BY GAIL BINKLY

To Diana Luppi, it’s an abuse of power and an abrogation of her rights.

To the Forest Service, it’s a routine and non-threatening matter for which there is ample precedent.

But what neither side disputes is that the requirement that the 54-year-old writer sign two easement agreements in order to drive to her home in Archuleta County has spawned a long and confusing legal battle that shows no sign of being settled.

The argument has led to Luppi’s conviction on two criminal charges and made her a cause célebre among anti-government groups and multiple-use advocates across the Western Slope.

Her name has come up at almost every recent meeting involving the Southwest Colorado Landowners Association in Montezuma County. Members of that group have solicited donations to help her cause, and recently met with the Archuleta County commissioners to voice their concerns about her case.

Luppi herself has been a frequent visitor to Montezuma County, appearing at public meetings and even visiting with the county commissioners on Jan. 31.

Luppi believes she is being persecuted by a federal agency run amok.

At public meetings and in a letter to the Pagosa Springs Sun she has charged that she was stripped of her constitutional rights, including the right to an attorney and a jury trial, and that the Forest Service is singling her out to set a precedent to restrict access for others like her.

"They’re desperate to get this case concluded because they want to use it against other people," she said at a Jan. 13 public-lands forum in Cortez. "What they want is my property, and they want your property too."

But Forest Service officials maintain that is untrue.

"We certainly don’t view this as any sort of test case," said Cal Joyner, San Juan National Forest supervisor. "This is normal business."

ROAD NOT COUNTY’S

The saga began in June 1995, when Luppi, author of a popular New Age book called E.T. 101: The Cosmic Instruction Manual, purchased 35 acres near Pagosa Springs. The parcel, nestled within the San Juan National Forest, is what is known as an inholding — a pocket of private property inside public lands.

To reach her tract, Luppi has to use roughly 1 mile of a Forest Service road, FDR 629, and then a short stretch of access road across national forest that is essentially her driveway.

FDR 629 connects to a county road, but is not regarded as one itself, according to Archuleta County Commissioner Bill Downey. He said the Forest Service contracts with the county road department to do some minimal maintenance on it, but the commissioners —while not having taken a formal position on that road — have little interest in accepting it into the county system.

"We’re not in a position financially to take these roads on, and I’m not sure we would want to anyway."

LOCK AND KEY

The road is open to public use during warm months, but closed during bad weather to protect it, according to Sonja Hoie, Forest Service land specialist with the Pagosa Ranger District.

"It’s closed seasonally, depending on how wet the road is, to preserve the road bed," Hoie said in an interview in February. She has since declined to talk with the press on the advice of the U.S. attorney’s office.

The road is closed by a locked gate, Hoie said, and landowners such as Luppi who need to reach inholdings are given a key.

But first the owners must sign an easement agreement with the Forest Service and pay a fee.

"In situations where we have private property surrounded by forest, federal law requires we give these folks access — but according to our rules," Hoie said.

Federal law states that inholders must be given access, so long as they "comply with rules and regulations applicable to ingress and egress to or from the National Forest System."

Private inholders have responsibilities along with the right to access, Joyner said. For instance, if a landowner wants to plow the road in the winter, the Forest Service has to have a way to ensure that he won’t scrape all the gravel off the road surface, Joyner said.

"We have hundreds of these (agreements) across the forest," he said.

The previous owner of the property had operated under such an agreement without problems, according to court documents, and a neighbor is doing likewise, according to Hoie.

SEVERAL OBJECTIONS

But Luppi, who was apparently unaware of the easement requirement when she bought the property, balked at signing the papers.

"Nothing (about the easement) was disclosed in any of the selling of the property, nor was it recorded on the title," said Crystal Sluyter, Luppi’s attorney. Luppi declined to be interviewed on Sluyter’s advice.

According to court documents, the Forest Service notified Luppi in the spring of 1996 that she needed to transfer the prior owner’s easements into her name and pay the fees ($176 annually for the separate easements on the two roads) in order to have continued access to the tract. After Luppi and the Forest Service exchanged letters for a few months, the Forest Service sent her a new bill in late 1996 for the $176, plus a $40 late fee and interest.

Luppi returned the bill without paying it, and "also sent the Forest Service 12 pages of largely incomprehensible legal argument allegedly supporting her contention that she was not required to execute the agreement or pay the fees," states an order issued in her case last summer by the Tenth Circuit Court of Appeals. The order affirms her prior conviction by a lower court.

