Forum Index > Public Lands Stewardship > 12/4 - Dumpster Diving & Access Issues
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altasnob
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PostThu Dec 10, 2020 10:15 am 
Snohomish County Public Works confirmed that the road in question is not a county or public road, meaning it is private. The private road starts at the Pilchuck Tree Farm property, meaning if they wanted to, Pilchuck Tree Farm could close off access (unless DNR had a public easement right through the tree farm). However, Pilchuck Tree Farm has presumably not cut off access and does not care if the public travels across their private road (based on the lack of gates and lack of no trespass signs). The first gate and no trespass sign is not until the island of private property.

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Sculpin
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PostFri Dec 11, 2020 8:12 am 
This is great, I have already learned a lot from your efforts. up.gif I'm still confused whether the "private road" status is significant here or not in terms of pedestrian access. It makes sense that even if a public easement exists, they can block vehicle traffic. That would be because vehicles create a need for maintenance, which would be a private expense on a private road. It still seems to me that a judge could look at the situation and grant the public a prescriptive easement for pedestrian access to the public land. Since trespassing* requires knowledge that you are doing so, would a person be immune from prosecution if they told the authorities "I'm pretty sure a judge would grant me an easement if I asked for one?" dizzy.gif *for camut and others, no one on this thread is advocating trespassing. This thread is all about grasping the greased pig of legal public access, with "No Trespassing" signs being an unreliable indicator of that.

Between every two pines is a doorway to the new world. - John Muir
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altasnob
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PostFri Dec 11, 2020 8:35 am 
The prescriptive easement is a last resort and hope the public's right to access this land is much more clear cut than that. I am hoping that it turns out that DNR is wrong to post the no trespass sign and the public does have a right to walk past the gate on the road and pass through the private property. Maybe as a compromise with the property owner, the gate stays, the sign stays, but the sign is modified to explain pedestrian and bike access is allowed but you must stay on the road through the private property, and then when you get to DNR land you can go wherever you want. Other info Snohomish County Public Works provided me is the document below, which they say is a "1910 promotional piece produced for the County to entice people to buy property and move here." Public Works is not 100% positive but believes the DNR and island of private property were not original 1889 state school trust land (even though this map says it is) and instead were owned by Stimson Mill, meaning the State/DNR purchased/acquired the property at some point in time. This would explain why there is an island of private property (the previous owner of the small parcel refused to sell).
But even if the above is true, it still doesn't explain why there is a DNR road going to the island of private property and after the private property. If there really was no public easement on this land, this DNR road should go around the private property, not through it. Also, why does the private property owner get their own fancy looking DNR no trespass sign (I highly, highly, doubt this sign is forged or fraudulent). I suspect DNR was somewhat lazy about advocating for the public's right to access this land and needs someone to catch and call them out on it.

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PostFri Dec 11, 2020 11:59 am 
About ten years ago I was pushing my bicycle up to the top of Mount Washington (adjacent Stimson Hill) when the homeowner was driving down the road to head into town. They gave me their phone number and said given the effort I was exerting to get to the top they'd be happy to open the gate for me so I could drive to the top next time. That was also the day I ran into some people who drove their quads up to the top accessing the road from the north west side.

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RodF
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PostMon Dec 21, 2020 7:43 pm 
altasnob wrote:
it would be a breach of DNR's duty to Washingtonions to not maintain the public's right to cross this private property on the road maintained by DNR to access the road above the private property, also maintained by DNR.
Unfortunately for all of us who are hikers, this assumption is not the case. DNR has no duty to provide public use of all roads accessing trust land. DNR's duty as trustee is to manage trust lands to yield revenues for the benefit of the trust beneficiaries listed here. On the State Trust Land map, it appears Stimson Hill is State Forest Transfer Trust land. If so, the beneficiaries are: "State Forest trust lands (Transfer and Purchase) benefit counties and junior taxing districts. They provide revenue that supports local and state schools as well as county services including roads, libraries, fire districts, ports, hospitals and emergency management." RCW 79.10.120 provides "Multiple uses additional to and compatible with those basic activities necessary to fulfill the financial obligations of trust management may include but are not limited to: (1) Recreational areas; (2) Recreational trails for both vehicular and nonvehicular uses developed or maintained consistent with RCW 79.10.500... (13) Public rights-of-way; If such additional uses are not compatible with the financial obligations in the management of trust land they may be permitted only if there is compensation from such uses satisfying the financial obligations." The following is a simplified explanation: "Washington's courts and government agencies have assumed the following: (1) The land that the federal government gave Washington at statehood for the benefit of the "common schools" and other public institutions is held by the state as a trust. (2) This trust is exactly analogous to a private trust. (3) The state's "common school lands" and other granted lands must therefore be managed under the common law principles that govern private trusts. (4) The state owes a duty of "undivided loyalty" to the beneficiaries. (5) Undivided loyalty requires the state to manage the land for maximum revenue. (6) Revenue production cannot be sacrificed to the goal of preserving environmental or aesthetic values." [or to maximize recreational value to hikers, ATV riders, etc.] - Chasen, Seattle U Law Rev, 24, 1 (2000). Chasen's article criticized this and advocated change, but the law cited above remains unchanged. DNR is required to obey statutory and case law, which direct DNR to manage trust lands for the benefit of beneficiaries, alas not to fulfill our sense of entitlement to road access.

