Jayson Jacoby
The Baker City Herald

A Baker County rancher who opened 7,100 acres of his property near Baker City to hunters in 2016 isn’t convinced that county officials have the legal authority to ensure people can drive motor vehicles on roads that pass through his land.

Rex Nelson, who lives in Keating Valley, enrolled his rangeland in the Virtue Flat area, about seven miles east of Baker City, in the Access and Habitat program run by the Oregon Department of Fish and Wildlife (ODFW).

That program, which was started in 1993, is designed to give hunters access to private property and, in some cases, to adjacent “islands” of public land for which the public had no legal access.

Landowners who participate usually receive cash payments from the program. The money comes from a $4 surcharge on hunting licenses, an annual auction of deer and elk tags, and the state’s green forage and deer enhancement and restoration program.

Nelson will receive $12,757 per year for the five-year project, which continues through Jan. 31, 2021, according to ODFW. He will contribute in-kind work equal to $2,500 over the life of the project, including replacing signs or fixing fences or other damage caused by users, said Brian Ratliff, district wildlife biologist at ODFW’s Baker City office.

The Virtue Flat property is open to hunting from Aug. 1 through Jan. 31.

In most Access and Habitat projects, including Nelson’s, hunters are restricted from using motorized vehicles on the private property except on designated public roads.

After the Access and Habitat board of directors approved the Virtue Flat project in 2016, ODFW built a couple of roadside information stations that included maps noting that only two main roads — Virtue Mine and White Swan Mine — were open to motor vehicles. ODFW also posted signs on several other roads stating that those routes were closed to motor vehicles, Ratliff said.

But Bill Harvey, chairman of the Baker County Board of Commissioners, said ODFW lacks the legal authority to restrict motorized use on at least some of those roads.

The reason, Harvey said, is that those are county roads and as such they “have to remain open” to public use, including with motor vehicles.

Harvey, who said he was notified about the road restrictions by people who had seen the signs ODFW posted, said historic maps at the Courthouse, some dating to the 1880s, show many roads in that area as county roads.

He said there are no records showing that any private property owner has undertaken the process to vacate those roads or otherwise restrict public access to them.

“We scoured everything and those are deeded roads in our books,” Harvey said. “We don’t just assume something is ours without proving it.”

Kim Lethlean, whose family owns the Virtue Mine, which borders on Nelson’s property, said he went through records in the Courthouse basement to find documents showing routes through Nelson’s property are public rights-of-way.

But Nelson, who has owned the property for 22 years, said he’s not convinced.

“I am going to request proof,” he said. “I want them to show me what the county’s right-of-way is, which they did not do.”

Nelson said he met last fall with Harvey, Baker County Roadmaster Jeff Smith, and ODFW officials regarding the road issue.

Ratliff said ODFW removed the no vehicles sign from one road — the one that runs past the Uncle Dan Mine — because county officials had a map that clearly identified it as a county road.

Ratliff said ODFW has not removed signs from any other roads. He said the issue is now between Nelson and county officials.

Harvey contends ODFW has no legal authority to post signs banning vehicles on roads across private property.

Ratliff said the agency put up the signs on Nelson’s property because the tax records for the land gave no indication that there were public easements or other rights-of-way.

Nelson said he has not formally objected to the removal of the sign on the Uncle Dan Mine Road.

But he does intend to challenge the county’s evidence that other roads through his property are also under the county’s jurisdiction and must be open to the public.

“If they can convince me, that’s fine and I’ll go along with it,” Nelson said. “But I think, quite frankly, that it’s baloney. I do not believe any county commissioner has the authority to decide single-handedly what is a county road.”

Nelson said he believes at least two roads on his property were built during the early 1990s by a previous landowner, so the county would have no reason to argue that those are historically public routes.

Nelson said his two chief concerns about motorized vehicles on his property are the risk of wildfire and potential effects on sage grouse and their habitat.

“One hot exhaust pipe or one cigarette butt and we’re out of business for three years,” Nelson said.

He was referring to the effects of a fire, which can render rangeland unusable for cattle grazing until grasses have become re-established on scorched soil.

See more in the Jan. 17, 2018, issue of the Baker City Herald.