Why Once-Public Road to Rec Areas May Be Off-Limits to Most People for 6 Years

For more than a decade, officials in southwest Colorado have been embroiled in a complex legal battle to regain access to a more direct route to public lands and recreational opportunities in San Miguel and Dolores counties, including hiking trails to Lone Cone, the westernmost peak in the San Juan range. Last week, frustrated county commissioners learned they will have to wait another six years, and possibly longer, to gain the right to use a 1.5-mile stretch of road that was once considered public. The obstacle? Not an intransigent private landowner but the Colorado State Land Board, which owns the land in question and has no interest in providing public access. 

"Loss of public land access is a problem throughout the state," says San Miguel County commissioner Art Goodtimes. "Unfortunately, it's a state agency that's making that decision [to deny access] in this case."

The convoluted case is a startling example of the conflicts that occasionally flare up between local government and the state board, which manages its land holdings and other assets to generate revenue for public education and other institutions. It is also, Goodtimes says, indicative of "this huge failure of communication" between the board and other public entities. 

The road in question runs through private property and public lands west of 12,618-foot Lone Cone. It was built in the late 1950s by the U.S. Forest Service, with the permission of private stakeholders. In 1970, a private landowner granted a right of way through several sections of land to San Miguel County — although one of those sections, it was later discovered, actually belonged to the State of Colorado. The road, 40J, appeared on county road maps as "non-county maintained public road." Goodtimes, perhaps the only Green Party officeholder in the country now in his fifth term, says that county officials were unaware of any right-of-way problem right up until the time the land board sold the parcel to a private outfit in 2002, as part of a larger exchange of cash and acreage. Shortly afterward, they discovered that the road had been closed by the new owners in an effort to protect a private hunting operation on the land.

Over the years, local officials have explored various strategies for reopening the road. Condemnation was one option, but that first required a fresh survey of the area, which led to a costly court battle with the property owners to gain access for the survey, time-consuming appeals, and a lengthy review of the whole contretemps by the U.S. Bureau of Land Management. And then last year, just as the drawn-out battle seemed to be reaching some kind of resolution, the state land board bought back the parcel in question as part of a $10.8 million deal for a 3,600-acre ranch. One crucial provision of the deal allows the sellers to lease back the property until 2021, precluding any grant of public access through the leased area. San Miguel County officials didn't learn of the deal until six months after it closed.

Goodtimes is particularly incensed that land board staffers didn't inform the board of the ongoing efforts by the counties to acquire a right-of-way before the deal was finalized, or bother to alert the county that such an acquisition was underway. "We'd been working on this for years," he notes. "And a dozen years later, we have this huge failure of communication."

At a land board hearing last week, Goodtimes and Dolores County commissioner Ernest Williams urged the board to reconsider the lease. SLB director Bill Ryan didn't see what the fuss was about. "There are multiple access roads to get to the same place," he said. "I feel like the public has ample access."

But the alternate routes, Goodtimes countered, can add three hours to a round trip from Norwood to the Lone Cone area. "Access to public ground is of great concern to our citizens," added Williams, whose county is dominated by public lands. "That's our home."

Andrew Mueller, the attorney for the private owners, told the board that the county officials would be engaging in "tortious interference with contract" if they weren't representing a public entity. The board's job "is to generate revenue for the school kids" and preserve the environment, he argued. "What the counties are asking accomplishes neither of those goals." 

And that was the bottom line: Opening the road would devalue the hunting operation. The SLB is in the business of generating cash, not giving it away. Although the county officials offered to pay for a right of way, the board didn't see any reason to cancel its existing lease or apologize for any lack of intergovernmental communication.

"It's a fun drama to hear," conceded board president Buck Blessing, who had voted against the purchase of the property last year. "But I don't see any compelling reason today why we would want to provide public access and interrupt the lease we have."

"We made a deal," agreed commissioner Bob Bledsoe. "We've got a lease. It's a matter of honoring our word."

The commissioners suggested the counties could open negotiations for access to the property in 2021.