Fox News chief Roger Ailes years ago went public with his views on American property rights. In a 2010 meeting about a rezoning plan affecting his stomping grounds in Garrison, N.Y., Ailes pronounced, “George Washington said, ‘A violation of my land is a violation of my being. That is in our core for 230 years.”
Washington’s archives turn up no such quote, as Ailes biographer Gabriel Sherman has noted in his account of the incident. Yet Ailes’s absolutist view of private property rights has trickled down to his Fox News subordinates, as demonstrated by a controversy over a cabin in the backwoods of Colorado.
The wooden structure is south of Breckenridge in Summit County, surrounded by the majestic White River National Forest. It belonged to a couple from the suburbs of Chicago, Andy Barrie and Ceil Barrie. It was their dream cabin — rustic, pristine, perfect. “Was” is the operative word here. Weeks ago, Summit County purchased the property from the Barries through eminent domain. Although the circumstances are complicated, the county wanted to preserve open space.
Fox News’s leading opinionators didn’t approve. Host Greta Van Susteren, a legal eagle, addressed the matter in a Feb. 21 broadcast that ripped the county north, south, east and west: “You’re not going to believe this one. But apparently, if you hop on an ATV, the government can take your land,” said the host, who later remarked, “It’s horrible.”
On Fox Business, Neil Cavuto on April 17 summed up the situation as follows: “Uncle Sam may be getting a little too aggressive when it comes to stealing folks’ land.”
Then came Fox News extremist Sean Hannity, who outdid all of his colleagues in framing the Barries’ predicament: “Sorry you lost your property. It’s expensive to fight city hall and the government. It’s pretty outrageous in terms of abuse of power, but sorry to hear that. But I hope people are watching because this may happen to you next.”
Just how straightforward was this “land grab?” Let’s go to the facts.
The Barries are in their mid-50s and run Northwoods Wreaths, which provides Christmas decorations and plants for nonprofits’ fundraisers. The Barries fell in love with the mountains of central Colorado over several visits to the area.
In December 2011, they bought two parcels that were wrapped into one transaction: A residential property in a wooded subdivision and 10 acres at the so-called Hunter Mine, the subject of the land-use controversy that Fox News found so enticing. The two parts of the property are separated by a “rough Jeep road” 1.2 miles long. Views from the mine property fall on the White River National Forest, and they are stunning — as in 14,000-foot-peaks stunning. “It’s like a painting on the wall,” says the Barries’ attorney, Eben Clark. “It’s really something special.”
Everything was fine until around March 2012, when the Barries were visited by a U.S. Forest Service official. “We invited her in the cabin and asked if she wanted water or coffee,” says Andy Barrie in a chat with the Erik Wemple Blog. They learned something that the title company hadn’t told them prior to their purchase of the property. That rough access road? It winds through property owned by the Forest Service, which closed the road to motorized use back in 2002, according to Scott Fitzwilliams, a supervisor with the U.S. Forest Service (the Barries say the closure is more recent). In other words, the Barries couldn’t just run their Polaris Ranger willy-nilly up and down the mine access road.
“The title company absolutely dropped the ball on this one in several regards,” says Clark. “They ensured that the Barries would have unfettered access to the property and that’s why they got drawn in.”
In order to ply the access road with a motorized vehicle, the Barries learned that they’d have to go through a permitting process administered by the Forest Service. According to Andy Barrie, the feds said that it’d cost about $10,000; they later figured, he says, that the price would be at least six times that sum and the effort wouldn’t accord them permanent motorized rights. They bagged the paperwork.
The story then veers into the sort of minutiae for which even 24-7 cable news outlets have little time. Unable or unwilling to pursue the permitting process, the Barries turned to a law with a deep and controversial history in settling the West. Revised Statute 2477 came into this world via the Mining Act of 1866. At that time, the focus of land policy out West was promoting settlement of vast open spaces, giving governments a great deal of latitude in constructing roadways over public lands. Development ensued.
