Superior Court decision to get review
The long-running dispute over whether all of French Creek Road has been a public county road for 131 years — as Okanogan County Superior Court ruled last year — or whether a 3-mile stretch is merely a private access road to adjacent private property is before the state Court of Appeals in Spokane.
Gamble Land and Timber and Cascade Holdings Group, which own some property along a 3-mile stretch of the road, appealed the December 2019 ruling that found French Creek Road has been a county road since it was established in 1889, before Washington became a state.
Some of the arguments are familiar from Superior Court. Gamble contends that the road was not built, as required, within the first five years (by 1894), and that surveys and other documents were never properly filed. The county never maintained the road, additional evidence that it wasn’t a county road, Gamble attorney Thomas O’Connell contended.
Okanogan County and the Okanogan Open Roads Coalition, a citizens’ group that intervened to fight for public access to the road, assert that the road was properly surveyed and recorded in the 19th century and has been used consistently by the public. The road appears on maps from the 19th and 20th centuries along the same route, coalition attorney Natalie Kuehler said in court documents.
In addition, county commissioners have repeatedly rejected petitions by private property owners to vacate the road (close it to the public). The county commissioners pointed to statements from members of the public and state agencies that the road is used regularly to access public lands and is an important escape route. The county has maintained the road and, while rough, it is easily traveled in a passenger car, they said.
On at least four occasions, the county ordered the property owners to unlock or remove gates they had placed across the road.
But the filings in the Court of Appeals also add arguments that scrutinize language in 19th-century law — including the meaning of “and” and the distinction between “records,” “minutes” and “minutes of survey.”
The coalition asserts that the court doesn’t have jurisdiction over the case. Gamble, the county, and the coalition all claim that the time to challenge the issue expired long ago — but for different reasons.
Some of the arguments are circuitous. Gamble and the previous property owners petitioned the county three times to vacate the road, asserting that it was of no use to the public. In the vacation petition Gamble filed in 2009, they said they were “petition[ing] that the following described County Road be vacated: French Creek Road,” the coalition said in its brief.
If Gamble was dissatisfied with the commissioners’ decision on vacation, they had 20 days to appeal it, Okanogan County and the coalition argued. In fact, people missed the chance to oppose the new road back in the 19th century, the coalition contends. But O’Connell said there was nothing to appeal because the road was never properly opened in the first place.
Gamble also maintains that there wasn’t anything to appeal in 2009 when the commissioners rejected their vacation petition. Just a week after the commissioners said “no,” they adopted a resolution affirming that the county didn’t have jurisdiction over the section of the road in question. The coalition should have challenged that resolution back in 2009, O’Connell said.
The coalition says the resolution was drafted after an attorney for Gamble threatened to sue the county and without public notice or input.
In 2017, Gamble and Cascade Holdings filed the current lawsuit against the county, seeking to “quiet the title” (settle questions of ownership) for the 3-mile section. The action was necessary because people trespassed regularly on the road, they said. The fact that the road has been gated on both ends of the disputed section shows that it’s private, O’Connell said.
But Okanogan County Chief Civil Deputy Prosecutor David Gecas said that blocking access to a public road doesn’t make it private. “Precluding the public’s use with locked gates is not voluntary non-use by the public,” he said in his brief.
“If a private individual can buy a small piece of land with a public road going through it, and gate the road, and drive three miles down the road and buy another piece of private land, and gate the road there, and then wait five years and claim abandonment via non-use, that is adverse possession of public land, not abandonment,” Gecas said.
“In fact, the disputed section is right in the middle of, and part of, a much longer public road that continues before and after the gates. There is some private land surrounding each gate, but the three-mile stretch of road between the gates is surrounded almost entirely by public land,” Gecas wrote.
A road isn’t considered abandoned if people are using it, Kuehler wrote. “In fact, Gamble admitted it its opening brief on appeal that it is this ongoing public use that caused it to file this quiet title lawsuit in 2017,” she said.
The coalition and county say the Court of Appeals doesn’t have jurisdiction, because Gamble should have appealed the vacation denial in 2009 and can’t now try to achieve the same goal through a quiet-title lawsuit.
The gate on French Creek and another where the road connects with Texas Creek Road were both unlocked in April while the appeal is pending.
The appeals court will look at all evidence with a fresh eye. The court hasn’t set a date to hear the case.