Still awaiting summary judgment on whether road is public
[ By Katherine Nettles ]
While Gunnison County is still waiting for a final judgment on a road dispute and closure above Lake Irwin, the county has recently been successful in two separate motions related to the case that will limit the testimony of one witness and deny new claims made against the county. The county has been involved in a lawsuit over Green Lake Road since 2019 and has maintained that the road is public, but the U.S. District Court has not yet ruled on that issue.
Private landowner John (J.W.) Smith placed a gate across the road in 2016 where it crossed his property to discourage trespassing, and a coalition of local landowners filed a lawsuit against Smith. The Lake Irwin Coalition also named Gunnison County and the U.S. Forest Service as parties to the matter. Gunnison County asked the court in March to declare Green Lake Road public, under both federal and state law, and is awaiting summary judgment on that matter.
The motions on which Gunnison County did receive rulings on were, on July 22, in preventing land surveyor George “Skip” Hewitt from providing an “expert report” and testimony on behalf of Smith regarding legal matters; and on July 27, the court’s denial of defendant Eric Richard Aslakson’s motion to file a reassertion of previous crossclaims against the Forest Service and Gunnison County asking for declaratory relief.”
County attorney Matthew Hoyt released a statement regarding the matters on July 28. “Although the court’s recent rulings do not address the merits of this case, the county is pleased that the court found that defendants’ primary expert witness lacked qualifications to testify about legal matters, and that defendants are prohibited from using the lawsuit to bring untimely claims against the county, which not only lack merit but also have absolutely nothing to do with whether Green Lake Road is public. Defendants have already cost the taxpayers hundreds of thousands of dollars with this unnecessary lawsuit and with their meritless and illegal attempt to block a longstanding public road. The county will continue its fight for public access and against private landowners who attempt to prevent our residents and visitors from enjoying our public lands,” wrote Hoyt.
The court approved of the county’s motion to block Hewitt from stating legal opinions or legal conclusions, such as whether the disputed land is located on public domain, but the court denied the county’s motion to block Hewitt from providing expert opinions and testimony regarding land surveying.
“As stated previously the Court is satisfied, and the County concedes, that Hewitt is qualified to render expert opinions as a surveyor,” wrote Gordon P. Gallagher, United States Magistrate Judge.
“Here, the issue is not whether Hewitt is qualified to testify about the boundaries of the property or matters related to surveying the land, and the county does not object to Hewitt testifying about non-legal matters pertaining to surveying. To that end, this Court recommends denying the County’s motion to exclude the testimony and expert report of Hewitt. Hewitt may testify and opine on non-legal matters within the ken [range of knowledge] of a surveyor,” concluded Gallagher.
Gallagher also issued the other ruling that denied Aslakson, “the private owner of two mining claims located approximately three miles outside of Irwin, Gunnison County, both of which are traversed by Green Lake Road,” from reasserting crossclaims against the county and Forest Service. Gallagher noted that on September 1, 2020, the court had denied his crossclaims “for lack of jurisdiction because the nature of his claim was outside the scope of and not actionable under the Quiet Title Act.”
Gallagher concluded that the defendant, who had missed the deadline to file his reassertion by a few days, had failed to provide sufficient explanation for “his undue delay,” and that granting the motion to amend would be “unduly prejudicial” in requiring the reopening of discovery and other efforts among the parties.
Gunnison County and other related parties are still awaiting summary judgment on its March 2021 request for the case, to decide whether Green Lake Road is public or private. Hoyt said he has no indication when the court will make that decision. The county claims the road is under jurisdiction of the Forest Service, but the U.S. Forest Service disputes that. Hoyt said that “We still make that claim, but did not seek summary judgment on it,” and is saving the issue for trial instead.