Court Upholds Forest Service Denial of Permit To Construct Road To Access Private Property

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A court upheld a Forest Service decision denying a landholder a permit to construct a road to his property which was surrounded by wilderness area.  While the court noted that the law required the government to provide access to the plaintiff’s property, it was only required to assure adequate access based on similarly situated property.  Because no other inholdings in the wilderness area had been allowed to construct roads to their property, the court found that the agency’s denial was not arbitrary even though other inholders could access their property by vehicle on existing roads.

The plaintiff owns 160 acres surrounded by the Upper Kiamichi Wilderness.  The only access to the property is by way of a dangerous foot trail or cross country.  In fact, when attempting to access his property, the plaintiff fell and broke his leg.  Motorized vehicles are also allowed in the wilderness area on roads which predated the designation of the area as wilderness.  In addition, four other inholders are able to use preexisting roads to access their property.  The plaintiff applied for a special use permit to construct a gravel road to his property so that he could build a residence on the land.  Because of the steep terrain, the plaintiff would need to use heavy equipment and hammer hoe or blast rock.  The application was denied and the plaintiff filed a lawsuit in an effort to have it overturned.

The court recognized that adequate access under the law included the same type of access that existed for other similarly situated areas and was necessary for the reasonable use of the property.  The court, however, agreed that the Forest Service could focus on other inholdings that did not have road access and properly find that plaintiff’s access was comparable to these similarly situated parcels.  The court specifically noted that its review was narrow and it was required to provide deference to the Forest Service’s decision.

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