Moldy Paper Trail Leads to Public Right-of-Way in Bear Creek
by Gus Jarvis
Apr 11, 2012 | 3885 views | 9 9 comments | 23 23 recommendations | email to a friend | print
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SAN MIGUEL COUNTY – The latest gambit in the legal battle of Bear Creek, with San Miguel County now asserting its right to keep two popular hiking trails open to the public, comes after more than a year of extensive research that not only provided the county a legal basis for its action but also offers an interesting glimpse into region’s once booming mining industry.

Since the Gold Hill Development Company purchased three patented mining claims more than two years ago in the Bear Creek basin, GHDC principals Ron Curry and Tom Chapman claimed that portions of a popular summer hiking trail – the Wasatch Trail – is closed to the public where it crosses GHDC property. The two have paid for ads in local news publications threatening action against those who trespass and have even threatened to post armed guards during the summer months to keep hikers off GHDC lands.

“Our position has been constant; there is no easement for the public to cross our lands in place,” Chapman said last August.

Meanwhile, other members of the Telluride community, including the Telluride Mountain Club, have consistently claimed that the trails in Bear Creek are open for public use.

“Tom Chapman has been getting the perception out there that the trail is closed,” TMC President Tor Anderson countered during that same time period. He said the Wasatch Trail has been a federally recognized trail for decades. “We are urging people to get out and enjoy their public land. Respect private property rights, but enjoy public lands. The trail is open.”

For locals and visitors alike, the past two summers have been somewhat confusing. Can hikers happily use the Wasatch loop and enjoy the San Juan Mountain high country in peace? Or will they find an armed guard waiting in the wildflowers? Does GHDC have a right to close the trail? What about private property rights?

Even though both sides made their opinion public, the question remained: Is the Wasatch Trail open to the public or not?

An answer to that question, at least for summer use of the trail (backcountry skiing in Bear Creek is an entirely different matter) was made public last week when the San Miguel County Commissioners sent a letter to Chapman and Curry to “immediately cease all efforts to prohibit the public use of the Wasatch Trail and East Fork Trail and remove all obstructions and ‘No Trespassing’ signs.”

San Miguel County’s legal staff concluded that the Wasatch and East Fork trails have remained public trails for more than a hundred years and they remain, to this day, open to the public. County staff based its finding on documents found in a moldy volume of Ouray County Commissioner minutes recorded back in 1879 – four years before San Miguel County was carved out of a portion of Ouray County.

The Need for Trails During Mining Boom

In the fall of 2010, and in the midst of public questioning as to whether or not the Wasatch Trail was legally open to the public, the San Miguel County Commissioners directed county attorney Steve Zwick and assistant attorney Becky King to begin researching what the county’s position should be with regard to trails that cross private mining claims.

“We began researching hiking access and what kind of legal documentation that would indicate the extent of public use in Bear Creek,” Zwick said on Monday. “We weren’t focused on backcountry skiing access, which is a whole separate issue.”

King took the reins leading the research in 2011 and began tediously searching San Miguel County Commissioner minutes all the way back to 1883 when the county was first designated. Not knowing exactly what she was looking for, King combed volumes of minutes searching for any sort of reference to the trails in upper Bear Creek.

King also knew that San Miguel County had been carved out of a portion of Ouray County in 1883. Five years prior to that, Ouray County had been carved out of San Juan County. Knowing that there were five years of Ouray County Commissioner minutes that could have some sort of bearing on the trails in Bear Creek, King made the trek to Ouray to search those records.

“The minutes were in an old book and easy to get to but there was a flood at some point in the Ouray County vault so I ended up digging though old moldy stuff with masks and gloves,” King said. “At first, I was not able to find anything helpful.”

That was until she found the minutes of a meeting of May 30, 1879, when the commissioners were petitioned by citizens to not only make the trails in Bear Creek public but to appropriate $100 for the building and maintenances of those trails.

“I was really excited,” she said. “The research, at times, got a little overbearing and I wasn’t expecting to find this, much less to see that the whole trail system the commissioners were laying out at the time was done very matter-of-factly and methodically and it’s very clear in the minutes.”

Reading the minutes, King learned that Bear Creek saw an impressive uptick in mining claims in the time period between 1877 and 1878.

“It was interesting to see the pattern on how the region developed,” she said. “People started staking claims in 1877 and by the fall of 1878, there wasn’t a square inch of land available in the area.”

It was that boom in mining claims that led to the designation of public trails in 1879.

“The government was responding to all that mining activity,” Zwick said. “They were responding to a petition they received from the public. We don’t have the petition itself but there was whole process by which the board of county commissioners approved the petition to recognize the particular alignment of the trail or roads. They were responding to the interested land owners in the area to have the county declare public trails.”

Thanks to those minutes, the San Miguel County Commissioners were able to declare more than a hundred years later that those trails were intended for public use and they are still intended for public use today.

