Will hear more arguments from environmental groups
By Marcy Stamper
The Washington Supreme Court is still evaluating an April request from a citizens’ group to hear a lawsuit about whether the Okanogan County commissioners had the right to close a remote road in the Chiliwist.
This week the court agreed to consider additional arguments from two environmental groups, which urge the high court to take on the Three Devils Road case because it raises important constitutional issues of equal protection.
When the Chiliwist Residents and Friends asked the high court to hear the case, they also pointed to constitutional issues, saying the county commissioners’ have a responsibility to protect residents’ safety and property. The commissioners closed the road in 2015 at the request of neighboring property owner Gamble Land and Timber.
The new motions before the justices are from the Methow Valley Citizens Council (MVCC) and Futurewise, which jointly filed an amicus (friend-of-the-court) brief on June 9 arguing that the status of Three Devils Road involves issues of substantial public interest.
Determining whether safety is a fundamental right deserves closer scrutiny under the equal-protection clause of the Constitution, “particularly in a rural area with limited road access that has experienced a dramatic increase in major wildfires,” MVCC and Futurewise contend.
Since they first sued the county and its commissioners in 2015, the Chiliwist residents have argued that they rely on Three Devils Road as a vital escape route and to reach public lands. The Chiliwist sustained some of the most severe destruction in the 2014 Carlton Complex Fire, as well as damage from subsequent mudslides.
Gamble Land petitioned the county in 2015 to close 3 miles of the road to protect its property from vandalism and trespassing. Gamble Land argues that there are many other roads Chiliwist residents can use as escape routes.
When they voted to close the road, the county commissioners followed a recommendation from the county engineer that “the public will be neither benefitted nor inconvenienced by the vacation and abandonment of this road and right of way.”
At the time, the commissioners said they were deferring to the engineer’s professional opinion over a recommendation from their hearing examiner. The hearing examiner issued his recommendation after taking public testimony that overwhelmingly supported keeping the road open.
The Chiliwist group’s primary arguments relate to the importance of Three Devils Road as an escape route. But whether the case belongs in the courts at all hinges on a more technical matter — essentially, whether decisions about road vacations fall to county commissioners as part of their political, legislative function, or whether closing a road affects the public at large and therefore becomes a judicial matter to be decided in court.
Judges at the superior and appellate court levels agreed that the decision to close Three Devils Road was part of the commissioners’ legislative function.
County, Gamble object
In a filing with the Supreme Court in May, Okanogan County reiterated this argument — that opening and closing public roads is part of the commissioners’ legislative authority and not for courts to decide.
And while the Chiliwist group and MVCC/Futurewise cite safety as a central reason for keeping the road open to the public, the county argues that safety concerns actually support closing the road.
“The road was identified to be dangerous, subject to unanticipated closures, and cost substantially more to maintain than any revenues attributed to it,” wrote Chief Civil Deputy Prosecuting Attorney Albert Lin in the May filing with the high court.
“The record provides ample grounds to support the road vacation on the grounds of safety and marginal utility against any claim of arbitrary or capricious conduct,” wrote Lin.
The Chiliwist group has alleged that the commissioners were influenced by their relationship with members of the Gebbers family when they closed the road, thereby violating the appearance-of-fairness doctrine. Gamble Land is owned by members of the Gebbers family.
For the appearance-of-fairness doctrine to apply, the court would have to find that the road closure is a matter for the courts, not just part of the commissioners’ prerogative as the county’s decision makers.
Lawyers for Gamble Land also say there is no reason for the Supreme Court to hear the case. They say the Chiliwist Residents don’t have standing to bring the lawsuit because none of them live on the road and they do not use it to reach their property, wrote attorney Thomas O’Connell.
Even the safety issue does not confer standing for the Chiliwist group to bring the case, said O’Connell. “Realistically, fire danger exists in all locals [sic], but if a mere allegation of fire danger automatically created standing, then a ‘fire escape exception’ would completely swallow the general rule” that gives legislative bodies the right to manage their road systems, he wrote.
“If anything, the record demonstrates that using Three Devils Road, which constantly needs repair and is intermittently gated at the west end, could put persons in danger if used as a fire escape,” wrote O’Connell.
Citing other cases
But MVCC and Futurewise say Washington courts have applied the equal-protection guarantee of safety in other road cases. These cases are fact-based decisions with ramifications for the safety of the public at large, contends Futurewise attorney Tim Trohimovich.
MVCC and Futurewise contrasted cases involving closure of city streets with those affecting a county road. In a rural area — particularly one prone to wildfire and other natural disasters — members of the public and first responders may need to use a particular road to reach safety, said Trohimovich.
There is no deadline for the Supreme Court to decide if it will hear the Three Devils case. Before that, the justices will review the MVCC/Futurewise brief and decide if the groups can participate as friends of the court.
MVCC and Futurewise have teamed up on other lawsuits in the county, including actions over all-terrain vehicles and the county’s comprehensive plan.
Ray Campbell and Sheilah Kennedy, two of the three commissioners named in the initial lawsuit, are no longer in office. Jim DeTro, the third named commissioner, is still serving.
