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Legal opinion finds Fish and Wildlife no obligation to maintain road in Wentworth's Location

LANCASTER – An attorney for Coos County said the U.S. Fish and Wildlife Service has no legal obligation to maintain any right-of-way on Chapel Hill Road in Wentworth's Location.
The Coos County commission this summer asked Attorney Jonathan Frizzell to review property deeds to determine if the Fish and Wildlife Service has any legal obligation to maintain the road.
Property owners had enlisted the county's support in their battle to get the Fish and Wildlife Service to take action to stop erosion of the Magalloway River along the road. There are about 20 properties, most of them camps, which use the road for access. The owners report one to three feet of the western riverbank are eroding each year and they fear it will eventually undermine the road.
The riverbank and road are within the Umbagog National Wildlife Refuge. In a letter to the property owners last spring, Refuge Manager Paul Casey said his agency has no obligation to repair or maintain the right-of-way. He said the service would support restoring shoreline vegetation to reduce the bank erosion and would help out with in-kind service and technical assistance. But he said other options mentioned – moving the road or stabilizing the riverbank with concrete maps or sheet piling – range in cost from $835,000 to $1 million and would adversely affect wetlands.
Frizzell said his opinion is the Fish and Wildlife service has no legal obligation to maintain a right-of-way or even to maintain the bank of the river.
He said he is doing some additional legal research about whether in a case like this where the deed is silent on maintenance obligations; the underlying owner (in this case the Fish and Wildlife Service) still bears some legal responsibility for maintenance. He said he is also researching whether the agency would have some liability if damage incurs as a result of its inaction.
While not part of his review, Frizzell suggested the commission might inquire what the National Resource Conservation Service's position is on the issue. He also questioned whether the Fish and Wildlife's "do nothing approach" creates an 'inverse condemnation taking' of land without compensation.

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