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Closed to the public
By David Grant Long
A simmering dispute involving private property rights vs. public good in San Miguel and Dolores counties is about to come to a boil after two years of wrangling.
The 2003 closure of a road traditionally used for access to the Lone Cone area – County Road 40J in San Miguel County, Forest Road 534 in Dolores County – has created hardship as well as hard feelings among both local users of the road and hunters from across the nation.
The road was closed by the owners of a property it bisects, which formerly was state trust land and now is private.
Now, county commissioners in San Miguel and Dolores counties are pondering whether they should use the power of eminent domain to condemn the road and reopen it to the public.
For more than half a century the narrow, rugged road provided the most direct access to remote national-forest lands that are prime elk and bear habitat, and the arrival of out-of-state hunters had become an annual autumn ritual that provided a welcome boost to the economies of the surrounding small towns, especially Norwood, Nucla and Naturita.
“(Hunters) have been doing this year after year after year and I'll tell you, that first year when they blocked that roadway, there were some irate hunters from all over the country complaining about it,” said Patrick McCoy, land and minerals specialist with the San Juan National Forest. “We know, because we got the phone calls.”
McCoy explained that the road at issue is not part of the USFS road system area and therefore the agency has no position on the closure; however, 40J connects to a network of Forest Service roads that cover the area like a spider web. (Apparently the Forest Service made some attempt in the early ’90s to get an easement from the state on the now-disputed stretch of road, but at some point abandoned the effort.)
The road branches off the Dolores- Norwood Road, Forest Service Road 526, at a junction that is now marked with a sign warning that the road is closed 2.4 miles ahead.
Most of the route lies within San Miguel County, but a small portion, perhaps 1,800 feet, is believed to be within Dolores County.
The previous owner, Judy McCollum, acquired the school trust land, known as Section 16, through a property swap with the Colorado State Land Board, according to the board’s Southern District manager, Kit Page, in Alamosa. The land board manages a patchwork system of 3 million acres of public lands throughout the state.
What are state trust lands?Colorado’s 3 million acres of state trust lands were granted to the state in 1876 by the federal government in order to support public schools and other such uses. Today, the lands are leased for ranching, mining, oil and gas extraction, and other purposes. Proceeds support some state functions, the largest of which is public education. An amendment to the state constitution passed by voters in 1996 changed the mission of the state land board from simply maximizing revenues on the state trust lands to providing “reasonable and consistent income over time.” It also mandated that the board emphasize long-term stewardship of state trust lands to keep their health.
The state got nearly 5,000 acres of land near North Mountain, formerly the TJ Bar Ranch, Page said, in return for the 640-acre section and about $4 million cash.
But no easement was ever recorded for the route, and public outrage over the barricaded road, particularly among Norwood residents, has prompted the San Miguel County Commission to take steps toward exercising eminent domain and reclaiming the road for public use – if no other solution can be found.
A survey determining the exact location of the road through what is now property of the Gray family, which is necessary for a legal description, is expected to be finished around Labor Day. That will clear the way for an appraisal of the roadway property and an offer to buy it from the Grays, who have stated publicly they will never sell it voluntarily.
If the owners remain adamant in their refusal, condemnation will be the only option left, officials say.
The survey was delayed because the owners refused to give the county permission to come onto the property, and it took months to get a court order. Past attempts to reach an accommodation with the owners have proven fruitless, but San Miguel County Commissioner Elaine Fisher said she wants to give negotiations another shot before becoming embroiled in a court action.
“We're working toward reopening Road 40J . . . because we realize the economic benefit that road is to both counties that would like to have access to Lone Cone again through that area,” Fisher said. “I like to stay out of the courts if at all possible – I’m hoping we will resolve this to the benefit of everyone involved in a reasonable fashion.” What might such a solution entail? “You never know,” she said.
Fisher had no answer regarding why such discussions haven’t occurred during the two years since the barricades went up on the Gray property.
“We just haven’t been able to talk about it – not because we haven't made efforts,” she said. “We’ve had some difficulty getting the landowners to get on board with us, but our intent is to open that road again.
“We always thought it was a public road – at least it had been for decades on our road maps . . . so for us to find out we didn't have public access was pretty shocking.”
However, Page, of the state land board, has a different take on the conflict. Page said both the state land board and San Miguel County knew about the circumstances before the land swap was consummated.
“We were aware there was no easement for it (the road through the Gray property),” Page said. “We researched that on the exchange. I went up there several times before the trade, and we have nothing in our records that ever showed the public used it, and it certainly didn't look like it (was being used) when I was up there.”
Page said a San Miguel County “road guy” stated at a public meeting that possibly two vehicles would use the road in a week.
“I don't know what kind of information's gone around, but this (trade) was published four times in the local newspaper,” he said, “and the National Forest, the Division of Wildlife and every other agency got a notice about it. San Miguel County, in fact, never mentioned this (lack of an easement) in their correspondence with their concerns about the exchange.
“They (county officials) were notified twice and they responded once with a letter before our board meeting (in which the decision was made).
They didn't have any issues” except for wanting access to BLM land near the North Mountain property the land board would acquire, Page said.
“Probably a year after the exchange closed, then everybody got excited,” he said, “even though there is another road through the national forest that goes to the exact same spot below the Lone Cone,” Page maintained the alternate route, which is a Forest Service road, takes only 15 to 20 minutes longer than Road 40J, but supporters of reopening 40J insist the trip takes much longer and the road is in worse shape.