"of all the paths you take in life, make sure a few of them are dirt" - John Muir "the wild is not the opposite of cultivated. It is the opposite of the captivated” - Vandana Shiva
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Owler
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PostTue Dec 22, 2020 1:48 pm 
chandlerhaberlack wrote:
camut wrote:
The road on Stimson is a private road belonging to Pilchuck Tree Farm and is identified as such by a red sign at the entrance. They are under no obligation to provide anyone access. If you want confirmation or clarification of this, you can call the PTF office 360 629-6800 and ask them directly, referencing PTF Fire Gate 13.
I'm confused. This doesn't really say anything to me. Weyerhauser has the rights to everything off of FS-62 near Gold Bar/Index, every so often lock the gate to the public's cars, but can't actually block foot traffic or bike traffic. How is Pilchuck Tree Farm any different?
I don't think this is true at all. You need a permit to access the land, even by foot or bike. "Each person who walks, bicycles or rides an animal on Snoqualmie Forest must have a permit or be listed on a family permit. " https://sqrecreation.com/snoqualmie/non-motorized-recreation-access/non-motorized-recreation-access-permit-individuals/non-mo

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PostTue Dec 22, 2020 2:53 pm 
Pilchuck Tree Farm does not allow any unauthorized motorized access on any of its land or roads. Access is allowed on foot, bicycles, or equestrian only to those who have a current liability waiver on file with the PRA. A new waiver must be signed each year. Anyone on PTF land or roads without a current waiver is considered to be trespassing.

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Sculpin
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PostWed Dec 23, 2020 8:14 am 
RodF wrote:
DNR is required to obey statutory and case law, which direct DNR to manage trust lands for the benefit of beneficiaries, alas not to fulfill our sense of entitlement to road access.
Insulting folks ("sense of entitlement") for something they did not do - no one expressed entitlement for anything except the possibility of a prescriptive easement that recognizes their legal right to access public land - does not build a sense of community. down.gif And in any event, even if you are right, as altasnob pointed out, the sign is in the wrong place.

Between every two pines is a doorway to the new world. - John Muir
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runup
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PostWed Dec 23, 2020 11:06 pm 
RodF wrote:
altasnob wrote:
it would be a breach of DNR's duty to Washingtonions to not maintain the public's right to cross this private property on the road maintained by DNR to access the road above the private property, also maintained by DNR.
Unfortunately for all of us who are hikers, this assumption is not the case. DNR has no duty to provide public use of all roads accessing trust land. DNR's duty as trustee is to manage trust lands to yield revenues for the benefit of the trust beneficiaries listed here. On the State Trust Land map, it appears Stimson Hill is State Forest Transfer Trust land. If so, the beneficiaries are: "State Forest trust lands (Transfer and Purchase) benefit counties and junior taxing districts. They provide revenue that supports local and state schools as well as county services including roads, libraries, fire districts, ports, hospitals and emergency management." RCW 79.10.120 provides "Multiple uses additional to and compatible with those basic activities necessary to fulfill the financial obligations of trust management may include but are not limited to: (1) Recreational areas; (2) Recreational trails for both vehicular and nonvehicular uses developed or maintained consistent with RCW 79.10.500... (13) Public rights-of-way; If such additional uses are not compatible with the financial obligations in the management of trust land they may be permitted only if there is compensation from such uses satisfying the financial obligations." The following is a simplified explanation: "Washington's courts and government agencies have assumed the following: (1) The land that the federal government gave Washington at statehood for the benefit of the "common schools" and other public institutions is held by the state as a trust. (2) This trust is exactly analogous to a private trust. (3) The state's "common school lands" and other granted lands must therefore be managed under the common law principles that govern private trusts. (4) The state owes a duty of "undivided loyalty" to the beneficiaries. (5) Undivided loyalty requires the state to manage the land for maximum revenue. (6) Revenue production cannot be sacrificed to the goal of preserving environmental or aesthetic values." [or to maximize recreational value to hikers, ATV riders, etc.] - Chasen, Seattle U Law Rev, 24, 1 (2000). Chasen's article criticized this and advocated change, but the law cited above remains unchanged. DNR is required to obey statutory and case law, which direct DNR to manage trust lands for the benefit of beneficiaries, alas not to fulfill our sense of entitlement to road access.
---------------------------------------------------------------------------------------------------- Thank you for your insightful post, Rod. It adds immensely to a clear understanding of the issues involved.

