12,000 Ossippee acres closed

[Grumpy]

Robert Garrison's settlement agreement, as I understand it, is between Garrison, the State of NH and certain landowners. It binds Garrison to some serious restrictions on his mapping activity, but I fail to see how it covers and restricts anyone else beyond what would be regarded as normal, universal legal strictures (whatever they might be).

Of course, if posted land use rules agreed to by the landowner and recreational easement holder specifically forbid mapping of the property by any third party, you have to suppose there would be cause for some kind of action against anyone who engages in that activity. I can see where there might be some desire to control commercial exploitation through the making and selling of maps.

On the other hand, I would think it in the landowners' and easement holder's best interest to have good maps of the property available to those who enter and use the property legally under terms of the easement. Accuracy of any maps, it seems, would be of primary concern, particularly if certain areas, roads, trails, etc., are off limits for general access under the recreational easement terms.

Somehow, I can't see any sense in busting some GPS toting hiker who uses his/her track logs to create maps of trails on the property for his/her own use.

G.

 

[Trail Bandit]

I have been out of touch with the internet for a month and have not been able to comment on the issues about the Ossipee Mountains. The agreement that has been posted was, in my mind, the easiest way to put the trail closure issue to bed. In talking with the people at the NH Dept of Trails, I made it clear that I was willing to go to court and fight the owners of the Ossipee Mountains Tract, since the public has a deeded right to hike, fish, hunt, etc on the property. The NH Trails people advised me that that legal action against the landowner would cause damqage to future easment efforts and just cause other landowners to post their property. The closure was permitted by the easment holder (State of NH), but was only a temporary closure. (I kind of wanted to stand up in court and address Richard Head but probably the judge would have held me in contempt of court. It might have been worth it.) I don't think there is any law that says that you can't make and publish a map of anything you want, and publish it. I think the First Amendment to the Constitution has something to say about this. I have agreed to not make any map showing trails in NH without the permission of the landowners. All the rest of you can make all the maps you want, but I can't help you. A couple of Ossipee landowners took issue with my map and closed the land to hikers to stir up public opinion against me. My map of the Ossipees will continue to be available in both digital and printed form. I think it is a good, accurate map, and it does not show or describe anything differently than what is there. If any of you would like to discuss any if this or cuss at me, send me a personal message and I will respond if there seems to be any point.

 

[The Hikers]

Having a detailed map gives me the confidence to hike an area without the fear of getting lost or venturing where I don't belong. When I don't already have one, I simply make one up from TOPO or some other source.I appreciate any additional information that I can get from someone who has "been there", so thanks Trail Bandit for your good intentions.

 

[arghman]

Having a detailed map gives me the confidence to hike an area without the fear of getting lost or venturing where I don't belong.

That's exactly the reason that it's not a good idea to make a map without getting permission from landowners. There's nothing illegal about it, but showing trails on a map carries with it the implication that it is acceptable to use those trails.

TB -- it's a beautiful map, and one day I would hope that the landowner relations improve to the point that all the relevant property owners can agree to allowing these trails to be shown and publicized.

On the other hand, I would think it in the landowners' and easement holder's best interest to have good maps of the property available to those who enter and use the property legally under terms of the easement. Accuracy of any maps, it seems, would be of primary concern, particularly if certain areas, roads, trails, etc., are off limits for general access under the recreational easement terms.

Accuracy, yes. But realize that having access to privately-owned property does not necessarily imply permission to use trails, roads, or other features. The landowner has the right to discontinue trails unless continued maintenance is called out in the easement.

Somehow, I can't see any sense in busting some GPS toting hiker who uses his/her track logs to create maps of trails on the property for his/her own use.

Agreed, if that kind of information is kept privately, it's fine. Not to be overly repetitive, but access to private land, even if guaranteed by an easement, is a privilege, and a landowner's wishes for that land, including whether he/she would like information about that property publicized, should be respected.

 

[Grayjay]

A map showing roads to ugly tree harvesting and ugly tote roads would probably make Chocorua Forestlands owner nervous.
I have kept the TB map in my pack the last couple Ossipee Mountain hikes, and referred to it a number of times. It is a great map, and an asset to the the majority.

 

[David Metsky]

A map showing roads to ugly tree harvesting and ugly tote roads would probably make Chocorua Forestlands owner nervous.

Is there any evidence that this was a motivation?

 

[Grayjay]

There are photos of this, but no evidence that it was a motivation. Speaking of motivation, CFL swore that TB used herbacide on trails. TB swore he didn't. But dealing with the attorney general, he admitted to it. Was that a sacrifice he made so the whole thing would blow over?

