U.S. v. Park
| Decision Date | 11 September 2009 |
| Docket Number | Civil No. 05-0213-N-EJL. |
| Citation | 658 F.Supp.2d 1236 |
| Parties | UNITED STATES of America, Plaintiff, v. Ron and Mary PARK, husband and wife, Defendants. |
| Court | U.S. District Court — District of Idaho |
Deborah A. Ferguson, US Attorney's Office, Boise, ID, for Plaintiff.
On March 17-19, 2009, the Court held a bench trial in this matter. Having reviewed the record in this matter, the Court is now prepared to issue its Memorandum Decision and Order.
1. The Ninth Circuit remanded this case for further proceedings after determining the term "livestock farming" contained in a scenic easement was an ambiguous term. United States v. Park, 536 F.3d 1058 (9th Cir.2008).
2. Currently, there are approximately 240 landowners with easement encumbered properties on the Middle Fork Clearwater, Lochsa and Selway Wild and Scenic Rivers. Over three million dollars were spent by the United States in the 1970's and 1980's to acquire these scenic easements, including the easement which is the subject of this litigation. Mr. Gerald Curnes negotiated over 140 scenic easements for this area over a 10 to 12 year period. Mr. Curnes specialized in real estate transactions for the Forest Service and he drafted the scenic easements. He then had his easements reviewed by general counsel for the Forest Service. Mr. Curnes used the same basic format for the easements, but provided for existing uses on each property and would include unique clauses when appropriate.
3. The private property at issue is located within the Designated Boundaries of the Middle Fork Clearwater Wild and Scenic River. (Parts of Lot 8, Section 6, Township 32 North, Range 5 East, Boise Meridian). The United States refers to this parcel as Tract 160A.
4. The United States purchased certain real property rights on this property under the authorities of the Wild and Scenic Rivers Act (P.L. 90-542) in March 1973, as recorded with Instrument Number 248999 in Idaho County, Idaho. Exhibit 1.
5. The United States paid Earl and Iona Monroe $49,500 for the easement in 1973. Id. The easement applied to 94.7 acres of land. Id.
6. The Monroes sold to the property to the Dells in June, 1984. Exhibit 2A. The Dells sold the property to the Daileys in June, 1987. Exhibit 2B. The Daileys sold the property to Ronald and Mary Park (the "Parks") in April 1989. Exhibit 2C. At the time the property was sold to the Parks no kennels existed on the property. Exhibit 17. The Parks were aware of the easement encumbering the property prior to their purchase of the property.
7. The easement requires written approval prior to construction of structures within the easement area. Clause 2(d)(1) of the easement states Exhibit 1, clause 2(d)(1).
8. The easement prohibits certain commercial uses. Clause 2(a) of the easement states ". . . the lands within the easement area shall not be used for any professional or commercial activities except such as can be and are, in fact, conducted from a residential dwelling without outside alteration of the dwelling." Exhibit 1, clause 2(a).
9. The Monroe easement allows for "general crop and livestock farming." Exhibit 1, clause 2(c). This same clause was used in most of the residential easements negotiated.
10. The Monroes were involved in general crop and livestock farming at the time the easement was signed, but the Monroes did not have any kennels on the property at the time the easement was granted. The Monroes did have cattle and horses on the property. The Monroes did not have an attorney involved in negotiations with the Forest Service for the easement. The Monroes did not indicate any specific interest in retaining a right to have a dog kennel on their property or to run a dog kenneling business in the future. Mr. Curnes does not remember noticing a dog on the Monroes' property when he negotiated the easement and does not recall whether there was or was not a dog or dogs on the Monroe property at the time the easement was negotiated.
11. The Administrative Plan that was created with the Monroes to manage the easement's application to their property contains no reference to dogs or cats, or kennels. The Monroes' Administrative Plan does not place restrictions on the types of animals that could be on the Monroes' property. Administrative Plans were not required for scenic easement properties, but were drafted to give the landowners assurances about the type of uses they could have in the future.
12. Between February 1989 and December 1991 the Parks communicated with the Forest Service as required by the easement to obtain approval for various structures and commercial uses. Exhibits 5, 6, 8 and 9.
