Trump can scale back monument designations, experts say

Legal experts say the Trump administration has the authority to scale back national monuments designated by other presidents, but that such action would be challenged in court.

The Owyhee River canyon in Oregon, part of an area proposed to become a national monument. Legal experts say the Trump administration has the authority to reduce the scale of any national monument established by previous presidents. They warn, however, that such a move would certainly be challenged in court. (COURTESY BUREAU OF LAND MANAGEMENT)

Mateusz Perkowski
Capital Press

The Trump administration could sharply revise controversial national monument designations made by its predecessor, though it’s unclear such changes would be a high priority, experts say.

Pro-monument environmental groups would also likely seek to counteract such moves, testing largely uncharted legal waters.

While the Trump administration could not entirely revoke earlier national monument designations, their size and land use restrictions within their boundaries could be modified, said Karen Budd-Falen, an attorney who represents ranchers in public land disputes.

“All that stuff is fair game for the Trump administration,” she said. “It’s pretty clear they have maneuvering room.”

Theoretically, Trump could go beyond recent designations — such as the expansion of the Cascade-Siskiyou National Monument in Oregon — and amend monuments created by presidents before Obama, Budd-Falen said.

“There’s not a statute of limitations or a time frame on these things,” she said.

Ranchers fear that grazing will be increasingly restricted within the 49,000 acres recently added to the Cascade-Siskiyou National Monument.

Under an opinion issued in 1938, the U.S. Attorney General said Congress delegated its authority to create national monuments to the president in the Antiquities Act.

However, the power to revoke such designations belongs solely to Congress, not to succeeding presidential administrations, according to the opinion.

Even so, the Trump administration could greatly reduce the scale of a national monument by shrinking it to a quarter-acre, for example, Budd-Falen said.

The Republican-controlled Congress could also outright overturn a national monument designation or simply excise tracts that are most problematic for ranchers and other natural resource users, said Scott Horngren, an attorney with the Western Resources Legal Center, which litigates on behalf of agriculture and timber interests.

“They could use a scalpel,” said Horngren.

With the multitude of contentious issues facing the Trump administration and Congress, though, it’s open to question whether they’ll want to tackle disputes over national monuments, he said. “We just don’t know that.”

If the Trump administration did drastically roll back the size of a national monument, environmental groups could argue in federal court that the reduction was made arbitrarily in violation of the Antiquities Act, Horngren said.

Under that statute, national monuments should be as small as possible to protect resources within the monument, so the Trump administration could argue that his predecessor’s boundaries were too expansive, he said.

Though opponents of national monument designations tend to cast them as “midnight regulations” by outgoing presidents, in reality, new monuments and expansions must be justified in “rationales,” said Michael Blumm, an environmental law professor at Lewis & Clark Law School.

If the Trump administration decided to significantly shrink a national monument, it would have to provide a similarly well-reasoned justification, he said.

“The courts have taken seriously those rationales,” Blumm said. “There can’t be any arbitrary decision-making.”

Presidents do have a “fair amount” of flexibility in deciding what uses are permitted within national monuments, as long as they don’t undermine the monument’s fundamental values, he said.

A major reduction in a national monument’s boundaries would be unprecedented, partly because past presidents have been reluctant to scale back earlier designations, Blumm said.

The Bush administration, for example, defended national monuments created by the Clinton administration, he said.

The issue goes beyond partisan politics and resonates with concerns about the institution of the presidency, Blumm said. “Presidents like the monument authority, especially on their way out, because it provides them with a legacy.”

Boulder's infamous 'land-grab' case settled

Kirlins say they will only have to cede 12 percent of south Boulder lot



By Heath Urie
Daily Camera

Two Boulder neighbors have settled a land dispute that made national headlines and prompted state legislators to change the law that allowed it to happen.

Don and Susie Kirlin, who originally lost 34 percent of one of their two vacant lots to neighbors Richard McLean and Edith Stevens, agreed to cede about 12 percent of the million-dollar property instead, the couples announced Tuesday.

“This settlement allows the parties to put this long-standing and difficult dispute behind them,” they wrote in a 48-word joint statement.

Under the terms of the agreement, which still must be sent from the Colorado Court of Appeals to Boulder District Court Judge James C. Klein for final approval, McLean and Stevens will own a five-foot strip of the Kirlins’ next-door lot, widening to nine feet at the north end of the property.

The total transaction equals 540 square feet of the 4,659-square-foot lot.

The settlement ends a high-profile case that divided the south Boulder neighborhood after Klein’s October 2007 decision to award the land to McLean, a former judge and Boulder mayor, and Stevens, an attorney. The couple sued for the Hardscrabble Drive property under the centuries-old law of adverse possession, which allows trespassers who openly use land for 18 years to claim it as their own.