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Sculpin
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PostThu Dec 24, 2020 8:32 am 
Rod F quoted from "Chasen, Seattle U Law Rev, 24, 1 (2000)." The entire article is available on line and not paywalled: https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1650&context=sulr With respect to this article, Rod wrote: "Chasen's article criticized this and advocated change, but the law cited above remains unchanged." That statement is not consistent with what Chasen wrote. In fact, the quote that Rod pulled from his article is explicitly refuted in point-by-point fashion as being not consistent with "the law." Chasen actually argues that the law requires exactly the opposite: "*A broader public trust has always existed; the Washington Constitution explicitly recognizes this. Because of this broad, enduring trust, the environmental and aesthetic values of the granted lands must be safeguarded for all the people. * Courts have incorrectly defined Washington's narrower fiduciary duty by equating the state's 1889 Enabling Act with the New Mexico-Arizona Enabling Act of 1910. * The state's fiduciary duty prevents it from granting financial breaks to favored constituents, not from protecting species or habitat. * Washington's constitutional framers consciously rejected the idea that granted lands should produce maximum revenue. * Neither Congress nor the framers gave the State of Washington any guidance about the management of granted lands. They could not; no one managed American forests in 1889. * Not one of the subsequent court rulings has required state land to be managed in any particular way and not precludes management that is guided in part by environmental values." Chasen then concludes with the following: "The actual use made of Washington's state forests suggests that they have in fact been regarded and treated as a public trust [rather than a private trust]. Although the state has never acknowledged a public trust interest in the granted lands, in many respects, it has managed those lands as if a public trust existed. It has permitted ranchers in isolated communities to treat the state forests as commons. It has permitted all citizens to use the granted lands for recreation. Citizens have been free to walk there, use human-powered and motorized boats there, ride mountain bikes, ATVs, and snowmobiles there, camp, hunt, fish, and trap there. The Department of Natural Resources' current policy states that "[t]he department will provide access for multiple uses on state forest lands." The current recreational uses all correspond to established public trust interests. These uses are not required or even explicitly permitted by the Enabling Act or the Washington Constitution. Not all states permit such a range of uses on granted lands. The fact that Washington does permit them implies that Washington tacitly recognizes a public trust interest in its granted lands." The location of the sign on Stimson suggests that the DNR lands are open to the public, which means there is very likely at least a potential for a public easement through the Pilchuck lands.

Between every two pines is a doorway to the new world. - John Muir
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Slugman
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PostThu Dec 24, 2020 12:23 pm 
Sculpin’s unfair attacks on RodF are not building a sense of community. Clearly a sense of entitlement was displayed in Altasnob’s post, this was the entire point of his posts. There is nothing wrong with feeling entitled to something if you are entitled, and no insult to refer to this entitlement.

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runup
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PostThu Dec 24, 2020 2:05 pm 
Slugman wrote:
Sculpin’s unfair attacks on RodF are not building a sense of community. Clearly a sense of entitlement was displayed in Altasnob’s post, this was the entire point of his posts. There is nothing wrong with feeling entitled to something if you are entitled, and no insult to refer to this entitlement.
------------------------------------------------------------------------------------------------------ up.gif

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altasnob
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PostTue Dec 29, 2020 8:43 am 
RodF's quoted laws would be applicable if we were debating whether this land should be logged, or whether recreational trails should be built here. The original poster just wanted to walk up a logging road, through a clear cut. How would this affect DNR's ability to get top timber harvest dollar for their beneficiary? Imagine if DNR closed access to Tiger Mountain, Mailbox Peak, Mt. Si, Gothic Basin, or Slugman's backdoor access to Toleak Beach, because they felt people walking across DNR land was not compatible with DNR's mandate to get top logging revenue for their beneficiary. People should feel entitled to walk on DNR logging roads and across DNR land unless there is a safety reason for the closure. Keep in mind, the Washington Constitution states, "[a]ll the public lands granted to the state are held in trust for all the people."

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RodF
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PostFri Jan 01, 2021 12:12 am 
altasnob wrote:
People should feel entitled to walk on DNR logging roads and across DNR land unless there is a safety reason for the closure.
Yes, they should and are. The public is free to walk on roads and trust lands managed by DNR. But that's not the issue here. As you noted:
altasnob wrote:
Snohomish County Public Works confirmed that the road in question is not a county or public road, meaning it is private... The first gate and no trespass sign is not until the island of private property.
The public does not have the right to cross private property without the owner's permission (i.e. trespass), and the law does not oblige DNR to purchase a public right-of-way on private roads across private land, so we may cross private land without trespass in order to more easily access trust property. I may wish the law were different... but it isn't.

"of all the paths you take in life, make sure a few of them are dirt" - John Muir "the wild is not the opposite of cultivated. It is the opposite of the captivated” - Vandana Shiva
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Sculpin
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PostMon Jan 04, 2021 9:00 am 
RodF wrote:
The public does not have the right to cross private property without the owner's permission (i.e. trespass)
Every time someone drives the road in front of my house, they are crossing my private property without my permission. I own the land out to the centerline of the road. But the drivers are not trespassing. I guess at this point, we are talking past each other. frown.gif

Between every two pines is a doorway to the new world. - John Muir
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