High Lonesome Ranch, LLC v. Bd. of Cnty. Comm'rs for the Cnty. of Garfield, Civil Action No. 17-cv-1260-RBJ-GPG

• Citation: 508 F.Supp.3d 801
• Decision Date: 22 December 2020
• Docket Number: Civil Action No. 17-cv-1260-RBJ-GPG
• Parties: The HIGH LONESOME RANCH, LLC, Plaintiff, v. The BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF GARFIELD, the United States of America, through its agency, the Bureau of Land Management, a division of the United States Department of Interior, Defendants. The Board of County Commissioners for the County of Garfield, Counterclaim Plaintiff, v. The High Lonesome Ranch, LLC, the United States of America, through its agency, the Bureau of Land Management, a division of the United States Department of Interior, Counterclaim Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

508 F.Supp.3d 801

The HIGH LONESOME RANCH, LLC, Plaintiff,

v.The BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF GARFIELD, the United States of America, through its agency, the Bureau of Land Management, a division of the United States Department of Interior, Defendants.

The Board of County Commissioners for the County of Garfield, Counterclaim Plaintiff,

v.The High Lonesome Ranch, LLC, the United States of America, through its agency, the Bureau of Land Management, a division of the United States Department of Interior, Counterclaim Defendants.

Civil Action No. 17-cv-1260-RBJ-GPG

United States District Court, D. Colorado.

Signed December 22, 2020

Jon Tyler Burtard, Christopher Graham McAnany, Sam D. Starritt, Dufford Waldeck Milburn & Krohn, LLP, Grand Junction, CO, Robyn Wilcox Kube, Dietze & Davis, P.C., Boulder, CO, for Plaintiff/Counterclaim Defendant High Lonesome Ranch, LLC.

Geoffrey P. Anderson, Joshua David McMahon, Sweetbaum Sands Anderson PC, Denver, CO, Katharine Anne Johnson, Tari L. Williams, Garfield County Attorney's Office, Glenwood Springs, CO, for Defendant/Counterclaim Plaintiff Board of County Commissioners for the County of Garfield.

Ian J. Kellogg, U.S. Attorney's Office, Denver, CO, for Counterclaim Defendants Bureau of Land Management, The, USA.

Ian J. Kellogg, U.S. Attorney's Office, Denver, CO, for Defendants Bureau of Land Management, The, USA.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER OF JUDGMENT

R. Brooke Jackson, United States District Judge This case was tried to the Court from October 19 to October 23, 2020. ECF Nos. 137–141. For the reasons set forth in this order, the Court enters judgment in favor of defendant and counterclaim plaintiff the Board of County Commissions of Garfield County.

I. BACKGROUND

This case follows two roads that have traversed nearly 150 years to come before this Court. Today the roads run through a privately-owned ranch in Garfield County, Colorado. The dispute is whether these roads are public or private. Plaintiff and counterclaim defendant The High Lonesome Ranch, LLC ("the Ranch") contends that the roads are private. Defendant and counterclaim plaintiff the Board of County Commissioners of Garfield County ("the county") asserts that the roads are public.

The Ranch originally filed this case in state court in April 2016 asking the court to declare that the roads are private. ECF No. 4. The county filed a motion to dismiss, asserting that the Ranch failed to name the United States Bureau of Land Management ("the BLM") as an indispensable party. The state court denied the motion to dismiss and ordered the Ranch to join the BLM as a party because the roads provide access to BLM-managed land, and the BLM would be impacted by a declaration of the roads’ private or public nature. ECF No. 6. The Ranch filed an amended complaint that named the BLM as a defendant. ECF No. 7. The county then asserted counterclaims against the Ranch and the BLM asking the court to declare that the roads are public. ECF No. 8. In May 2017 the BLM removed the case to federal court. ECF No. 1.

In August 2018 the Ranch and the county filed cross motions for summary judgment. ECF Nos. 66, 67. The court denied the cross motions in January 2019 following a motions hearing. ECF No. 86. After extensive litigation and multiple trial continuances, the parties proceeded to a five-day bench trial. ECF Nos. 137–141. Though the BLM was represented at trial it did not present a case or formally take a position on the status of the road. Transcript ("Tr.") 1029:25–1030:1, 1056:6. The Court has considered the testimony and evidence admitted at trial. The Court has also considered the post-trial briefings submitted by the Ranch and the county. ECF Nos. 142, 143, 145, 146.

The public or private nature of the roads depends on whether the county has carried its burden of proof on any of its public road theories: (A) public right-of-way under R.S. 2477 and/or C.R.S. § 43-2-201(e) ; (B) public prescriptive use under C.R.S. § 43-2-201(1)(c) ; (C) common law dedication, or (D) roads open for public travel under C.R.S. § 43-1-202. If the county carries its burden, the Court may still deem the roads private if the Ranch proves that the county has abandoned them. For the reasons set forth below, the Court holds that the roads are public, and that the county has not abandoned them. The Court therefore enters judgment in favor of the Board of County Commissioners of Garfield County.

