In their first election under new federally mandated voting districts, residents of San Juan County, Utah, on June 26 ousted incumbent commissioner Rebecca Benally.

Final election results are expected to be posted by July 10, but preliminary results for the Democratic primary in Commission District 3 show Kenneth Maryboy with 51.5 percent of the votes, landing him the nomination over Benally.

He won by 42 votes.

Kenneth Maryboy

Both Maryboy, who has been a commissioner in the past, and Benally are members of the Navajo Nation. However, Benally, though a Democrat, almost always sided with the two Republicans on the commission. Her loss may be a sign that things are changing in the politically divided county.

There is no Republican candidate for the District 3 commission race, meaning Maryboy appears to have captured the seat.

In the race for the Republican slot in the District 1, incumbent Bruce Adams won handily over challenger Logan Monson, by a 102-vote margin.

The general election is Nov. 6.

Shifting the balance

In 2016, U.S. District Judge Robert Shelby ruled that all three commission districts were unconstitutional, as well as the five school-board districts.

The ruling came after a long history of disputes over representation for Navajos in San Juan County. In 1983, the county agreed to eliminate at-large voting. One district has yielded a Navajo representative on the commission ever since then.

But, as time went on and demographics changed, Navajos began to chafe at the fact that they could never gain a majority on the commission even though Native residents outnumbered Anglos by a slight margin in the 2010 census. Ninety-three percent of the residents in that now-eradicated district were Navajo, but only 30 percent of the voters in the other two districts were. That led to Shelby’s ruling and a redrawing of the districts.

Now, for the first time in San Juan County history, voters are positioned to tip the balance of governance away from the predominantly Anglo, Republican party toward the Democratic party.

The new commission districts establish a 11.1 percent Native population in District 1, 65.6 percent in District 2, and 79.9 percent in District 3.

Turnout was high for the primary.

“I think the voter-registration effort paid off. We’ve now registered over 300 voters in the county,” James Adakai, president of the San Juan County Democrats, told the Four Corners Free Press.

Native voters tend to vote Democrat, he said.

Home base?

But two legal questions are swirling around the coming election.

One involves the Democratic candidate in District 2, the only district in which there will be both a Republican and a Democratic candidate in the general election.

Incumbent Phil Lyman, a Republican, opted not to run to retain his seat. Instead, he is seeking to be elected to the state House.

Kelly Laws, the father of county attorney Kendall Laws, is the Republican candidate in District 2.

Willie Grayeyes

Willie Grayeyes, a resident of the Navajo Mountain community in Utah, was chosen at the Democrats’ caucus in March to be their candidate in District 2. But shortly after the caucus, San Juan County Clerk/ Auditor John David Nielson sent Grayeyes a letter demanding that Grayeyes prove his residency, the result of a challenge by an Anglo county resident.

As part of his response, Grayeyes invited the clerk to meet at this Navajo Mountain residence, where his family has lived since time immemorial, Grayeyes said in a press release. He sent the coordinates showing his residence on the satellite map and its relationship to the Arizona-Utah border.

His home in the Navajo Nation reservation is within Utah’s boundaries. His umbilical cord, buried in a traditional Navajo birth ritual, is at the site. Grayeyes sent Nielson the information and  a record of his longtime voter registration, a copy of his 1946 birth certificate and a document showing his cattle-ranching operations in the region. The state elections director confirmed he’d cast ballots for 26 years in Utah elections, too, and Adakai vouched for his Utah residency of at least 34 years.

But Nielson was not appeased.  By May, the issue was not resolved. In a letter dated May 4, Nielson wrote that there was “clear and convincing evidence” that Grayeyes was NOT a county resident.

Nielson said a sheriff’s deputy visited the property Grayeyes listed on his candidacy form. The dirt driveway did not have recent tire tracks or footprints. No one answered the door. The letter suggested that Grayeyes resides in Tuba City, Ariz., where he maintains a post-office box.  “I find that this evidence sufficiently rebuts the presumption of residency arising from your previous voter status,” Nielson wrote.

Racially motivated?

Lena Fowler, a member of the Coconino County, Ariz., Board of Supervisors representing the Arizona portion of Navajo Mountain, said in a declaration that Grayeyes resides in the Utah portion of Navajo Mountain. He is not registered to vote in Arizona and never has been, she said.

