HomeMy WebLinkAbout04.0 Court ProceedingsIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
PATRICIA A. COAN, MAGISTRATE JUDGE
Civil Action No. 00 -PC -1243
FILED
Uf1a[dL� DISMOT COURT
ONV[NCOLORADO
AUG 3 0 2001
JAMES K. Nih CL ARKER
INTERMOUNTAIN RESOURCES, L.L.C., a Colorado Limited Liability Company,
INTERMOUNTAIN RANCHES, L.L.C., a Colorado Limited Liability Company, and
NORMAN A. CARPENTER,
Plaintiffs,
v.
KATHERINE M. HONEA; the BOARD OF COUNTY COMMISSIONERS OF GARFIELD
COUNTY, COLORADO; and the UNITED STATES FOREST SERVICE, an agency of the
United States of America,
Defendants.
JUDGMENT
This matter came on for a bench trial commencing August 16, 2001, the
Honorable United States District Magistrate Judge Patricia A. Coan presiding.
PURSUANT to and in accordance with the Memorandum Opinion And Order
entered by the Honorable United States Magistrate Judge Patricia A. Coan on August
30, 2001, it is
ORDERED that judgment is entered in favor of Plaintiffs Intermountain
Resources, L.L.C., a Colorado Limited Liability Company, Intermountain Ranches,
L.L.C., a Colorado Limited Liability Company, and Norman A. Carpenter and against
the Defendants Katherine M. Honea; the Board of County Commissioners of Garfield
County, Colorado; and the United States Forest Service, an agency of the United
1
Judgment 00 -PC -1243
States of America on plaintiffs' first claim for relief, as amended by the evidence at trial,
that the Easement Grant conveyed by Tom VonDette to the Colorado Division of
Wildlife on April 14, 1976 was an express common law dedication of a public road
which was accepted within a reasonable time by the United States Forest Service and
the general public. It is
FURTHER ORDERED that the easement premises described in Section A -of the
Easement Grant converyed by Tom VonDette to the Colorado Division of Wildlife on
April 14, 1976 is a public road, open to all lawful public uses by all members of the
public, including the plaintiffs, subject to regulation by the United States Forest Service
consistent with the public use. It is
FURTHER ORDERED that a permanent injunction is entered against Defendant
Katharine M. Honea prohibiting her, and her agents and employees, from any and all
actions obstructing, restricting, hindering, or preventing the plaintiffs' use of the public
road. It is
FURTHER ORDERED that judgment is entered in favor of Defendants Katherine
M. Honea; the Board of County Commissioners of Garfield County, Colorado; and the
United States Forest Service, an agency of the United States of America and against
the Plaintiffs Intermountain Resources, L.L.C., a Colorado Limited Liability Company,
Intermountain Ranches, L.L.C., a Colorado Limited Liability Company, and Norman A.
Carpenter on plaintiffs' second claim for relief that the easement premises is an R.S.
2477 Road. It is
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Judgment 00 -PC -1243
FURTHER ORDERED that judgment is entered in favor of Plaintiffs
Intermountain Resources, L.L.C., a Colorado Limited Liability Company, Intermountain
Ranches, L.L.C., a Colorado Limited Liability Company, and Norman A. Carpenter and
against the Defendant Katherine M. Honea on Defendant Honea's counterclaim for
trespass and nuisance. It is
FURTHER ORDERED that each party shall bear his, her or its own costs.-_
DATED at Denver, Colorado this 30th day of August, 2001.
BY THE COURT:
CL CA) C(}
Patricia A. Coan
United States Magistrate Judge
EOD
TED STATES DISTRICT COL
DENVER. "OLORADO
AG3O, 1
-AMES R. 1ANSPEA.Kt R.
FOR THE COURT:
JAMES R. MANSPEAKER, CLERK
By
Step ' P. Ehrlich, Chief Deputy Clerk
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 00 -PC -1243
The undersigned certifies that a copy of the foregoing Judgment dated August 30,
2001 was served on August 30, 2001 by: (*) Delivery to; or by (**) Depositing in the United
States Mail, postage prepaid, addressed to:
James K. Beckwith, Esq. **
7910 Ralston Road, Ste. 7
Arvada, CO 80002
Timothy E. Whitsitt, Esq. **
Whitsitt & Goss
320 Main St., Ste 200
Carbondale, CO 81623
JD Snodgrass, Esq.
Williams, Turner & Holmes, PC
200 N 6th St.
PO Box 338
Grand Junction, CO 81502-0338
Michael Hegarty, Esq.
Assistant US Attorney
DC Mail Box
Don K. DeFord, Esq.
109 8`h St., Room 300
Glenwood Springs, CO 81601
U.S. Magistrate Judge Gudrun Rice
United States District Court
402 Rood Ave., Room 323
Grand Junction, CO 81501
,—,4e4f—v•-a-->---\
Secretary/Deputy Clerk
FILED
UPU1�C itATis 0,4111I01 COURT
*Mott COLORADO
IN THE UNITED STATES DISTRICT COURT AUG 3 0 2001
FOR THE DISTRICT OF COLORADO
Civil Action No. 00 -PC -1243
JAMES tz. r.AKER
:1, CLERK
11
INTERMOUNTAIN RESOURCES, L.L.C., a Colorado Limited Liability Company,
INTERMOUNTAIN RANCHES, L.L.C., a Colorado Limited Liability Company, and
NORMAN CARPENTER,
Plaintiff(s),
v.
KATHERINE M. HONEA; the BOARD OF COUNTY COMMISSIONERS OF GARFIELD
COUNTY, COLORADO; and the UNITED STATES FOREST SERVICE, an agency of the
United States of America,
Defendant(s).
MEMORANDUM OPINION AND ORDER
Patricia A. Coan, United States Magistrate Judge
Plaintiffs seek a judicial declaration under Fed.R.Civ.P. 57 that a road running
across defendant Katherine Honea's private property in Garfield County, Colorado, is a
public road which may be used for all lawful public purposes. The matter was tried to the
court on August 16, 2001 in special session in the Rifle, Colorado, Municipal Court.
Jurisdiction exists under 28 U.S.C. §1331 because the resolution of pertinent issues
requires interpretation of federal statutes, and under §2409a and §1346(f) because the
United States holds title to the Easement Grant at issue. The parties have consented to
determination of this case by a United States Magistrate Judge under 28 U.S.C. §636(c).
The court, having considered the evidence presented at trial, the arguments of
counsel, and the files and records in this case, makes the following findings of fact and
conclusions of law. Fed.R.Civ.P. 52(a).
I. FINDINGS OF FACT
A. The Easement Grant
1. Plaintiff Norman Carpenter' is the owner of approximately 4500 acres of land
and timber situated on private property in Secs. 25, 26, 28, 35, and 36; Township 7 South,
Range 94 West of the 6'h P.M., in Garfield County, Colorado, known as "Tepee Park."
(Exhibits 1, 2, 21 and 22) Tepee Park is surrounded by public lands owned by the United
States and administered by the U.S. Department of Agriculture, U.S. Forest Service
("USFS" or "Forest Service") and the U.S. Department of Interior, Bureau of Land
Management ("BLM"). (Exhibits 1 and 2)
2. On August 28, 2000, Carpenter and plaintiff Intermountain Resources
entered into a Timber Sale Agreement which authorized plaintiff Intermountain Resources,
L.L.C. ("Intermountain Resources") to harvest timber from the Tepee Park property.2
(Exhibit 23; Christopher Meyers testimony)
3. Beaver Creek Ranch is a 160 acre parcel of land originally patented to Mr.
Frank Von Dette, and situated, as relevant here, in Section 24; Township 7 South, Range
94 West of the 6th P.M. in Garfield County, Colorado. (Exhibits 1, 3, 4 and 5) Beaver
Creek Ranch is bordered on its east, west and south sides by the White River National
Forest. (Exhibits 1 and 2) Generally, Beaver Creek Ranch lies north of Tepee Park,
' By Order dated September 19, 2000, Norman Carpenter was substituted as a plaintiff for two of
the original plaintiffs, Leelynn, Inc. and Wiley Mountain, Inc., entities who jointly owned Tepee Park at the
time this action was filed but who later conveyed the property to Carpenter.
2It is unclear whether plaintiff Intermountain Ranches, L.L.C. has any current interest in the Tepee
Park property.
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separated by public lands administered by USFS between the Ranch and Tepee Park.
(Id.)
4. In the 1940's or 1950's, Frank VonDette conveyed Beaver Creek Ranch to
his son, Tom VonDette ("VonDette"). (Tom VonDette testimony) VonDette sold Beaver
Creek Ranch to Messrs. Carey and Bishop in 1982. (Id.) On June 25, 1998, Messrs.
Carey and Bishop conveyed Beaver Creek Ranch to defendant Katharine M. Honea
("Honea"). (Exhibit 3) Defendant Honea is the current owner of Beaver Creek Ranch.
