Opponents question legality of the new ordinance
By Ann McCreary and
Okanogan County Commissioners approved a request to open about 300 miles of roads – including virtually all county roads in the Methow Valley – to all-terrain vehicles (ATVs), despite the threat of lawsuits from some citizens who said the commissioners lack legal authority to approve the roads for ATVs.
Before a packed hearing room Thursday (July 25), commissioners listened to more than an hour of testimony from citizens, most from the Methow Valley, before voting unanimously to adopt an ordinance permitting ATVs (also called off-road vehicles, or ORVs) on a number of county roads with speed limits over 35 mph.
The commissioners’ action, in response to a petition from North Central ATV Club, comes three days before a new state law takes effect that will allow local authorities to open roads with a speed limit of 35 miles per hour (mph) or lower to ATVs. According to some interpretations of the law, the commissioners’ action would allow ATVs on roads with higher speed limits since those roads had already been opened by ordinance before the law takes effect on Sunday (July 28).
Verlene Hughes of the county Public Works Department said 280 comments had been received on the proposal. Commissioners heard testimony from 12 speakers in favor of opening the roads, who cited economic benefits and greater access for different types of recreation.
“The real question is, do we treat the Methow Valley differently, or above the rest of the county?” asked Steve Campbell of Winthrop, speaking in favor of opening the roads.
Sixteen speakers, most from the Methow Valley, voiced opposition because of concerns about safety issues, about ATV riders violating laws, and about environmental damage. Several posed questions about the legality of approving the county roads for ATVs under the current law.
“On the legal issues, we’ve heard both sides. When it comes to that, I guess we let the courts decide,” said County Commissioner Ray Campbell of Carlton, who made the motion to approve the ordinance.
The roads included in the petition from the ATV group include East and West Chewuch roads, Twisp-Winthrop East County Road, Twisp River Road, Twisp-Carlton Road, Patterson Lake Road and Gold Creek Loop Road.
Maggie Coon of the Methow Valley Citizens’ Council cited current state law that allows counties to designate a road or highway as suitable for off-road vehicles “if the road or highway is a direct connection between a city with a population of less than 3,000 persons and an off-road recreation facility.”
“None of the roads in the Methow Valley listed in your hearing notice is a direct connection between any city or town and the ORV recreation facility in Conconully, or any other ORV recreation facility,” Coon said in a prepared statement.
The new law that takes effect July 28 will remove that “connectivity requirement… but will limit roads that can be opened to ORV traffic to those with a speed limit of 35 mph or less. The Methow Valley roads listed in your hearing notice have speed limits above 35 mph. Accordingly, the county will not have authority to open them to ORV traffic under the new law,” said Coon.
“In sum,” Coon said, “there is no time at which the county will have authority under state law to open the listed roads, either before or after July 28.”
As defined by state law, “ORV recreation facilities include, but are not limited to, ORV trails, trailheads, campgrounds, ORV sports parks, and ORV use areas.”
Winthrop resident Roxie Miller told commissioners she had consulted with Winthrop attorney Michael Brady to interpret the new law, HB 1632.
“He confirmed my understanding that Okanogan County roads listed to be opened to ORVs in this hearing must be opened in compliance with the present state law governing off-road vehicles,” Miller said.
“It is attorney Brady’s opinion that because none of the Methow Valley roads that are listed in the… hearing directly connects to an off-road vehicle recreation facility, Okanogan County has no authority as provided by law to designate any of those… roads as open to off-road vehicles,” Miller said.
“Why are commissioners pre-empting the new law that will take place shortly?” asked Winthrop resident Nick Ahlfs. “I think if you do pass this… you will open yourself to lawsuits, which will cost everyone here – ATV owners and non-ATV owners – money.”
Asked after the hearing about the legality of the commission’s action, Campbell said commissioners had “run stuff by our civil deputy [attorney]” Steven Bozarth before the hearing. “There is a broad description of ‘ATV facility,’” Campbell said, which “may not be defined until it does go to court.”
The new law does not open roads for ORV use without an ordinance passed by local county or city authorities. A provision allowing ATV use on state highways – such as Highway 20 – within cities and towns where the speed limit is 35 mph or lower also requires local officials to take action to open the roads to ATVs.
The law uses a road’s status on Jan. 1, 2013 – that is, whether it is open or closed to ATVs – and says that provisions for opening higher-speed roads and those in towns do not apply to changes made since that date.
“The new law does not allow grandfathering in any roads opened [to ATVs] after Jan. 1, 2013,” Twisp resident Melanie Rowland told commissioners. A former environmental attorney for the U.S. government, Rowland said she would plan to participate in a lawsuit challenging the commissioners’ decision.
Spencer King, president of the Conconully-based North Central ATV Club, said the roads his club petitioned the county to open “were for connecting to… food, gas and lodging.” He said ATV club members would monitor other riders to try to prevent anyone from riding in illegal locations or causing property damage.
“I want to apologize for some of the bad apples that some people have seen and can assure them that we would be cornering those people,” King said.
After the hearing, King acknowledged the considerable confusion about the new state law and how it will be implemented and enforced. The law was passed June 29 in a last-minute vote during a special budget session.
“It caught us all by surprise that this bill, that we thought was dead in March, got passed,” King said.
Questions about implementation, timing
Questions remain about how to implement various aspect of the new law, which requires registration tags and safety equipment on ORVs before they can be operated on regular roadways. However, the Washington Department of Licensing needs more time to develop the necessary computer systems and train personnel, spokesperson Brad Benfield said.
The legislative and policy director for the Department of Licensing sent a letter to the sponsoring legislators on July 9, after the law was signed by the governor, notifying them that the agency would not be able to meet the July 28 effective date of the law. They expect to be able to implement the registration requirements by March 2014, according to the letter.
“We are working to develop alternate implementation plans that may enable us to implement this new program more quickly…. However, it’s too early to know if an alternate plan is feasible,” said Benfield this week by email.
It is unclear what the ramifications of the gap in licensing and administration would be for those wanting to operate ORVs on roadways before the registration system is in place.
ORV riders must also have documentation from an ATV dealer or repair shop that the vehicle has been outfitted with the required safety equipment.
The commissioners are holding another public hearing in Okanogan on Monday (July 29) at 3 p.m. to consider opening all roads in the county with a speed limit of 35 mph or lower to ORVs. These roads include those designated as primitive roads, which typically have a speed limit of 35 mph, according to Hughes of Public Works.
The public can submit comments on the proposal to open roads with speed limits of 35 mph or less to firstname.lastname@example.org.