976, up to, where applicable, improving a highway to two lanes so travelers can safely pass each others. The power and jurisdiction over county roads is entrusted with the Montrose County Commissioners and the Sheriff of Montrose County. I have no plans to be involved with the reopening of any more roads. The message has been sent. I trust that it will be received. Sincere Regards, David Justice
Posted on: Tue, 06 Aug 2013 15:43:58 +0000
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