5. One vehicular access route to the USFS lands south of Beaver Creek Ranch,
and to Tepee Park, traverses Beaver Creek Ranch from north to south. Garfield County
Road 317 ("GCR 317"), which runs from the north, intersects with a gate at the northwest
corner of Beaver Creek Ranch. From there the route continues south through Beaver
Creek Ranch for approximately one-half mile to the Ranch's southern boundary. The route
as it traverses Beaver Creek Ranch will be referred to herein as "VonDette Road" or
"Road." The southern boundary of the Ranch is also the boundary of the White River
National Forest. At that point, VonDette Road intersects with U.S. Forest Service Road
824 ("USFS Road 824") which runs south through the White River National Forest for
about one mile, where it reaches the boundary of the Tepee Park lands. (Ex. 1, Eugene
Byrne testimony)
6. In 1975, Eugene Byrne, a Wildlife Conservation Officer for the Colorado
Division of Wildlife (CDOW) received complaints from hunters that VonDette was barring
public travel over VonDette Road to access the White River National Forest south of
Beaver Creek Ranch. (Byrne testimony) After Byrne consulted with USFS employees,
3
Byrne concluded that the VonDette Road was an historic public right of way over Beaver
Creek Ranch for use by the general public. (Id.) Byrne informed VonDette of the CDOW's
and USFS's position that VonDette Road was a public road and told VonDette that he
could sell the CDOW a road easement or, the CDOW would seek a judicial declaration that
the VonDette Road was a public road. (Byrne, VonDette testimony) VonDette agreed to
negotiate a public access easement with the CDOW, subject to certain conditions. (Id.)
7. Between September 1975 and February 1976, VonDette negotiated the
terms of the easement grant with Byrne and USFS officials. (Exhibits 29, 30, 33; Byrne
testimony) It was agreed that: CDOW would purchase the easement from VonDette for
$6,000; the USFS would build the road across Von Dette's land after CDOW transferred the
right of way to the USFS; and, the VonDette Road would not be open to the general public
until after the road was constructed by the USFS. (Exhibits 30, 33) Pending completion
of the road construction, VonDette further agreed to open the road to public travel during
the Fall 1976 hunting season. (Ex. 34)
8. On April 14, 1976, Tom VonDette executed and delivered an Easement Grant
to CDOW, which was recorded with the Garfield County Clerk and Recorder's Office.
(Exhibits 6a, 6b) The Easement Grant, drafted by the CDOW, describes the easement
premises as a 30 -foot wide strip of land across the Beaver Creek Ranch property. (Id. at
Section A; Byrne testimony) The easement premises basically follows the same alignment
as a road built by VonDette in the 1950's, with a few minor adjustments. (Byrne testimony)
The VonDette Easement Grant states, in pertinent part:
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This EASEMENT GRANT is made between Tom VonDette
hereinafter referred to as "the Grantor," and the State of
Colorado for the use and benefit of the Department of Natural
Resources, DIVISION OF WILDLIFE, hereinafter referred to as
"the Grantee."
B. The Grantor wishes to grant and the Grantee wishes to
receive an easement for perpetual public road easement upon,
over, under and across the easement premises... 1. GRANT
OF EASEMENT. The Grantor hereby grants to the Grantee,
his successors and assigns, a perpetual easement for a
perpetual public road easement, upon, over, under, and across
the easement premises. . . 2. WARRANTIES OF TITLE:
Grantor warrants that he has good and indefeasible fee simple
title to the easement premises... 3. RUNNING OF BENEFITS
AND BURDENS. All provisions of this instrument, including
the benefits and burdens, run with the land and are binding
upon and enure to the heirs, assigns, successors, tenants and
personal representatives of the parties hereto. . . 4.
ATTORNEY'S FEES: Either party may enforce this instrument
by appropriate action and should he prevail in such litigation,
he shall recover as part of his costs a reasonable attorney's
fee... 5. CONSTRUCTION: The rule of strict construction
does not apply to this grant. This grant shall be given a
reasonable construction so that the intention of the parties to
confer a usable right of public enjoyment on the Grantee.
9. On May 2, 1977, CDOW assigned the Easement Grant to the Forest Service.
(Exhibit 7) The Easement Grant to the Forest Service was recorded with the Garfield
County Clerk and Recorder. (Id.) The terms of the Easement Grant from CDOW to the
USFS are substantially the same as the VonDette Easement Grant, with the exception of
the named grantor and grantee, deletion of the attorney fee provision, and the addition of
a clause which states that the grantee shall construct and maintain a road upon the
easement premises within two years from the date of the Easement Grant. (Exhibit 7,
section B.2) The Easement Grant further requires the Forest Service to post signs
5
advising the public that the road is a public access road crossing private property. (Id.)
10. In July 1977, VonDette and CDOW and Forest Service officials met and
agreed upon further details of the road construction and alignment, including the posting
of signs to notify the public that the road was crossing private property and the installment
of: a fence along the creek side of the road; a gate at the northern boundary of the Beaver
Creek Ranch; and a cattleguard at the southern boundary of the Ranch.' (Exhibit 37;
Byrne testimony) By October 5, 1977, the Forest Service had completed the construction
of VonDette Road, along with installment of the fence, gate, cattleguard and signs.
(Exhibits 8, 38, 39) The Forest Service also built a public parking area, including a truck
loading ramp, south of Beaver Creek Ranch (the "Beaver Creek Parking Area"). (Exhibit
11; Byrne testimony) The signs posted along VonDette Road at the northern and southern
boundaries of Beaver Creek Ranch clearly state that the Road is a "public right of way"
crossing private property. (Exhibit 12; Byrne testimony)
11. In 1997, Tucker and Frase Partnership, then owners of Tepee Park, applied
for Forest Service authorization to access USFS Road 824 for the purpose of hauling
privately -owned timber from Tepee Park. (Exhibits 42, 56) Tucker and Frase were
granted a Forest Service special use permit' which designates USFS Road 824 through
USFS lands and VonDette Road through the Beaver Creek Ranch as the approved access
3The purpose of the gate and cattleguard was livestock control. (Byrne testimony)
4The court uses the term special use permit as a generic term to reference the permission
granted to plaintiffs to use the VonDette Road for timber hauling purposes.
6
for transport of logging machinery, trucks and harvested timber to reach GCR 317.5
(Meyers, testimony; Exhibits 42, 56, 58) The special use permit requires the following: (1)
realignment of USFS 824 south of Beaver Creek Ranch; (2) improvement of the VonDette
Road across Beaver Creek Ranch; and, (3) obtaining an extraction permit from defendant
Board of County Commissioners of Garfield County ("Garfield County BOCC"). (Meyers
testimony; Ex. 9) At some point, plaintiff Intermountain Resources became a party to the
special use permit and completed the required improvements to USFS Road 824 through
USFS lands. (Exhibit 14; Meyers testimony) Plaintiff has not made the required
improvements to the VonDette Road because defendant Honea objects to use of the Road
for commercial logging purposes. (Meyers testimony)
12. In 1997, defendant Garfield County BOCC granted Tucker and Frase
Partnership a special use permit to harvest timber on Tepee Park lands, which was later
assumed by plaintiff Intermountain Resources. (Exhibit 10; Meyers testimony) The permit
is subject to the conditions that Intermountain Resources must improve GCR 317 leading
to the north gate of Beaver Creek Ranch and obtain a decree by a court of competent
jurisdiction that the VonDette Road "is a legal right-of-way for the proposed Special Use
permit." (Exhibit 10)
5The USFS has treated Tepee Park as an inholding pursuant to the provisions of 16 U.S.C. §3210
of the Alaska National Interest Land Conservation Act ("ANILCA"), and has determined that it is required
by 16 U.S.C. §1323 to provide the owners of Tepee Park "reasonable access" to their private lands.
(Exhibits 42, 58) To that end, the USFS has designated the plaintiffs access to Tepee Park for the
purpose of harvesting timber as GCR 317 to VonDette Road to USFS Road 824 to Tepee Park. (Id.)
The Forest Service refers to VonDette Road as Forest Development Road 824. (Cindy Hockelburg
testimony)
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13. Plaintiffs have completed the required improvements to GCR 317 and have
commenced the instant action in compliance with the second condition imposed by the
Garfield County BOCC. (Exhibit 14; Meyers testimony)
B. Historical Use of the VonDette Road
14. VonDette's father, Frank VonDette, homesteaded the property now known
as Beaver Creek Ranch in 1911. (VonDette testimony)
15. Homestead Entry Survey ("H.E.S.") No. 309, filed on November 14, 1918,
depicts a dotted line along the general alignment of what is now VonDette Road through
Beaver Creek Ranch. (Exhibits 4 and 8, at p. 9)
16. H.E.S. No. 309 shows that the "Battlement National Forest" was established
by Proclamation of December 24, 1892 and encompassed all lands south of the northern
boundary of the Beaver Creek Ranch, including all of Beaver Creek Ranch. (Id.)
17. Frank VonDette obtained an ownership patent for the Beaver Creek Ranch
property in 1920. (VonDette testimony; Exhibit 5)
18. Tom VonDette was born in 1926 and lived on Beaver Creek Ranch until he
sold the property in 1982. (VonDette testimony) When VonDette was a child, a horse trail
known as the Caton Ranger trail, which was approximately three to six feet wide, crossed
the Beaver Creek Ranch property from north to south along Beaver Creek. (Id.)