Over the course of a century, things changed: The Federal Land Policy and Management Act of 1976 (FLPMA) declared an emphasis on preservation, and it repealed the highway-promoting R.S. 2477. Here’s where things get delicious, at least for those who make a living on land-use law. The repeal of R.S. 2477 didn’t mean that assertion of such rights-of-way could no longer be made; a grandfathering mechanism allowed for claims over roadways that preceded the FLPMA. This loophole prompted a stampede of government entities and even private landowners seeking to claim as a road what one environmental group calls “nothing more than a faint Jeep or cattle trail.”
R.S. 2477, in any case, provided an opening for the Barries. In a November 2012 letter, Geoffrey P. Anderson, another attorney for the Barries, argued that the access road to the cabin preceded the establishment of a national forest in the area. The road belonged to the county, not the Forest Service, argued the document. “Given the fact that the Forest Service neither owns nor controls this road, a permit to use the road, issued by the Forest Service, is a nullity,” noted the Anderson letter. The problem for the Barries was that the law prevented private parties from asserting R.S. 2477 claims for old roads; such a claim had to come from entities in the road-building business, such as a local, city or state government, according to Fitzwilliams.
In a letter to the county, Clark articulated just how the Barries wanted to resolve the issue: “This resolution would have the County recognize the Access Road as a county road, but then exercise its police power to close the Access Road to all motorized use, except for use by the Barries to access the Hunter Mine.” No matter your views of “rough Jeep roads” in the wild West, that request from the Barries appears to be an extravagant one, though Clark says that out in the backwoods, such arrangements aren’t uncommon.
To pull off a takeover of the access road, Summit County would have to file an action against the federal government under the Quiet Title Act, according to Summit County Attorney Jeff Huntley: “The effort would have been substantial and taken at least a couple of years.” The Barries and their attorneys argue that the process would have been much simpler.
In any case, the county refused. Nor did it appreciate the Barries’ pushiness on the matter. In an interview with the Erik Wemple Blog, Huntley cited “numerous threats of litigation from the Barrie’s attorneys” over the status of the access road. “If you want to talk about the straw that broke the camel’s back — suing to have unmitigated access to the property, to their cabin through this roadless area,” he says.
Huntley strikes a note of exasperation when asked about the request: “Why would the county spend its own resources in furtherance of a private landowner’s goals regarding uses on federal land when the landowner could take up the issue directly with the federal agency and in a more expedient fashion than the county could?”
With relations between the Barries and the county thus poisoned, hostilities followed. The county offered to buy the property from the Barries for $25,000 in June 2013. The Barries declined. Based on an independent appraisal, the county later upped the offer to $30,000. Again the Barries declined.
In October, the county board approved an offer of $50,000 and endorsed an eminent domain petition if the Barries turned down the cash. They did, and the county’s push to acquire Hunter mine ended in a mediation session that settled on a $115,000 price for Hunter mine.
The experience left the Barries with a crisis of trust in their government. They claim that they never received proper notice of the special county board meeting at which the eminent domain petition was authorized; that the Forest Service and the county “colluded to basically get us out,” in the words of Andy Barrie; and that they spent $80,000 in legal fees in a vain effort to hold on to a beautiful piece of property.
As for the county, it endorses the Forest Service’s non-motorized designation for the access road, claiming that it is in the middle of a crucial habitat for the Canadian lynx and endangered plant species; it says there was nothing improper about the county board meeting; and Huntley says the Barries’ claims of $80,000 in legal fees are “unbelievable.”
Thick with legalities and technicalities, the Barries’ cabin case would test the fair-and-balanced bona fides of any news organization. But the county finds Fox News’s treatment particularly wanting. “[The Barries] had an opportunity to cure the problems. None of that seems to have ever come out in any of the Fox reports despite the documents we provided,” says County Manager Gary Martinez. Also: “What you are left with, and I think what Fox likes to report, is ‘Here’s an overreaching, bad government, reaching out and pulling property away from some poor innocent folks.’ That’s clearly not what’s going on here once you put all the facts on the table,” says Martinez.*
County officials, however, have shaky grounds for disputing emphases in the Fox News coverage. When asked to go on camera for the stories, after all, Summit County declined, opting instead to provide materials and official statements, which were read on air. “From the outset, we expected Fox News’ coverage of the case to be highly critical of Summit County’s policy decisions and community values, and the network lived up to our expectations,” says county public affairs coordinator Julie Sutor. Nor is the county pushing the network for any corrections to the record. “We’re a small county and we don’t have the resources to play whac-a-mole on Fox News correcting every false claim that comes up,” says Huntley.
