Photo by Marcy Stamper
Supporters of the Okanogan Open Roads Coalition checked out a map of back roads at a fundraiser last weekend.

The response does not apply to French Creek Road lawsuit

By Marcy Stamper

Okanogan County has new guidance from the state assistant attorney general about correcting errors on its road log — carefully worded to avoid affecting ongoing litigation about whether French Creek Road is a public or private road.

Assistant Attorney General H. Lee Overton responded last month to a November 2017 request from the Okanogan County prosecutor about how to handle roads included incorrectly on the county’s 1955 road log.

The county began reconciling the 1955 log and map several years ago to make sure all roads on the list are truly county roads, said Okanogan County Engineer Josh Thomson. But the request for a legal opinion on that process attracted attention because of a case in Okanogan County Superior Court that seeks to determine whether a 3-mile stretch of French Creek Road is public or private.

Gamble Land and Timber and Cascade Holdings Group, who own property along French Creek Road, filed a lawsuit in 2017 against Okanogan County, asserting that the 3-mile section is part of their private property and for their private access only. A citizens’ group, the Okanogan Open Roads Coalition, is contesting that claim, saying the road has been used consistently by the public for more than a century.

There are basically two ways of correcting errors in a county’s road log, said Overton.

If a road is on the list and there is some uncertainty about the specific route — but not about whether it is a county road — the county would have to survey the road and notify anyone affected by a change. The decision would be made by the county’s Superior Court, said Overton.

If there is no uncertainty about the route and everyone agrees it’s not a county road, the county commissioners would submit a corrected road log to the County Road Administration Board (CRAB). The road could not be vacated since the vacation process is only for county roads, said Overton.

In going over the log, the county found a few roads that are no longer on the ground, some with just a trace that are now completely overgrown. The county vacated them a few years ago, said Thomson.

But the county is trying to determine what to do if it never had the right to claim the roads in the first place, said Thomson. Although these actions took place long ago and there is no documentation, the county is responsible for providing an accurate, up-to-date log to CRAB every year, he said.

The only roads on the log that the county still has questions about — other than the 3-mile section of French Creek Road — no longer exist, said Thomson.

Seeking help

The county commissioners sought the opinion because they wanted to be sure they were following the legal process for dealing with roads in general, said Okanogan County Commissioner Andy Hover.

When Branden Platter, the Okanogan County Prosecuting Attorney, asked the state attorney general for an informal opinion on the matter in November, he wrote, “Okanogan County wishes to clarify the process for officially recognizing that they have no claim or right to a road that was previously identified as a county road.”

Platter noted the litigation in his request. “There is currently one case in litigation in which plaintiff filed a Complaint to Quiet Title on a section of French Creek Road. Okanogan County is a defendant in the case because the road is identified on the 1955 map as a county road,” he wrote.

Okanogan County responded to interrogatories in the French Creek case but is not taking a position as to road ownership and will follow the court’s ruling, said Platter.

After Platter submitted the opinion request, Open Roads Coalition attorney Barnett Kalikow wrote to the attorney general, saying it was inappropriate for the attorney general to intervene because the French Creek case was pending.

Kalikow also called the underlying question “a false premise.” “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,” he wrote last December.

Overton was careful to sidestep the litigation. “We therefore assume in our analysis, as you ask us to, that the roads relevant to your questions have never become county roads … It is not necessary to resolve the dispute over the ownership of the road at issue … in order to respond to your questions, and this opinion takes no position on that dispute,” he wrote.

“The attorney general is going out of his way to distance himself from the facts of litigation and to make sure it’s totally hypothetical,” said Kalikow this week. “There is nothing in this opinion that would have a bearing on the issue of whether or not something is a county road.”

Under state law, there are several ways for a road to become a county road. If it’s been used by the public for at least 10 years or the county maintained it for at least seven years, it is deemed a public road, even if the county never formally adopted the road.

Constant updating

All counties were required to adopt a road log for the first time in 1955. “It was the first time it was required, and the county scrambled,” said Thomson. Because it was so long ago, there is little documentation. It started keeping an electronic database in the 1980s, he said.

Some roads on the 1955 list were never formally vacated or transferred. “If there’s no document showing it’s a county road, but it’s on the 1955 map, what do we do?” said Thomson. He said the attorney general’s opinion was not very definitive.

The road log included some U.S. Forest Service roads, for which there is virtually no historic documentation, even if the Forest Service maintains them, said Thomson.

CRAB uses information about road length, width and surface in the logs to determine the amount of fuel tax counties are due, said Mike Clark, road system inventory manager for CRAB. There is no evidence the county ever received tax revenue in error, said Thomson.

“Errors in logs happen throughout the state. Every county is constantly verifying their road inventory,” said Clark.

“I’m not aware of road issues other than the one in litigation,” said Hover. Questions about the status of that road have been going on since the 1960s, he said.

The county is still following up on a request by the Forest Service about some 40 roads where private residential development has increased. In 2015, the Forest Service asked the county to take over maintenance and snowplowing, said Thomson. Resolving that question would require action by the county commissioners and a public review by the Forest Service, he said.

This March, Okanogan County Superior Court Judge Henry Rawson said resolving the French Creek Road dispute requires additional fact-finding. A seven-day, non-jury trial has been scheduled for February 2020. The parties are gathering additional information and assembling witness lists for the trial, said Kalikow.