According to VonDette, the Caton Ranger trail is the route depicted on H.E.S. No. 309, and
was east of what is now VonDette Road. (Id.) The Caton Ranger trail was open to the
public to access Forest Service lands by foot or horseback. (Id.) In the 1930's, the Caton
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Ranger trail was traversed by horse-drawn wagons to access Forest Service lands to
gather poles or logs for ranching operations. (Id.)
19. During the 1930's, VonDette's brother and father worked at the Barn sawmill
which was originally located on the Ranch, and was later moved to a location
approximately a half mile to a mile south of the Ranch. (VonDette testimony) At that time,
trucks traveled over the Caton Ranger trail to haul timber to Grand Junction. (Id.) The trail
had become wide enough to accommodate trucks and a bridge was built over Beaver
Creek. (Id.)
20. In the 1950's, VonDette constructed a road through Beaver Creek Ranch to
access the Forest Service lands south of the Ranch and Tepee Park. (VonDette
testimony) VonDette operated a sawmill on the Beaver Creek Ranch property in the
1950's and 1960's and used roads he built to transport felled timber from the White River
National Forest lands south of Tepee Park to Beaver Creek Ranch where it was milled by
the VonDettes. (Id.) The lumber was then hauled by truck to lumber markets in Rifle and
Grand Junction, Colorado. (Id.)
21. Approximately two-thirds of the road built by the Forest Service in 1977
("VonDette Road") followed the alignment of an existing road through Beaver Creek Ranch,
but a new section was constructed at the point where the existing road diverged east to the
location of VonDette's sawmill. (VonDette testimony)
22. Beginning in the 1950's and prior to the Forest Service's construction of
VonDette Road in 1977, VonDette objected to any vehicular traffic across Beaver Creek
Ranch without his express permission and maintained a locked gate at the northern
9
boundary of the Ranch where GCR 317 terminates. (Id.) During that time, VonDette
allowed ranchers with USFS grazing permits to access Forest Service lands by use of the
Caton Ranger trail. (Id.)
23. When VonDette owned the Beaver Creek Ranch and up to 1990, VonDette
controlled a portion of the Tepee Park lands Tying at the head of Beaver Creek with a lease
from the owner, the Virginia -Colorado Company. (VonDette testimony) VonDette did not
permit public hunting or other public use of the Tepee Park lands. (Id.) After selling
Beaver Creek Ranch in 1982, VonDette accessed Tepee Park by driving over VonDette
Road. (Id.) VonDette never requested permission from the subsequent Ranch owners
because he considered the Road to be a public road. (Id.)
24. Following the Forest Service's completion of the VonDette Road in 1977,
hunters, fishermen, wildlife viewers, skiers, and snowmobilers have used the road for
vehicular access to Forest Service lands. (Byrne, VonDette testimony) The Road has been
used by all types of vehicles and trucks, including trucks pulling horse trailers and a one -
ton farm truck. (VonDette testimony)
25. Since 1977, the owners of Beaver Creek Ranch have kept the gate at the
northern boundary of VonDette Road closed, but unlocked. (Katherine Honea, VonDette,
Byrne testimony) Additionally, defendant Honea maintained a closed, but unlocked, gate
across the southern boundary of the Ranch until the gate was destroyed sometime last
year. (Honea testimony)
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26. Closed, but unlocked, gates are frequently maintained on USFS roads for
livestock control, but the presence of a dosed, unlocked gate does not restrict the public's
right to use the road. (Hockelburg testimony)
27. On November 12, 1997, Messrs. Carey and Bishop, the previous owners of
Beaver Creek Ranch, granted an easement over VonDette Road to Barrett Resources, a
commercial operator on USFS lands, authorizing the company to access its oil and gas
leasehold, to transport oil and gas drilling rigs, accessory equipment and related services
across the VonDette Road, and to install underground transmission lines along the Road.
(Meyers, Honea testimony; Exhibit 20) Barrett Resources paid $1350 consideration for
the easement. (Id.)
28. Defendant Honea was aware of the Easement Grant to the USFS at the time
she purchased the Beaver Creek Ranch in 1998. (Honea testimony) Honea purchased
Beaver Creek Ranch with the intent to use the property as a quiet residence where she
could ride her horses, for livestock pasturage, and for the commercial purposes of
operating a hunting camp and group retreat center. (Honea testimony) Honea testified
that plaintiffs' road improvement trucks, which travel over VonDette Road to USFS Road
824, generate a substantial amount of dust and noise as they cross Beaver Creek Ranch.
29. Honea objects to plaintiffs' use of VonDette Road based on her interpretation
that the Easement Grant allows members of the public to drive across her property to
access Forest Service lands for recreational purposes, but does not allow commercial
vehicle operators with commercial interests in Tepee Park to access that property by way
of VonDette Road. (Honea testimony) Honea advised plaintiff Intermountain Resources
11
that she would grant an easement over VonDette Road to access Tepee Park for timber
harvesting purposes in exchange for $100,000 per year. (Honea, Meyers testimony)
II. CONCLUSIONS OF LAW
Plaintiffs' complaint for declaratory relief seeks a judicial declaration that: (1) the
VonDette Easement Grant to CDOW and CDOW's subsequent assignment of that
Easement Grant to the USFS constitutes a dedication of a public road over private lands
for the use and benefit of the general public without restriction, and, therefore, the
VonDette Road is a public highway as defined by COLO.REV.STAT. ("C.R.S.") §43-2-201;
or (2) the VonDette Road is a historic public right of way under former Revised Statute
2477 (1886) and is therefore a public highway under C.R.S. §43-1-202. Plaintiffs also seek
an injunction against defendant Honea to prohibit her from committing any act to obstruct,
hinder, or impede the plaintiffs' use of VonDette Road.
Defendant Honea has asserted a counterclaim against plaintiffs for trespass.
Defendant Garfield County BOCC does not take a position on the proper
interpretation of the VonDette Easement Grant, or on the issue of whether VonDette Road
is a public road. Defendant Forest Service takes the position that the VonDette Easement
Grant granted a public road to a sovereign entity.'
A. Is VonDette Road an R.S. 2477 Road?
Plaintiffs' second claim for relief asserts that the VonDette Road is a public highway
pursuant to former Revised Statute ("R.S.") 2477 (1886), formerly codified at 43 U.S.C.
61n the July 16, 2001 Final Pretrial Order, the Forest Service asserts that the VonDette Easement
Grant is a statutorily dedicated public right of way.
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§932, which stated: "The right of way for the construction of highways over public lands,
not reserved for public uses, is hereby granted."' Whether and when the grant is accepted
by the public is determined under state law. Barker v. Board of Cnty. Comm'rs of La Plata
County, 24 F.Supp.2d 1120, 1127 (D.Colo. 1998); Sierra Club v. Hodel, 675 F.Supp. 594,
604 (D.Utah 1987), rev. in part on other grounds, 848 F.2d 1068 (10th Cir.1988). In Leach
v. Manhart, 77 P.2d 652 (1938), the Colorado Supreme Court held that R.S. 2477 was "an
express dedication of a right of way for roads over unappropriated government lands,
acceptance of which by the public results from 'use by those for whom it was necessary
or convenient.- (Internal quotation omitted).
To establish that VonDette Road is an R.S. 2477 public road, plaintiffs must
demonstrate that VonDette Road existed while Beaver Creek Ranch was a public land.
Barker, 24 F.Supp.2d at 1127; Humboldt County v. United States, 684 F.2d 1276, 1281 (9`h
Cir. 1982). Public land is land which is subject to sale or other disposition under the laws,
excluding land to which any claims or rights of others have attached. Board of County
Comm'rs of Cheyenne Cnty. v. Ritchey, 888 P.2d 298, 300 (Colo. App. 1995)(citing Bardon
v. Northern Pacific R.R. Co., 145 U.S. 535 (1892)); Humboldt County, 684 F.2d at
1281)(internal citation omitted).
Public roads established under R.S. 2477 can include footpaths, in appropriate
circumstances, see Simon v. Pettit, 687 P.2d 1299 (Colo. 1984), and roads formed by the
passage of wagons. See Central Pacific Ry. v. Alameda County, 284 U.S. 463 (1932).
'The Federal Land Policy Management Act of 1976 ("FLPMA") repealed R.S. 2477, but preserved
any rights of way that existed prior to the date of enactment. 43 U.S.C. §1769(a).
13
The evidence was that VonDette's father, Frank VonDette, homesteaded the Beaver
Creek Ranch property in 1911 under the Homestead Act of 1862 which granted 160 acres
of land to individuals who lived on and improved the property for five years. Act of May
20, 1862, ch. 75, 12 Stat. 392, 43 U.S.C. §§161-284 (repealed in 1976 by FLPMA).
Homestead Entry Survey No. 309 in the Battlement National Forest was approved by the
U.S. Surveyor General's Office on November 14, 1918 and was accepted on March 10,
1919. (Exhibit 4) Frank VonDette obtained a patent for Beaver Creek Ranch in 1920.
(Exhibit 5) The 1918 Survey shows that a Forest Reserve, which included the land now
known as Beaver Creek Ranch, was established by Proclamation of December 24, 1892.
The Survey depicts a dotted line running south from the northern boundary of the Ranch
through Beaver Creek Ranch. VonDette, who was born on the Ranch in 1926, testified
that the dotted line represented a horse trail and footpath used by the public which the
VonDette family referred to as the Caton Ranger trail.
