Dispute centers on historical usage, county actions
By Marcy Stamper
To people accustomed to traveling on the main highways of Okanogan County, roads to upper Texas Creek, French Creek, Brewster and the Chiliwist can seem far apart.
But these areas are actually all connected via old back roads that span the hills between the Methow and Okanogan valleys, the Loup Loup summit, Brewster and Pateros.
A lawsuit that will be heard in Okanogan County Superior Court this week focuses on one of the last links to that road network — and whether those roads are public or private.
Gamble Land and Timber and Cascade Holdings Group filed the lawsuit in March against Okanogan County to quiet the title to a 7.6-mile stretch of French Creek and Texas Creek roads.
The lawsuit charges that the county claimed the road in 1955 without any right to the property. The motion to settle the matter by quiet title — a method traditionally used in disputes such as the location of a property line — was necessitated when the plaintiffs discovered during a title search that a final order had not been entered by the county after a 2009 dispute over the road, according to the lawsuit.
Although in March Okanogan County called the charges “vague and incomplete” and said the plaintiffs’ claims were not within the statute of limitations, the county is not taking a side in the suit. David Gecas, Okanogan County’s chief civil deputy prosecutor, said his predecessor decided the county wouldn’t take a position and would abide by the court’s decision. Because of the litigation, Gecas said he could not provide further details.
But the Okanogan Open Roads Coalition, a nonprofit dedicated to keeping backcountry roads open, is fighting Gamble’s claim to the road. The group intervened in the lawsuit in June, contending that more than 100 years of public travel makes Texas Creek/French Creek Road a county road. The coalition calls the case “a regional issue of large-scale divestment of public lands through the courts to private corporations.”
“The road closures had been invisible. We had to speak with one voice so people know about this,” said Lorah Super, a co-founder of the coalition and one of three people named in the legal documents challenging Gamble’s claims to the road.
A new gate
The case has also roused the attention and concerns of people who live on both Texas and French Creek, particularly since a locked gate set in concrete was erected on upper Texas Creek Road this fall.
“It took a boom truck with a crane to set the gate. The gate is just massive — they had a regular gate before that,” said John Ulving, a retired truck driver who lives on Texas Creek Road about 2 miles below the gate. “It’s built so a tank can’t go through it.”
Ulving and his Texas Creek neighbors said they were accustomed to using back roads to go hunting, cut firewood or just explore on acres of state and federal land on the ridge between the Texas and French creek drainages.
Above the gate, Texas Creek Road connects with French Creek Road to the south, and with another road that goes north to Leecher Mountain. “They put in a big gate there, too,” on the way to Leecher, said Pete Stoothoff, another Texas Creek resident.
Area residents say Gamble Land or the Gebbers family installed the first gate at the top of Texas Creek in 2015, although it was usually unlocked. “These guys are stealing your land and your kids’ land — land we’ve been paying taxes on for years,” said Ulving.
“It’s a lot of public land and public roads that have been there forever — since before the start of the county,” said Chad Stoothoff, who lives several miles below Ulving on Texas Creek.
But Gamble Land says the road has been gated for at least 60 years, which the company says confirms that it is not a public right-of-way. The company says the county included the road in “an improper, illegal and defunct ordinance” in 1955 that listed all county roads. Gamble also says that the county never compensated Gamble Land or its predecessors before adding the road to the list and has never maintained or improved the road.
Gamble Land is owned by members of the Gebbers family, which operates several large companies in the fruit, timber and cattle industries, and is a major landowner in Okanogan County.
Changing road names and questions about jurisdiction are entrenched in the history of the Methow and at issue in the lawsuit. The county’s 1955 road log calls the road the Texas Creek/French Creek Road. And on the Texas Creek side near Carlton, there are actually two road signs — one that reads just “Texas Creek Road,” and one that says “Texas Creek/French Creek Road.”
About 15 years ago the roads were renamed to differentiate Texas and French creeks at the request of emergency responders, according to Super.
But Gamble’s attorney, Nick Lofing of Davis, Arneil Law Firm, says the road has no name at all, referring to it as “Private Access Road” in his briefs. Gamble’s court filings state that the two companies own the land adjacent to the road and use it for grazing and timber production.
According to the complaint, Gamble Land owns two parcels adjacent to the road, and Cascade Holdings, identified as a Nevada limited partnership, owns four. The Okanogan County assessors’ records give the same post office box in Brewster as the mailing address for both companies.
Public and private lands
The assessor’s files on property ownership show that upper Texas Creek Road goes through parcels owned by various private parties including Gamble Land and Cascade Holdings, as well as large tracts owned by the Washington Department of Natural Resources.
“They put gates in strategic places. The land on both sides of the roads near the gates is private, but the roads go to public land and public roads,” said Super.
Lofing said the county has failed to meet the legal test for establishing a county road — either 10 years of public use or seven years of maintenance. “The County has no records of County maintenance, not even for a day, let alone for the statutory 7-year period,” he wrote.