The case, which the Kirlins had appealed, prompted public protests; death threats against McLean and Stevens; and an unsuccessful effort to fight Klein’s reinstatement in this month’s election. It spurred changes to Colorado’s adverse possession law, and spawned a new law prohibiting judges from hearing cases involving current or former judges from the same district.

Both couples called the settlement agreement a win-win situation: the Kirlins will be able to sell the property with enough land left to allow a house to be constructed on it, while McLean and Stevens will retain access to a path around the side of their house.

“I would have never done something like this to my neighbor, however I am happy that it’s finally over,” Don Kirlin said.

Stevens said the settlement ends a tense chapter in the neighborhood’s history.

“I think that the community will be relieved to see that the case is settled,” she said.

‘A fully buildable lot’

Although they’re still disappointed the lawsuit ever happened, the Kirlins said that having at least some of the valuable land back is satisfying.

“It’s cost me over $400,000” to fight the lawsuit, Don Kirlin said, “and after spending it, I only get to lose 12 percent of my property that I already owned.”

He said the property, with its expansive view of the Flatirons, is now for sale — listed at $925,000. A house with a footprint as large as 1,540 square feet could be built on it, he said.

“The end result is, and the most important part to me, is that it allows a fully buildable lot,” Don Kirlin said.

The investment, he said, was always meant to finance the couple’s “dream home,” which they still intend to build on their adjacent lot.

The terms of the settlement include provisions that allow construction crews to use the piece of the lot owned by McLean and Stevens for access to the site, but whoever buys the property must agree to restore the McLean-Stevens land to its original state after construction.

Don Kirlin said his neighbors approached him with the offer to settle the longtime dispute.

“I think their gut feeling was, and their legal counsel advised them, that there was a good chance they would lose in the court of appeals,” he said.

Kirlin said his neighbors stand to gain more from the deal than just land.

“Their friends abandoned them,” Don Kirlin said. “They want to try and attempt to regain some of their stature in the community.”

‘I don’t know why it took them so long’

McLean and Stevens said they had always hoped to settle the case, which was prompted by construction of a fence that cut off a path they had used unquestioned for 26 years.

They have said on several occasions that they tried to resolve the dispute without resorting to a lawsuit.

“You always are trying to settle the case without raising the level of antagonism, without incurring a lot of attorney’s fees, and we had hoped from the very start, before we filed the lawsuit, that we would be able to settle the case,” Stevens said.

The couple has long said their lawsuit was about preserving their right to use the land to access their own backyard, based on their two decades’ of previous use.

“I think from the very start, our goal was to retain access to the back of our property and to protect the trees and shrubs that we planted there,” Stevens said.

McLean echoed his wife, saying he wished the resolution could have come sooner.

“I’m quite satisfied with it, because we made the offer nearly a year ago,” he said. “I don’t know why it took them so long.”

Negotiations have been ongoing for more than a year, and the Kirlins said previous terms weren’t acceptable them.

‘Nobody had to lose this case’

In the year since the Boulder case gained national attention, Colorado lawmakers decided to revamp the law of adverse possession. As of July 1, the law gives judges the power to force adverse possessors to pay for the land they win, and to compensate the original owner for back property taxes and interest.

The case was unique for the way it affected the public, said Andy Low, attorney for the Kirlins.

“Out here in the West, people feel very strongly about property rights,” Low said. “It touched on a lot of people’s concerns about their own property.”

He said both couples were eventually able to rise above the “bitterness” that comes with lawsuits like this one, and reach a compromise.

“Ultimately, I think the headline for me is the case has a happy ending,” Low said. “Nobody had to lose this case, which is very unusual.”

Kimberly Hult, attorney for McLean and Stevens, agreed.

“This settlement should resolve the dispute in its entirety, including the appeal,” she said.

Land-seizure cases no rarity

By Joey Bunch
The Denver Post

Despite the surprise and outrage about a former Boulder County judge taking a neighbor's land through court maneuvers, there's nothing new about adverse possession — or even judges employing the law to net real estate.

Adverse-possession cases are tried routinely in real-estate disputes in every courthouse in the state, according to legal experts. The cases usually involve correcting old surveys or disputes involving fences and property lines.

The law dates back centuries and was designed to prevent absentee land barons from seizing seemingly abandoned property after homesteads had been long established.

"Adverse possession is one of the first things you learn in law school," said real-estate lawyer Willis Carpenter, a lecturer and author who published a review of 350 adverse-possession cases in Colorado.

While legal professionals learned the lesson well, average property owners are aghast.

"It's stealing with a law license instead of a gun," said Will Campbell, a Boulder resident and supporter of Susie and Don Kirlin.

Former Boulder Judge Richard McLean and his wife, lawyer Edith Stevens, won one- third of the Kirlins' vacant land in south Boulder by using the law. McLean and Stevens argued that they had used part of the 4,700-square-foot lot to reach the garden and deck of their home virtually every day for 25 years.