Closing the gap
“We're certainly looking at all the options that are available,” said San Miguel Assistant County Attorney Kevin Geiger, “but the one we keep hearing about from our constituents – the citizens of Norwood – seems to be that this is the most appropriate route given the extensive public use of that route for 40 or 50 years.
“It's only through a mile-and-a-half to two-mile section where the road is closed off that is really the obstacle here,” Geiger said. “We have a valid public-road claim that I don't think is contested by the landowners for about two and a half miles up to that point and on the other side you've got national-forest land and a Forest (Service) road.
“So we're really just trying to, if you will, re-establish public access through this gap portion.”
He said the state land board should have made certain an easement was established before making the land swap.
“Unfortunately, in our view, the state land board did not reserve a public easement across that section even though the public had been using (the road) for 40 or 50 years,” Geiger said.
He declined to speculate on whether eminent domain would be used to reopen the road.
“I can't comment on where this may or may not be going,” Geiger said. “I know that San Miguel County and our citizens are greatly interested in attempting to reopen this road.
“We've attempted to negotiate with the property owner on several occasions (and) to date that has not been successful.
“Our board right now, they’re looking at possible acquisition,” he said, “but no decision on condemnation has been made yet.”
Life and death?
Norwood resident Craig Greager, who says he’d personally been travelling the road for 50 years (he's 52), collected 140 signatures on a petition to reopen the road. He said the closure had adversely affected local businesses.
“The impact that I have noticed is hunters just not coming back to the area,” Greagor said. “They go to Monte Vista or somewhere over in that area.
“It's impacted the economy quite a bit – it's probably affected Dolores, Norwood, Nucla and Naturita just because people can't use (40 J) any more,” he said. “The alternate route is in much worse condition and adds about three or four hours to the trip.”
He said that road isn't fit for the trailers that hunters use to haul their ATVs and other gear, and this is another factor in discouraging them from hunting there.
But Page expressed skepticism about the economic harm.
“That's pretty hard to believe,” he said. “Those hunters will find a way to go wherever they need to go.”
But it’s not just hunters who used the road to the western side of Lone Cone, Greagor said. “People from all over climb the Cone.”
He maintained the state had to be aware of the road situation before the land swap, since the Forest Service had raised the issue 15 years ago.
“The state land board definitely knew the road existed – it was on all the BLM maps, all the Forest Service maps,” he said. “The state land board is either totally ignorant or they did something under the table.
“I wrote the governor (Bill Owens) and said I wanted this thing investigated, but he won’t do anything about it,” said Greagor “He referred me to the state land board and they wrote back and said, ‘We’re sympathetic and hope it doesn't happen again’.”
But the most important reason to reopen the road, he maintained, is to shorten the response time if someone needed medical assistance or a search and rescue had to be conducted in the Lone Cone area.
“That would shave three hours off a rescue effort,” he said. “It could definitely make the difference between life and death.”
Greagor said he believes the owners want to keep the area “a rich person’s playground,” where people pay thousands of dollars to bag an elk or bear.
According to the Dove Creek Press, Todd Gray, manager of the ranch, said during a hearing of the Dolores County Planning Commission in July that if the road were reopened via eminent domain, the owners would respond by developing a subdivision of 100 homes on their land. He said the owners purchased the property specifically because it is secluded.
Gray did not return repeated phone calls from the Free Press.
Greagor said he didn't believe the 100-home threat was real, but it would be a good thing if it happened.
“(The counties) would realize a very substantial increase in their propertytax base because they would be trophy- home sites for sure,” he said, “and also it would be good for the hunters because all that development would drive the animals up onto the national forest.”
The planning commission voted 2-1 to recommend the Dolores County Commission not exert its eminent domain authority in the matter, but Greagor said he believes the commissioners will reject that advice when they hold a hearing, because some of the planning- board members considered only the Grays’ private-property rights.
“I think the commissioners will take a different view – they're going to look more at the public-safety aspect and how it will benefit the public the way its been doing for the last 50 years.”
Cooperate with adjoining counties
Dolores County Commission chairman Leroy Gore said, “From what I understand, yes,” when asked if he believes the road should be reopened.
Gore pointed out that only a small part of the section of the road in dispute – if any – is located in Dolores County, and said that part may actually be on Forest Service land.
“I was advised the other day that under the new survey our little bitty part of it may be Forest (Service land),” he said, “so we may not even be involved.” Still, Gore said if any part of the closed road is found to be in Dolores County, he will probably support the San Miguel commissioners if they exercise the condemnation option.
“I don’t see how we could not – we have numerous roads we work together on,” he said. “For that amount of road you would not want to create discontent – you've got to cooperate with your adjoining counties.
“I don’t know where we'd have the right, if they used (eminent domain) to open several miles of it, for us to shut it down for a few hundred yards.”
One way or the other
San Miguel County Commissioner Vern Ebert said county residents are “overwhelmingly behind us” in reopening the road.
“Once we have the survey, unless there's a break with the owners of the land, then we will proceed with condemnation,” he said.
Ebert said he expects the issue to be decided “one way or the other” by next year's hunting season.
Greagor said the issue is historic use by locals and visitors alike.
“Now you know how the Indians felt when the white man moved in and took over their land and ran them off,” Greagor said.