 

[Kevin Rooney]

...access to private land, even if guaranteed by an easement, is a privilege

Would you mind elaborating on that statement for us non-legal types? You, and a few others, seem to steadfastly maintain that access to the land in question is a privilege, while others (including myself) regard the $1.4M purchase of a conservation easement to provide/guarantee at least some level of access.

Is there a legal basis upon which you make that statement? Is it a private opinion?

 

[psmart]

Would you mind elaborating on that statement for us non-legal types? You, and a few others, seem to steadfastly maintain that access to the land in question is a privilege, while others (including myself) regard the $1.4M purchase of a conservation easement to provide/guarantee at least some level of access.

Is there a legal basis upon which you make that statement? Is it a private opinion?

The degree of public access depends on the exact provisions of each easement. I believe a few relevant portions have been quoted in this thread, but the entire document would have to be examined in order to have a complete understanding of the level of public access. In most cases, the primary intent of a conservation easement is to prevent land development (subdivision), and the easement cost is based primarily on the value of these development rights, rather than the recreational value.

 

[David Metsky]

There are photos of this, but no evidence that it was a motivation.

So, in other words, no. Thanks, that's what I thought.

I think the conversation will stay more productive if we don't sling around unsupported accusations towards any of the parties. I'm asking that everyone tone down the rhetoric a few notches. There is currently a resolution that seems to satisfy everyone, although no one completely.

Let's try to move forward, not backwards.

 

[Grumpy]

The degree of public access depends on the exact provisions of each easement. I believe a few relevant portions have been quoted in this thread, but the entire document would have to be examined in order to have a complete understanding of the level of public access. In most cases, the primary intent of a conservation easement is to prevent land development (subdivision), and the easement cost is based primarily on the value of these development rights, rather than the recreational value.

This comports with my layman's understanding of conservation easements, in which development rights are ceded or transferred to a trustee. Public access to the property may or may not be provided for in such an easement.

However, we have seen the particular easement(s) in question here described as a recreation easement(s), which strongly implies (to me) that access rights (which logically would include the right to control access and recreational uses) have been ceded to the trustee by the landowner. In this case, I understand the trustee to be the State of New Hampshire.

I am aware of easements granting public access in the Adirondack Park of New York in which the landowner retains the right to harvest timber. In some cases the landowner is permitted by terms of the agreement to periodically close off public access to blocks of land that are being harvested.

Conservation easements are based on the principle that certain rights of ownership in a property are severable from the property itself. If an easement is permanent ("in perpetuity") it is effectively a deed to the transferred rights; if it is of shorter term it would seem to be more on the order of a lease.


Maybe one of the lawyers here can expand on and clarify (or correct) these notions.

G.

 

[sardog1]

A conservation easement transfers to the holder ("grantee") those parts of the property rights that the transferor ("grantor") owns and specifies in the easement instrument. The extent of the rights transferred is usually the subject of fairly detailed negotiation. In other words, it can be a lot of those rights or very little.

At a minimum, a conservation easement holder usually will want the instrument to prohibit development, as there is no conservation of the land otherwise. A grantor of an easement might want to retain rights to harvest timber, to use the land for grazing, to continue to occupy a homesite, etc. There may or may not be access granted for public recreation. Bottom line: To understand what was transferred and not transferred in the instance at hand, you need to see the instrument. Everything else is Internet speculation.

The Nature Conservancy is one of the largest, if not the largest, holders of conservation easements. They have a good layman's description of such easements.

And yes, I am involved in such matters generally (not at the Nature Conservancy), which is why I have not commented specifically on the instance at hand.

 

[arghman]

...access to private land, even if guaranteed by an easement, is a privilege

Would you mind elaborating on that statement for us non-legal types? You, and a few others, seem to steadfastly maintain that access to the land in question is a privilege, while others (including myself) regard the $1.4M purchase of a conservation easement to provide/guarantee at least some level of access.

Is there a legal basis upon which you make that statement? Is it a private opinion?

whoa! just to clarify: I did not mean to use the word privilege in a legal sense. That is what I think we've been hung up on a lot in this thread: what does the law say is legal or illegal or guaranteed or forbidden. I meant in an ethical sense. If the public is guaranteed access to a piece of property, we still should respect it, and not lose sight that the land and the forest on it belongs to someone.

psmart is right in that the easement itself would have to be examined to determine what the legal privileges are for the general public. My guess is that there are probably gray areas -- e.g. could I visit any square inch of the property I pleased, at any time of day, on any day of the year? Can I camp or light fires? (probably not for those two) Can I lead a guided tour on the property? Could I lead a tour on the property as a paid guide?