In a statement, Leonard Gorman, executive director of the Navajo Nation Civil Rights Commission, said, “The Navajo people’s permanent residence is within the four sacred mountains. Navajo individuals’ permanent residences, to which they return after being away for work, school and/or military services, is the place where their umbilical cords are buried. I believe the Utah laws, inadvertently, respect Navajo cultural beliefs, that is where the voter believes he or she returns on a permanent basis is his/her permanent residence.”

But Nielson struck Grayeyes’ name from the county’s voting rolls, claiming that Grayeyes is not a resident of Utah and not qualified to run for a seat on the commission in 2018.

Attorneys for Grayeyes filed a lawsuit in June, alleging that the disqualification was put together by conservative, white members of the county as an attack on Grayeyes’ race and political views.

In a press release, Steve Boos, Grayeyes’ lawyer, explained that the lawsuit calls for the county to reinstate his candidacy. Boos accused it of launching a racially politically motivated attack.

“The behavior of Mr. Nielson is despicable, especially when it takes its place in a shabby history of racial discrimination. Utah made it illegal for Native Americans to vote until 1957,” Boos stated. “San Juan County has long denied the right of Native Americans to fully participate in the election process. The County recently lost an election redistricting case based largely on racial discrimination. When will they learn they can’t do things this way?”

A court date is set for late July.

If the court keeps Grayeyes off the ballot, the Democratic Party will have the opportunity to replace him in August with a new candidate for the District 2 Commission race in November.

Adakai, who is also president of the Oljeto Chapter located in the same district, told the Free Press that the Democratic Party and the Navajo people are “very confident in Mr. Grayeyes’ appeal and that he lives in the district, and we are eagerly awaiting the results from that appeal. Mr. Grayeyes was removed from the ballot in a racist, partisan political attack. If the appeal doesn’t go our way, the county party will ensure we have a strong candidate to take on the Republican and elect a Democratic majority to the commission.”

Road signs

In areas where pale pink dirt roads meander through rural Utah on the Navajo reservation a family will often describe their residence in place-based language. In lieu of a street address, familiar landscape markers work to guide visitors to a home.

One such description given to the Four Corners Free Press many years ago advised, “Go north from the Aneth convenience store toward Hovenweep about five miles. Just before the ball field turn east on the buried tire road toward the river until you reach the twin rocks after the curve. It’s a mile further.”

Such directions work for family reunions or personal invitations, but not for mail delivery. Most families use post-office boxes for their mail.

Shelby’s order created a strenuous workload for the county clerk’s office as well as local communities. But watchdog groups pitched in to help inform voters throughout the county.

The ACLU of Utah provided printed flyers with details about how to identify district residencies, how to recognize ballot problems, and whom to call. They also published in-person polling locations and contact information for questions and concerns. The Navajo Nation Human Rights Commission, and the Rural Utah Project (RUP) launched voter registration drives to assist Native residents, who are now the demographic majority, as they grappled with identifying in the correct precincts and districts in which they live.

T.J. Ellerbeck, an RUP coordinator, organized a campaign in San Juan County that would assure voters that their registrations were correct. They also assisted with new voter registration. The group clarified any district changes that applied to a voter’s registration, what to expect of mail-in ballot procedures, how to vote by mail or in person, and how to recognize if ballots were not correct or tampered with.

The group mobilized at Navajo chapter houses, community events and health clinics, anywhere groups of people gathered. RUP recruited bilingual workers, making it possible to explain the new processes to elders and family members who speak the Navajo language when they drove to confirm residences using the description on the registration forms.

“We identified a lot of previous voter registrations with physical descriptions of addresses. In many cases the voter’s Post Office address did not correspond to the physical address description on the original registration form,” Ellerbeck said.  “They should match.”

The fox and the hen house

Those discrepancies led to the second legal action involving the election.

In April the group brought their growing concerns to the county clerk’s office.

“Knowing that they had voter registration records that could help identify precincts that had been cut-up, we began to work directly with the county clerk’s office to provide a really clear description of individual voter residences,” Ellerbeck said. “Google Quest mapping searches gave us coordinates making it possible to identify the precincts and districts exactly as they apply to individual voters.”

Misgivings over the incorrect registration documents and possible assignments of Native voters to the wrong precincts and districts led attorneys for six Navajo plaintiffs to file a motion June 12 requesting a temporary reopening of the Navajo Nation vs. San Juan County redistricting case.

The Navajo Nation Human Rights Commission said in a press release that the county is violating the judgment in the case by failing to properly assign up to 2,000 Navajo voters to precincts under the court-ordered redistricting plans. The plaintiffs allege that the county is delaying implementing the new boundaries and updating its precinct lists, leaving the Native voters with incorrect or missing ballots.

