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Wednesday, September 5, 2007

Trails Fight; National Park Vision for Tejon Ranch

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LEGAL BATTLE BREWING OVER TEJON RANCH TRAILS?

BY DEAN WALLRAFF

Sierra Club Angeles Chapter Conservation Legal Committee and Tejon Ranch Task Force,
July 2007

http://www.savetejonranch.org/

Among the peaks listed by the Hundred Peaks Section in the Tehachapi Mountains, just north of Los Angeles County, is Liebre Twins. The HPS list says “Original List, Delisted 1969 (private property),” which implies the landowner objected to our continuing to hike there in 1969. The landowner in question is the Tejon Ranch Company (TRC), whose proposed mega-developments, Centennial and Tejon Mountain Village, the Sierra Club is fighting.

We would like to be able to resume our hikes to that peak, partly because it’s a beautiful hike reasonably close to home, but also because it would allow us to see
more of Tejon Ranch. TRC is very secretive. Biologists believe there are endangered species on the property that we can’t document, since TRC requires scientists to sign non-disclosure agreements before giving them access.

The Sierra Club and other environmental organizations are proposing that the 270,000 acre property (the largest contiguous privately-owned land holding in California) become a state or national park. It would be an amazing resource-— a park a third the size of Yosemite only two hours away from Los Angeles. It would contain a long section of the Pacific Crest Trail running along the top of the Tehachapis (the PCT through this area currently takes a much more boring route across the flatlands, in order to avoid Tejon Ranch property). It has huge groves of ancient oaks and cedars, and a variety of ecosystems. It contains vital wildlife corridors as well as a great deal of critical habit for the California Condor. It would also be a California heritage park highlighting native American settlements and early cattle ranching.

We would like to have access to Tejon Ranch in order to better make our case for the Tejon-Tehachapi Park we propose. Right now we have to hire airplanes to photograph the land, and we can’t see anything up close. TRC keeps us out. Trail access to Liebre Twins would help us document our case for a park. But how can we get access to private land against the wishes of the property owner?

In 1970, in its decision on a case named Gion-Dietz, the California Supreme Court held that five years of continuous use by the public of a privately-owned road or beach constituted an implied public dedication of the property, provided that the property owner knew of the use and made no significant effort to stop it during that period. This applies to trails as well and meant that private landowners weren’t allowed to block hikers’ access to trails we’d been using for over five years.

The law is based on the concept of prescription, part of the English common law that was imported in various degrees into U.S. state and federal law early in our country’s history. Prescriptive easements are most frequently obtained by private parties, for example by the long term use of a shared driveway, but the concept applies to public use as well. Gion-Dietz, resulted in the public’s acquisition of prescriptive easements over the private property in question.

Even though it was based on well established legal principles, this decision was something of a bomb shell among property-rights advocates. Their lobbying resulted in the California Legislature’s passing a law declaring that, starting with the statute’s effective date (March 4, 1972), public use of private land would no longer create prescriptive rights for the public. However, the law does not apply retroactively. This has been confirmed by subsequent cases, which have been successful when they proved five years of continuous use of a trail by the public prior to 1972.

One recent case was Save the Altadena Trails v. Traylor, involving a driveway connecting two fire roads near Millard Canyon and the Arroyo Seco. The property owner caused a gate to be installed in 1999 to block pedestrian access. Local residents sued to establish a permanent public easement and to prevent the property owners from interfering with public access. They won at trial court and upon appeal. The ruling was issued by the California Court of Appeal in December, 2006.

Can we do the same thing with Liebre Twins? The biggest challenge is that it’s been 35 years since 1972, as Joe Young, Chair of our Chapter’s Trail Access Committee, recently pointed out to me. A lot of the participants on our hikes prior to 1972 have passed away or moved away or become inactive. And Liebre Twins is a bit remote, so we didn’t go there as often as we go to local peaks.

I spent a morning recently in our Chapter office spot-checking Schedules of Activities for the period between 1950 and 1972. We have a complete set going back to 1905.

The format of the early Schedules was much smaller — about 3” X 5”— but the contents were remarkably similar to what’s in our current Schedules: the front matter with most of the same committees and sections (the Ice Skating Section was very active in the 1950’s), the listing of activities in date order, the leader listings at the end.

In my spot check I found two trips to “Tehachapi Mt. (6743 ft), Liebre Twins (6100 ft)” on May 5 & 6, 1951 and May 24 & 25, 1952, both led by Howard- Hill, with John Nienhuis and Floyd Henney as assistant Leaders and Muriel Pope and Clara Brock listed for “transportation.” Does any one reading this article know any of these people? Have any of you been on hikes to Liebre Twins? Do you know of other hiking organizations that might have run trips there in the 1950’s and 1960’s? To make our case we need at least 3 witnesses who can testify to regular use of the trail or road by hikers over a 5-year period before 1972. Please contact me at Dean@EnviroDefenders.org if you can help.

Now that we understand the law in this area, the template can be applied to other trail-access situations. The Trail Access Committee has a list of several other trails in Los Angeles County whose access has been blocked by private land owners.

If you know of others in L.A. or Orange Counties, please contact Joe Young or me. We need to move on this before attrition thins the ranks of potential witnesses any further.

I’ve focused on inland trails in this article, but the 1972 statute (which became California Civil Code section 1009) set forth different rules starting in 1972 for coastal property, which it defined as within 1000 yards of the mean high-tide line, or between that line and the nearest public road or highway, whichever is less. For coastal property, use by the public after 1972 can still create an implied public dedication.

To avoid this, the property owner must post signs, publish an ad, or record a notice with the county recorder giving the public permission, or enter into an agreement with a government agency giving such permission. If the public is using the beach or road or other coastal property, and the owner has not taken one of these actions, there may be a case for a permanent public easement.

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