It appears from H.E.S. No. 309 that Beaver Creek Ranch was removed from the
public lands by a Presidential Proclamation establishing the Battlement National Forest
in 1892. If that is the case, plaintiffs must show that what is now VonDette Road existed
as a public road prior to 1892 to establish an R.S. 2477 Road. There is no evidence,
however, that a public road existed on the easement premises prior to 1892. Further, even
if the Beaver Creek Ranch was not withdrawn from the public domain until it was patented
in 1920, the only evidence of a pre-existing road is the dotted line depicted on H.E.S. No.
309, which VonDette states represents the Caton Ranger trail. VonDette testified that
horse-drawn wagons used the trail in the 1930's to cross the Beaver Creek Ranch property
14
into Forest Service lands to obtain logs and poles for their ranching operations; however,
there was no competent evidence as to public use of the Caton Ranger trail prior to the
1930's. Because VonDette was not born until 1926, he has no personal knowledge of the
existence of a road prior to 1920. The court is unable to conclude from the evidence of
record that the dotted line depicted on Homestead Entry Survey No. 309 represents a road
that was used by the public prior to 1920.
Because the evidence does not establish that VonDette Road came into existence
before Beaver Creek Ranch was removed from the public lands, I find and conclude that
plaintiffs have failed to demonstrate that VonDette Road is an R.S. 2477 public road.
Accordingly, the VonDette Road is not a public highway under C.R.S. §43-1-202 which
provides that all roads which were open to public traffic on May 4, 1921 are public
highways.'
B. Is VonDette Road a Dedicated Public Road?
Plaintiffs' first claim for relief asserts that VonDette Road is a dedicated public
highway pursuant to C.R.S. §43-2-201(1) which states: "The following are declared to be
public highways ... (a) All roads over private lands dedicated to the public use by deed
to that effect, filed with the county clerk and recorder of the county in which such roads are
situate, when such dedication has been accepted by the board of county commissioners."
sPlaintiffs' second claim for relief also alleges that Beaver Creek Road has been used
continuously and without interruption by the general public for a period in excess of twenty years and has
therefore become a public highway by dedication and public use pursuant to Colorado statutes.
(Compl.,¶¶41-44) To the extent that plaintiffs claimed in their complaint that the VonDette Road is a
dedicated road by prescriptive use under C.R.S. §43-2-201(1)(c), I find that the claim has been
abandoned because it was not asserted in the parties' July 16, 2001 Final Pretrial Order or argued at trial.
15
The Easement Grant deed from VonDette to CDOW, and from CDOW to the Forest
Service, expressly conveys a "perpetual public road easement" across the Beaver Creek
Ranch. The evidence was that both Easement Grant deeds were filed with the Garfield
County Clerk and Recorder. It is undisputed, however, that the purported dedication was
not accepted by the Garfield County BOCC.9
Plaintiffs argue that a statutory dedication of a public road may be accepted by any
public entity that is authorized to hold an interest in land. Plaintiffs maintain that the USFS
accepted VonDette's dedication of a public road by making improvements to the road in
1977.
Defendant Honea responds that a statutory dedication has not been demonstrated
because the easement was not conveyed to, or accepted by, the Garfield County BOCC.
Honea contends that the purported dedication of a public road to the CDOW is outside the
purview of the Colorado statute.
I agree with defendant Honea that the requirements of C.R.S. §43-2-201(1)(a) have
not been satisfied. "A court's primary task in statutory construction is to ascertain and give
effect to the legislative purpose underlying a statutory enactment." Woodsmall v. Regional
Transp. Dist., 800 P.2d 63, 67 (Colo. 1990). If the language of the statute is clear and
unambiguous, the court should presume that the legislature meant what it clearly stated.
Id. The statute expressly states that the dedication must be accepted by the board of
county commissioners of the county in which the road is situated. The most reasonable
9At the June 11, 2001 hearing on plaintiffs Motion for Partial Summary Judgment, the Assistant
Garfield County Attorney represented to the court that the Garfield County BOCC had never accepted a
dedication of the VonDette Road as a public road.
16
construction of §43-2-201(1)(a) is that the statutory subsection applies to dedications made
to a county and accepted by the county's BOCC. If the legislature intended that any
governmental entity could accept a dedication of a public highway, it would have stated as
much. I find and conclude that a dedication accepted by a public entity other than a county
is not within the scope of the Colorado statute. Accordingly, I conclude that the easement
premises described in the VonDette Easement Grant was not dedicated to the public in
accordance with C.R.S. §43-2-201(1)(a).
Having determined that the evidence does not establish a dedication pursuant to
Colorado statute, the next question is whether a common law dedication of a public road
has been demonstrated.
A "dedication" is "an appropriation of land by the owner of the fee to some public use
and the adoption thereof by the public." Hand v. Rhoades, 245 P.2d 292 (1952); see, also,
Powell on Real Property, §84.01[1] (1999). Dedication can be made pursuant to state
statute or according to the common law. Fortner v. Eldorado Springs Resort Co., 230 P.
386, 388 (Colo. 1924). A common law dedication may be express or implied. Id. A
common law dedication operates as an estoppel in pais and ordinarily gives the public an
easement only with the underlying possessory interest left in the dedicator. Buell v.
Redding Mills, Inc., 430 P.2d 471, 473 (Colo. 1967); see, also, Powell on Real Property,
§84.01[8]. Under Colorado law, a common law dedication of property to the public requires
an unambiguous, unequivocal intent by the owner to so dedicate and an unambiguous
acceptance of the dedication by the governmental authority. City of Northglenn v. City of
Thornton, 569 P.2d 319, 321 (Colo. 1977)(internal citations omitted). A public authority's
17
acceptance of a dedication may be evidenced by a legislative act, or by the public entity's
possession, improvement or use of the land as a public road. Bd. of Cnty. Comm'rs v.
Sherrill, 757 P.2d 1085, (Colo.App. 1987)(citing Town of Center v. Collier, 144 P. 1123,
(Colo. 1914)). A dedication is to the public at Targe; thus, even when a dedication is
affected through a conveyance to a specific grantee, the public is the real transferee of the
use of the land. See 26 C.J.S. Dedications §10 (2001). The existence of a common law
dedication is a question of fact. Powell on Real Property, §84.01[7][b].
I first address whether the evidence supports a finding that VonDette's intent in
conveying the Easement Grant deed to CDOW was to dedicate a public road though
Beaver Creek Ranch. The language of the VonDette Easement Grant states that
VonDette conveyed to the CDOW a thirty-foot wide "perpetual public road easement upon,
over, under and across the easement premises ... "
In construing a deed, the court's primary purpose is to ascertain the intention of the
parties. Notch Mountain Corp. v. Elliott, 898 P.2d 550, 557 (Colo. 1995). In Lazy Dog
Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235-36 (Colo. 1998)(Lazy Dog II), the
Colorado Supreme Court eschewed a rigid -four corners- approach to deed interpretation.
The court instructed that a trial court may conditionally admit extrinsic evidence to
determine whether the language of a deed is ambiguous, but if it is ultimately determined
that the document is unambiguous, the extrinsic evidence must be stricken, and the court
must give effect to the language of the deed. 965 P.2d at 1235-36. At trial, the court
conditionally admitted evidence of the circumstances surrounding the conveyance of the
18
Easement Grant to determine if the deed's terms creating a "perpetual public road
easement" are ambiguous.
Defendant Honea presented evidence that the CDOW's stated purpose in acquiring
the Easement Grant was for hunter access to public lands south of Beaver Creek Ranch
and that access to Tepee Park lands was not contemplated at that time. The parties
presented evidence of additional terms in the agreement between VonDette and the
CDOW which were not included in the language of the Easement Grant, such as the
posting of signs and construction of fences. Further, there was evidence that the CDOW
paid VonDette $6,000 consideration for the Easement Grant after advising VonDette of the
CDOW's position that the road was a public road. The evidence also showed that
VonDette treated VonDette Road as a public road after he sold the Beaver Creek Ranch
in 1982.
I find that the language of the Easement Grant accurately and unambiguously
reflects the intention of VonDette to convey a public road easement to the CDOW. "The
language used in creating a servitude ordinarily should be interpreted to accord with the
meaning an ordinary purchaser would ascribe to it in the context of the parcels of land
involved." Lazy Dog 11, 965 P.2d at 1237 (quoting Restatement (Third) of Property §4.1
cmt. c (2000)). The plain and ordinary meaning of the term "public" is "accessible to or
shared by all members of the community." Webster's Ninth New Collegiate Dictionary at
952 (1983). Any construction which limits the use of the easement to hunters or other
recreational users of Forest Service lands would contradict the expressed intention of the
grantor. I therefore disregard the extrinsic evidence which was conditionally admitted at
19
trial to determine whether the terms of the Easement Grant are ambiguous. Lazy Dog
Ranch II, 965 P.2d at 1237. I find that the Easement Grant constitutes an express
manifestation of VonDette's intent to dedicate the easement premises to public use as a
public road.
I next address whether the offer of dedication by VonDette was accepted by the
public. An offer to dedicate must be accepted within a reasonable time. Litvak v.
