Takes definitive position in the ongoing legal dispute
After more than two years of sitting on the sidelines — simply willing to abide by whatever the court decides in an ongoing legal dispute — Okanogan County is defending the public status of French Creek Road.
The reversal came in a 2-to-1 vote last Tuesday (Oct. 22) when Okanogan County commissioners Andy Hover and Chris Branch voted to oppose a 2017 lawsuit filed by Gamble Land & Timber and Cascade Holdings Group. Commissioner Jim DeTro said he still had unanswered questions and didn’t feel comfortable, and voted against Branch’s motion.
“New evidence discovered over the course of 2019 caused the county to re-examine its position in the case.”
David Gecas, Okanogan County Chief Civil Deputy Prosecutor
Gamble and Cascade Holdings filed the suit in March 2017, alleging that 3 miles of French Creek Road is their private-access road. They said there had been repeated instances of trespassing.
“New evidence discovered over the course of 2019 caused the county to re-examine its position in the case,” David Gecas, Okanogan County Chief Civil Deputy Prosecutor wrote in a brief filed in court on Oct. 25.
Okanogan County had initially challenged Gamble’s claims and submitted a list of questions for them to answer. But the county soon dropped its active opposition and agreed to abide by the Okanogan County Superior Court’s decision.
Until the commissioners’ motion last week, the task of defending the public status of the road had fallen to the Okanogan Open Roads Coalition, a citizens’ group that intervened in the case after the county said it would abide by the court’s decision.
The coalition has since filed hundreds of pages of historical documents and surveys that they say show that the road has been public since it was first created in 1889, before Washington became a state. The coalition filed a motion for summary judgment in July, asking that the case be dismissed because they claim no facts are in dispute.
In the county’s reply, Gecas pointed to evidence unearthed this year dating to 1889. The evidence includes survey notes, commissioners’ minutes, and a petition to establish and open the Methow Valley County Road as a county road.
Gecas also cited two recent surveys — one commissioned by the open roads coalition and one by the county. Both surveys “confirm the current location of the disputed section of French Creek Road substantially matches the location of the old Methow Valley Road which was declared open as a county road on August 9, 1889,” Gecas wrote.
Other new evidence includes minutes about a failed 1965 effort to vacate (close to the public) the road. Gecas quoted the minutes: “The commissioners unanimously decided that… French-Texas Creek in the matter of vacating would have to be denied in the public interest.”
In the 1965 vacation proceeding, the county engineer referred to three “illegal gates” across the road. The road is still gated. Most of the land between the gates is state land “which, because of the gates is only accessible by automobile to a few private landowners,” Gecas wrote.
Much of the county’s brief had been prepared earlier this year, but the county was awaiting a new survey from Gary Erickson of NCW Land Surveying. “In my professional opinion the existing French Creek road, in the disputed area between the locked gates, is the same road as proposed, built, and opened in 1889… called the ‘Methow County Road,’” Erickson wrote.
“These facts remove any genuine issue about whether the Methow Valley Road included the disputed section of French Creek Road. There are no other genuine issues of material fact. Therefore dismissal on summary judgment is proper,” Gecas said.
The fact that there have been three attempts to vacate the road — in 1955, 1965 and 2009 — underscores the fact that it is public, since only public rights-of-way can be vacated, Gecas said.
In a reply to the coalition’s motion filed Oct. 25, Thomas O’Connell, the attorney for Gamble and Cascade, said there is no proof the road was ever constructed.
O’Connell pointed to poor road conditions that have rendered French Creek Road impassable since the 1970s. There is “no evidence the ‘Methow Valley Road’ was built, maintained, power or improved after it was ‘opened.’” He also provided examples of other county roads that were “opened” in the early 20th century, but never actually created.
There is “zero” documentation of maintenance or improvements to the section between the gates at any time, Jon Wyss said in a declaration submitted for Gamble. Wyss asserted that the 1889 petition creating the road situates it a mile west of Gamble’s private-access road. He points to confusion over whether the historic road is the Bald Knob Road or the Methow Valley Road.
County road logs list gates on the road for decades. There are no deeds or easements granting access beyond the gates by the private property owners, Wyss said.
Wyss also cites 1980 correspondence from the county engineer that says the gate on Texas Creek Road and a similar gate at the other end [on French Creek] mark the end of county jurisdiction.
No survey or plat of the Methow Valley Road was ever recorded, meaning the road could never have been “opened,” O’Connell said. He underscored the distinction between the mere demarcation of a route and actual use, maintenance or signage.
When the plaintiffs purchased their property in the 1990s, the road was already gated. They couldn’t be expected to know about the vacation efforts from 1955 and 1965, O’Connell said.
The historic route of the Methow Valley Road crosses multiple parcels of private property, Wyss said. If the entire route were opened, it would require significant condemnation of private land, he said.
The plaintiffs submitted a declaration by Verlene Hughes, who worked for Okanogan County Public Works for two decades as a right-of-way technician and supervisor until her retirement two years ago. From her review of county documents, Hughes said she can confirm that the Bald Knob Road is not the same one as the private road running across the plaintiffs’ property.
The county’s brief has been in the works for a long time. “Okanogan County had completed most of this brief, and was waiting for survey results when the coalition filed its Motion for Summary Judgment on July 1, 2019. Counsel for the coalition and the county have exchanged ideas, evidence and citations to legal authorities in this case over the last year…. To some extent the county has exchanged ideas and evidence with plaintiff’s counsel as well,” Gecas wrote.
The end of Gecas’ brief explains why the county proceeded with care. “Finally, while the county may have a duty to protect the public’s interest in county roads, the county also has a duty to respect private property rights,” Gecas wrote.
The case has already been heard in court. In a May 2018 ruling, Okanogan County Superior Court Judge Henry Rawson agreed with Gamble and Cascade Holdings that the county had never established the roadway as a county road. But Rawson said there are questions of fact regarding the road’s status and scheduled a trial.
The case is scheduled for a hearing on summary judgment on Dec. 3 or 4 (if a slot opens in the court schedule). Otherwise, it will be heard on Jan. 30, 2020. If the judge doesn’t agree that there is no dispute over facts, it will go to trial on Feb. 19.