13. In particular, approval was sought and granted in November 1989 to excavate behind the chicken coop for the purpose of constructing open horse stalls, constructing a 4-foot tall retaining wall, converting the chicken coop to a barn, constructing a 15-foot addition to the machine shop and excavating a small pond. Exhibit 6.
14. In August 1990, approval was given to operate a craft and hobby shop within the residence. Exhibit 8.
15. In December 1991, approval was given to operate a bed and breakfast within the residence. This same letter denied conversion of an existing structure into additional living quarters because that use would violate easement clause 2(a) described in item 6 above, which prohibits commercial activity outside the residence. Exhibit 9.
16. In May 1997, the Forest Service observed advertising in the local newspaper for This phone number is the Parks'. Exhibit 10A.
17. The Parks refer to their business as a "Doggie Bed & Breakfast." Exhibit 10B.
18. The Parks have continued to advertise their dog kenneling operations and have expanded their operations to include the boarding of cats. Exhibits 10 AE.
19. In February 1998, the Forest Service notified the Defendants in writing that the kennel construction and operation were not in compliance with the easement because no plans for dog kennels were approved per easement clause 2d(1) and the commercial operation of the dog kenneling business was prohibited by easement clause 2a. Exhibit 11 20. Ron Park testified that he believed the kennels were approved in 1998 as horse stalls and that dog boarding and training are general livestock farming permitted under easement clause 2(c) which states that "the Grantors . . . retain the right to use the easement area for general crop and livestock farming and for limited residential development consistent with applicable State and local regulations." Exhibit 1.
21. In February 1999, the Forest Service notified the Defendants in writing for the second time that the kennels and kenneling operations were not in compliance with the easement. Exhibit bb, attachment G, Forest Service Letter to Ron and Mary Park dated February 4, 1999.
22. In the summer of 2003, the United States observed the presence of three newly constructed kennels and signage for the Parks' business. The United States notified the Defendants for the third time that the kennels and kenneling operations were not in compliance with the easement. Exhibit 13.
23. The Forest Service notified the Parks a fourth time in writing with details of the specific easement violations outlining the actions needed to remedy the violations and timelines. Exhibit 14.
24. On July 21, 2005 the parties attempted to mediate the dispute. The Parks' agreed to remove the neon signage. No resolution was reached regarding the definition and interpretation of "general crop and livestock farming" as used in easement clause 2c.
25. There were no "commercial" kenneling operations in the town of Kooskia in the early 1970's when the easement was granted.
26. The newspaper from that community in 1972-1973, "The Clearwater Progress," does not reflect whether dogs were considered livestock. Exhibits 29 A-G.
27. At the time he negotiated the scenic easements, Mr. Curnes did not consider dogs to be livestock. Mr. Curnes did not remember discussing with the Monroes what animals they considered to be "livestock." Mr. Curnes considered horses, cattle, sheep, goats, pigs "livestock" when the easement was entered. He considered chickens, ducks and rabbits not as "livestock" but allowed under the easements under the reserved activity of "farming." Mr. Curnes did not include these definitions in scenic easements he negotiated and drafted.
28. At the time the easement was negotiated with the Monroes, a similar easement was negotiated with the landowners across the river, Billy and Katie Hopson. At the time the easement was signed by the Monroes, Mr. Hopson had dogs and two kennels on his property. Mr. Hopson bred his dogs and sold puppies occasionally. Mr. Hopson's easement contained the same clause which allowed the property owner to use his property for "general crop and livestock farming." Exhibit I. At the time Mr. Hopson entered his easement he had a few cows, three horses, rabbits (with numerous hutches) and three dogs on his property. The Forest Service never contested Mr. Hopson's right to have dogs, kennels, rabbits or rabbit hutches on the property and he lived on the property until 1998. Mr. Hopson's easement was negotiated for the Forest Service by Mr. Mel Fox although he also talked with Mr. Curnes regarding the price to be paid for the easement.
29. The testimony received by the Court from the experts was conflicting. The Government's expert, Dr. Jeff Rosenthol, veterinarian and Chief of Staff for the Idaho...
To continue reading
Request your trial