The motion calls for Nielsen to appear in court to explain why the county should not be held in contempt for failing to comply with the 2017 order.

A hearing is set for July 2.

“While it is important to recognize that the U.S. federal district court ruled in favor of the Navajo Nation,” said Gorman in the press release, “we also need to recognize that it is the same players that refused to lawfully redistrict the school board and county commission election districts that are at the helm of executing the judge’s order.  In other words, the fox is managing the hen house.”

Two days before the June 26 primary, Nielson assured the public on Fox 13 news that the county was voluntarily doing what the order mandates. “The process has been seamless. Every registered voter is getting a [primary] ballot by mail and Election Day voting will be available in Montezuma Creek, Monument Valley, Navajo Mountain and in Monticello.”

Wrong ballots

The basic voter-registration problem was identified by William S. Cooper, serving as a demographic and redistricting expert for the plaintiffs. “Many voters submitted updated registration forms but the county did not correctly update their voter records to reflect the correct election district,” he wrote in a declaration. “The result is that these voters will receive the wrong election ballot and may have already.”

Ellerbeck and the RUP were fielding calls from concerned voters. “We identified a large list of voters who received the wrong ballot,” he said. “Over 100 were registered in the wrong district. Some were probably corrected by the county on Election Day, but some of the voters probably cast their ballots in the wrong district.”

James Francom, San Juan County assistant clerk, admitted that some ballots were wrong. He said that the precinct boundaries, especially around Blanding, were slightly off, affecting about ten ballots outside the city boundaries and about two city blocks inside the boundaries.

“I personally hand-delivered the correct ballots to the blocks in Blanding once we identified the error. Overall, there were about 40 in error.”

Even if it was only 40, says Ellerbeck, “that could be enough to sway the results of some school board races.” In Utah any voter can participate in the Democratic primary, but only registered Republicans can participate in a Republican primary. And voters can change their party affiliation on Election Day if they want to vote in the Republican primary, he explained.

Francom confirmed that the county clerk’s office mailed ballots for the Democratic primary in District 3 (there was no Democratic primary in the other districts) to all registered Democrats and unaffiliated voters in the district, because unaffiliated people can vote in the Democratic primary.

But, he added, to be clear, “a registered Republican can request a ballot for a Democratic primary. By doing so he/she gives up the right to vote in the Republican primary held at the same time.”

Utah Lt. Governor’s Election Director Justin Lee confirmed the open primary process in an email to the Free Press.  “The Republican Party in Utah does have a closed primary,” he wrote, “and only registered Republicans can vote on those races. An unaffiliated voter can affiliate as a Republican on Election Day and then vote in the Republican Primary.

“The Democratic Party has an open primary and any voter can cast a ballot in those races. A voter can only vote in one party’s primary.”

Francon said the office could not provide the number of registered Republican voters requesting a Democratic primary ballot for District 3, but could possibly make the number available in the future.

Cooper suggests that over the next few months, outreach in the form of door-to-door contact or community meetings could resolve precinct assignments for voters on the Navajo Reservation who do not have street addresses. County staff could review the original voter registration forms, which are appended to the voter file, and may be used to determine whether or not the voter registration file correctly reflects the physical

address as recorded by the voter.”

Adakai of the San Juan County Democrats said the general election should be a lively one.

“Once the two legal issues are settled in July, and the candidate for District 2 is decided, we will have a vigorous turnout for the November general. It will be an intense election.”

A peculiar situation in which Montezuma County’s longtime extension agent, Tom Hooten, was locked out of his new office has apparently been resolved.

Both Hooten and his supervisor, C.J. Mucklow, the western regional supervisor for the Colorado State University Extension Service, confirmed recently that Hooten has finally been allowed into the new office at the county annex at 107 N. Chestnut in Cortez.

Tom Hooten

The lockout was the result of a long-running dispute between the county commissioners, who last fall voiced concerns about Hooten’s job performance.

Hooten told the Four Corners Free Press he was in the longtime extension office in the basement of the former county courthouse on Main Street on May 29 when Commissioner Larry Don Suckla came in as Hooten was sorting through materials preparing for the move.

According to Hooten, Suckla told him, “Tom, I hate to do this to you but you’re not allowed in the new building. You have the rest of this week to get your stuff out of here and CSU can do with you whatever they want.” Hooten said Suckla also told him, “Maybe you can work from home.”

Hooten said he removed his notebooks, files, and reference materials from the office, leaving behind county property and the key.

