Dispute hinges on evidence of public use
An Okanogan County Superior Court judge will consider century-old documents and maps along with actions by county commissioners over the past 50 years to determine whether a 3-mile stretch of French Creek Road is public or private. The case has a court hearing on Wednesday (Dec. 4).
Gamble Land & Timber and Cascade Holdings Group say 3 miles of French Creek Road are their own private-access road. Okanogan County and the Okanogan Open Roads Coalition, a citizens’ group that advocates for keeping back roads open to the public, contend that the road was officially recorded as a county road 128 years ago and has always been public. All parties claim that because no facts are in dispute, the case should be dismissed in their favor.
After initially saying it would abide by the court’s decision in the lawsuit, in the past few months Okanogan County has taken a firm stand in the case. The county says evidence recently discovered in county files and the conclusions of two surveyors show French Creek Road has been a county road for more than a century.
“The fact that the road physically exists, and that people have been driving on it, and arguing about it for a hundred years or more is evidence that it was built,” David Gecas, the county’s chief civil deputy prosecuting attorney, wrote for the county. “The fact the road appears on numerous old maps is evidence that it was built…. The fact that French Creek Road, which has gone by a number of different names over the years… substantially matches the path of the old Methow Valley Road according to two 2019 surveys is evidence the road was built.”
But Gamble and Cascade Holdings are relying on another way that roads are created — by prescription, meaning that people used a road in its first five years and that the road was maintained within the first seven years. They say the road was never properly opened under territorial law and that there’s no evidence to show the entire length of the road was built and used by the public within five years.
“The OORC has produced no evidence that Okanogan County undertook any activity — such as road construction, road maintenance, road signage, etc. — to substantiate that the ‘Methow Valley Road’ was built and used by the public in the five years following the 1889 petition, or that the public generally used, traveled, or accessed the entire length of the ‘Methow Valley Road….’ As such, per the Non-User Statute the road was automatically vacated,” Thomas O’Connell, the attorney for Gamble and Cascade Holdings, wrote.
Okanogan County and the coalition hired independent surveyors, who both determined the current route of French Creek Road matches historic maps and descriptions.
A survey shows only where a road was planned, but doesn’t provide evidence that the road was built or used, O’Connell wrote. They also say that the road doesn’t match historic maps, which put parts of it a mile away from the current route.
Gamble said they were also working with a surveyor to verify the route. The coalition granted two postponements in the legal proceedings this year so that Gamble’s surveyor could finish the work, open roads coalition attorney Natalie Kuehler wrote in court filings. But in the end, Gamble didn’t file a survey with the court.
“It is especially telling, then, that Plaintiffs’ opposition to OORC’s [Okanogan Open Roads Coalition’s] motion omits all reference to any such survey or report,” Kuehler wrote. She contends that the declarations submitted by Gamble were from individuals with no expertise as historians or surveyors.
The disputed section of French Creek Road has been gated on and off over the past 50 years by adjacent property owners, according to court records. Documents show that the county commissioners ordered the property owners to remove unlawful gates on the road in 1969, 1982 and 2009. The gate (often called the “Weddle gate,” after an adjacent property owner) is about 4.75 miles from Highway 153, above the town of Methow.
The road-maintenance record is also in dispute. The plaintiffs say there is no evidence the county has ever maintained the road beyond the gate. Depositions from Okanogan County Public Works staff describe maintaining and plowing the road up to the gate, but not beyond it.
Although the plaintiffs are concerned that the road would become impassible if the gate were removed because the county won’t maintain the upper section, Gecas wrote that “the plaintiff’s gates already make the road impassible.”
Gecas rejects Gamble’s claims that allowing the public to use the road amounts to an “unlawful taking” of private land. The first private land wasn’t granted in the French Creek until 1905, which is 16 years after the road was constructed, he said.
In addition to land owned by Gamble Land and Cascade Holdings, there is state land beyond the gate.
The dispute over French Creek Road goes back decades, but the current lawsuit was filed by Gamble Land and Cascade Holdings in March 2017. The suit seeks to quiet the title (settle ownership issues). The plaintiffs say litigation was necessitated by repeated trespassing on their property.
Gamble Land and Cascade Holdings filed a petition to vacate that portion of the road in 2009, but the board of county commissioners determined that the road was useful to the public and denied the vacation. But shortly thereafter, the commissioners adopted a resolution that said the county had no jurisdiction over the disputed 3-mile section. The resolution overturned their denial of the vacation and their order for the property owners to open the gate.
In recent court filings, Kuehler raised questions about correspondence between an attorney for Gamble and the county’s prosecuting attorney, written just after the commissioners refused to vacate the road in 2009. She says the emails mention the prospect of a costly lawsuit to settle the matter.
In March 2018, Okanogan County Superior Court Judge Henry Rawson agreed with Gamble and Cascade Holdings that the county had never established the disputed roadway. But Rawson said there were questions as to whether the public’s use of the road satisfied the definition of prescriptive use.
Okanogan County and the coalition are asking the court to find there is no dispute over facts in the case and to order the property owners to remove the gates so that the public can use all of French Creek Road. They point to hundreds of pages of new evidence filed with the court.
Alternatively, they say the court should dismiss the case because it’s too late — it should have been filed more than 100 years ago and Gamble should have appealed the 2009 vacation decision.
The coalition asks to be awarded legal fees because the county failed to act on behalf of the public to keep public roads open. Without the coalition’s intervention, key historic documents would never have been uncovered, Kuehler wrote.
The case will be heard in Okanogan County Superior Court on Wednesday (Dec. 4) at 9:30 a.m. If Judge Rawson doesn’t agree that there is no dispute over facts, the case will go to trial.