Family, state at odds over property

By Anne Adams • Staff Writer

Pen Goodall has been managing the selective timbering on Rifle Ridge Farm for two decades, but says he still must patrol the property because the Department of Game and Inland Fisheries does not adequately enforce the rules for public hunting and fishing. He and his family are frustrated the state will not relinquish control over some 900 acres of their privately held land. (Recorder photo by Anne Adams)

LAUREL FORK — When Dr. McChesney Goodall Jr. died in 1979, he left a will indicating his desire that Rifle Ridge Farm, 1,683 acres on Allegheny Mountain, be forever preserved and intact. He wanted to protect it as a special wilderness area, and share it publicly for educational and scientific purposes because it contains rare ecosystems and wildlife. He spent three decades preserving and managing the place, planting thousands of trees, and studying its rich environment.

An unfortunate series of legal wranglings following his death, however, left his wife and children in a 20-year dispute with Virginia's Department of Game and Inland Fisheries, which continues to this day.

Ferns carpet the forest floors on Rifle Ridge Farm, giving protection to smaller critters and leaving their mark in bright green to compliment the canopy of trees. (Photo courtesy Pen Goodall)

Though the family retained ownership of the farm, DGIF got control over more than half the land, allowing public hunting on the farm, and fishing in the pristine waters of Laurel Fork, home to native brook trout and other species.

The family wants to set up research, education, and conservation programs as their father longed to do. But DGIF has focused solely on hunting and fishing rights.

The Goodalls are now proposing to open up public benefits to the whole place, including the Hull Ridge tract, which is not currently accessible by the public. The game department, however, has declined to change the current arrangement.

At this point, things are at an impasse.

How did the public get access to private property?

 

It's a complicated story. Dr. Goodall spent decades renewing the farm's high-elevation forests. At the time, in the late 1960s and early '70s, there were no wellestablished mechanisms for preserving property the way he envisioned.

Dr. Goodall had spoken to numerous organizations over the years about how to keep the place from being subdivided or developed, including the U.S. Forest Service, Virginia Department of Forestry, the state Department of Game and Inland Fisheries, and several universities.

"I think he was trying to get feedback from lots of people in an attempt to come up with a good solution for preserving the land," explained his son, McChesney "Ches" Goodall III. "At the time, there was no such instrument as a conservation easement as we know it today."

Unfortunately, he could not legally establish an arrangement before his death, and at that point, a DGIF representative, who had often discussed the fate of the land with Dr. Goodall, stepped in.

A five-year battle ensued between the Goodalls, who inherited the farm, and state officials, who argued the government had a right to allow the public onto the land. It involved not only interpreting Dr. Goodall's will, but determining whether he was even conscious when he signed it.

Under certain legal principles, when a gift is made by will or trust, and the recipient does not exist or no longer conducts activities for which the gift is made, then the estate or trustee must give it to another entity which comes closest to fulfilling the intent of the gift, Ches explained.

"Sometimes this results in heated court disputes in which a judge must determine the appropriate substitute to receive the gift," he said.

Dr. Goodall's will was vague about how much of the land or which portions he wanted set aside for public benefit. "Since he and the U.S. Forest Service or (Virginia) Department of Forestry never worked out an acceptable agreement, or they could not accept his terms before his death, things were left dangling," Ches said.

Neither USFS or DOF asserted rights after Dr. Goodall died, "but DGIF readily did, making a case for themselves as being the 'closest to fulfilling the purpose of the gift,'" Ches explained.

Dr. Goodall's will indicated the property should be managed for conservation, education and research, but according to his sons, DGIF focused on benefiting the public through hunting and fishing — "the furthest thing from my fathers wishes," Ches said.

A will "mysteriously appeared from Staunton" when his father was dying, he explained. "Since my father could not hold the pen and was in and out of consciousness, my mother held his hand and signed it, without ever reading its contents."

It all came down to whether Dr. Goodall was conscious and lucid when he signed the will. The family and his doctor said he wasn't; a nurse and the state contended he was.

"As a result," Ches said, "we fought the state for the next five years to resolve the conflict by negotiating a settlement. If we went to court and lost, there was much uncertainty over what might happen to the land, since the will was so vague. We were petrified of losing the entire property. At the same time, the commonwealth, aka, DGIF, also knew they could lose the court case and end up with nothing … we negotiated and negotiated until we finally gave up and compromised … our money was being exhausted and we were fighting the Commonwealth of Virginia — an 800-pound gorilla who could keep fighting until we were totally beaten down. In the end, we granted a deed of gift to DGIF that established hunting and fishing rights on Bear Camp and a conservation easement on Laurel Fork."

