Staking their claim: The Montezuma County commissioners pass a bold resolution, but what does it really mean?

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In a move that supporters called significant but skeptics said was meaningless, the Montezuma County commissioners have adopted a resolution asserting claims over a number of roads and trails crossing public lands.

The resolution, passed unanimously on June 18, names 17 roads and trails it says are “public highways” under the law known as RS 2477, an old mining statute dating from 1866. The brief statute states, “And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”

The routes the commissioners voted to claim include everything from the Dolores-Norwood Road, a well-traveled byway leading between the two towns, to a number of trails on the San Juan National Forest, most within the Rico-West Dolores Travel Management Plan. Those include the Bear Creek, Ryman Creek, Priest Gulch, and Calico North and South trails.

Although the resolution sailed through the board with no difficulty, it sparked some pushback. The measure was brought up during the morning session of the commissioners’ June 18 meeting. But M.B. McAfee, who has attended the commission’s meetings for more than three years and is now running for the board herself, said the public ought to have a chance to weigh in.

“The entire draft resolution has not been shown to the public,” she said, adding that only the title page and first few paragraphs of the four-page measure had been “flashed onto the [viewing] screen” in the meeting room.

The commissioners agreed to allow public comment during their afternoon session. However, the resolution itself was not on the commission’s agenda – resolutions typically don’t require a public hearing – so the general public wasn’t aware of the discussion.

Word apparently spread to a few people at lunchtime, and during the allotted comment period that afternoon, several county residents praised the board for its stance.

A level playing field

“I believe this will be an effective path in protecting the rights of our citizens,” said Dennis Atwater, a longtime critic of federal-lands agencies. He said some of the roads and trails in question have deteriorated to the point that they are nearly invisible, but that proponents of the RS 2477 claims are not asking for the trails to be improved. “We’re just saying that we have a right to them.”

Atwater and Duane Likes criticized previous work done by the Forest Service to rip out old roads that had been closed. The agency in some cases used bulldozers to demolish the roadways, putting berms and boulders across them. Likes said that created mosquito-infested pools and patches of noxious weeds.

Casey McClellan, a vocal advocate for motorized recreation, also thanked the board, saying, “What this does is level the playing field unlike anything else could. This is significant.”

Bud Garner of the local 9-12 Project, a conservative group, called the vote “a very good first step in reclaiming our country, reclaiming our state and reclaiming our county.” He said the commission should continue to assert such claims and should “tell the federal agencies what to do.”

“I hope that one day within our lifetime we can see the improvement of our liberties and the right of citizens of Montezuma County to enjoy every square inch of their public lands,” Garner said.

Dexter Gill, another critic of the Forest Service (and a Free Press columnist) said, “This will bring the Forest Service to coordination. It puts them into the position of having to coordinate.”

Atwater said he and others would pledge $1,000 to the county to pay filing fees or other legal costs, adding, “I don’t think you can put a price on liberty.”

However, commission attorney John Baxter said the county didn’t intend to file anything at this point, as the county would be the party defending its assertion.

Broad implications

Asked what immediate impact the resolution would have, Baxter said it might not be much. “These rights-of-way already exist,” he said.

McAfee, who took off her campaign buttons as she went to the podium to show that she was speaking as a private citizen, said the RS 2477 issue is a major one and the commissioners were having what was in effect a public hearing, although it had not been advertised as one. She said most county resolutions are administrative in nature,  whereas this one was substantive, and she called for the public to have more say.

An exasperated Commissioner Larry Don Suckla said McAfee had criticized the board that morning for not being transparent because they hadn’t allowed public comment, but now that they were doing so, she still wasn’t satisfied.

“I said [you weren’t transparent] because you hadn’t let the public see the resolution,” McAfee replied.

“You were given the resolution,” he said.

“I got it at noon,” she said.

Ertel said the county has been discussing the RS 2477 issue for years, particularly in regard to the Dolores-Norwood Road, and all that was different about the resolution was the reference to the additional routes.

However, McAfee said the resolution was a “package deal” and it might have broad implications for the public. She also questioned the inclusion of routes that extend into other counties, namely Dolores and San Miguel.

Baxter said Montezuma County has no say over what happens in other counties and if Dolores or San Miguel counties chose to abandon claims to their portion of the routes, Montezuma County couldn’t stop them.
“If it doesn’t make any difference, then why even name the other counties?” McAfee asked. “If you name them in the resolution, I believe you should have something in writing from them. That is only common sense to me.”

