The Court of Appeals will hear oral arguments in the case over whether the primitive Three Devils Road should remain open to the public.
County’s decision to close road challenged by residents
By Marcy Stamper
The Washington Court of Appeals is considering questions about the public’s access to roads and the protection of private property rights as the court reviews an Okanogan County lawsuit.
The suit was filed against Okanogan County by Chiliwist residents who object to the county commissioners’ decision to close a primitive road at the request of adjacent property owners.
Oral arguments in the Three Devils Road case will be heard by the court on Jan. 31. The Chiliwist Residents & Friends say they use the road to get to public lands and that it provides an important evacuation route in case of fire or other emergency.
Attorneys for Gamble Land and Timber, the property owner that petitioned the county to close the road, say that the plaintiffs don’t have standing to sue because none of them live on or own property on Three Devils Road and therefore would not suffer any greater harm than the general public if the road were closed.
The Chiliwist Residents are appealing a 2015 Okanogan County Superior Court decision that the county commissioners had the prerogative to close Three Devils Road as part of their management of the county’s road network.
Commissioner Jim DeTro voted against the vacation. Commissioners Ray Campbell and Sheilah Kennedy, who supported the vacation, were defeated in the 2016 election.
Among the issues in the case are whether the county commissioners were biased when they voted to vacate the road. The Chiliwist Residents argue that the commissioners violated the appearance of fairness doctrine when they vacated the road. In particular, they point to a personal relationship between Campbell and members of the Gebbers family. Gamble Land is one of a number of businesses owned by the Gebbers family.
The Superior Court judge found that the plaintiffs had not shown any evidence of a conspiracy between the commissioners and Gamble Land.
The Chiliwist group also contends that legal precedents cited by Gamble Land involving vacation of city streets don’t apply here. In a sparsely populated rural area, people from a broad geographic area have an interest in keeping a road open to the public, they argue.
Both parties point to the county engineer’s report on the road in their briefings. Engineer Josh Thomson said the road was not useful as a part of the county road system and that the public would be neither benefited nor inconvenienced by abandoning the right of way.
“If there is some metaphysical meaning to the phrase ‘useful as part of the county road system’ aside from the fact that a large number county residents use it for lawful road purposes and believe that it is necessary for their safety and well being, the Respondents [Gamble Land] must better define it,” wrote the Chiliwist attorney in his brief.
But lawyers for Gamble counter that, saying, “The statutory test is not whether the road is of use to anyone, but whether it is useful as part of the county system. The public to be benefited included all taxpayers of the county, who deserve to be relieved of the burden of maintaining a road of such limited utility.” (Italics in original.)
Beyond the “on-the-ground” issues in the case — whether the road is useful to the public and to the county road system — is a technical but central legal question. Gamble Land argues that the authority to manage a road system is part of the commissioners’ function as a legislative body, while the Chiliwist group contends that the decision is akin to one made by judges because it affects the overall public and is based on an evaluation of facts presented to the hearing examiner.
Gamble Land petitioned the county in 2015 to close 3 miles of Three Devils Road to protect their adjoining property from trespassing and vandalism. The petitioners say there are other escape routes and that no one had actually used this road to escape from a wildfire. Since purchasing the adjoining property in 1995, Gamble Land has performed the majority of road maintenance, according to the company’s attorneys.
Three Devils Road is a steep, primitive road that leads from the Chiliwist toward the Loup Loup summit and the Methow Valley.
Oral arguments are scheduled for Jan. 31 at 11:30 a.m. in the Court of Appeals in Spokane. Audio of the oral arguments will be posted on the court’s website after the hearing. Go to www.courts.wa.gov, then the Courts tab, then Division III Docket, then Jan. 31, 2017. Click on the headset icon to right of the date. The case number is 345858.