 

[RoySwkr]

In most cases, the primary intent of a conservation easement is to prevent land development (subdivision), and the easement cost is based primarily on the value of these development rights, rather than the recreational value.

I can see why the town of Tamworth might wish to buy development rights to prevent homes from being built, but this was a Federal grant and I'm not quite sure why it is appropriate for the Feds to buy an easement in Tamworth so the homes will be built in Ossipee or Sandwich instead. I was told by an easement professional that this grant probably would not have gone through without the recreational access - Congress doesn't want to be accused of subsidizing private estates.

As to the Bureau of Trails fear that it might be harder to get future easements if landowners can't close land whenever they want, that is undoubtedly true. However as a taxpayer I'm not sure why we would want to buy trail easements if they can be closed anytime. Landowners should be told up front that in exchange for money they are losing some control of their land, and they can decide whether to accept.

And nobody has yet answered my question of whether WODC has explicit written permission from landowners to show trails on their land on WODC maps, or whether this is implied by permission for the trail.

 

[psmart]

And nobody has yet answered my question of whether WODC has explicit written permission from landowners to show trails on their land on WODC maps, or whether this is implied by permission for the trail.

The WODC Map and Guide only shows trails that are generally open to the public. This includes official WMNF trails, plus trails on private land where public use is permitted by easement, agreement, landowner permission, or public right-of-way. Trails that are formally "closed" by a landowner, or are otherwise not suitable for public use, are generally not shown on the map.

 

[psmart]

Regarding the level of recreational access, one of Stopher's earlier comments is worth repeating:

A conservation easement can be intended to protect any number of natural resources. In the Forest Legacy program, these can include "essential wildlife habitat, protect water quality, offer outstanding recreation opportunities, afford outstanding scenic views, are home to historic sites, and/or provide the opportunity to continue traditional forest uses." Every conservation easement is tailored to fit the individual parcel and the management plans of the landowner. In this case, I would think that the primary purpose of the easement is to "continue traditional forest uses" (i.e. comercial timber management). The trails are likely ancillary, and may even be behind wildlife habitat and water quality in importance. Note that in the USFS sheet it says, "Six miles of maintained hiking trails are also protected from development..." -- this does not necessarily protect public rights but it does remove the biggest threat that could result in the loss of a trail. This provision may not be what you or I would like it to be, but it certainly increases the likelihood that a trail will remain as a possible use of the land.

 

[stopher]

Regarding the level of recreational access, one of Stopher's earlier comments is worth repeating:

After I posted that, the text of the easement was posted, which showed that there was more than just protection from development for the trails; public access is definitely part of the easement. However, there is also a clause that allows for limiting access when when other natural resources are threatened. I've always assumed that was what CFL and the Trails Bureau were doing when they announced a temporary closure of the property.

 

[RoySwkr]

The WODC Map and Guide only shows trails that are generally open to the public. This includes official WMNF trails, plus trails on private land where public use is permitted by easement, agreement, landowner permission, or public right-of-way. Trails that are formally "closed" by a landowner, or are otherwise not suitable for public use, are generally not shown on the map.

My point is that both the AMC and WODC map trails on private land without explicit permission, so it is unfair for these groups to criticize TrailBandit's mapping of the easement property unless they also wish to obtain written permission for mapping. The mapping of trails on other private lands is more questionable.

 

[psmart]

My point is that both the AMC and WODC map trails on private land without explicit permission, so it is unfair for these groups to criticize TrailBandit's mapping of the easement property unless they also wish to obtain written permission for mapping. The mapping of trails on other private lands is more questionable.

First, I wasn't aware that these groups had criticised TB's mapping. The comments in this thread are the views of specific individuals, and not the offical positons of whatever organizations they may belong to.

But more importantly, the WODC has been a steward of many of these trails for over 100 years. In addition to mapping these trails, the WODC takes great care to protect and maintain the trails, while respecting the rights of land owners and working with them to resolve any issues that may arrise.

 

[NewHampshire]

My point is that both the AMC and WODC map trails on private land without explicit permission, so it is unfair for these groups to criticize TrailBandit's mapping of the easement property unless they also wish to obtain written permission for mapping. The mapping of trails on other private lands is more questionable.

If you are talking about Stopher (a representitive of the WODC) and his criticism that came from the WODC newsletter I believe (and I could be wrong) that he stated clearly this was his opinion and not that of the WODC. A fine line to make, perhaps, but still......

Brian