TELLURIDE – Is the popular summer Wasatch Trail loop, which cuts through Bear Creek and crosses several private mining claims, open for public use? The Telluride Mountain Club says, yes. The Gold Hill Development Company says, no – at least not where the trail crosses its land.
In its relatively new existence as owners of mining claims in the upper Bear Creek basin (since March 2010), the owners of the GHDC have undoubtedly broken the peace for backcountry skiing in Bear Creek during the winter months and now have broken the peace in the warm summer months by allegedly posting guards on their property to keep people from trespassing on to their lands while hiking on the Wasatch Trail.
So that leaves the question: Is the Wasatch Trail completely open for public use?
“Our position has been constant; there is no easement for the public to cross our lands in place,” GHDC partner Tom Chapman said on Tuesday.
There are questions as to whether or not the GHDC can close a trail on its land that has been widely used by the public for many years. Norwood District Ranger Judy Schutza said it’s the Forest Service’s position that the Wasatch Trail “is a public trail. It’s on our system. It’s a trail we routinely maintain and do recognize it as a public trail.”
The Telluride Mountain Club wants to take that sentiment a step further.
“We have been working very hard to spread the word that the trail is open,” TMC President Tor Anderson said. “Tom Chapman has been getting the perception out there that the trail is closed. We are urging people to get out and enjoy their public land. Respect private property rights, but enjoy public lands. The trail is open.”
Furthermore, Anderson said the Wasatch Trail has been a federally recognized trail for decades – “maybe 30-40 years,” and that public easements exist to use that trail. He added that there are hundreds and hundreds of miles of trails in Colorado that cross private lands. This isn’t the first time a stand-off like this one has surfaced.
While it may seem that Chapman and GHDC principal owner Ron Curry’s decision to close the portion of the trail that crosses their land with “armed guards” is another shot fired at Telluride’s backcountry-loving community, Chapman says it’s not that simple. Like the Wasatch Trail-loving public, he too wants access to his lands via the Gold Hill Road, which crosses through the Telluride Ski Area.
“As a private landowner, we are saying we want access to our lands,” Chapman said. “At the same time, the public is saying they want access to public lands. The issue is not that we have made the statement that these trails are closed. The issue has to be looked at in context of who has the appropriate and legal access to reach their lands.”
Chapman cited the argument that the Wasatch Trail has been a recognized public trail for many years and said that argument is no different than his argument to access his mining claims.
“We know there has been historic access on that [Gold Hill] road,” he said. “This parallels the same argument. The miners were up there, using the road. Actually the road was used by all those various mines and properties in Bear Creek.”
While Chapman wholeheartedly believes the GHDC has the senior rights to access those claims the Gold Hill Road, he said the only way to prove that right is in a court of law.
Last January, the GHDC filed a complaint against the Telluride Ski and Golf Co. seeking the right to utilize, maintain, repair and improve the Gold Hill Road. Mediation between Telski and GHDC was, according to Chapman, ongoing throughout the month of July, but as of two days ago, failed; the legal proceedings, he said, will continue.
“We offered to mediate,” he said, but Telski Chief Executive Officer Dave Riley “chose not to. He has basically taken a stiff position and said you can’t come through me until a judge says you can come through me.”
Because of the pending lawsuit, Riley declined to give specifics on his position in the matter.
“All I can say is that we’re in litigation and feeling very confident about our legal position in this matter,” Riley stated in an email.
As for the public and crossing GHDC land on the Wasatch Trail. Chapman is holding that same stance.
“You don’t have access until the judge tells you you have access,” he said, citing the 2004 Colorado Supreme Court decision of McIntyre v. Board of County Commissioners, Gunnison County where the court held that a public prescriptive easement did not exist on a footpath that crossed private land near the historic mining town of Marble, Colo.
In the case, Gunnison County did not satisfy the law’s “claim of right” requirement because the court held the county didn’t provide evidence that the private landowner had notice of the public’s intent to create a public right of way. That evidence needed to include some overt act on the part of the county to give notice of the public’s claim of right. That notice starts at the prescriptive period and without such notice, the prescriptive period does not begin.
As to whether or not the decision in McIntyre v. Board of County Commissioners, Gunnison County has any bearing on the public’s right to access the federal Wasatch Trail over private properties remains to be seen.
While Telski and the GHDC duke it out in the courtroom over access on Gold Hill Road, Schutza is scheduling a meeting in the near future for elected officials from all three local governments, as well as Telski and Bear Creek landowners, to discuss backcountry access points prior to the upcoming ski season.