Judge’s ruling expected soon
Judge Henry Rawson
Arguments in court over French Creek Road last week boiled down to one basic issue: How does a road officially become a county road? And, if it is a county road, what’s the process for privatizing it?
Okanogan County Superior Court Judge Henry Rawson heard oral arguments on Dec. 4 about French Creek Road from the county, a citizens’ group seeking to preserve access to public roads, and property owners along the road who say the road is private.
The Okanogan Open Roads Coalition and Okanogan County contend that French Creek Road — including a 3-mile stretch that plaintiffs Gamble Land and Timber and Cascade Holdings Group say is a private-access road to their property — has been a public road for more than a century.
Gamble and Cascade filed the quiet-title lawsuit in 2017 to protect their property from trespassing. The coalition intervened in the case a few months later because the county had taken little action to defend the road, saying it would instead abide by the court’s decision.
This summer, the coalition filed hand-written documents from the 19th and early-20th centuries, including survey field notes and maps, in court. The historic documents show the road — then referred to as the Methow Valley Road — was mapped out and opened for use by the public before Washington became a state, coalition attorney Natalie Kuehler told the court.
Those maps and surveys merely show there may have been plans to put a road there, Thomas O’Connell, attorney for Gamble Land and Cascade Holdings, said.
The arguments
The county and coalition have three main arguments:
• French Creek Road was established, formally surveyed and recorded in 1889, and promptly opened to public use. It became a county road in 1903, when the Okanogan County accepted all public rights-of-way on federal land.
• It’s too late for the plaintiffs to challenge the opening of the road as a county road — that should have been done in the 19th century.
• It’s also too late to challenge the county commissioners’ refusal to vacate the road in 2009 — that should have been done immediately, and the plaintiffs can’t sue now to close the road through the quiet-title process, which is used to settle disputes over property ownership. This court doesn’t have the jurisdiction to review a road vacation.
Gamble Land and Cascade Holdings have three main arguments:
• French Creek Road was never properly created as a county road and the paperwork was not formally filed. There is no proof the road was used right away by the public nor maintained by the county.
• There was nothing to appeal in 2009 after the Okanogan County commissioners declined to vacate the road, because the commissioners adopted a resolution saying they didn’t have jurisdiction over the contested road section.
• Since it has been gated for decades, the road has been abandoned because the only people who travel the disputed section are the private property owners. Moreover, the county hasn’t maintained it past the gates.
David Gecas, the county’s chief civil deputy prosecuting attorney, challenged O’Connell’s argument about abandonment. If you can prevent public access by putting up illegal gates — when most land beyond the gates is public — it constitutes adverse possession of state land, he told the court. The plaintiffs should be enjoined from gating the road, he said.
Historic record
The coalition and county say the documents and maps from the late-19th and early-20th centuries show the road was officially surveyed and recorded.
The plaintiffs argue that the documents don’t show that the road was formally recorded because they’re merely field notes with “boilerplate language,” O’Connell said.
But right after the hearing, the coalition learned that there was another document from 1889, a set of survey notes with the auditor’s official recording seal. Moreover, the plaintiffs have had a copy since May, according to new court filings.
Listening to the oral arguments, Okanogan County Engineer Josh Thomson realized that the coalition didn’t have the copy with the auditor’s recording stamp, he said in a declaration submitted to the court after the hearing. Thomson found the 19th-century surveys and maps in canvas-bound books this year.
“Counsel for Plaintiffs seemed to suggest that the 1889 survey field notes… signed by the County Auditor… were not reliable because they had not been recorded. In fact, however, survey field notes stamped with the Okanogan County Auditor’s stamp… also exist and serve as witness to the fact that the survey field notes… signed by the County Auditor were in fact properly recorded as I understand the process in place in 1889,” Thomson wrote in a supplemental declaration filed in court on Dec. 6, two days after the oral arguments.
The new document is the original survey with the auditor’s recording stamp, and the other one is a 19th-century handwritten copy that said it had been recorded, Kuehler said in an interview this week. Surveyor Bill Tackman compared the two documents and found they describe the same road, but contain minor differences in wording, she said.
Thomson wrote that he’d found the stamped survey field notes this March or April and provided them in May to fulfill a public records request for the plaintiffs. Thomson said he couldn’t confirm whether the same notes had also been given to the coalition before the county gave the coalition a complete copy on Dec. 6.
After receiving the document last week, Kuehler formally asked the court to add it to the record.
Judge’s questions
Rawson asked a few questions for clarification — and noted that decisions can change under different county commissioners or judges.
How does the road show up on so many maps in the proper sections? If people are trespassing, why don’t the property owners contact law enforcement? he asked O’Connell.
Trespassing is considered a civil matter and law enforcement doesn’t deal with it, O’Connell said.
Rawson also shared a personal anecdote. The case triggered memories of his work for the U.S. Forest Service years ago, when surveys described “three scratches on a rock” or a bearing tree long since grown over, he said.
Rawson said he would rule within two weeks. He’ll also decide whether to honor requests from both sides to strike declarations each submitted as evidence. Rawson noted that a ruling on summary judgment, which applies if no facts are in dispute, doesn’t require a detailed opinion.
If the court rules that French Creek Road is a public county road, O’Connell said the plaintiffs will file another petition to vacate it and will continue to appeal the matter in court.
