Ruling still pending on whether related trial is warranted
By Marcy Stamper
The Okanogan County commissioners had the prerogative to close Three Devils Road as part of their management of the county’s road network, according to Douglas County Superior Court Judge John Hotchkiss.
But Hotchkiss is still evaluating whether a jury trial is warranted to determine if the commissioners’ decision had been unlawfully influenced by their business and personal ties with members of the Gebbers family, who operate the company that requested the road be closed.
At the hearing in Okanogan County Superior Court on Friday (Sept. 18), Hotchkiss heard testimony from attorneys for Okanogan County, Gamble Land and Timber, and Chiliwist Residents & Friends, a citizen group that is challenging Gamble Land’s efforts to have the county close 3 miles of the road to the public.
Gamble Land petitioned the county in February to close the road to protect their adjoining property from trespassing and vandalism. The Chiliwist Residents say the road provides an important escape route in case of fire and is a way to access public lands. They filed the lawsuit in June after the county commissioners voted 2-to-1 to close the road.
Three Devils Road is a steep, primitive road that leads from the Chiliwist toward the Loup Loup summit and the Methow Valley. Gamble Land uses the adjacent property primarily for grazing and logging.
In court filings, Barnett Kalikow, the attorney for the Chiliwist Residents, argued that more than three decades of real estate dealings between County Commissioner Ray Campbell and Daniel Gebbers and others in the Gebbers family imply collusion and conspiracy and violate the appearance-of-fairness doctrine. Before being elected as commissioner, Campbell owned and operated real-estate companies in Pateros and Twisp.
Kalikow also pointed to personal ties between Campbell and Gebbers. For example, Campbell delivered the eulogy at Daniel Gebbers’ funeral last year, he said.
“In Mr. Campbell’s defense, your honor, this is a very small county. Anyone in business 35 years will have relationships,” said Sandy Mackie, a special deputy prosecutor representing Okanogan County in the land-use aspects of the case. “But no one has shown a personal, direct financial interest that could otherwise taint his decision.”
“I assume that if you have done 30 years of business with someone, you would disclose that,” said Kalikow.
The Chiliwist group contends that the commissioners also should have disclosed private communications with Gamble representatives before they took up the road-vacation request.
Kalikow’s brief asserts that the county’s relationship with Jon Wyss, the government affairs director for Gebbers Farms and a relative by marriage, also raised questions about improper influence. Wyss had a contract with Okanogan County in 2013 to advise the Public Works Department about personnel and financial matters, said Kalikow.
The commissioners’ task is to decide which road placement is in the best interests of the county, not in the public interest, argued Thomas O’Connell, the attorney for Gamble Land.
But Kalikow argued that the commissioners’ decision was made following a request by a private party for that party’s own benefit. The question of closing Three Devils Road did not originate with the county as a standard policy matter, he said.
County officials differed
While the commissioners made the final decision about the road closure, they had their hearing examiner, Dan Beardslee, take public input and gather facts. Citing “compelling” evidence about the importance of the road as an escape route from wildfire and as a way to reach public land, Beardslee recommended in May that the road remain public.
In June, the commissioners reviewed Beardslee’s recommendation and a report by the county engineer that found that closing the road would neither benefit nor inconvenience the public. Campbell and Commissioner Sheilah Kennedy determined the road was useless and voted for the vacation; Commissioner Jim DeTro opposed it.
The Chiliwist Residents also charge the commissioners with violating the appearance-of-fairness doctrine. “Looking at this list of interwoven relationships between the County and Gebbers interests, we can honestly say that listing [in the legal brief] the standards set for the appearance of fairness is almost superfluous,” wrote Kalikow.
Kalikow argued that the commissioners should have followed the hearing examiner’s recommendation. “That’s why you have hearing examiners — to find facts. Courts give deference to the person who heard the evidence — it’s basic jurisprudence 101,” he said.
He argued that the case law cited by the attorneys as precedent dealt with roads in urban areas — where closing two streets does not cut off all emergency exits — and is not applicable in a remote area with just a few roads.
Hotchkiss said he, too, found the argument that the road was an important fire escape “compelling,” but said the commissioners were entitled to make the decision and the court does not have jurisdiction to review it. People can turn to the ballot box if they’re unhappy with the commissioners’ decision, he said.
Kalikow said he and his clients are trying to figure out their next move. “We’re all hanging fire, waiting to see what the judge decides on the conspiracy or appearance-of-fairness issues,” he said.
The case has attracted considerable interest, particularly among residents of the Chiliwist area, which burned severely in the Carlton Complex Fire last summer. About 60 people were in court to listen to the proceedings on Friday.
Mackie and Kalikow say they expect Hotchkiss will rule within a week as to whether to hold a trial on the collusion and conspiracy allegations.
Depending on the outcome of a jury trial — if one is called by the judge — the commissioners’ resolution to close the road could be upheld or overturned for wrongful conduct, said Mackie.
Three Devils Road will remain open until Hotchkiss lifts the injunction he imposed in June. The Chiliwist Residents posted a $10,000 bond as he required.
Hotchkiss is hearing the case because both Okanogan County Superior Court judges recused themselves.