DENIED COUNSEL?

For nearly two years, Forest Service officials repeatedly tried to resolve the conflict with Luppi, to no avail, Hoie said.

Luppi was issued a citation in August 1997 for using the national-forest road without authorization. After that, she paid a bill for the 1997 fees, but refused to sign the easement agreements.

In early 1998, the government charged Luppi with three misdemeanor counts of using the two roads without authorization at different times. She appeared before Magistrate Judge James Robb in Durango on Jan. 15, 1998. At that time, she was unfairly denied the right of counsel and her right to a jury trial, Luppi has said repeatedly.

"You can see it in the transcript," Sluyter said. "That was the statement (that she could not have court-appointed counsel because it was a petty offense)."

"I was denied an attorney all through these proceedings," Luppi told the commissioners Jan. 31.

According to court documents, Luppi asked Robb for a jury trial and for counsel to be appointed for her, but the judge rejected those requests because of the nature of the charges.

"The Supreme Court has long held that ‘there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision,’ " stated the Court of Appeals decision. Luppi’s charges, which each carried a maximum possible sentence of six months in prison and a $5,000 fine, were considered petty, although cumulatively she could have faced a year and a half in prison.

The court also stated that defendants charged with misdemeanors have no constitutional right to counsel in cases where no threat of imprisonment exists. The Forest Service has repeatedly declined to ask for prison time for Luppi.

‘A CONVOLUTED ARGUMENT’

However, the judge did grant Luppi’s request to be heard by a district judge rather than a magistrate judge, and the case went to trial Sept. 8, 1998, before U.S. District Judge Zita Weinshienk in Denver. Luppi, who appeared without an attorney despite repeated advice from the court to obtain one, offered no opening statement, called no witnesses, and did not cross-examine the government’s witnesses, according to court documents.

"Rather, Luppi offered a convoluted closing argument in which she again asserted her right to a common-law easement and again asserted that the lands in question were not Forest Service lands," states the Tenth Circuit Court of Appeals order.

She was convicted on two of the three counts, fined $5,000, and sentenced to one year of probation, on the condition that she sign the easement agreements, pay all her fees plus a $20 special assessment, and cooperate with the Forest Service.

After sentencing, Luppi refused to pay the fine or fees, according to court documents, and appealed her conviction. The Court of Appeals, however, upheld the lower court’s verdict, ruling that the San Juan National Forest is indeed owned by the federal government rather than the state; that her fine and punishment were not "cruel and unusual punishment" as she claimed; and that she had not been inappropriately denied court-appointed counsel or a jury trial.

After her conviction, Luppi was not allowed to go home because she still did not have authorization to use the road. She didn’t see her house for more than a year, she said, until late in January of this year, after she had signed the easement agreements.

SIGNING UNDER PROTEST

By then Luppi had finally retained Sluyter as an attorney. Court documents show that she was advised over and over again to hire counsel rather than appearing on her own, but had refused till then.

"She did not have the funds to hire an attorney," Sluyter explained. "Attorneys who do land use are fairly expensive."

Appearing before Robb in Durango last fall on a charge of violating her probation, Luppi was appointed a federal public defender over her objections, the records show.

She told the commissioners Jan. 31 that she objected to him because he was an "overworked criminal defender" who did not understand land-use law.

On Jan. 27 of this year, in an appearance before Weinshienk in Denver, Luppi was allowed to replace the public defender with Sluyter. That day, Luppi signed the easement agreements, but wrote on each that she was doing so "under protest, coerced by threat of sanction and without her voluntary consent."

Since then, she has a filed an appeal of her forced signing, as well as a notice of intent to sue a number of defendants, including the Forest Service, under civil law. She has also filed a federal motion challenging her probation, which has been extended indefinitely, Sluyter said.

"This is not going to end for a long time," Sluyter predicted. "Once you get involved in this type of situation, you’re there for a long time."

"It’s the sovereignty of the state of Colorado that’s at risk here," Luppi told the commissioners Jan. 31. "They’re going to use this as a precedent against all of you. They’ll say, ‘In the Luppi case, the court decided she had to pay.’ "

But Forest Service officials say there is nothing sinister about the agreements.