He said he later requested notice from the county in writing and received an email from Administrator Melissa Brunner stating that the commissioners were no longer providing him with office space.

The CSU Extension Service provides educational services to counties throughout Colorado. It is operated by the state, but Montezuma County contributes $108,000 annually to fund the office and pay a portion of Hooten’s salary.

A memorandum of understanding between the Extension Service and the county specifies that the county will provide space for the extension office, so Hooten said the decision to lock him out seemed strange.

“It just seemed odd to me that I was singled out. They would provide office space for the rest of extension, but not me.”

He said Suckla’s edict came with no warning. Hooten and the rest of the extension staff believed a prior dispute with the county had been worked out. A new extension director was being hired. (Kacey Riedel, a Pleasant View resident, was scheduled to start work July 2.)

“CSU was to fund the new position entirely for two years,” Hooten said. “I would step down as director when that person started. I would be just an extension agent for two years, and then I plan to retire.

“We were all cruising in that direction and then the bombshell was dropped. ‘Bizarre’ is a word that has been used.”

Hooten began working from his home, his vehicle, and the public library, while two other extension employees, administrative assistant Kathy Harris and 4-H Director Andrea Jeter, staffed the office. Hooten said he had no access to the office’s resources, office phone or computer.

On June 12, Mucklow confirmed the lockout to the Free Press but said he was working to get the problem resolved.

Hooten has been in the local extension office nearly 15 years. Prior to that he was a research associate at the Southwestern Colorado research Center at Yellow Jacket. He was appointed director of the local office after Jan Sennhenn retired in 2012.

Suckla could not be reached for comment, but he has been openly critical of Hooten since last fall.

In September, the commissioners had an executive session that included discussion of a “personnel issue” with Hooten, although he isn’t actually a county employee.

On Oct. 2, the commissioners voted to de-fund the extension office, a move that brought Mucklow to Montezuma County later that month. During a lengthy discussion with the county commissioners, Mucklow said de-funding the extension program would mean ending the local 4-H program because it is operated through the U.S. Department of Agriculture and CSU.

The commissioners said they had had numerous complaints from 4-H parents and the county fair board about Hooten. Suckla voiced considerable concern over the fact that photos of buyers and sellers in the annual 4-H livestock auction at the county fair had not yet been published in the Cortez Journal. Mucklow said CSU’s general policy is that the extension program doesn’t have responsibility for county fairs.

Suckla accused Hooten of playing chess all day in his office and repeatedly called for him to be fired. He said Hooten lacked ambition.

Mucklow said Hooten was evaluated regularly along with all extension staff, but that he couldn’t comment on his job performance because that was a personnel issue, to which Suckla responded, “He doesn’t work for me!”

Ultimately the commissioners and Mucklow agreed to several measures. The local extension advisory committee, which guides the extension office, would be revitalized and would meet quarterly. An extension agent from a neighboring county would provide oversight of Montezuma County’s office for several months. An MOU between the fair board and the extension office would clarify responsibilities for the fair. (Such a memo was signed Jan. 8.)

Suckla then said the county had never planned to de-fund the extension program, but that that was “fake news” they had put forth in order to get Mucklow’s attention.

However, during a meeting in June the commissioners said that things with the extension office had gotten worse rather than better, though they did not give specifics, and shortly thereafter, Hooten was told about the lockout.

However, Hooten later said, and Mucklow confirmed, that the county had reconsidered and was allowing Hooten into the office.

Hooten said Mucklow had written a letter to the county in mid-June contesting the lockout, and that Suckla had called Hooten on June 19 and told him he would be permitted into the new office after all.

“He spelled out what my relationship with Kacey [the new director] should be,” Hooten said. “I felt rather insulted by it because it’s all things I would do anyway. He said, ‘Work well with her’ and “use your experience and knowledge,’ things like that.

“He called back and said, ‘If she wants to try something new, don’t tell her it won’t work’. He said, ‘If she fails, we’re going to take it out on you’.”

Hooten said he asked for something in writing stating that he was allowed into the new office, and Brunner sent him an email.

Hooten told the Free Press that June 25 was the first day he was able to go to the office and begin organizing. “I’m actually enjoying it,” he said.

He will no longer be involved with the county fair, he said, which gives him the latitude to do other things. Recently, for instance, he helped a local vintner with problems he was having with his grapevines, worked with a state entomologist on bark beetles and helped FireWise of Montezuma County with a workshop.

But Hooten said he isn’t sure the entire dispute with the county has been resolved.

“It’s not over,” he said. “But it’s better.”

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.”