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County will ‘protect its interests’ in future easement disputes

Hubbard County Administrator Jeff Cadwell says county has right to review the use of property in an easement agreement.

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Hubbard County views the recent Ninth District Court decision on a contentious easement as a win, saying the county retains the right to govern use of property.

Background

Tara Houska and Winona LaDuke originally filed a civil complaint on July 16, 2021. Hubbard County Sheriff Cory Aukes and Hubbard County Land Commissioner Mark "Chip" Lohmeier were named as defendants in the case.

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The environmentalists filed a civil complaint on July 16, 2021, arguing that the Hubbard County Sheriff’s Office’s blockade on June 28, 2021 to the 80-acre camp was a violation of private property

The matter was settled 14 months later by a Sept. 13, 2022 court order that bars any county efforts to obstruct access to the camp.

Houska and LaDuke filed their complaint following a June 28, 2021 blockade by the Hubbard County Sheriff’s Office. Deputies barred access to their property, Giniw Collective’s Line 3 Camp Namewag, located at 14814 Big Buck Drive. They argued it was a violation of private property rights, including, in particular, a 2018 easement covering the driveway to the property.

County officials contended that there was no road easement with the current landowner, Texas-based Switchboard Trainers Network. They also argued that a county ordinance prohibits motor traffic on a “trail” across tax-forfeited land.

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The judge ruled that an easement follows the land as opposed to an individual, so the county cannot have an easement process per person.

In a recent phone interview, Hubbard County Administrator Jeff Cadwell said, “What they won was the easement. What they didn’t win was the unconditional use to use that property for anything they want. So when they were using that property as a seasonal/recreational cabin like anybody else, that’s perfectly fine. When they were using that for a training center, and had 300, 400, 500 people there, that’s not a permitted use. You wouldn’t want that in your neighborhood if you own the adjacent property.”

The county has corrected its easement policy to reflect the judge’s order.

“But we still have the ability to review the easement if the use of the property changes,” Cadwell said. “They didn’t win what they thought they won. They get to use the easement across tax-forfeited property. But if they were to use it for that same purpose again, we would probably file an administrative appeal and say they are in violation of the shoreland ordinance. They didn’t get an unrestricted easement.”

‘Reasonable use of easement’

There are two types of easements: appurtenant and in gross.

In the court order, District Judge Jana M. Austad wrote, “The law for determining whether an easement is appurtenant or in gross has a long and stable history in Minnesota. … By definition, it is appurtenant ‘if the way leads to the grantee’s land, and is useless except for use in connection with it, and after the grant was used solely for access to such land.’”

Based on prior case law, Austad determined the Houska-LaDuke easement was appurtenant.

Austad then wrote, “The determination that the easement is appurtenant does not prevent Hubbard County from protecting its interests, as expressed in the language of the easement. The scope of an express easement depends entirely upon the construction of the terms of the easement. A grantee of an easement may make ‘reasonable use’ of the easement.”

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She continued, “Hubbard County has enacted a policy governing private easements over tax-forfeited land. It is clear from this policy and the incorporation of the policy language into the easement, that Hubbard County is concerned about the effects of increased traffic on tax-forfeited land and wants to have control over the volume of traffic using easements on tax-forfeited land. This is a legitimate governmental purpose and concern and is one that can be addressed through enforcement of the scope of an easement.”

Protracted court case is ‘not uncommon’

Cadwell said it’s not uncommon for these cases to be lengthy.

“In land use things, when we have zoning issues and we have corrective actions, we would invest the same amount of time for any one of those cases,” he said. “There’s really nothing from the county that’s extraordinary about that.”

He added all of the people involved in the case were county department heads, so they are salaried. “There’s no additional cost incurred.”

Lower deductible

Cadwell also corrected the county’s insurance deductible to the Minnesota Counties Intergovernmental Trust (MCIT). It’s $2,500, not the $5,000 that the county originally reported.

“MCIT provides us liability coverage,” Cadwell explained. “The biggest exposure we have is in land use policy, so truthfully, this situation wasn’t a lot different than any other situation we might have. It’s getting more press because of the people that were involved.”

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Shannon Geisen is editor of the Park Rapids Enterprise.
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