McAfee also brought up the matter of money. She noted that San Juan County, Utah, has spent millions of dollars pursuing RS 2477 claims (Free Press, May 2018) and said Montezuma County, by asserting such claims, was committing county resources to defend them. “I want to know if you talked about that. If big lawsuits are brought and we’re having a budget shortfall, have you thought about this?”

But Baxter said the resolution did not make any financial commitments. “If a lawsuit is filed and it will cost a lot to defend, then the commissioners could decide.”

Cortez resident Chris Wolf then commented, “This is a big deal. I was shocked to learn we are voting on it today. It affects a lot of user groups and I would like to see where you’re at before you stamp it.”

Lambert said Wolf could read the resolution, and Wolf said sarcastically, “It’s a good thing I swung by today!”

The commissioners then voted to pass the measure.

But the debate over their action was far from over.

Not interested in a middle ground?

A number of the routes in the resolution extend into Dolores County, and the Dolores-Norwood Road runs through Dolores County into San Miguel County. This reportedly sparked some concern on the part of those county commissions, although the language in the resolution does state that, “All public roads and public highways located within Montezuma County, Colorado. . . which are listed in this resolution are hereby asserted as public highways.”

Kris Holstrom, chair of the San Miguel County commissioners, told the Free Press that their main concern was that the language “was a little unclear” that Montezuma County was only asserting jurisdiction over the portion of the road within its boundaries.

“I believe our two attorneys have been in touch,” she said. “That needed to be clarified.”

On June 28, the Dolores County commissioners met with Montezuma County Commission Chair James Lambert in Dove Creek and reportedly voiced some concerns, particularly about the costs associated with pursuing RS 2477 claims and with then maintaining the routes. The Dolores County commissioners have commented that, although some advocates say proving historic road claims is simple, it is in fact anything but.

The Durango-based environmental nonprofit San Juan Citizens Alliance reacted to the resolution with a statement that reads, “The Montezuma County commissioners attempt to claim control over both roads and trails on public lands through their RS2477 resolution represents their latest attempt to craft an outcome of the Rico West Dolores Travel Management plan that fits their desire. Strangely, their vision includes exerting control of travel use designations that are mostly OUTSIDE of the county as the vast majority of the routes they list are located within Dolores County. Their resolution indicates a complete dis-interest in finding a middle-ground solution to a balance of trail use designations in the Rico West Dolores as evidenced through the statement of a county employee that the RS2477 effort is aimed “to preserve motorized routes.”

RS 2477 is seen by motorized-use advocates as a tool to prevent the Forest Service and BLM from closing roads or routes. The statute was repealed by the Federal Land Policy and Management Act of 1976, meaning no new 2477 roads could be created, but FLPMA left existing 2477 routes in place.

The problem has been deciding what those routes are.

According to states’ rights proponents, any road that pre-dates the passage of FLPMA might qualify, and any publicly used roads across national forests pre-dating FLPMA should automatically have 2477 status.

But courts, attorneys and the Forest Service say RS 2477 claims are never automatically decided but must be proven in court.

In general, courts have held that routes across national forests have to pre-date the creation of that forest, rather than the passage of FLPMA, to qualify as 2477s. In Southwest Colorado, national-forest lands, including those now belonging to the San Juan National Forest, were “reserved” for that use by Teddy Roosevelt in 1905.

The standard is different for BLM lands; in that case, 1976 is often considered the cut-off date.

‘Get more control’

Commissioner Keenan Ertel told the Free Press that the resolution grew out of the county’s assertion of RS 2477 claims to the Dolores-Norwood Road. “We believe historically that road has been a path, a road, a trail, and a connecting point back to migration of the Ute Mountain Ute Tribe for way longer than the United States has been here.”

He said the commissioners have been concerned that the Forest Service does not spend enough money maintaining the Dolores-Norwood Road, even though it charges commercial haulers such as logging trucks a fee for using it. The revenues generated aren’t all returned to that road, Ertel said, but can be spent at the agency’s discretion on other Forest Service roads.

“That’s not right,” Ertel said. “That began our decision to get more control over some of the things in Montezuma County that relate to our forest.”

Ertel, emphasizing that he was now speaking for himself and not for the board as a whole, said he believes the county has been treated as a “stepchild” by the Forest Service. “They only come to us with their plans that have already been formulated,” he said. “They say, ‘Here’s what we’ve decided.’ They go on right ahead no matter what we say. We have not been treated as a coordinator or a cooperator.”

He said his personal belief is that if the county can assert jurisdiction over the listed routes, “this affords us an opportunity to give the county some leverage with the Forest Service so we can say, ‘There are some things in your forest that we have governance over, Mr. Forest Service. These trails and routes are granted to the county and now you have to come and talk to us about what we are going to do with them’.”