“I was really pleased with her research,” Zwick said. “Becky spent many months searching for this type of document and had a difficult time finding formal commissioner actions regarding the establishment of these trails. This document didn’t show up in San Miguel County because Ouray County had already accomplished the trail system in the mining areas. This was something that Becky was able to uncover the last couple of months.”

‘We Will See How This Whole Situation Evolves’

With documentation in hand, the commissioners approved a letter directing Chapman and Curry to cease all activities in keeping the public off of the Wasatch and East Fork trails in Bear Creek. Furthermore, they stated in their letter that the “GHDC lacks any legal or factual basis to assert that these trails are not public where they cross private property.”

The letter also stated the county has compiled “substantial” evidence proving that the entire length of both trails “are public trails by virtue of 20 years of adverse use by the public, as well as the provisions of [Revised Statute 2477],” which grants counties and states right-of-way across federal lands.

Since the letter was made public last week, Chapman has offered no comment, as his legal counsel is reviewing the finding.

Anderson said on Thursday that the county’s finding is not surprising.

“We are really, really happy about this and we are glad San Miguel County is staying involved,” Anderson said. “This is what we have been saying all along. This is really good for the public and it sounds like they have a very strong case. We are glad the county has taken this on and we will see where it goes.”

Zwick echoed Anderson’s comment.

“How we go forward now depends on the type of response [GHDC] wants to take,” he said. “We will see how this whole situation evolves.”

April 4, 2012 Letter From San Miguel Board of County Commissioners to the Gold Hill Development Company

Dear Mr. Chapman and Mr. Curry,

Over the course of the past year San Miguel County has conducted extensive research on the status of the Wasatch and East Fork Trails in Bear Creek Basin. The Wasatch Trail begins at the trailhead on Bear Creek Road not far below Bear Creek Falls and terminates in Bridal Veil Basin. The East Fork Trail begins where Bear Creek splits into two forks and follows the East Fork of Bear Creek for approximately one mile until it reconnects with the Wasatch Trail. Based on this research, the County has determined that these are public trails for their entire length, including where they cross private property.

Gold Hill Development Company has contested the right of the public to cross its private property on the Wasatch and East Fork Trails. To this end, GHDC has taken measures to block or obstruct public passage with fences, signs and armed guards. The County’s investigation of the legal status of these historic trails strongly indicates that GHDC lacks any legal or factual basis to assert that the trails are not public where they cross private property.

As part of a concerted effort to create a network of public trails, the Ouray County Board of Commissioners formally declared certain trails in Bear Creek Basin “County Trails” in 1879. San Miguel County was carved out of Ouray County in 1883. The newly established County Trails in Bear Creek already existed on the grounds, and Ouray County appropriated funds for maintenance at the same time they declared the County Trails. According to our research, except for about ¾ mi. highlighted on the attached Trail Map, the Wasatch and East Fork Trails are the trails referenced in Ouray County’s 1879 declaration, and they have remained public trails on essentially the same alignment ever since.

The County’s position is amply supported by the following documents:

• Minutes of the May 30, 1879 Ouray County Board of County Commissioners meeting.

• Diagram of the First Guide Meridian West of the New Mexico Meridian through Township Nos. 41, 42 and 43 North, Dated Nov. 5, 1881.

• Survey of Township No. 42 North, Range No. 8 West of the New Mexico Principal Meridian, dated Jan. 22, 1883.

• Survey of Township No. 42 North, Range No. 9 West of the New Mexico Principal Meridian, Dated Jan. 22, 1883.

• Mineral Survey No. 18082 of the Bimetallic No. 1, Iowa, Bonanza King and Review Lodes, dated Sept. 20, 1906.

The County has also compiled substantial evidence that the entire length of both the Wasatch and the East Fork Trails are public trails by virtue of 20 years of adverse use by the public, as well as the provisions of RS 2477.

In light of the overwhelming evidence in support of the County’s position, GHDC is directed to immediately cease all efforts to prohibit public use of the Wasatch and East Fork Trails and remove all obstructions and “No Trespassing” signs. Thank you in advance for your cooperation.

San Miguel County, Colorado

Board of County Commissioners

Elaine Fischer, Chair.

Comments-icon Post a Comment
April 17, 2012
Face you are totally ignoring Chapman's legacy in saying that GDHC is not trying to aggravate the community. Of course they are! This method has been effective for Chapman in the past to get his way. Chapman's use of guns to stop my use of our hiking trail is illegal and is vigilantism at its worse.

The goal is to keep the Bear Creek free of development and that’s the goal of the forest service. Chapman's bargaining chip of keeping our trail closed has been taken away from him.

Adverse use has been a common defense in land issues for decades and is proper in this case. These ancient claims that were found justify what has always been and still are. There has never been an unconditional right to do what you want with your land as evident by our many land codes.

I am not saying that we don't respect the rights of private property owners but just like with ownership of animals, land ownership comes with responsibilities and stewardship.

