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Dead Constitution See other Dead Constitution Articles Title: Arizona couple suing feds for access to private land Arizona couple suing feds for access to private land Jon Kamman If you could see his heavenly piece of forest land west of Flagstaff, Richard G. Smith says, you would understand why he has fought over it with the federal government for 18 years. Where else across thousands of square miles of northern Arizona's Coconino Plateau can a natural stand of blue spruce be found? Just two other places, according to the Arizona Nature Conservancy. Where else does a secluded parcel of private land offer such scenic vistas, such ecologically rich habitat? Few places, if any, Smith assures. There's just one drawback. Despite laws requiring access, you can't get there from here. The marathon fight for access began the year after Smith and his wife, Claudia, bought the 57 acres in 1986. They hoped someday to build a summer cabin to enjoy with their two daughters and the grandchildren born since. Surrounded by federal land, a military installation on three sides and a national forest on the fourth, the property remains a virtual island with no way to reach it unless the lawsuit the Smiths filed more than two years ago forces the federal government to obey its own law. A dirt road along the southwestern reaches of Camp Navajo, a 44-square-mile training site for the Arizona National Guard, leads directly to the property. But allowing public use poses a security risk, the government contends. Smith asks why, then, Camp Navajo is trying to lease some of its storage bunkers to private businesses. Maps show the road was there before the Army took over the land. Now that the installation is no longer an arsenal, he should be able to drive it, Smith says. The government says there's no historical right to access. Neither side wants to carve a new route through environmentally sensitive forest land. But Smith said a solution could be found if Camp Navajo is willing to give up "just a sliver" of land. Judge must decide The battle is coming to a head in U.S. District Court in Phoenix. Both sides have asked Judge David Campbell for a summary judgment. Though the circumstances of the Smiths' solitary battle are unlikely to occur elsewhere, the case could have implications for anyone challenging the federal government. For the Smiths, the question is whether the government will honor its laws on property rights as much as its commitments to military security and environmental protection. The stakes are high. A win would give the couple, now retired in Fountain Hills, a way to drive onto a property appraised at $825,000. A loss would leave them with a virtually worthless, landlocked plot. It's a parcel where a stream creates a pond as it runs through a rugged canyon during wet seasons. Blue spruce rise from its banks, and some of the state's grandest old-growth ponderosa pines and Douglas firs reach skyward on the higher slopes. The area is perfect habitat for the Mexican spotted owl, a threatened species. Elk, deer and other wildlife are regular visitors. Government 'lied' Smith said he has spent more than $50,000 of a modest retirement income to pay legal, engineering and other fees and can't afford to fight anymore. Worse, his health has been precarious since 1998. He underwent lung surgery Monday for the second time. "When we bought the land, I didn't think I'd have any trouble with access," the 67-year-old Smith said in the days leading up to the surgery. "It turned out to be an absolute nightmare. "The government dithered and stalled. It took years to make decisions, then backed out. The government lied to me." It's not an idle rant. A career federal employee, Smith retired in 1990 as the top federal civilian administrator of the Army depot he now can't drive across. He backs up his words with voluminous documentation of government reversals. Requirements of law The Smiths' case relies mainly on a federal law enacted six years before they bought the tract. It specifies that if government land surrounds private property, the government must give the owner a way to reach it. Another law, dating from 1866, established private rights to build and maintain roads across public lands. Maps show that the road leading to the Smiths' property was in use before the Defense Department created the Army depot in 1942 to stockpile and dispose of World War II munitions. The government's case, in turn, is pinned on a provision of the U.S. Constitution giving Congress what legal officials argue is "essentially limitless" power over public lands. No solution found Assistant U.S. Attorney Sue Klein, who is defending against the Smiths' suit, said through a spokeswoman that the government tried to negotiate several options. "None was agreeable to the Smiths, or the cost was prohibitive to the government and taxpayers," spokeswoman Sandy Raynor said. The government maintains that regardless of the law's requirement for access, the public can't be allowed to pass through military property. "So, fence it," Smith said. "There are all kinds of precedents for running fenced public roads through military land." Smith, noting that the road is in a buffer zone distant from the security area of the sprawling military installation, said an Army commander agreed years ago to arrange access but suddenly had that authority removed by higher-ups. It took years just to win a route across five-eighths of a mile of National Forest land to connect with the three miles of military road Smith still is barred from using. His first application, submitted in 1987, languished for 18 months before the U.S. Forest Service granted an easement. The catch: It was only 48 inches wide, and a car averages 72 inches. Smith appealed, and by the time the Forest Service relented and granted a full-size route elsewhere, five years had passed since the application. About that time, the Army depot was closed as a federal institution. Had the land reverted to the Forest Service under terms of the 1942 Defense Department contract that created the depot, there would be no question that Smith could use the road. But the facility was turned over to the state to run as a National Guard training camp, and the Army still owns the land. Sell or exchange? Why not sell the property to the Forest Service or the Army? "We tried that in the '80s," Smith said. "The Army didn't want it, and the Forest Service wanted to have it appraised as having no access," which would make it all but worthless. The closest the Smiths have come to a resolution was a land trade negotiated in hopes of resolving the lawsuit. This time, the judge ordered that the land be appraised as if it had a road. With government delays, talks extended over most of a year. Agreement was near, Smith said, when Klein suddenly announced the deal was off because the government wouldn't be able to come up with $100,000 for an environmental-impact study of the new property. Smith said he consulted two engineering firms, one of which does such studies for the federal government, and received estimates of $18,000 to $22,000 for the work. The government didn't offer him a chance to pay for the study himself, Smith said. "Not one player on the government side has put up one nickel for any of this," Smith said. "If they can't give me access, the law says they should compensate me." To pursue payment, however, the law requires filing in a federal claims court, rather than District Court. Smith resents having been, he said, strung along for so many years. "I think they want me to go away - permanently. There's no doubt in my mind that they have the word on my health," he said. "The public should know what they're up against if they try to take on the federal government."
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