The Kirlins bought the land in 1984 and planned to build a retirement home there.

The case law cited throughout Boulder District Judge James C. Klein's ruling, Smith vs. Hayden, also involved a judge taking a neighbor's property.

At the time of the case in 1989, Donald P. Smith was a state appeals-court judge. He acquired a 20-foot swath the length of a neighbor's half-acre lot that he had used as a driveway to his weekend home in Buffalo Creek.

In another case, former Boulder County Judge Marsha Yeager used the law to seize a 100-foot-long stone fence that was built as an architectural component of a neighbor's stone home on Seventh Street.

Cosima Krueger-Cunningham, whose family had lived on the property since 1950, believes the lawsuit was filed in spite, after years of acrimony with the judge. The judge had already erected a steel fence on her side of the stone fence long before the lawsuit, Krueger-Cunningham said.

"Our lawyer, none of our advisers, no one thought this case would ever go to trial," Krueger-Cunningham said. "On the face of it, it was patently frivolous."

But according to legal experts, taking property by adverse possession is no simple endeavor.

The adverse-possession law requires a person to use the property in a way that indicates obvious and exclusive ownership for a required length of time that varies by state. In Colorado, that means 18 years.

Media reports have characterized McLean and Stevens' use of the neighboring property as doing little more than walking across it and holding occasional parties there.

A series of witnesses, including neighbors who testified during three days of trial, described much more, according to court documents.

Some testified that McLean and Stevens had regularly pruned trees, sprayed weeds, raked thatch and maintained paths, a rock wall and other landscaping — using the property "virtually every day" for 25 years.

Stevens and McLean maintained a woodpile on the property and stored materials on it while they were remodeling a kitchen and restained their home, witnesses said.

Neighbors also testified they had never seen Don and Susie Kirlin, the original owners, on the property.

The Kirlins testified they never visited the area of the lot where those activities took place.

The three cases involving judges heard in their own jurisdictions "tells me we have a very serious problem with, I don't want to say it, but conflict of interest," said Krueger-Cunningham, who lost her fence to Yeager.

After the court ruling, the Kirlins filed a complaint with the Attorney Regulation Counsel citing Rule 8.4, which bans "dishonesty, fraud, deceit or misrepresentation."

"I discussed your complaint separately with six different lawyers in my office," wrote Louise Culberson-Smith, the assistant regulation counsel, in a Nov. 14 letter to the Kirlins. " We all agree that a successful adverse possession claim does not constitute a violation of the Rules of Professional Conduct, including Rule 8.4."

The publicity surrounding the Kirlins' case has absentee property owners nervous, said Hal Noyes, a Realtor in Routt County.

His advice to those who don't plan to develop their property right away: Hire a lawyer.

But such a legal necessity, he believes, "defeats the spirit of what Colorado is all about. It's supposed to be friendly wide- open spaces with good neighbors, not who has the best attorney."

State Rep. Rob Witwer, R-Evergreen, and Sen. Ron Tupa, D-Boulder, are studying possible legislation to raise the bar to prove adverse possession.

Witwer said Friday he was troubled by the Kirlin case but that any legislation would be based on improving the law overall.

"Hard cases make bad law," he said.

Witwer said he is studying adverse-possession laws in Oregon and Iowa, which require "good faith" that someone mistakenly believes he owns the property and prevents anyone from scheming to acquire property they know they don't own.

"If it's possible to prevent people from gaming the system and acting in bad faith to take someone else's property, then that's something we should do," he said.

Such legislative remedies aren't new.

In August, New York Gov. Eliot Spitzer, who forged his political reputation fighting fraud as state attorney general, vetoed changes to that state's adverse-possession law. Spitzer agreed the bill might "seem to be a logical improvement to the law" but said it would lead to "extensive litigation of virtually every adverse-possession claim."

Witwer said fairness and common sense should be part of the adverse-possession law to help level the playing field between experts and everyday property owners.

"If you trespass for 18 minutes, you can be arrested," he said. "If you knowingly trespass for 18 years, you can get the land for free. The law should not allow that to happen."

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Defeating adverse possession

Legal sources say there are ways to protect property:
Diligence: If a landowner finds a pattern of trespassing or an encroachment by a neighbor, he should demand that it stop, then sue, if necessary.

Permission: A landowner who suspects someone of using his property can give that person written permission to do so, removing the opportunity to claim possession is adverse or "hostile."

Insufficient use: A landowner can stipulate that the person used the property but not enough that a reasonably diligent owner would have noticed and had the opportunity to object. The adverse possession must demonstrate sufficient acts to demonstrate a "claim" of ownership.

Insufficient time: A landowner can show a period in which the other person did not use the property. Adverse possession requires "continuous" use of the property for the legally required period, which is 18 years in Colorado.

Nonexclusive use: The owner or others can prove they have used the land just as much as the person claiming adverse possession