Ertel said the list of 17 roads and trails was provided to the commissioners by James Dietrich, the county’s federal-lands coordinator, who was given a map by a private citizen. That map, reportedly from the 1880s or 1890s, shows the routes in question as already in existence, which would mean they pre-dated the reservation of the San Juan National Forest.

Ertel said he is concerned about “the way the Forest Service is starting to restrict the type of activity and going against multiple use of our public lands – the shrinking of our national forest in how it is to be accessed.”

Reiterating that he was speaking only for himself, Ertel said, “Hikers can go anywhere in the national forest, yet we keep hearing the cry, ‘We need more quiet use.’

“Much of the national forest is not accessible by any type of motorized vehicle,” he said.

Ertel said he is not concerned just about motorized access, but also about equestrian access.

He said he was aware that it could be a lengthy process to validate an RS 2477 claim, but he is hopeful a bill introduced in Congress in 2017 might help. HR 3270, the Historic Routes Preservation Act ( SB 468 in the Senate), would provide a simple administrative process for establishing RS 2477 claims and would set a 25-year deadline for making them.

The bill is supported by the National Association of Counties; however, it has not moved beyond committee in either the House or Senate and one tracking website estimated it has just a 3 percent chance of passage.

“My take is, if we can get those trails and routes designated as county rights-of-way, it will give us some leverage with the Forest Service,” Ertel said.

But that process evidently won’t be simple, and the resolution’s passage appears to be only symbolic.

Sending a message?

Ted Zukoski, an attorney for the environmental-law nonprofit Earthjustice in Denver, told the Free Press the legal meaning of the resolution was “none.”

“For those roads to have been established [as historic], they would have to have been established by 1976 or when a [national-forest] reservation occurred, whichever is earlier. A resolution now is mainly a message to the Forest Service that the county thinks those roads are theirs.

“If they actually wanted to prove them up, federal court precedent is very clear that the burden is on the county to go to court to prove that those rights-of-way exist, which is the approach the counties in Utah have taken.” In Utah, some 29 such cases have been filed over claimsto some 12,000 routes.

Zukoski said such resolutions typically show that a county is “hoping to get the attention of the federal government to say, ‘We’re serious about this. We really think these are our roads and you need to take our concerns into account’.”

He said it was “very unusual” for a county to pass such a resolution involving routes in other counties, however. “That seems a provocative act,” he said.

Nothing has changed

Derek Padilla, Dolores Ranger District manager with the San Juan National Forest, likewise told the Free Press the passage of the resolution “doesn’t change anything” and the routes’ status will remain the same unless the county persuades a court to validate its claims.

Padilla said for many of the listed trails, the historic portion actually dead-ends because they were created to access mines. “So if the county were able to prove their assertion [that the routes are historic under RS 2477] it would only be for a portion of the trails, not what is in existence today,” he said. “Prior to the forest reservation, most of these went to a mining claim and stopped. We built trails all the way through that have loops.”

He added that several of the routes claimed by the county are no longer in existence, so they would have to be re-created if they were validated by a court.

In an email, Padilla also said some of the trails cross private property and that has limited their use. “For several of them, the Forest Service does not have documented legal access for recreational purposes, which led to many of the routes being designated as non-motorized,” he wrote. “In all instances where this occurs, the private landowners have indicated that they will not authorize motorized trails going through their property, but they will allow non-motorized use of the trails (hiking, equestrian, mountain biking). This pertains to Morrison Trail, a portion of Bear Creek Trail, and Horse Creek Trail. In addition, the town of Rico opposes designation of the Burnett Creek trail for motorized use.”

Padilla said the dispute between motorized and non-motorized users primarily involves single-track trails where motorcycles could go. He said there are currently 218 miles of non-motorized trail and 144 miles of single-track motorized trails on the Dolores District.

Padilla added that the Forest Service has moved to “less impactful approaches” to road closures than the drastic methods used in the past that created such controversy. Now, if a road is identified as no longer available for motorized use, at first the Forest Service does nothing. If people keep using it then a sign is placed at the entrance. If that doesn’t work, boulders are set in place.

But even that may not deter some users, he said; people have used winches to pull boulders away. “We’ll put them back, but if it continues we may resort to ripping the road and making it impassable, but that’s the last resort,” Padilla said.

He added that despite the resolution, nothing has changed regarding the management of the 17 routes. “The public understands that until such time as the county formalizes their RS 2477 assertions, any designations we make for those routes are how they’re going to be managed,” he said.

If somebody uses a motorized vehicle on a closed road, he said, “There is a potential that they could be cited and fined. We hope not to go there, but the resolution will not change any management of those routes.”

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From July 2018.