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Summary Judgment

The Federal Government Should Live by the Rules

Feb 01, 2018 | by William Perry Pendley

Pulitzer Prize-winning poet Robert Frost’s iconic Mending Wall ends “Good fences make good neighbors.”  It is also legally true, but much less poetic, that good neighbors keep their property in a reasonable and safe manner to prevent hazards upon their land from harming their neighbors.  Unfortunately, that is not the approach followed by the federal government, which makes it the world’s worst neighbor, as a Colorado man discovered.

In 1985, Michael Whited moved cross country from Alabama to Colorado.  Five years later, Mr. Whited purchased a modest home in idyllic Fourmile Canyon where he and his wife have lived ever since.  This area of Boulder County, Colorado was heavily mined from the mid-1800s through the early 1900s.  The canyon’s steep hillsides are covered with pine and aspen, the stream flows fast, furiously, and noisily downhill, and the Rocky Mountains loom in the background.  It has its challenges, such as fire dangers, world-class snow falls, floods, and unpaved, narrow, and winding roadways.  The worst problem, however, is dealing with one of the small community’s neighbors, the federal government.

Mr. Whited’s next-door neighbor is the federal Bureau of Land Management (BLM), on whose property stood a dilapidated mining shed made of heavy stonemasonry and wood timbers.  The shed was built directly into the hillside and sits less than ten feet from his house.  In 2011, Mr. Whited, a mechanical engineer, recognized the shed posed a hazard to him and his property, so he asked the BLM to remove it or at least to sell him the small piece of land beneath the shed so he could remove or stabilize it himself.  Over a three-year period, the BLM passed him from employee to employee and office to office, but never took action to remove or stabilize the shed.  Then, despite promising “a response is forthcoming,” the BLM never contacted Mr. Whited again.  In March of 2016, just as Mr. Whited feared, the shed collapsed causing heavy debris, including rock, concrete, and other heavy materials, to block the walkway behind his house.  The collapsing shed dislodged trees and drove them into the back of his house and into the breaker box, which created a risk of an electrical fire.

Despite Mr. Whited’s numerous pleas, the BLM refused to take any action to address even the most significant safety hazards caused by its failure to maintain its land properly. Instead, ever since the BLM’s shed collapsed, he has been forced to expend his own time and money to deal with those issues.  Nonetheless, large portions of the shed remain collapsed on Mr. Whited’s property because it would be futile for him to remove the remainder of the shed himself.  The only thing that will prevent any further damage to Mr. Whited’s property is for the BLM to stabilize the land it owns on which its shed previously stood.

Finally, in 2017, Mr. Whited filed an administrative claim pursuant to the Federal Tort Claims Act (FTCA) asking the BLM to take full responsibility for the mess that it made on his property.  Instead, the BLM outrageously repeated it “has no ownership of the [shed] on public land.”  It did however grant him permission to “remove any of the structure that is on your property as well as any of the structure where encroachment onto your property is imminent.”  Nonetheless, the agency warned him that he could not construct a retaining wall on or enter upon BLM-managed land without paying for a BLM right-of-way.  Obviously, the BLM expects Mr. Whited to foot the entire bill for its neglect. 

Days ago, with Mountain States Legal Foundation as his attorney, Mr. Whited filed a lawsuit in Colorado federal district court against the federal government to restore his land to its full use, to provide compensation for the damage already done and the costs incurred by him, and to force the federal government to act like any other law-abiding neighbor.

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