Appeals court hears challenge to road closure

By Marcy Stamper

On the face of it, the Three Devils Road legal dispute appears to pit the public’s right to use a primitive road to reach public land, or to escape from a wildfire, against the adjacent property owner’s right to protect its property from vandalism or trespassing.

But at oral arguments in the state Court of Appeals on Jan. 31, lawyers and judges focused on more technical issues in the case.

They asked whether closing Three Devils Road was part of the county commissioners’ regular role in administering Okanogan County’s road system. They also probed the issue of standing — whether people who live near (but not directly on) the road have the right to challenge the commissioners’ 2015 decision to close it.

The judges also looked into assertions that the county commissioners had unlawfully given a special privilege to a private party when they closed Three Devils Road at the request of the adjacent property owner, Gamble Land and Timber.

The judges heard 15 minutes of oral arguments from attorney Barnett Kalikow on behalf of the Chiliwist Residents & Friends, and another 15 minutes that were split between Sandy Mackie, attorney for Okanogan County, and Thomas O’Connell, attorney for Gamble Land.

The judges interrupted Kalikow frequently to ask about the Chiliwist group’s standing to appeal the commissioners’ decision. They cited other cases that require plaintiffs to live on a road to show they would suffer more harm than the general public if a road were closed.

The test for standing is always the same — appellants must own property abutting the road and must show that regular access to their property would be obstructed if the road were closed, said O’Connell.

But Kalikow asserted that the Three Devils case, which concerns a remote mountain road that leads to public lands and roads, is different because the other cases involve urban streets where a detour was just a few blocks long. Chiliwist residents rely on Three Devils Road as one way to escape from a wildfire, depending on the location of the fire, he said.

The “crux of the matter,” said Kalikow, is that the commissioners provided special rights and privileges to a single property owner when they vacated the road, putting the decision beyond their regular administration of the county road system.

But Mackie said the decision was clearly part of the commissioners’ regular legislative function. The plaintiffs must show that the commissioners’ decision had been arbitrary and capricious or involved fraud for it to be outside that realm, he said.

The commissioners had the discretion to consider recommendations from both their county’s hearing examiner and the county engineer when they found that Three Devils Road didn’t serve the entire county’s need, said Mackie.

Moreover, the plaintiffs have not shown that there was any conspiracy between the commissioners and Gamble Land, he said.

The judges seemed concerned by statements in the court record that said Three Devils Road could be gated or impassable. Allowing Three Devils Road to remain open creates a potential liability for the county because people could be trapped, said Mackie.

Overall, the judges had fewer questions and interruptions for Mackie and O’Connell.

The judges also sought to clarify whether residents of the Chiliwist would use the road for escape if they were at home, or only if they were on public land near the road. Kalikow explained that it depended on where the fire was. His clients testified that Three Devils Road is a principal route to the west, he said.

The Chiliwist valley has repeatedly been hit by wildfire, said Kalikow. “You don’t close these roads,” he said.

The Court of Appeals judges typically issue a ruling within two to six months, according to a court clerk.