Sunderland, 353 P.2d 381, 383 (Colo. 1960); Near v. Calkins, 946 P.2d 537, 539
(Colo.App. 1997).
Plaintiffs assert that the dedication of VonDette Road was accepted by the Forest
Service when it constructed the road in the location specified by VonDette, and by the
public's continuous use of the road thereafter. Defendant Honea maintains that neither
the CDOW nor the USFS are statutorily authorized to accept a dedication of a public road.
In 1976, when VonDette conveyed the Easement Grant to CDOW, the CDOW was
authorized to acquire interests in land, including fee title interests and easements, "by gift,
transfer, devise, lease [or] purchase," "for wildlife purposes or for the preservation or
conservation of wildlife." C.R.S. §33-1-105(1)(a)(I). The CDOW transferred the Easement
Grant deed to the Forest Service in 1977. At that time, the Forest Service was authorized
to acquire access roads within and near the national forests to provide for the development
and management of Forest Service lands for multiple uses, including outdoor recreation,
range, timber, watershed, and wildlife and fish purposes. See 16 U.S.C. §528, §532, §535;
36 C.F.R. §212.7. The Forest Service may acquire road easements or other interests in
land by purchase, condemnation, donation oras part of a reciprocal agreement. 36 C.F.R.
20
§212.7; 43 U.S.C. §1715(a). Any interest in land acquired by the Forest Service is subject
to all laws, rules and regulations applicable for Forest Service lands. 43 U.S.C. §1715(d).
I find and conclude that because the CDOW and the Forest Service have statutory
authority to hold interests in land, they may also accept a dedication of public land on
behalf of the public.
I further find that the Forest Service's actions in constructing the new road across
the easement premises in 1977 constitute public acceptance of VonDette's dedication of
the easement premises as a public road within a reasonable time. The public's acceptance
of the dedication is further evidenced by the public's use and enjoyment of VonDette Road
after construction was completed by the Forest Service. I also find that the CDOW did not
take any action to accept the dedication on behalf of the public, but acted merely as title
holder of the Easement Grant for a one-year period.
I find and conclude that the VonDette Easement Grant is an express dedication of
a public road under the common law.10 The Forest Service holds title to the public road
easement in trust for the public. Because the Easement Grant dedicated the easement
premises to the public, all lawful public uses of VonDette Road are permitted, subject to
regulation by the Forest Service. I reject defendant Honea's arguments that the use of
VonDette Road is limited to members of the public who seek to access USFS lands south
10The court notes that plaintiffs' complaint, and the parties' Final Pretrial Order, assert a claim of
statutory dedication only. Under Fed.R.Civ.P. 15(b), if issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated as if they had been raised in the pleadings.
I find that the issue of whether the Easement Grant is an express common law dedication of a public -right -
of way was tried by implied consent of the parties. Accordingly, I will treat the issue as having been raised
in plaintiffs' first claim for relief.
21
of Beaver Creek Ranch for hunting and recreational purposes. Once a road is declared
to be a public road, the road is "open to all members of the public for any uses consistent
with the dimensions, type of surface and location of the roadway." Lovvorn v. Salisbury,
701 P.2d 142, 144 (Colo. App. 1985)(rejecting Board of County Comm'rs v. Ogburn, 554
P.2d 700 (Colo.App. 1976), wherein a different panel of the Court of Appeals held that if
a road is declared to be a public road through prescriptive use, the extent of permissible
public use must be limited to that established by the historical public use). Because
VonDette Road is a dedicated public road, members of the public may use the Road to
access Forest Service lands south of Beaver Creek Ranch or private property adjacent to,
or within, Forest Service lands. Defendant Honea and her successors -in -interest, as
owners of Beaver Creek Ranch, may use the dedicated road in any way consistent with
the public use, but may not interfere with the public use. See 23 Am. Jur. Dedications
§§65, 76 (1983).
The Forest Service, as the governmental authority that accepted the dedication,
may regulate and determine what public uses are appropriate for VonDette Road,
consistent with the terms of the dedication, and is responsible for maintaining the road for
the public use. See 26 C.J.S. at §74. The Forest Service has determined that plaintiffs'
proposed use of VonDette Road for timber hauling is consistent with the public use and
with the statutory purposes of an easement to which the Forest Service holds title. The
Forest Service has required plaintiffs to make improvements to VonDette Road so that
plaintiffs' use is consistent with the dimensions, type of surface and location of the Road.
22
Plaintiffs, as members of the public, are entitled to use VonDette Road to access the
Tepee Park lands for timber harvesting purposes.
C. Honea's Counterclaim for Trespass
Defendant Honea asserts a counterclaim for trespass against plaintiffs for using
VonDette Road to access Tepee Park to prepare for their logging operations. Honea
asserts that plaintiffs' use of VonDette Road for commercial purposes has damaged
Beaver Creek Ranch, rendering it unfit for her intended use of the property as livestock
pasturage, a commercial hunting camp, and as her residence.
I will deny the counterclaim for trespass based on my conclusion that VonDette
Road is a dedicated public road available to the public for all lawful uses, as regulated by
the Forest Service in the public interest. Defendant Honea did not present any evidence
to establish that plaintiffs' vehicles have traveled outside the boundaries of VonDette Road.
To the extent Honea's counterclaim also asserts that plaintiffs' use of VonDette
Road is a private nuisance, Honea must prove that plaintiffs have unreasonably and
substantially interfered with the use and enjoyment of her property. Public Service Co. of
Colorado v. Van Wyk , 996 P.2d 193 (Colo. 2001). The evidence was that plaintiffs' road
improvement trucks are loud and create a lot of dust, thereby interfering with Honea's
enjoyment of her residence. Honea testified that plaintiffs' use of VonDette Road to access
USFS Road 824 to make the road improvements required by the Forest Service has
impacted her financially; however, Honea did not present persuasive evidence that the
plaintiffs' use of the Road has substantially interfered with her use of the property as
livestock pasturage, a retreat, or a commercial hunting camp. Further, other evidence
73
demonstrated that the VonDette Road is currently being used by Barrett Resources' oil and
gas drilling trucks. The evidence did not show that the alleged diminishment of Honea's
use and enjoyment of her residence is due to the plaintiffs' use of the road rather than
Barrett Resources' use.
To prove a public nuisance, Honea must show that plaintiffs' use of VonDette Road
"injuriously affects the safety, health or morals of the public or works some substantial
annoyance, inconvenience, or injury to the public." State, Dep't of Health v. The Mill, 887
P.2d 993, 1002 (Colo. 1994). No such evidence was presented.
I therefore deny defendant Honea's trespass counterclaim to the extent she may
have claimed that plaintiffs' use of VonDette Road must be abated as a private or public
nuisance.
III. PLAINTIFFS' REQUEST FOR ATTORNEY'S FEES
Plaintiffs request that I award them their reasonable attorney's fees incurred in
prosecuting this action, under Section 4 of the VonDette Easement Grant which states:
"Either party may enforce this instrument by appropriate action and should he prevail in
such litigation, he shall recover as part of his costs a reasonable attorney's fee." Plaintiffs
argue that they are third party beneficiaries to the VonDette Easement Grant and are
therefore entitled to enforce the attorney's fees provision.
Contractual provisions providing for the award of attorney's fees are strictly
construed in Colorado. See Parker v. Center for Creative Leadership, 15 F.3d 297, 299
(Colo.App. 2000)(declining to hold plaintiff liable for attorney fees under attorney fee
provision in Service Agreement between organization and plaintiff's employer because the
24
provision expressly referred to the payment of such fees by a party to the Service
Agreement). Because the express language of Section 4 of the Easement Grant does not
provide for an award of attorney's fees to members of the public who seek to enforce the
terms of the Easement Grant from VonDette to the CDOW, I find and conclude that
plaintiffs are not entitled to their reasonable attorney's fees under the terms of the
Easement Grant.
Plaintiffs further claim that an award of attorney's fees is warranted against
defendant Honea because her defense of this action was frivolous and groundless.
Plaintiffs also request an award of attorney's fees against defendant Garfield County
BOCC for its actions in aiding and abetting defendant Honea's frivolous and groundless
defense by requiring the plaintiffs to obtain a judicial declaration that the VonDette Road
is a public road when the Easement Grant expressly so provides.
An award of attorney's fees is discretionary with the court. Hart & Trinen v. Surplus
Electronics Corp., 712 P.2d 491, 492 (Colo.App. 1985). The court may award a plaintiff
a reasonable attorney's fee against an attorney or party whose defense of a civil action
lacks substantial justification as determined by the court. C.R.S. §13-17-102(2). A
defense lacks substantial justification is if is substantially frivolous, substantially
groundless, or substantially vexatious. C.R.S. §13-17-101; In re Gomez, 728 P.2d 747
(Colo.App. 1986); Shaw v. Baesemann, 773 P.2d 609 (Colo.App. 1998). "Substantially
frivolous" means that the proponent's arguments in support of the defense were not
rational based on the evidence or applicable law. Western United Realty, Inc. v. Isaacs,
679 P.2d 1063 (Colo. 1984). "Substantially groundless" means that the defense was
25
sufficient to survive a motion to dismiss, but was not supported by any credible evidence
at trial. Id. A losing position is not necessarily a groundless one. Torres v. Portillos, 638
P.2d 274, 276. (Colo. 1981).