It was not what the Goodalls wanted. They were forced to allow the public to hunt and fish on their land, and had little control over how folks behaved while they were there.

"At the last meeting, we gave up things that we never wanted to give up," Ches said. "Though we never had a problem with the easement on Laurel Fork … the hunting and fishing was a nightmare that we've never been able to accept."

During the last couple of years, the Goodalls negotiated an arrangement with The Nature Conservancy, finalizing a conservation easement on the entire tract in December. As they did, the family also proposed a new arrangement with DGIF.

DGIF liaison James Adams indicates talks with the family and state officials have ended.

Why it doesn't work

 

The Goodalls oppose the arrangement with DGIF primarily because they believe the agency does not enforce the rules about hunting and fishing on their land, and does not provide the kind of education and research their father intended.

Adams says the agreement protects the Goodalls from liability if someone is hurt or killed on their property; he wasn't sure about fire damage. "But we do have restrictions on fires in the hunting/fishing permits. The public is only allowed to enter and hunt (or fish). If they violate the permit, they are subject to enforcement by a conservation police officer." Formerly called game wardens, those officers patrol the property, Adams said.

The Goodalls say they haven't patrolled, ever, and have compiled a list of grievances for DGIF about this which DGIF has never addressed. On several occasions, the Goodalls have found folks wandering beyond where they are allowed to be, leaving trash, camping illegally overnight, making fires, and more. They have reported problems repeatedly, and DGIF has never sent an officer.

"I remember several years ago walking along Laurel Fork, way upstream from where Blights Run intersects Laurel Fork," Ches said. "Fishermen are supposed to stay below this point. While walking along the bank, I noticed fresh footprints and found a dead brook trout. Pretty soon, I heard voices and saw a camp with a burning campfire right under a stand of red spruce. Limbs had been broken off for firewood."

The campers showed Goodall their permits, which had been incorrectly printed and had no rules or regulations included. The permit said fishing "south" of Blights Run where it should have said "north."

Adams said enforcement is a problem because the Goodalls have not provided DGIF with "administrative rights," which would enable the state to mark trails and put up signs so hunters and anglers know where they are. "We've had little feedback from (the family) on this," he said.

The deed with DGIF does not require the family to provide these rights, Ches said. "DGIF are the wildlife experts, yet they have never mentioned these concerns before, or proposed sitting down with us to resolve them."

At one point, there was a sign along the road where a designated trail began but the Goodalls found it inappropriate. "We took this down many years ago because it was an invitation to the general public, not just those with permits," Goodall said. "In our recent proposal, we suggested putting blazes on a couple of trees at the trailhead so permitted hunters would know what to look for … Beyond the trailhead sign, we have never objected to blazing a noticeable but inconspicuous trail with a designated crossing at Laurel Fork, preferably just below the trailhead. We would prefer this because, right now, they (hunters and fishermen) wander all over the place."

If DGIF provided folks with information about the rules and a good map, that would be sufficient, the Goodalls assert. "Hunters know more than most when it comes to reading maps and knowing where they are," Ches said. "I think hunters do receive a map (now); however, it is basically useless because the scale is so small and it shows From AT ODDS, page 6 few details. DGIF makes no effort to let people know this is private property and (to) treat it accordingly. This is in large part why non-local hunters, unfamiliar with the situation and property, treat it like public land.

"The bottom line is, they (DGIF) don't have the manpower or interest in patrolling this area. It's not a priority. Also in our recent proposal, we talked about actually letting them drive in to patrol … provided they stayed on designated roads and avoid driving on them when the roads are wet and easily rutted. We would let them use four-wheelers to patrol, but they have to work with us, too."

Adams said DGIF understands the family's concerns. "We're very sympathetic to that," he said, "but it's our responsibility to protect the public."

As for the family's new proposals, he said, "We've kind of closed the door on the whole thing since The Nature Conservancy got involved. Right now, it doesn't look like as if it's going to work out."

The Goodalls are also frustrated by DGIF's permitting process; permits used to be issued in Highland County, but the agency now issues them in Verona, an hour and a half away. "DGIF moved the permitting to Verona because they said it would make it easier to manage the permits and they could easily compile a list of the permit holders on the computer and send it to us each year before hunting season," Ches said.

But that's not happening, Ches said.

Ches' brother Pen, who lives adjacent to Rifle Ridge Farm and works on the land, said he has never seen a DGIF officer on the place, or been sent a list of permits when he's asked.

"That's not correct," Adams responded. "Those permits are public information. We provide them any time, if asked. Any time they ask for it, they get it."

