By Marcy Stamper

The Okanogan County prosecutor has asked the state attorney general for an informal opinion about how to officially recognize that the county has no claim or right to a road on a 1955 list of county roads.

Okanogan County Prosecutor Branden Platter submitted the opinion request to Washington Attorney General Bob Ferguson on Nov. 14. “If research determines that the County had not previously established a particular road as a County Road … had no right to claim a road on the 1955 resolution, and has not obtained rights since that time, what is the correct procedure for officially recognizing that a road … is in fact not a county road?” asked Platter.

That 1955 road list has also come up in court — most recently in the lawsuit filed against Okanogan County by Gamble Land and Timber and Cascade Holdings Group. The two companies are seeking to clear up the title to a 3-mile section of French Creek Road that they say is their private property. The companies say the county illegally claimed the road in 1955 without compensating the property owners. Oral arguments in the case were heard in Okanogan County Superior Court at the end of December.

Platter referenced the lawsuit in his query to the attorney general, acknowledging that the question of road ownership was currently in court and that the county is a defendant. “The question is not intended to assist in resolving that case, but in the process of attempting to clean up the road map and … the road log, we have identified multiple roads … that the county may not have any actual claim to…,” wrote Platter.

In an email responding to questions from the Methow Valley News about the request for an opinion from the attorney general, Platter said he could provide only general information because the matter is in litigation.

Platter said he hadn’t been sure the attorney general would issue an informal opinion in the matter. “Had the AG thought it improper to issue an opinion, they would not have agreed to issue one,” said Platter by email.

But Barnett Kalikow, the attorney for the Okanogan Open Roads Coalition, which is fighting in court to prevent Gamble from privatizing French Creek Road by quiet title, was troubled by Platter’s request. In a letter to Platter on Dec. 28, Kalikow wrote, “The wording of your request presupposes that some official action was required to establish a county road — other than general public use for 10 years — prior to its listing 62 years ago.”

That distinction is one of the central issues in the French Creek lawsuit. Gamble Land argues that the county illegally claimed the road and never actively maintained it. The open roads coalition argues that the road, as the primary route to the Methow Valley from Pateros, has been in continuous use for a century, making it a public thoroughfare.

Kalikow was also concerned by the timing of Platter’s request. “This issue is currently sub judice [under judicial consideration] in Gamble Land v. Okanogan County … and it is therefore inappropriate for the Attorney General to intervene,” he wrote. “Furthermore, your request places both your office and the Attorney General in an especially invidious position because your office has refused to defend its own Answer in this case and left its defense to the citizens and taxpayers.”

Platter explained to Ferguson in his letter that the county had responded to interrogatories from Gamble Land but wasn’t taking a position in the case and would abide by the court’s decision.

In his email to the Methow Valley News, Platter wrote, “The county is attempting to clean up the map/list and to do so we need to be able to determine how these roads are classified. This is a project totally separate from the French Creek litigation while they do have some overlap.”

Because the case is pending, Platter said in the email he couldn’t explain why the county has elected not to pursue an active defense.

Controversy over road log

The 1955 road log and map have been a source of confusion for the county for some time. The former board of commissioners began trying to reconcile the 1955 road log and map more than two years ago and scheduled a public hearing on 11 roads about a year ago.

At the hearing in January 2017, the county commissioners vacated three roads that have no trace on the ground, but wanted more information about the other eight. The most controversial of the 11 roads was a road that connects to the Texas Creek/French Creek Road and is not currently accessible to the public because it is gated.

At the hearing, the commissioners — two of whom had just been elected — decided they needed more information about the history of the road and the gates before they could determine whether the road was part of the county system.

Work on the quiet-title lawsuit started last January, shortly after the hearing. The summons was signed at the end of January and Gamble served the documents on the county in March.

There is no estimate for when the attorney general will provide his informal opinion to Platter about the process for clearing up the road log. Platter said these opinions “generally take some time.”