Commissioners had authority to act, judges rule
By Marcy Stamper
The Okanogan County commissioners had the authority to close Three Devils Road to the public at the request of adjacent landowner Gamble Land and Timber, the Washington Court of Appeals has ruled.
Moreover, discussions between the commissioners and representatives of the company were a normal part of county business and not evidence of collusion, the court found.
The three-judge panel issued a decision in the case on March 16, dismissing claims by Chiliwist Residents & Friends that the road is an important part of the county system because they use it to get to public lands and as an important evacuation route in case of fire or other emergency.
The decision by the Court of Appeals upholds a 2015 ruling in Okanogan County Superior Court that found the county commissioners had the prerogative to close Three Devils Road as part of their management of the county’s road network, a “legislative” function.
The Chiliwist group had argued that the road issue was “quasi-judicial,” akin to one made by judges, because it affects the overall public and is based on an evaluation of facts presented to the county’s hearing examiner.
But the judges ruled that the long-standing rule in Washington is that road vacations are part of elected officials’ political function and would only come before a court if there were fraud or collusion.
“Our clients understand the decision by the court and hope this will bring a conclusion to this lawsuit,” said Tom O’Connell, the attorney for Gamble Land, in a statement about the Appeals Court ruling. “The decision confirms, just as in the lower court, that no corruption, collusion or fraud occurred between the Okanogan County commissioners and our clients. The decision also confirms that our clients followed the proper procedures to remove a road from the county system.”
Gamble Land petitioned for the road to be closed to protect its adjacent property from trespassing and vandalism.
The Appeals Court cited documents in the record that said none of the plaintiffs live on the 3 miles of the road that Gamble sought to vacate and that all road maintenance had been performed and paid for by Gamble Land. The road traverses Gamble’s private property and some state land, and terminates at a U.S. Forest Service gate, which is sometimes closed when the agency is doing roadwork, according to case records.
The “crux of the matter,” said Kalikow during oral arguments in January, 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.
While the commissioners had the hearing examiner take public testimony, and he recommended the road remain open for access to public lands and as an escape route, the commissioners are not required to defer to the examiner’s recommendation, the judges determined.
The judges noted that the commissioners had also considered a recommendation from the county engineer, who found “the road was useless as part of the county road system, and recommended that the BOCC vacate the road,” wrote the judges.
The judges also pointed to a report submitted by Gamble Land that stated “the road was not an escape route, that the road would be dangerous and perhaps not passable in the event of a fire, and that numerous alternative fire escape routes existed.”
No evidence of collusion
The judges dismissed as “overly speculative” the Chiliwist group’s claims that then–County Commissioner Ray Campbell’s personal relationship with members of the Gebbers family and Gebbers’ contributions to the commissioners’ campaigns amounted to collusion. Cass Gebbers is a representative of Gamble Land, according to court documents.
Commissioners Campbell and Sheilah Kennedy, who supported the vacation, were defeated in the 2016 election. Commissioner Jim DeTro voted against the vacation.
While Gamble had contact with each commissioner before they made the final decision on the road, “Legislators are expected to have contacts with representatives both for and against pending legislation. Nothing prevented Coalition members or representatives from having similar contact with individual commissioners,” wrote the judges.
Three Devils Road is a steep, primitive road that leads from the Chiliwist toward the Loup Loup summit and the Methow Valley. In oral arguments before the court in January, the Chiliwist group contended that legal precedents cited by Gamble Land involving vacation of city streets don’t apply in a sparsely populated rural area where people from a broad geographic region have an interest in keeping a road open.
But the judges found that because no member of the Chiliwist coalition owns property abutting the road, closing it would not affect any member’s access to his or her own property.
The court panel also rejected the notion that there is a “liberty interest,” based on a Constitutional right to travel, in keeping the road open. That legal precedent dealt with travel outside the U.S., which is “of a different nature and magnitude when compared to the expectation of traveling on a stretch of primitive unimproved road,” they wrote.
“Now that the Court has ruled we hope the county will be able to complete the review of all roads consistent with Okanogan County Resolution 71-2015,” said O’Connor, Gamble’s attorney, in a prepared statement.
That resolution, adopted in July 2015, commits the commissioners to reviewing the county’s 1955 road map and any roads removed from the county system. It directs the commissioners and Public Works staff to determine whether roads removed from the system were removed lawfully or not, and to propose vacation of roads not useful to the county system.
The Chiliwist residents are considering asking the state Supreme Court to review the case, said their attorney, Barnett Kalikow, this week. “There are too many questions left unanswered by the decision, questions the judges didn’t even rule on, even though both sides asked them to,” said Kalikow. “It leaves a lot hanging.”
The plaintiffs have until April 15 to ask the high court to review the case. A Supreme Court panel declined last year to take the case under expedited review, which would have skipped the Court of Appeals step.
Three Devils Road remains open to the public until the case is final because the Chiliwist group obtained a $10,000 bond to keep the road open during litigation, said Kalikow. The bond is intended to safeguard Gamble’s adjoining property from trespassing and vandalism, he said.