I find and conclude that defendant Honea's arguments in defense of plaintiffs'
claims that VonDette Road is an R.S. 2477 Road ora dedicated public road under C.R.S.
§43-2-201(1)(a) were supported by the law and the evidence; thus, her defense of those
claims was not frivolous or groundless.
The crux of plaintiffs' request for attorneys' fees is defendant Honea's position that
the VonDette Easement Grant conveyed a public road easement, but that the easement
was restricted in use to hunters and recreational users of Forest Service lands. Plaintiffs
maintain that Honea's position was not supported by any credible evidence at trial and was
irrational under Colorado law. I disagree. In Bd. of Cnty. Comm'rs of Delta Cnty. v.
Ogburn, 554 P.2d 700 (Colo.App. 1976), a panel of the Court of Appeals held that when
a road becomes a public highway by prescriptive use, the extent of the public easement
acquired is limited to the public's historical adverse use. Defendant Honea argued that
if a dedicated public road established by prescriptive use could be subject to use
restrictions, then the public easement at issue in this case could also be subject to use
limitations. Although a different panel of the Court of Appeals rejected the Ogburn decision
in Lovvorn v. Salisbury, Ogburn has not been over-ruled by the Colorado Supreme Court.
Accordingly, I find that defendant Honea's position did have arguable basis in Colorado law
and was therefore not frivolous. Further, there was evidence at trial that the public's
historical use of VonDette Road since 1976 has been primarily, but not entirely, as access
26
to Forest Service lands for hunting and recreational purposes. Accordingly, I find that
defendant Honea's position was not groundless. I thus find and conclude that plaintiffs'
are not entitled to an award of attorney's fees under C.R.S. §13-17-102(2).
I further find that plaintiffs are not entitled to an award of attorney's fees against the
Garfield County BOCC under C.R.S. §13-17-102(2). The attorney's fee statute does not
contemplate an award of attorney's fees unless a claim or defense lacks substantial
justification. Garfield County has not taken any position in this case from the outset.
Further, the propriety of the County's administrative actions in requiring plaintiffs to obtain
a judicial declaration that VonDette Road is a public right of way as a condition to issuance
of a timber extraction permit are not at issue in this case. There is no basis for assessing
attorney's fees against defendant Garfield County BOCC.
IV. ORDER
Accordingly, it is ORDERED that:
1. Judgment shall enter in favor of Plaintiffs and against
Defendants on Plaintiffs' first claim for relief, as amended by
the evidence at trial, that the Easement Grant conveyed by
Tom VonDette to the Colorado Division of Wildlife on April 14,
1976 was an express common law dedication of a public road
which was accepted within a reasonable time by the United
States Forest Service and the general public.
2. It is hereby DECLARED, ADJUDGED, and DECREED that the
easement premises described in Section A of the Easement
Grant conveyed by Tom VonDette to the Colorado Division of
Wildlife on April 14, 1976 (attached as Appendix 1)," is a
'Appendix 1 consists of a certified true and correct copy of the April 14, 1976 Easement Grant
from Tom VonDette to the Colorado Division of Wildlife, recorded in the Garfield County Clerk and
Recorder's Office (Rec. #272156, Book #484, p. 291), and, a legible true and correct copy of that
document, as stipulated to by the parties at trial.
77
public road, open to all lawful public uses by all members of
the public, including the Plaintiffs, subject to regulation by the
United States Forest Service consistent with the public use.
3. A permanent injunction SHALL ENTER against Defendant Katharine
M. Honea prohibiting her, and her agents and employees, from any
and all actions obstructing, restricting, hindering, or preventing the
Plaintiffs' use of the public road.
4. Judgment shall enter in favor of Defendants and against Plaintiffs on
Plaintiffs' second claim for relief that the easement premises is
an R.S. 2477 Road.
5. Judgment shall enter in favor of Plaintiffs and against Defendant Honea on
Defendant Honea's counterclaim for trespass and nuisance.
6. Plaintiffs' request for attorney's fees is DENIED.
7. Each party shall bear his, her, or its costs.
8. The Clerk of the Court SHALL ENTER final judgment in this matter
consistent with this Order.
Dated this day of August, 2001.
BY THE COURT:
GL Cakt1
PATRICIA A. COAN
United States Magistrate Judge
28
Civil Action No. 00 -PC -1243
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.iN-CW T:1Oi‘E, -in consideration of Ten a n'd :no/100 ;1'-•--7 . .
receipt- .e.r.d -sufficiency oi w:ttch\i..re hereby aOkno.'ledged, the -
Dollars ,(S10. 00) and 'other vs, It:F.1bl c consideration,' the P.,. --• , -
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Cafitfate of Copy of Record
STATE OF COLORADO
County of Garfield
I, Mildred Alsdorf, County Clerk and Recorder in and for said County, in the State aforesaid,
do hereby certify that the foregoing is a full, true and correct COPY
of EASEMENT GRANT REC#272196 RR14R4 PC,#291
04/14/1978 1-38P
as the same appears upon the records of my office.
Given under my hand and official seal this 23RD
MAY
Mildred Alsdorf
, A.D. 2 Cb.4, 11:15
day of
o'clock A M
County Clerk and Recorder
Deputy Gr' cZ
7
This E.yS]N} Nr C:R NT is m1c'•e b=twaen Tom Von Dette here-
inafter referred to as "tae Grantor," and the State of Colorado
P")
for the use and benefit of the Department of Natural Resources,
IVISIOI: OF WILDLIFE, hereinafter referred to as "the Grantee."
The following recitals of fact are a material part of
this instrument:
A. The Grantor is the owner of land in the County of
'Garfield, State of Colorado described as follows and herein-
after reie.rred to as "tho easement premises:
Being a strip cf land 30 feet in width across U.E.S.
#309 of unsurveyed section 24, Township 7 South,
Rance 94 \'est of the 6th Principal Meridian in Gar-
field County, Colorado_ Said easement being
15 feet on each side of the following described center
line. Beginning at a point on the 1-5 line of
II.E. S . 309, from which point Corner Number 5 of
H.E.S. 309 hear= Test 171.20 feet; thence along the
arc of a curve to the right.having a radius of
220.38 feet for 57.93 feet.; thence south 14°01'15"
west 30.11 feel; the:,calong the arc of a cur,:.e to
the .left Navin❑ a radius of 286.50 feet for 103.92
feet; thence south 6°46'05" east 205.18 feet; thence
south 9°32'29" east 184.44 feet; thence south
7°42'53" east 323.05 feet; thence along the arc of
..curve to the right ?-laving a radius of 286.50 feet
for 128.17 feat; thence south 17°55'11" west 60.48
feet; thence along; the arc of a curve to the left
having a radius of 286_50 feet for 81.17 feet; thence
south 1°40'50" west 82.84 feet; thence south 1°38'58"
east 129.70 feet.; thence along the arc of.a curve to
the right having a r:;dips of 296.50 feet for 67.67 fez::_
thence south 11'53'10" west 109.85 feet; thence along
the arc of a curve to the left having a radius of 236.50
feet to' 271.33 feet; -iioe south 42'22'22" f=ast
feet; the n e along tic arc of a curve to the right
having a _-:.d_us cj2 230.::0 feet. for 129.39 feet; t?:eJ:ca
south 33'54'06" east 13.02 feet; thence along the arc
of a cul•:2 to.t e 12ft having a radius of 260.50 '_°Get.
for 166.52 f2.eet; tnc:`ce 50"32.:',5" east 61.29 fent
an.:11 en: lrq on a loin .on 2-3 line CLE i-i.E.9. 309.
FAL 'whin pc,int tai.: Corner i . 2 cf E.E.S. 309
bears r±c•::t:1' 05°:7' `:Je^e 211.413 -et containing 1.6
__ DEFENDANT'S
i EyIBIT
I ••- q3
• IT. The Gr:nitor wishes to grant and the Grantee wishes
to receive an easement for perpetual public road easement
ipon, over, under, and across the easement premises.
NOW TIiEREFORE, in consideration of Ten and no/100
ars'($10.00) and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
following grants, agreements and covenants and restrictions are •
made:
1. GRANT OF EASEMENT: The Grantor hereby grants to the
Grantee, his successors and assigns, a perpetual easement for
a perpetual public road easement upon,
the easement premises.
2. WARRANTIES OF TITLE: Grantor warrants that he has
good and indefeasible fee simple title to the easement premises.
. 3. RUNNING OF BENEFITS AND BURDENS: All provisions of
instrument, including the benefits and burdens, run with
over,
under, and
across
this
the land and are binding upon and enure to the heirs, assigns,
uccessors, tenants and personal representatives of the parties
hereto.
4. ATTORNEY'S FEES: Either party may enforce this
instrument by appropriate action and should he prevail in
such ]it3 Tnric,n. 1-1p, ch:yll remove_ as parr of his costs ,..
1ph.71sonable attcrnev's fee.
not apply to this grant. This grant shall be given a reasonable
construction so that the intention of the parties to confer a
usable right of public enjoyment on the Grantee is carried cut.