II. FINDINGS OF FACT

A. The roads, the Dry Fork valleys, and the Ranch

There are two connected roads at issue in this case. The first is called "North Dry Fork Road" which runs east to west from DeBeque, Colorado to the top of a ridgeline looking out across North Dry Fork valley. Exhibit ("Ex.") 128 at 3.¹ Only part of North Dry Fork Road is disputed. The disputed portion starts at a locked gate on the Ranch's property in Section 27, Township 7 South, Range 99 West of the 6th Principal Meridian.² Ex. 128 at 3; Tr. 892:22–25. It runs west from the gate through Secs. 27–30 TS 7S-R99W and Secs. 25–26, 20–23, and 29–31 TS 7S-R100W. Ex. 128 at 3. The second road is called "Middle Dry Fork Road." It starts by forking off from North Dry Fork Road in Sec. 25 TS 7S-R100W at an intersection often referred to as "the Y." Ex. 128 at 3; Tr. 141:16–19. Middle Dry Fork Road then runs southwest through Secs. 25–26 and 33–35 TS 7S-R100W and Secs. 4–5 TS 8S-R100W. Ex. 128 at 3. In this order I often refer to North and Middle Dry Fork Roads collectively as "the roads" for concision.

North Dry Fork Road also runs east from the locked gate through Secs. 26, 25–26 TS 7S-R99W, Sec. 31 TS 7S-R98W, and Sec. 6 TS 8S-R98W. Ex 128 at 3. That part of North Dry Fork Road is also known as County Road 200. North Dry Fork Road splits again in Sec. 6 TS 8S-R98W. As it continues east towards DeBeque it is called Dry Fork Road, and as it veers southwest it is called South Dry Fork Road or County Road 222. Tr. 900:17–25. These parts of the roads east of the locked gate are not disputed. Id. at 150:11–153:14.

[Editor's Note: The preceding image contains the reference for footnote³ ].

North and Middle Dry Fork Roads are situated in the Dry Fork valleys in Garfield County, Colorado. Tr. 65:16, 66:14–18. The valleys are alternately called Dry Fork Canyon and Middle Dry Fork Canyon. Id. at 71:8–25. This general area is located about twenty miles northwest of DeBeque, Colorado. Ex. 128 at 3. North Dry Fork Road runs through a spot also known locally as Ditman Canyon. Tr. 71:8–12. North and Middle Dry Fork Roads run directly alongside a creek aptly called Dry Fork Creek. The Y at which the two road portions split is also where the creek splits, and both portions follow the creek going west and southwest from the Y. To the north of North Dry Fork Road and the creek is Cow Ridge, which runs east to west. To the south of the road is another ridge called Horse Mountain. Ex. 128 at 3.

North and Middle Dry Fork Roads have proceeded along virtually the same routes between the late 1800s and today. The exact location of the roads has shifted somewhat over time, however. Maps overlaying the location of the roads from official 1885 and 1925 surveys against more recent aerial images of the roads from 1962 and 2011 show a few differences, including improvements and straightening of the roads and changes in width. Exs. 138A11, 138a14a. The Ranch's expert, Mr. Robert Lee, testified that these maps show the 1925 survey put the Y (the fork of North and Middle Dry Fork Roads) about 0.65 miles east of the Y's location in 2011. Tr. 1013:8-25. Comparison of the 1995 BLM map (the main point of reference for both parties) to a 2015 BLM map also shows both North and Middle Dry Fork Roads extending further southwest in 2015. Exs. 128 at 3; 167.

The Court credits Mr. Lee's testimony and these maps but still finds that the roads have been in substantially the same location for at least one hundred years. The Court does not find slight deviations in the roads’ location or width to diminish the certainty or definiteness of its route. These roads run along a creek through valleys with steep ridge formations on either side and thus are intrinsically subject to some change based on the natural landscape. No evidence was presented suggesting anyone was ever confused about the name or course of the roads based on these slight changes. Nor has there ever been an alternate route along either North or Middle Dry Fork Roads. The section numbers through which the roads run have not changed, excepting minor extensions to the southwest which are the obvious result of creating connector routes between North and Middle Dry Fork Roads in the mid-twentieth century. Tr. 182:16-24. The Court thus concludes that these slight variations in the roads are not significant.

Mr. Paul R. Vahldiek, Jr. is an attorney from Houston. Id. at 64:2–15. He is the founder and sole proprietor of the High Lonesome Ranch, LLC and the chairman of its board of directors. Mr. Vahldiek owns sixty-three percent of a fifty percent interest in the Ranch. Id. at 63:2–64:1. The High Lonesome Ranch is a recreational operation that offers hunting (particularly big game hunting) fly-fishing, hiking, biking, and horseback riding. It offers luxury accommodation and meals prepared by internationally renowned chefs. A five-day, six-night big game hunting package costs around $10,000 per person, inclusive of meals, lodging, and other recreational activity. Id. at 72:17–73:21, 154:23–155:16. The Ranch also uses a three-pronged approach to conservation and sustainability that involves a model energy product, improved grazing practices, regenerative agriculture, non-interference with wildlife corridors, and other efforts at positive land stewardship. In addition, the Ranch runs the first applied science institute of the American West. Id. at 72:17–74:9.

The Ranch property encompasses three main areas. The eastern area is called the Broadhead property, and it is...