What really irks Huntley is Fox News’s trafficking a claim from the Barries that the county would probably take the land acquired from the couple and swap it with the Forest Service for more valuable land closer to the county seat of Breckenridge. Barrie made the same claim to the Erik Wemple Blog, alleging that a county official had told him as much in a meeting. Huntley: “That’s a complete fabrication. . . . Do you really think the U.S. Forest Service is going to give up millions of dollars of property? If you believe that, I’ve got a bridge to sell you.”
Key parts of Fox News’s coverage scoffed at the notion of using eminent domain to preserve open space. Hannity, for instance, appeared to suggest that it was justified primarily to clear the way for roads, schools and hospitals. But Summit officials argue that unspoiled countryside comports with their values. “They might not hold those dear in Chicago, where the Barries are from, or from wherever Fox News is from,” says Huntley. Preservation has worked well over the decades, according to Huntley. “We have a very robust economy,” he says.
For a media critic, the story assists in defining the three layers of coverage at Fox News:
Layer No. 1: Straight news. As Fox News points out to detractors, it produces hard, “objective” news during the daytime hours. Here’s a report on one such show, “Happening Now,” and indeed it gives a pretty evenhanded rundown of the conflict. Presented by Denver-based Fox News reporter Alicia Acuna, the piece runs through key points relevant to the eminent domain action.
Yet as often happens with its “objective” coverage, Fox News can’t resist throwing in a little tilt. On the April 8 edition of “Special Report,” Shannon Bream used this line to introduce the story: “Now to a land grab out west, it sounds like something out of a John Wayne movie, but it is real life, and it’s a story playing out in Colorado.” And check out the prop that in the lower-right corner of the network’s news package on the Barries:
Which is to say, it’s your property, so what right does the government have to mess with it? Julie Sutor, public affairs coordinator for Summit County, called the sign “inflammatory,” though it is kind of cute.
Layer No. 2: Mainstream editorialists. Fox News gives its top talent free reign to express opinions, of course. And boy do they. When Neil Cavuto said on Fox Business, for instance, that “Uncle Sam may be getting a little too aggressive when it comes to stealing folks’ land,” he might have noted that it was Summit County that pursued the eminent domain case.
When Van Susteren addressed the issue on her Feb. 21 show, she pulled in three other analysts, all of whom trashed the county’s position. Including the host, that’s a team of four against Summit County.
Layer No. 3: Hannity. Just Hannity. In one of his broadcasts on the Barries’ situation, Hannity left viewers with the impression that the couple had been swindled on the transaction, as follows: “[They] lost their dream cabin in Colorado simply because the government decided it wanted their land. Why do they want it? For, quote, ‘open space.’ Now, the couple tried to fight for it, but they told me it was pointless and that they ultimately had to give up their dream cabin for just a fraction of what they paid for this.”
The Barries paid $550,000 for two properties — a highly valued residential plot (which sold for $316,000 in 2005) and the much, much cheaper mining plot at issue in the case (which sold for $26,000 in 2005). The county paid $115,000 just for that latter plot, which Huntley says was worth around $30,000 (the Barries claim it was worth more). “My takeaway was that Hannity implied they lost hundreds of thousands of dollars when in fact the property owners received several times the fair market value of the mining claim that was taken,” says county attorney Huntley. Hannity didn’t appear to care much about the lynx or the plants, either.
That’s not to mention the misleading contextual seedbed that Hannity prepared for the Barries’ story. He presented the cabin showdown alongside the crusade of Nevada rancher Cliven Bundy to resist the federal government’s attempts to get him to pay fees and penalties for allowing his cattle to graze illegally on public lands. Eminent domain never figured into the Bundy case; in fact, the situation was the reverse, wherein Bundy was a private entity essentially colonizing public property.
No matter: After passing through the Hanniterator, it was all a bundled case of “Government Gone Wild.”
*Update: Paragraph changed to add attribution to Martinez, whose name was previously missing.