That doesn't satisfy Ches. "His response shows again that they have no interest in working with us," he said. "Have they forgotten that we own the property, not them? They and their hunters are visitors and owe us — and our land — respect."

Education, research

The Goodalls propose changing how and when the farm is accessed and used by the public by establishing its management under people selected by The Nature Conservancy, the game department, and their family. One of these managers' goals will be to encourage education.

"In the past, we have provided summer internships for three different graduate students at Duke (School of Environmental Studies) to study plant communities within the property (among other topics)," Goodall said. "It is something we want to continue doing each year."

The managers would meet at least once a year to assess the condition of the land and Laurel Fork riparian area, and evaluate research proposals. They would contact Highland County Public Schools, scientific organizations, and others to schedule programs like field trips for observing wildlife, offered at no charge.

James Madison University professors have already submitted a research project proposing to have students establish a habitat suitability model to predict the potential and future of the red spruce forest, and create a restoration tool. Then, they would come up with a procedure to locate new stands with remote sensing analysis, GIS, and experimental field research. The professors chose red spruce because it's one of the most threatened forest ecosystems in the U.S.

DGIF, however, doesn't feel the agency is required to get involved with such programs. Plus, parking would be a problem, Adams said, because the agency cannot carve out a parking place.

"One of our concerns is managing the right (access), and we have to be careful how we advertise that … we want to protect the property and there are a number of different scenarios, but the parking is limited. We do have property the agency owns there, but we have a slope on the side of the mountain that limits us."

DGIF owns a .98-acre appurtenant that had to be given to the agency to provide access to Laurel Fork. It was never intended to be a parking place, the Goodalls said.

"We asked them to give this up to The Nature Conservancy when the easement (with TNC) was recorded last December," Goodall explained. "They will not respond."

But parking should be no obstacle, he said. "They (DGIF) have no answers because they can't think past hunting and fishing, hooks and bullets. We would readily let them drive in to conduct research and education. We would let them bring groups in several times each year for educational, scientific purposes."

Adams said, "The family can be doing that if they want, (but) I'm not sure if the easement spells out anything we have to do for education … We have been engaged in discussions, but our suggestions have not been received very well."

Conservation

The current arrangement with DGIF indicates preserving the water quality of Laurel Fork is a public benefit, but the Goodalls propose taking that a step further. The family would voluntarily nominate Laurel Fork for Tier III designation under DEQ regulations; a portion of the stream on federal land is already listed with that status.

The agreement now indicates preserving red spruce on the Bear Camp tract is a goal, but the newer draft proposed by the family would preserve the trees there plus all the other Goodall property for a more "holistic, ecologically based forest management plan." This would also be true for species like the snowshoe hare, northern flying squirrel, and others, which would be surveyed and identified.

Bird watching would also be extended to the rest of the property, to include fall and spring warbler birding trips.

Current arrangements with DGIF emphasize hunting and fishing, with limited and irregular funding for research, Goodall said. The new draft emphasizes educational programs, ecosystem management, and increased funding for research with a greater potential for grant money and outside donations.

Fishing, hunting

Currently, citizens who want to fish or hunt on the Goodall's private land can get a permit through DGIF offices in Augusta County.

The Goodalls propose making arrangements at convenient county game-checking stations, issuing no more than six fishing permits per day. No one would be allowed to reserve more than three consecutive fishing days at a time. The family would charge normal fees to cover associated expenses, and donate excess income to the Highland County Education Association or similar educational group. Fishing (catch-and-release) would be allowed within certain boundaries along Laurel Fork during March, April and May.

The Goodalls propose to limit hunting to a hunt club made up of Highland County residents. Such a club would be enrolled in a program to control deer herds and improve population health. It would charge normal fees, and again, donate any extra income.

Currently, hunting for deer and turkey is limited to the Bear Camp tract on a first come, first served basis through DGIF; the agency has no program for herd health, and its permit fees are based on 1983 rates.

"By managing the hunting ourselves, we would clearly spell out all of the rules and regulations so there would be no screw-ups," Goodall said. If a hunt club is used, he said the family could consider increasing the number of hunting days, and hold special days for handicapped hunters, among other things.

The state's position

DGIF is not considering the family's new proposal. "I don't believe there's any life to that now," Adams said. "We have a supervisory board, and as it's written in the agreement now (that) the public right should be protected. We're serious about the public's right, so we're not discussing it further."

 

Adams acknowledges his agency and the Goodalls have had plenty of differences over the years. "By state statute, we're responsible for the management of wildlife and we also use sound science for this. At times, there are some differences as far as the easement and public access goes. Even though the vision Dr. Goodall had was not clearly written down, we have the easement now."