In a motion filed in June, Lofing cited “recent developments” contained in a declaration by Jon Wyss, the governmental affairs director for Gebbers Farms, that show that the county portion of both Texas Creek and French Creek roads terminates several miles before the Texas Creek gate and before another gate on French Creek Road. The French Creek gate is the subject of the 2009 dispute that prompted Gamble’s lawsuit.
Wyss said that statements by members of the public that they had traveled on the portion of the road beyond the gates were proof of trespassing. “Plaintiffs and their predecessors have experienced vandalism, trespassing and damaged property in the location of these gates,” he wrote.
Lofing also contends that, because the coalition members don’t live on that section of road, their access to their property is not affected, so they don’t have standing to challenge Gamble’s claim.
This isn’t the first time the status of French Creek Road as a public thoroughfare has been challenged. In the 2009 case, adjacent property owners Jim Weddle and Gebbers Farms petitioned the county to vacate part of the road. The county commissioners denied the request and ordered the property owners to remove the gate, in part because the road was an important escape route.
However, about two months later the commissioners reversed their decision. The reversal came after the county’s attorney said he’d been contacted by lawyers for Weddle and Gebbers, who presented legal documents showing the county didn’t own the road beyond the gate.
A string of closures
The coalition says the stakes in this case are high. They say the Texas/French Creek route is one of the last links to the historic road network and to thousands of acres of public land.
Over the past 15 years, members of Gebbers family or their businesses have successfully petitioned the county to close at least five roads. In 2001, the commissioners vacated Swamp Creek Road, east of the ridge above Texas Creek. Since then, Whitestone Canyon Road near Brewster was closed by quiet title in 2008, and Hunter Creek Road in the Chiliwist was vacated in 2013.
Many of those closures drew little notice beyond immediate neighbors, but a citizens’ group in the Chiliwist sued to prevent the most recent — Gamble’s 2015 petition to vacate Three Devils Road, which climbs a steep slope from the Chiliwist to hook into to the same road network at issue in this case.
The Chiliwist group made the same argument as the one the open-roads coalition is making about Texas and French Creek — emergency escape and access to public lands. The battle over Three Devils Road ended earlier this year when courts ruled that the county commissioners had the right to close the road as part of their management of the county’s road system.
“If we lose this one, then the 81 Road [to Leecher Mountain] is next, and nobody will be able to get to the top of French Creek except the Gebberses,” said Super.
Concerns about wildfire
Climb Texas Creek east of Carlton or French Creek east of Methow and you encounter a landscape of charred trees, an unmistakable testament to recent wildfires, in particular the 2014 Carlton Complex Fire, which destroyed numerous homes on both roads. Since the fire, area residents have been stranded more than once by mudslides and floods as the burned slopes eroded.
The prospect of having an escape route cut off makes them nervous, said Ulving. The new locked gate means they only have one way out — back down to Carlton.
This past July Texas Creek residents were threatened by the Canyon Creek Fire, which started near Carlton. “If the winds had been from the north, we’d all have been trapped — that’s the biggest concern to me,” said Chad Stoothoff.
People who live on French Creek, on the other side of the lower gate, say at least they can still get to Pateros via Watson Draw or Bill Shaw Road in an emergency.
“We’re very fire-conscious — it’s just common-sense,” said Ulving, who clears fire breaks around his home and his neighbors’. “People down the road lost their house. We always thought we could go back over the hill — you can get to Brewster, Pateros or Twisp that way,” he said, pointing toward the gate.
Hundreds of exhibits
Gamble and the coalition have filed hundreds of pages of documents with the court. Gamble attorney Lofing took depositions from a dozen coalition members and area residents, including Pete Stoothoff and his wife, Donna. “They asked about the history of the road, whether we ever personally used it, if we asked for permission,” said Pete. “I told him, ‘Why no — it’s public,’” he said.
Lawyers also asked how the Stoothoffs knew if a section was public or private, and if they’d carried a GPS device. Pete said he relied on maps and fence lines.
The coalition submitted affidavits from long-term area residents who say the Texas Creek/French Creek Road follows the route of the Bald Knob Road, the first road leading to the Methow Valley from Pateros in the late 19th century.
Dave Schulz, who has lived in the Methow Valley for almost all of his eight decades, said the Texas Creek/French Creek Road has always followed the Bald Knob route. After the 1948 flood wiped out other roads and bridges in the Methow Valley, everyone — including emergency vehicles and the U.S. Postal Service — used French Creek Road to travel between Carlton and Pateros, he said.
Bob Tonseth has traveled the Bald Knob Road regularly for 60 years and said he never saw gates until recently. “The claim that Gebbers Farms built the road is ludicrous,” he said.
“I believe it’s a public road. I believe Gebbers is breaking the law by putting that sign there and locking that gate. It’s wrong. There’s thousands of acres back there that belong to us. It belongs to you and your kids too. Think about it,” Ulving told Lofing in his deposition.
Both Gamble Land and the Coalition for Open Roads are asking the court for summary judgment, saying there is no dispute over the facts and asking the judge to decide the case as a matter of law.
Oral arguments are scheduled before Okanogan County Superior Court Judge Henry Rawson on Thursday (Dec. 21) at 2 p.m.