Green Lake Road closure lawsuit in deadlock after new rulings

May be headed to trial 

[  By Katherine Nettles  ]

After three recent federal district court rulings related to a complicated lawsuit over a closure to Green Lake Road above Lake Irwin, the multi-year lawsuit may be headed to trial soon. The case which started in 2019 appears to be at a deadlock with three separate groups having been denied motions related to the case this spring. 

First, dueling motions for summary judgement from two opposing sides have been denied due to “factual disputes,” and second, a protection order for trespassing on private property was dismissed for lack of jurisdiction. Last, Gunnison County’s claims against the U.S. Forest Service to establish that the road is a Forest Service road have been dismissed. Gunnison County’s legal team has said they are now determining what next steps to take. 

Green Lake Road passes through both public and private land, including a parcel owned by Jonathan Whitacre (J.W.) Smith. The road was open to the public for decades—possibly more than a century, according to court records—to access hiking trails in the Gunnison National Forest. In 2016, however, Smith built a gate across the portion of the road that passes through his property, blocking public access to those trails. 

A non-profit coalition of nearby landowners named Lake Irwin Coalition sued Smith and named Gunnison County and the U.S. Forest Service. Gunnison County is a plaintiff in the case, and Smith filed a third-party complaint against the Lake Irwin Coalition’s president, David Gottorff for trespassing and inducing others to trespass on private property. The county has sought a declaration that Green Lake Road is a public road that cannot be unilaterally blocked by a single landowner, and Smith asked for summary judgment against the plaintiffs.

Judge Christine M. Arguello denied both motions from each side of the dispute because “The court finds that there are genuine factual disputes which preclude it from awarding summary judgment to either party.”

One of the issues in the case is that the history of the road is highly disputed. As the court ruling describes, “[The] plaintiffs contend that Green Lake Road became a public right-of-way in the late 1800s, when prospectors used the road to inspect and stake mining claims in the area. Though the road was not originally built on land in the ‘public domain’ – it was constructed on what was then part of the Ute Indian Reservation – the Utes were later forced off their land, and the land became public in 1882.” The plaintiffs have argued that the road traversed public land and the public used it from the beginning.

Smith has argued that the road was never in the public domain. “Rather, Smith argues, the land became private as soon as it was taken from the Utes. According to Smith, the land that he now owns was originally a mining claim that was staked on the Ute reservation before 1882. When Congress dispossessed the Utes, it also retroactively recognized the validity of mining claims that had been staked on Ute land,” according to the court document. Plaintiffs, including the county, contend that Congress’s recognition of these mining claims necessarily included the road the miners built to get to them, which became the Green Lake Road. Plaintiffs also argue that Green Lake Road became public under state law due to years of uninterrupted use by the public well before Smith ever constructed his gate.

The court also dismissed Smith’s request for a civil protection order against Gottorff for trespassing, stalking and harassment. The court ruled that it has no jurisdiction over a protective order on a county level, and it cannot be determined whether Gottorff was trespassing on private property until it is determined whether the road is private or public. 

The March rulings included the county’s efforts to get Green Lake Road recognized as being under Forest Service jurisdiction. Judge Arguello granted the Forest Service’s motion to dismiss two claims made against it by Gunnison County. “First, the county seeks an adjudication of the rights and responsibilities of the parties to this action under the federal Quiet Title Act, and second, a declaratory judgment establishing that Green Lake Road is both a public road and a Forest Service Road under federal and Colorado law. The Forest Service seeks dismissal of both claims on jurisdictional grounds,” according to the ruling. The Court agreed that it lacks jurisdiction to hear the county’s claims against the Forest Service, and it therefore granted the Forest Service’s motion to dismiss. 

“There is no real controversy between the County and the Forest Service: both parties are ready to concede that Green Lake Road is a public road. The real controversy in this case is between the Plaintiffs and the landowner Defendants who seek to block public access to the road. Thus, there is no actual controversy between the County and the Forest Service for the Court to adjudicate, so the Court must dismiss the County’s claims against the Forest Service,” ruled Arguello.

Gunnison County attorney Matthew Hoyt said regarding the rulings and based on the Gunnison County commissioners’ executive session held on June 21 that “The County is in the process of analyzing the recent decisions of the Court and decide the best next steps to try to resolve this dispute.

“We’re disappointed by the court’s decision to dismiss the Forest Service, because the federal government has, for years, advertised Green Lake Road as a public Forest Service Road.  The county has always contended that the Forest Service should be taking responsibility for maintaining public rights on a road that accesses public lands.”  Hoyt added,  “Regardless, if the remaining parties are unable to reach a compromise, this case is likely headed to trial.”

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