I must say in any the properties I have purchased; I paid fair market value ;I didn’t get it at $2.50 acre

April 17, 2012
arthurb: I agree there appears to be an historical pattern regarding Chapman, public lands, and leverage; however, I was originally just responding to mtnrunner2 who seemed to be omitting (or simply unaware of) the relationship between the NFS & Telski and how it may have possibly factored as a role in this mess.
April 15, 2012
Property owners certainly have the right to protect their property. And I'm not going to get on the "greed" bandwagon, because such owners also have the right to buy and profit from property investments.

I just wonder why Gold Hill seems to be taking every action possible to aggravate the community with regard to thoroughfares that have a longstanding history of use? You have a town full of folks whose reason for being is to get outside and enjoy the mountains, and GHDC is just thumbing their nose at them. All over Colorado, ranches and private property owners have agreed to allow fishing, hiking and other activities.

I just don't get it. And I'm not sure GHDC does either.

As an aside, I think adverse use is a poor defense for public use of the trails. If you own property, you should own it unconditionally, even if others have been using it. In fact the spirit of adverse use seems to favor Chapman; it's the county that is digging up ancient land claims and trying to lay claim to property, and that's basically what the law is designed to prevent.
April 16, 2012
mtnrunner2: I don't believe GHDC tried to "aggravate the community with regard to thoroughfares that have a longstanding history of use" with respect to what has traditionally been summer use and perhaps those who may have entered NFS land through the ski area gates on their own accord.

Rather, my suspicion is that Telski's commercial guiding service may have been the precipitator ... especially since it NEVER received any public scrutiny in light of the fact that it was approved by administrative review.
April 16, 2012
mtnrunner2, here is a bit from what I posted in a previous article.

It always amazes me on the selective ignorance of the community at large when it comes to issues like this, simply because not all of the facts are recorded in the papers. GHDC requested to use the road via see forever for summer access only. The irony being the road actually terminates at their property and as such they are able to show that the road was their historical form of access. The Forest Service refused this request, and GHDC offered to trade mutual easements (e.g. Wastach easement for See Forever easement), which the Forest Service again refused. This would have never been an issue if the Forest Service would have done what is fair in the first place, so GHDC used the only leverage that they had. Now, it looks like this will be yet another skirmish where the only winners will be lawyers in the long run who rake in a fair amount of money because folks would not play well together in the sandbox. Rather than attack GHDC, I would ask why the Forest Service refuses to work with private land owners. These particular parcels are generically called "inholdings" by many of the public, but in reality they predate the Forest Service, and as such were later surrounded by smaller Forest Service lands. Some of these parcels have remained in familial lands for generations and go back to some of the original Telluride forefathers. It is a shame that the lands they have diligently held onto for generations are subjected to a Government entity choosing to ignore them and subsequently resulting in squabbles within the community. This would be such an easy fix if everyone would work together and accept the lands are private, the egress and easements would be granted, and everyone would be happy.

Also, I tend to agree with Faceonmars observation that the ski company started using the lands for profit without dealing with the landowner first...which of course was only possible by the rubber stamping of the whole deal by the Forest Service which ignored the fact that they are the minority land "owner" since the vast majority of upper bear creek is actually in private hands. What a stupid thing to have to go to court over, everyone could have been a lot happier, and saved a fair amount of their pennies had the Forest Service been clear, transparent and fair. Instead the lawyers will get a ton of money and the whole community is in an uproar.

April 17, 2012
Mr Face on Mars-

In light of the outrageous behavior by NFS Supervisor Schutza to not have public comment on guided skiing in BC ..back two years ago and her recent no public comment allowed as she closed public land for our dear Ski Company for a month!...

one must conclude that Schutza has no respect for the public in managing public land...

No. None Zip. Nada.
April 17, 2012
I will be very interested to see if any official correspondence (i.e. emails, letters, memos, etc.) surface during the legal proceedings regarding the administrative review approval.

As to the closure of access to public lands (aka most of the ski area), it's seems to be just one more in long a series of "how high" responses by the NFS regional office to Telski's requests to "jump".

I can't recall specifically, but wasn't mountain biking banned for a while on the front side of the mountain a number of years ago by request of Telski to the NFS?

In light of this apparent pattern of excluding the public from both official input/scrutiny and access to public lands, I could only wonder if Schutza had a straight face when I heard her speak over KOTO at the recent Telluride Town Council meeting regarding the lift 7 master planning.
April 11, 2012
Thanks to Becky King for her wonderful detective work

Is it any wonder that we had a huge uptick in mining claims in 1877? Five years earlier the 1872 mining act was passed where the government decided to legislate a massive give away of our public lands to private interests with virtually no compensation. This law wasn't made in a vacuum I am sure there is a "Chinatown story" lurking behind the scenes

I will attest to over 20 years of use of the trail on my part.

I wonder that it also can be contested that over many decades of non use of mining claims voids public access(RS2477) to in holdings?

I mean there is a reason the forest service refuses to bargain with GHDC. Quite simply they don't want motorized activity in Bear Creek. The overwhelming local majority agrees with the forest service