National forest challenges county’s claim on federal roads

Monday, July 9, 2018 4:44 PM
Montezuma County installed this sign along the Dolores-Norwood Road as part of its effort to assert jurisdiction.

The Montezuma County commissioners are getting pushback on their assertion that certain roads and trails running through the San Juan National Forest are under the jurisdiction of counties.

In a June 17 resolution based on historic maps, the Board of Commissioners claimed that 17 roads and trails fall under the RS2477 statute, which date to 1866 mining laws establishing early travel routes. The resolution states that the routes existed before the forest was formed in 1905 and therefore are under the control of counties where they lie.

The commissioners decided to cast a wide net in their resolution and included trails and roads in Montezuma, Dolores and San Miguel counties.

The national forest has a process for counties claiming historic RS2477 routes. They require a legal claim in federal court, and the burden of proof is on the county. But Montezuma County commissioners disagree with the process, arguing that the national forest should have to prove the roads are not under county jurisdiction.

In the past several years, Montezuma County has worked to prove its jurisdiction over the paved Dolores-Norwood road (Forest Road 526) where it passes through the San Juan National Forest north of the Dolores. They want control of the road to take over maintenance, allow ATV travel and to drop fees for commercial users charged by the national forest.

The Bear Creek Trail has become a flash point for Montezuma County commissioners, who see using RS2477 claims as a way to secure motorcycle use there. As part of a pending travel management plan, the San Juan National Forest is changing the Bear Creek Trail to nonmotorized use.

So far, the commissioners have not made their road and trail jurisdiction claims in federal court, although they have instructed staff to prepare their case.

Dolores County advises selective approachIn a June 21 letter, Dolores County commissioners Steve Garchar, Julie Kibel and Floyd Cook stated they are “adamantly opposed to being included” in the Montezuma County RS2477 Resolution.

In a detailed position memo, Dolores County commissioners rejected the notion that claiming historic roads only requires citing maps from before the forest.

“The simplicity of the RS2477 doesn’t exist,” the memo states. “RS2477 is open to a variety of interpretations, interpretations that now appear in conflicts between motorized and nonmotorized recreational interests.”

The memo states that the Mining Act of 1866 granted right of way for the construction of routes over public lands, and many were established in Southwest Colorado. But the term “right of way” does not translate to ownership of land underlying the route. Conflicting interests also drive the question, often centering on motorized versus nonmotorized values.

“This creates uncertainty about who owns the routes crossing public lands,” the memo states. “This is where local governments must determine if this is the best use of scarce public funding to determine if RS2477 is worth pursuing.”

Counties that gain jurisdictional right of way through RS2477 also are responsible for administration of the route, which could require a financial commitment. Dolores County asks how big the county staff would need to become to handle management of trails, oversee conflicts, handle logging, mining and hunting usage, and provide permits and law enforcement.

As a remedy, the federal Quiet Title Act allows private parties and states to adjudicate a disputed title to real property, in which the United States claims an interest.

While Dolores County commissioners support historic access and uses on public lands, choosing specific routes to fight for is important. Documentation requires more than a map, they say, and making the legal claim is time-consuming and costly.

“We do want our grandkids to see and do what we did,” the commissioners stated. “Instead of trying to litigate them all, it would be best to choose trails that have good documentation, lack of private ownership, can be surveyed, and fight to maintain the public right of way on those.”

The Dolores County commissioners urge that counties work with federal agencies on roads and trails “near and dear to our constituents, be open to all users and not deceive ourselves that these routes will just be given to us.”

San Juan National Forest respondsIn an email to Montezuma County commissioners, Derek Padilla, Dolores District ranger for the San Juan National Forest, outlined issues with the county’s RS2477 claims in the resolution.

He said current road and trail alignments are not consistent with historic maps. Some historic routes are listed as private or secondary before the San Juan National Forest was created, so other evidence would be needed to substantiate that these too were public highways.

Padilla further states that many of the routes dead-end on historic maps, representing a problem for a legal RS2477 right of way claim since the route has changed or been added onto by the national forest.

If the information relying on maps is the only county proof that the roads and trails qualify for RS2477 status, then “the basis for the resolution is insufficient,” Padilla wrote.

He said the Forest Service is not against evaluating RS2477 assertions, but that the county bears the burden of proof.

“I know the county believes the converse is true, but that is not supported by current law, policy or regulation,” Padilla stated.

The national forest sees the county’s RS2477 resolution as nonbinding.

Routes currently designated as nonmotorized or are closed for public use will continue to be managed that way until the county validates their assertions through a legally recognized process, Padilla said.

“This means that violators would continue to receive citations,” he said.

Padilla added that there are current cases to support this position, including one in San Juan County, Utah, that involved county commissioner Phil Lyman, who received a ticket for driving an ATV on a nonmotorized route during a protest ride.