S. CONSTRUCTION: The rule of strict construction does
IN WITNESS WIHEREOF the Grantor and the Grantee have
hereunto set their hands this_42:_day of , ].9 %l .
GRANTOR
)
Tom von De t ie
STATE OF COLORADO )
County of ) s.
The foregoing instrument was acl:nowledged before me this
day of A.U. 19 Lir Tom \rondei:i:e.
My corrniist.:ion cxhi.re n Feb. G, 1979. liLriess my 1 e:n:1 arc1
,ffic3.a]. seal.
-2-
1;;o:.7-ry Public
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 00 -PC -1243
The undersigned certifies that a copy of the foregoing Memorandum Opinion and
Order dato August30, 2001 was served on August 30, 2001 by: (*) Delivery to; or by (**)
Depositing in the United States Mail, postage prepaid, addressed to:
James K. Beckwith, Esq. **
7910 Ralston Road, Ste. 7
Arvada, CO 80002
Timothy E. Whitsitt, Esq. **
Whitsitt & Goss
320 Main St., Ste 200
Carbondale, CO 81623
JD Snodgrass, Esq.
Williams, Turner & Holmes, PC
200 N 6th St.
PO Box 338
Grand Junction, CO 81502-0338
Michael Hegarty, Esq.
Assistant US Attorney
DC Mail Box
Don K. DeFord, Esq.
109 8th St., Room 300
Glenwood Springs, CO 81601
U.S. Magistrate Judge Gudrun Rice
United States District Court
402 Rood Ave., Room 323
Grand Junction, CO 81501
178
Secretary/DeputyJerk
BE
EXHIBIT
FORE THE CITY COUNCIL OF THE CITY OF RIFLE, CuLORADO
�
OF:
OCONCERNING THE APPLICATION FOR A WATERSHED Y KTRTIUCKER; SHARON IL.
M
D. FRASE; STACEY D. FRASE; DAVE P. FRASE,
TUCKER; PAUL R. QUATRARO; AND KAY QUATRARO
• FINDINGS OF FACT, CONCLUSIONS OF LAW AND APPROVAL OF WATERSHED
DISTRICT PERMIT NO. 1-97
I. BACKGROUND
1. On May 28, 1996, as supplemented by a letter dated July 17, 1996, the Tucker
and prase Partnership filed an application with the City of Rifle pursuant to Ordinance No. 22
(Series No. 1994). The application was filed on behalf of the 1797,
Applicant by
DCiv d EE. Levi,
Professional Forester, 305 Railroad Avenue, Suite 7, P.0..
95959. By letter dated May 6, 1997, the Applicants, Tim D. Frase and Stacey D. Frase, Dave
Paul R. and Kay Quairaro, whose address is c/o
P. Frase, Clay K.. Tucker, Sharon L. Tucker, California 96002 (phone number
Tim Frase and Dave prase, 1805 Hilltop Drive, fo Redding,
applicant Tucker and Frase
9116-223-2900) , were substituted as app pP
Partnership. Accompanying the application was a document entitled Tepee Park Forest
Colorado, prepared by David Levy Forestry Services dated
Management Plan, Garfield, County, representatives have met
March 1995. Following the receipt of the application, the Applicant's gout limitation Tim
with the staff and consultants of the City of Rifle, Colorado, including
Moore, City Engineer, and Paul Bussone and Scott Fifer, Consulting Professional Engineers,
Colorado. A public meeting for informational
Resource Engineering, Glenwood. Springs, also needs a Special Use Permit
purposes was held October 2, 1996. Because the Applicanto road
from the U.S. Forest Service to allow for the construction and om realignment id County to allow the
through Forest Service land, as well as a Special Use Perms
Applicant to conduct loggia activities on the property, action on the Watershed District permit
was held in abeyance with the Applicant's consent pending further progress on the other permits.
As a result of the need for other permits, the City and the Applicant have worked to coordinate their respective permitting
clog ley with
the U.S. Forest Service and Garfield County staff Special Use
processes. To date, the U.S. Forest Service has not enurudecision on the from the Garfield County
Permit request. The Applicant did obtain a favorable recommendation
Planning and Zoning Commission. To date, the Board of County Commissioners has not yet
acted on that recommendation, and the request for a Special Use Permit from the County is still
pending as well.
II. FINDINGS OF FACT
2. Aortion of the proposed activity is within the defined boundaries of the
Cit er
Watershed District as defined in Section 10.05.020 of the Rifle Municipal Coder( Ies ofthe
"Rifle Code"), specifically the Beaver Creek drsinage above and within five (5)
E:I9.1FLED.2MS
May 9. 1997
tivity within the
City's Beaver Creek municipal diversion structure. The proposed de acctiviry outside the District.
District cannot be functionally or practicably separated
3. The application as supplementedby
the Applicant is complete. The application
the Tepee Park Forest
consists of correspondence dated May 28, 1996, and July 17, 1996,
Management Plan (Garfield County, Colorado) prepared by David Levy Forestry Services,
Nevada City, California, dated March 1995. Also, a Tepee ParkForest
sCity�Cal formal and agement Pan tan
April 1996, prepared *by David Levy Forestry Services,
accompanying Water Quality Plan for Tepee Park Forest Management Plan (undated) was
submitted which supersedes the March 1995 Plan. The April
revi1996
rest Management
of the
Plan,
as supplemented by the Water Quality Plan, constitutes th
Applicant to mitigate any adverse water quality impacts under the City's Watershed District
Ordinance.
4. The Applicant has paid all fees required by the Ordinance.
5. A duly noticed Public Hearing was held on April 16, 1997. At the hearing, the
Applicant presented the Tepee Park Management Plan in detail, together with the Water Quality
CityTim
by Moore,
Plan as proposed by the Applicant. In addition, testimony was presented
Engineer, and Scott Fifer, Consulting Hydrologi to the Cityof Rifle. The City Engineer
testified that, pursuant to his review under Section 10.05.050(2)(e), the proposed activity posed
a foreseeable and significant risk and injury to the City's water works, and pollution to the
City's water supply, and recommended that the City Council issue
the permit with the de his credentialsdiastions
set forth in Scott Fifer's letter dated March 31, 1997. Mr.1995
expert hydrologist and presented into evidence letters datedFAugust 5, ifer presented 1996,exAugust testimony
199 ,
July 31, 1995, April 12, 1995, and March 21, Plan anMr.
recommended conditions of approval,
regarding modifications to the Water Quality
together with his expert opinions as to why those tiooc� a�spa resulwere the proposed
to
mitigate impacts to the Beaver Creek Watershed thatmay
activity and the need, under Ordinance 12, to require such conditions of approval.
6. Mr. Fifer also testified that, if the Applicanticomplies Fifer'swith lettertdated March
e terms and
conditions of the Management Plan the Water Quality Plan, an
31, 1997, (copy of which is attached hereto and incorporated by reference) the Applicant would
be exercising Best Management Practices and that the potential for risk and injury to the City's
Fifer further .
d.
water works and pollution to the City's water supply would be mitigatetype of logging
testified and introduced exhibits regarding studies that demonstrate that, the
crino flows on
increase the quantity of water by in
proposed by the Applicant would actually g ecrease in
the rising side of the hydrograph and by slightly. increasing peak flows, without any ddere were
• late irrigation season or winter flows. Finally Mr. Fifer indicated he and the Appli
negotiating modifications to Paragraph 3(B) of his March 31, 997, letter.
7. Mr. David Levy, on behalf of the Applicant, presented testimony
confirming Mr.
Fifer's testimony and also asserting that the construction of the proposed logging roads would
help in fighting forest and wild fires and help reduce fire rianger risks.
E:\RIFLm.2.Ms
May 9, 199'7
-2-
8. In addition to the testimony of the City staff and the City's consulting hydrologist,
imon was also taken from members of the public. Testimony from the public was both in
test Y
favor and against the proposed activity and issuance °uesuonedatandhchallDenged the effectistrict t
t.
and
Testimony against the activity was lay testimony only 4
of the proposed activity on water quality and water quantity.
9. By letter dated April 22, 1997, (a copy which is attached hereto and incorporated
herein by reference) Mr. Fifer modified Condition No. 3(B) of his letter dated March 31, 1997,
and represented that this modification was consistent with Best Management Practices and had
been agreed to by the Applicant.
•
10. The City Council finds that the Applicant's water quality mitigation plan, and as
outlined in the Tepee Park Management Plan dated April 1996 and supplemented by the Water
Quality Plan, and as supplemented and modified by the conditions of approval contained in Scott
enient Practices for the
Fifer's March 31 and April 22., 1997, letters constitute the Best &'lanag
proposed activity.
11. City Council hereby finds and determines that theis ace of t e datedMarch permit
r31equires
the inclusion of conditions, as more fully set forth in Scott Fifer's 1
97,
as modified by Mr. Fifer's letter dated April 22, 1997; and that such conditions are. necessary
City's water works and pollution of the City's water supply,
to prevent a risk of injury to the ursuant to Sections 10.05.050(4) and (5) of the Rifle
and that such conditions are authorized p
Code.
III. CONCLUSIONS OF LAW AND ISSUANCE OF PERMIT
12. The foregoing Findings
of Facts are incorporated herein by reference.
