Bell Marsh Road – Who Has Legal Standing?
- 12 December 2014 by Author 0 Comments
Bell Marsh Road – Who Has Legal Standing?
By Richard Larsen
Published – Idaho State Journal, 12/07/14
Idaho is aptly named the Gem State. It’s a veritable treasure-trove of scenic byways, resplendent panoramas, and mountainous wonders. The federal government owns many of Idaho’s great natural wonders since over half of the state is under federal jurisdiction. While the issue of government ownership of state land is often a politically hot topic, the greatest benefit to us as citizens is that public access is generally afforded, albeit on a regulated basis. But even more fundamental than public access to public lands is the issue of private property rights if individuals or local governments, to gain access, attempt to subordinate them.
West of McCammon can be found one of the most lush and aesthetic areas in the state. Bell Marsh Canyon is located between Goodenough Canyon and Walker Creek on the east side of Scout Mountain, south of Pocatello. As an off-road motorcycle enthusiast, the ride from Goodenough Canyon campground to Bell Marsh, and then up the east face of Scout Mountain, and then back down Mormon Creek to the campground, is a truly spectacular one. Especially in the fall when a canopy of colorful leaves rises above you, while a blanket of the red, orange, and golden leaves stretch forth as a welcome mat on the trail ahead. Most of that ride is through area designated as part of Caribou National Forrest.
Public access to this gorgeous region is assured via three entry points. The most common access is via the campground at Goodenough Canyon, which is maintained by the Bureau of Land Management (BLM). The other two are via Walker Creek, a couple miles to the north of Bell Marsh, and from the Scout Mountain road itself.
There’s a small farm road that services the farmland between South Marsh Creek Road and the public lands area of Bell Marsh. Five property owners use that road for accessing their property, and there’s a gate at the mouth of the road to control access and keep livestock in. The small farm road may appear on some maps, but it is not a public roadway, and is not owned by the county, the BLM, or the Forest Service. It’s owned by the property owners, and their deeds prove it. Every property owner I visited with, verified that their property description includes the portion of the farm road that traverses their land. And the research of four different title companies has verified it. Property owners own the road, not the county, the BLM, or the Forest Service.
What this means is that all of the newspaper accounts dealing with this issue heretofore have been misleading. Each of the articles have declared that the Bannock County commissioners are considering “closing public access” to property that the county has no claim to. There is no county easement where this farm road crosses private land; the county has no claim to eminent domain to the road, and the county cannot, to my knowledge, force the property owners to make their road a public thoroughfare. They can, however, establish an agreement with the landowners for emergency access to the area.
There are fundamental principles upon which our republic was founded that are so critical that they are inviolate. Principles so primary, that weakening or subordinating them vitiates the republic and diminishes our individual rights as citizens. Individual property rights are among those.
Our Declaration of Independence, which codified the Lockean Creed, declares, “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Lockean Creed substitutes “pursuit of Happiness” with “property.” Ownership and control of private property are at the very core of these principles, without which people are not citizens, but merely subjects to whatever government is in power over them.
The Idaho State Constitution in Article 1, Section 1 reaffirms this precept when it declares, “All men are by nature free and equal, and have certain inalienable rights, among which are … acquiring, possessing and protecting property…” Whatever property we own, is ours, and none can constrict our ownership except by theft, coercion, or by some spurious legal means. And we have every right to protect access to, and use of, our property.
For years, neighborhood kids have made a shortcut through my backyard to pare a few minutes off of their trek to the local elementary school. They cut through the easement, clamoring down the hill behind our home to our chain-link fence, which is now compressed to about half of the original height by kids pushing down and stepping on it, to pass through our yard and exit through one of the gates. When accosted about their trespassing, their excuse was, “We’ve been doing it for years.”
Many in the McCammon area have been using the old farm road to get to Bell Marsh “for years,” as if that somehow legitimizes it. Succinctly, their convenience does not trump private property rights. Just because they’ve “done it for years,” doesn’t grant them license to do so in perpetuity. And regardless of whatever may have been determined by commissioners in 1989, the road is still the legal property of the landowners, as their deeds attest. Nothing was codified to give the county legal standing to prevent the property owners from proscribing access.
The landowners have terminated unfettered access, as they have every right to, whether with cause or without. And frankly, they have plenty of cause, with thefts, vandalism, garbage dumping, and liability concerns, they should be protecting their land. Those who have used the road for their own private use can now do what the rest of us who observe the law, do; go to one of the legal public access points to relish the beauty that is Bell Marsh. Or at the very least, perhaps they could just learn to be good neighbors and ask.
Associated Press award winning columnist Richard Larsen is President of Larsen Financial, a brokerage and financial planning firm in Pocatello, Idaho and is a graduate of Idaho State University with degrees in Political Science and History and coursework completed toward a Master’s in Public Administration. He can be reached at firstname.lastname@example.org.