What it really boils down to, Adams says, is that "this is one of those things where they (the Goodalls) prefer the easement not exist … The easement has terms so that public right is protected … if it's changed, the public right still has to be maintained.

"As difficult as this has been for the Goodalls, it's been difficult for us as well. At the time it was done, there was just no good model to follow."

If the easement had been written today, Adams said, it would eventually have turned out the same way — with a conservation easement and a public rights agreement — except the two would not interfere with each other.

Typically, he said, conservation easements struck between providers and easement holders take a fair amount of work to make sure everyone is satisfied. "A lot of times, a family doesn't have the same views about how a property is managed," he said. "It's very possible this family did not appreciate the way this (agreement) was provided to our agency. We want to be positive, but the family does have a different opinion about managing their property."

Now what?

The easement held by DGIF has no termination date, but the agency can transfer it to a similar organization as long as public access continues in the same fashion, Adams said. "If we terminate it, the rights have to be transferred to someone else."

The Conservancy, he said, might be the kind of group allowed to take over the easement. "We have to transfer the right to someone who will manage the property, like the county, perhaps, a new holder with the same jurisdiction."

Asked whether DGIF would be willing to take up discussions with the Conservancy on these issues, Adams said, "We're certainly open to listening."

Again, he stressed, "The family has the right to manage it in certain ways; the department has a responsibility as far as public rights. Several years ago we tried to get a meeting with The Nature Conservancy but it didn't work out. When everybody's willing to sit down together, we can do that … (but) we've come to the table numerous times. We've tried, but I think the door's closed on this now.

"People have differences of opinion," Adams added. "The Goodalls for the past 20 years have had the right to manage the property any way they want. And now, The Nature Conservancy will bring certain skills and they will be a valuable partner and a positive force."

TNC's Linda Crowe says the DGIF arrangement was not an issue for the Conservancy in considering its new conservation easement. "It just wasn't a concern for us," she said. "It was a preexisting easement, and we were not a party to that."

However, she said TNC is certainly willing to discuss any arrangements considered by DGIF or the Goodalls. The Conservancy is open to the idea of taking over the DGIF easement, she said, "but I can't really think of a time the state's asked us to step in and do something like that."

Ches Goodall seeks change, but he's not optimistic. "What irks us," he said, "is that this could be a win-win situation for them and us: we could get control of the hunting on our land again and they would have an ideal place to promote the non-game (side) of DGIF. We have discovered that all this talk is lip service, however. Bottom line: DGIF is all about the hunters, though Highland County already has more than 50,000 acres of public hunting land on DGIF lands in Highland and the George Washington National Forest.

"All we want is to get back to where things were, and where they should be, so my father will stop rolling over in his grave," he added. "This property was never intended to be used as a hunting and fishing preserve for the public. Prior to my father's death, we routinely gave out 20-25 permits a year to local residents for hunting on the Bear Camp tract in the fall and winter … In exchange, they sent us thank you notes and gifts like maple syrup. Since we knew the people who hunted our land, and they were appreciative of the opportunity to hunt on it, they respected it, and us. This was the basis for an excellent, working relationship.

"Today, it is the opposite: we know none of the hunters; they mostly come from Verona where the permits are issued; they have no respect for us or the land; they trespass onto Hull Ridge; and DGIF does nothing about anything … They moved the permitting from Monterey to Verona without telling us, though they were required to in writing according to the easement; they never send us a list of the permit holders without Pen going to Verona every year to demand them; they charge the same fee they did 20 years ago, and they have never sent a DGIF warden to the property in 20 years, despite numerous requests. As I have told them, this is an adversarial relationship that only gets worse over time, not better," he said.

The state has the authority to transfer its deed, and the Goodalls believe they can be that easementholder. "We are simply trying to balance the public benefits that were contemplated in the original deed and of course correct what is blatantly wrong," Ches says. "Right now, it is 100 percent hunting and fishing — a narrow interpretation and application of the easement. In addition, the original deed clearly states that we retain the right — 'not to be unreasonably withheld' — to transfer the easement to any other holder provided it offers substantially equal rights. We believe we have met that test by putting all of our land under easement, significantly increasing stream protection, setting aside old growth preserves, protecting more boreal habitat for the snowshoe hare and northern flying squirrel, and recommending scientific research and education.

"DGIF sits on their hands and completely stonewalls all of our efforts — efforts that would ultimately benefit the county far greater than hunting and fishing does for mostly Rockingham County residents."