The gates installed by a pair of Texas billionaire brothers on an Idaho Forest Service road through their property in Boise County are illegal, according to the Forest Service and Idaho Wildlife Federation.
Dan and Farris Wilks have raised the hackles of hunters and other outdoor recreationists who rely on access to Idaho public lands after their controversial purchases of vast swaths of private land in the state.
The tensions raised by the Wilkses have reached a fever pitch as of late, with the installation of gates on Forest System road 374 - known as Boise Ridge Road - by their company DF Development LLC. They recently put up sets of bright orange gates on the popularly-traveled Forest Service road through their property just miles from Bogus Basin, surrounded by the Boise National Forest. The gates on Boise Ridge Road are open, however, they contain signs reading "Private Road" and "No Trespassing".
Orange markings and "No Trespassing" signs indicate DF Development private property, near the border where it meets the Boise National Forest.
For decades, outdoors enthusiasts have used FS 374 to get through Boise County to reach their favorite hunting spots and recreation destinations.
The Idaho Wildlife Federation has also taken notice. On the heels of a recent report by KTVB's Morgan Boydston, the IWF on Wednesday said the gates violate Idaho law, based on records they received in response to a records request with the Forest Service.
The IWF said deeds from past landowners - which they provided to KTVB - show the Wilkses illegally gated FS 374. The group said they found deeds from the landowners granting easements for sections of the road for public use in perpetuity.
A letter sent by the Boise National Forest Supervisor to DF Development in October and obtained by KTVB confirms National Forest System lands were conveyed by the United States in two separate land exchanges with Boise Cascade Corporation in 1982 and in 1989. Both include rights of way to the United States - therefore, the public - for Boise Ridge Road.
According to the letter, the Forest Service found DF Development's gates were constructed within rights of way owned by the U.S. It also says the "disturbance associated with the south gate may be on National Forest System Land." Government officials say federal laws prohibit constructing gates or causing soil disturbance within rights of way or on National Forest System land without Forest Service authorization. In the letter, the agency encouraged DFD to work with the district ranger on removing the gates.
However, the major complication in determining whether the road is entirely public is that Forest Service records show there are a few portions of the road where easements have not been granted to the government through the private property. Their letter to DFD says:
"While the land patents expressly reserved an easement for the Boise Ridge Road over the land
conveyed by the patents, some segments of the road do not cross land included in the exchange
patents, and therefore are not within the easements reserved in the patent. These parcels were patented between 1911 and 1914 under other authorities.
"Based on our research to date, it appears the Boise Ridge Road was constructed by the Civilian Conservation Corps (CCC) in the 1930s, which was after the above parcels were patented. It
was common practice at the time of construction to secure any necessary easements across
private land prior to expending federal funds to construct CCC roads. While our title research to
date has not revealed any recorded easements, we are continuing to search real property records."
But IWF and Idaho Conservation League feel that does not matter.
"The road was built with public dollars through the Civilian Conservation Corps and maintained over the years exclusively with Forest Service dollars - which is tax dollars from American citizens. So we built that road, we maintained that road, it's our road," Brooks told KTVB.
As mentioned, records show Boise Ridge Road was built using public dollars by the Civilian Conservation Corps in the 1930s for the purpose of public use and fire management.
A Freedom of Information Act request submitted by The Wilderness Society and shared with the IWF found taxpayers have been picking up the tab to maintain the road for almost 90 years.
The Forest Service tells KTVB maintenance records they were able to find date back to the 1960's and as recently as 2010 - showing the Forest Service maintained Boise Ridge Road over the years. Officials say there is no cost-share agreement between public agencies, but documentation they hold does not record whether private entities contributed to maintenance as well.
"DF Development has never had the right to close or install gates on the Boise Ridge Road, because it belongs to the public," Brian Brooks, executive director of the Idaho Wildlife Federation, said. "These out-of-state folks have a lot of nerve coming into Idaho and gating a road that was built and paid for by the public."
"Our bigger concern is that there could be dozens, if not hundreds, of these cases across the state. So calling attention to this one, getting some results and if it comes to it, some good case law might be what we need to stall this kind of thing from happening elsewhere in the state," Idaho Conservation League Government Relations Director Jonathan Oppenheimer told KTVB.
The Idaho Conservation League is working to identify how many occurrences there are around the state of potential road closures or gates put up that may not be consistent with Idaho or federal law. They are asking for the public's help in identifying situations where private landowners - including DFD - are blocking public access.
"There are a lot of roads we feel meet that criteria of being constructed with public funds and maintained and used by the public that we're seeing gates go up on," Oppenheimer said. "So it's a big concern for our members, for wildlife watchers, hunters, fishermen, really anyone that enjoys getting out and enjoying the great outdoors of Idaho. This is something that is coming directly in their path."
Idaho Wilderness Federation is seeking a remedy through the Idaho Legislature.
The group is proposing legislation this upcoming session relating to history with the Wilkses. They want to make blocking access to public lands, roads and easements a civil offense, not just criminal. They say it would empower Idahoans to tackle this in court rather than it being in the hands of a government entity that has other issues to deal with.
"Counties are strapped for resources, especially rural counties where these violations are happening," Brooks said. "Choosing to derail county budgets to prosecute billionaires over access issues, while burdened with more heinous crimes, is not financially practical. It's time we give citizens legal recourse to enforce public access.
"By adding a civil remedy to the existing law we can save taxpayer dollars and mobilize enforcement procedures faster."
The Forest Service told DFD they are interested in securing written documentation of easements for those portions of the road crossing DFD lands that were not included in the easements reserved to the United States, and would like to work with the company to obtain documentation.
"Please let me know if DF Development is willing to discuss granting or quitclaiming easements
for the road segments on DF land that were not included in the easements reserved in the
exchange patents. A larger scale evaluation of the roads and easements both on and adjacent to
DF Development lands may indicate opportunities for the Forest Service and DF Development to
cooperatively work together to exchange or relinquish road easements. This will insure
important access for both parties is retained," the Forest Supervisor said in the letter.