County, forest wrangle over Dolores-Norwood Road

Wednesday, Nov. 11, 2015 5:42 PM
The Montezuma County commissioners are considering asking the Forest Service to turn the Dolores-Norwood Road over to the county after the Forest Service started writing tickets to commercial vehicles who use that road.
The Journal file photo

Montezuma County recently installed this sign along the Dolores-Norwood Road near the base of Dunlap Hill.

A road-maintenance and jurisdiction dispute has been unfolding between Montezuma County and the San Juan National Forest over the Dolores-Norwood Road.

Forest Road 526 begins two miles north of the town of Dolores, and eventually reaches Norwood two counties away.

Beginning at the forest boundary, it crosses through Montezuma County for nine miles, five of which are paved.

But the local stretch of road has been deteriorating the past few years, especially the four miles of gravel road beyond the end of the pavement.

Under a Schedule A agreement with the Forest Service, the county agrees to blade the road once per year and do patch work. The forest is obligated to maintain the road as conditions warrant to “provide users a moderate degree of comfort and convenience at moderate travel speeds.”

But county road supervisor Rob Englehart says the forest is not holding up its end of the deal, so he has been doing additional maintenance this summer, and billing the forest for the extra work.

“We get a lot of complaints it’s unsafe, so we have responded with more blading and patching,” he said. “The forest seems to have forgotten it.”

County officials said they’ve invested $30,000 this year on improving the road, which sees 1,200 vehicles per month.

They want the Forest Service to pick up part of the tab, but Dolores District Ranger Derek Padilla said he is not authorized to pay the county’s submitted bill, and says that the forest has done some maintenance.

“We heard a report of a problem causing unsafe conditions, and had a grader out there just recently,” he said. “We agree it needs more maintenance – how to go about that needs to be discussed. The road gets very wash-boarded.”

Control issues

Another area of disagreement is who has jurisdiction of the road.

The forest asserts its under federal jurisdiction and ownership, but county commissioners claims it’s a county-controlled, public right-of-way under the RS2477 statute of the Mining Act of 1866.

Section 8 of the Act states, “That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”

The purpose was to allow public roads to be built across U.S. lands. Forest Service lands were later specifically set aside or “reserved” in the early 1900s for public use.

The RS2477 statute was repealed under the Federal Land Management Policy Act of 1976, but roads before that could still qualify for the historic route provision.

Padilla said the forest is not opposed to the county’s RS2477 claim, but according to their procedures, the county must provide evidence the road was in use before the forest was created in 1905. A judge then reviews the claim and rules on a RS2477 designation.

“Based on our procedure, the county has the responsibility to provide proof, with documentation and evidence for the court to review,” Padilla said.

Historic route

County and forest service have been researching the road’s origins. The county says it has evidence it was in use before 1905, and therefore qualifies as a public highway under county jurisdiction as applies to RS2477.

To make the point, last summer the county road crew posted “historic right-of-way” signs approaching the forest section of the road.

Since the forest has indicated it would not oppose an RS2477 claim, Montezuma County attorney John Baxter requested that the forest write a letter stating that.

“If we have that in writing, the courts would see you are not fighting over this thing, then it could be a quick process, get adjudicated and not be litigated,” Baxter said.

Padilla said he would pass on the request to the Forest Service attorney.

A possible hang-up is that a section of the Dolores Norwood road was re-aligned from its original route while under forest jurisdiction, potentially disqualifying that section from RS2477.

Also historic routes “don’t directly correspond to the Dolores-Norwood Road, so that is a concern,” Padilla said. “But the judge could decide its intent all along was to connect Dolores with Norwood,” and grant county jurisdiction.

Why the take-over?

The county wants to take over jurisdiction of the Dolores-Norwood Road for a few reasons. If under their control they can pursue grants to provide more regular maintenance and upgrades on it, allow ATV use on it (currently prohibited under Forest Service rules), and eliminate commercial-use fees now imposed by the Forest Service on loggers, oil and gas, and construction firms. The Dolores-Norwood Road fees generates $3,000 per year and contributes to a road maintenance fund for the entire San Juan Forest, which totals $30,000-$40,000 annually.

Another option available to the county is obtaining a 99-year easement on the road through the Federal Easement Road and Trail Act. The Forest Service is also supportive of this alternative, which would give the county jurisdiction of the road while still allowing them to seek RS2477 claims.

But the county has been against a FERTA easement because of contract language that it could be revoked, although forest officials say that possibility is very remote.

“We’d like to know if that (stipulation) could be dropped,” commissioner Keenan Ertel said, and it is being looked into.

The county said it eventually plans to chip-seal the four-miles of gravel on Dolores-Norwood Road up to the Montezuma County line.

Forest Service officials said a proposed paving upgrade would require federal environmental reviews regardless of a FERTA easement or RS2477 status, because neither action transfers title of the land away from federal ownership.