13. The City Council of the City of Rifle has jurisdiction over the proposed activityossible to differentiate
pursuant to Section 10.05.020 of the Rifle �Code.eaterBsh�ed Dict and because the activity
between the activities within and outside
constitutes an integrated activity, this permit shall apply to all the activities of the Applicant
within the Beaver Creek Watershed.
14. Based on the evidence presented at the Public Hearing
and, in particular, the
ulting
testimony and exhibits of Tim Moore, City Engineer, and Scott Fifer, constituteconstitute City's aCW ns rsheg
Hydrologist, the City Council hereby determines that outlined � the at this decision Tepee park Forest
Colorado) prepared by David Levy
district permit for the proposed logging activity as more fully Forestry Services
Management Plan (Garfield County, � Water Quality
(Nevada City, California) dated April 1996, together with the accompany gMr Fifer in his
Management Plan, as modified by the conditions of approval recommended by
letter dated March 31, 1997, as modified for condition 3(B) by Mt. Fifer's letter of April 22,
1997which conditions of approval contained in said letter are hereby approved and adopted by
,
the City Council as conditions of approval of this permit.
15. The bond required by condition 3(F) Mr. Fifer's March 31, 1997, letter shall be
1:\RIFLID.ZMS
Mn 9. 1947
-3-
e
in the initial amount of 5100,000 which the City Council h r bey finds
s ndvidetermines
ete aiannuallysto ae
adequate for the first year of the proposed activity. Thecondition 3(E) and increased or
part of the annual meeting and operating plan required by
decreased as appropriate. The form of the bond shall be first approved by the City Attorney
prior to the commencement of any activity.
16. Any violation of the terms and conditions of the Management Plan, the Water
Quality Plan, the conditions of Mr. Fifer's letter of March 31, 1997, as modified by Mr. Fifer's
letter of April 22., 1997, or any other terms and conditions of this permit, which default is not
cured or removed within ten (10) days after notice by the City shall be deemed a violation of
this Permit entitling the City to take any pursue any and all remedies available, including without
limitation calling on the surety bond to undertake remedial work; eal work and any enfoovided however rcement
action
t the
Applicant shall be solely responsible for all the costs of such
action by the City, including reasonable attorney fees and •costs.
17. The forest management practices of the Applicant and compliance with this permit
consultant agreed upon by the Board of County
•
a
will be monitored for compliance by
Commissioners and the City of Rifle and the Applicant, and paid for by the Applicant.
18. Pursuant to Section 10.05.050(6),
unless an extension is requested prior to the
expiration date, if the proposed activity for which this permit is issued is not commenced within
12 months from the date of this permit, this permit shall expire and become void.
19. A copy of this Decision and Permit shall be sent by certified mail, return receipt
requested, to the Applicant.
20. The City reserves all remedies contained in Sections 10.05.060, 10.05.070, and
10.05.090 as additional remedies for violations of the permit conditions.
21. This permit. shall expire on December 31, 2003, unless an extension is requested
and approved by the City Council prior to the expiration date, following a review and public
hearing of the Applicant's compliance with the permit conditions: provided,hhowever,,hnethe in bond
required by Condition No. F in the Fifer March 31, 1997, letter o f 1l emainactivity to ensure that
•
agreed upon amount for a period of two years after the termination
all revegetation and required mitigation continues.
22. This permit may not be assigned or conveyed by the Applicant without the prior
written consent of the City.
23. This permit shall not be effective until agreed to and approved by the Applicant
as evidenced by its signature below. -
E:VUF1 ED.1M5
May 9. 1997
-4-
Dated this ---- day of May, 1997.
ATTEST:
CITY OF RIFLE, COLORADO
By
,T)./6\
-�
Mayor
City Clerk
Accepted and agreed to this day of May, 1997.
APPLICANTS:
Tim. D. Frase
Stacey D.l rase
Sharon L. Tucker
"? .e--..
Paul R. Quati`aro
Dave P. Frase Kay Quatraro'�
Cl‘r K. Tucker
E:\RIFLED.2MS
May 9. 1997
•
-5-
MI*1111R ES riU RCE
• ■■
■ili■■
�i10�■ E N G I N E E F; I N G I N C.
Mr. Tim Moore
City of Rifle
PO Box 1908
Rifle CO 81650
March 31, 1997
RE: Tucker/Frase Application for a Watershed District Perrnit, City of Rifle
Tepee Park Timber Management Plan
Dear Tim:
Resource Engineering, Inc. (RESOURCE) has completed a review of the Tucker/Frase
Application for a Watershed District Permit to conduct logging operations within Beaver
Creek Municipal Watershed. The review was completed pursuant to the guidelines and
criteria established in the City of Rifle's Watershed Protection Ordinance (Ordinance No.
22, 1994). This letter provides a summary of our findings.
The documents that we reviewed included; the City of Rifle's Watershed Ordinance
(No. 22), the Tepee Park Forest Management Plan (David Levy Forestry Services,
March, 1995 and April, 1996), and a report entitled Geologic and Geotechnical
Engineering Feasibility Review prepared by Hepworth, Pawlak Geotechnical, Inc.
(September 15, 1995). In additional, we have completed a site review with the
applicant's foresters and have collected several water quality samples of Beaver Creek
in proximity to the proposed logging operation. We have previously documented our
preliminary review and recommendations in letters addressed to you dated March 21,
1995 and August 5, 1996.
BACKGROUND INFORMATION
In March, 1995 the City of Rifle requested RESOURCE to complete a review of the
Applicant's original Tepee Park Timber Management Plan. Based upon that review, we
concluded that the proposed logging operations •entailed extensive land disturbing
activities that if not properly constructed, could adversely impact the City's municipal
watershed. Accordingly, we recommended that the Tepee Park Timber Management
Plan be evaluated under the City's municipal watershed ordinance and that a permit be
issued or denied based upon the full analysis of potential impacts (see RESOURCE letter
3/21/95). Our letter also contained a request for additional information from the
Applicant.
In response to the concerns and recommendations outlined in the RESOURCE letter, the
Applicant submitted an updated Timber Management Plan (April 1996). Our preliminary
review of that plan was documented in a letter to you dated August 5, 1996. As
outlined in that letter, we believe the Applicant made a good faith effort to incorporate
our recommendations and request for additional information in the updated Timber
Management Plan. We also noted, however, that the plan lacked specific detail and
needed strengthening in certain areas. These deficiencies are identified in the following
section entitled "Conditions of Approval."
Consulting Engineers and Hydrologists
909 Colorado Avenue ■ Glenwood Springs, CO B1601 ■ (970) 945-6777 ■ Fax (970) 945-1137
Mr. Tim Moore
City of Rifle
Page 2
March 31, 1997
CONDITIONS OF APPROVAL
Should the City Council elect to issue a Watershed District permit to allow logging
activities within the Beaver Creek municipal watershed, we recommend that the
following conditions of approval be incorporated in the permit. The conditions are
necessary to help insure protection. of the City's municipal water supply as required
under Ordinance No. 22.
1. The Applicant shall be in compliance with conditions contained in all Federal,
State or County permits necessary to implement the Tmber Management Plan.
2. The Applicant shall implement the Best Management Practices and Water
Quality Management Plan contained in the Tepee Park Timber Management Plan
(April, 1996).
3. The following new conditions and/or modifications to the existing Timber
Management Plan will be required as part of the Watershed District permit.
A. Watercourse Protection Measures, see pages 66, 67 of Timber
Management Plan
The watershed protection zones outlined on pages 66 and 67 of the
Timber Management Plan need to be expanded in order to adequately
protect the riparian areas and water quality of Beaver Creek. The
following modifications are recommended:
1. A 25 foot Watercourse Protection Zone, (WPZ) will be established
adjacent all Class I and Class I1 streams. This means no timber
harvest will occur within 25 feet of the stream as measured
horizontally from the top of the bank. A diagram of the "top of
bank" is shown on page 67 of the Timber Management Plan.
Presently the Timber Management Ptarl contains a 25 foot WPZ
for Class I streams only.
2. Equipment exclusion zones (EEZ) will be established as follows:
Class I Stream -
Class II Stream -
Class III Stream -
100 feet
50 feet
25 feet
RESOURCE
■u.m
■off■ E N mi N EE P I N m. I N
Mr. Tim Moore
City of Rifle
Page 3
March 31, 1997
No equipment will be allowed within these zones except at
designated road crossings or along existing roads located with
the zone. The setback will be measured horizontally from the top
of the bank of the watercourse.
Presently, the Timber Management Plan contains a 50 foot EEZ
for Class 1 and Class 11 streams only.
B. Revegetation Plan, page 57
The revegetation plan (page 57) indicates that only road cuts and fills
within 200 feet of a perennial watercourse (Class I stream) will be
seeded and fertilized. This is inadequate and must be expanded to
include all road cuts and fills. Furthermore, all other disturbed sites such
as log landing areas, temporary haul roads and borrow areas will also be
reclaimed and revegetated.
Straw mulch should be applied to sites at a rate of 2 tons per acre and
should be certified "weed free." All mulch should be either crimped into
the soil by mechanical or hand methods or held in place by an organic
mulch tackifies. to prevent it from blowing away. A plastic or paper fiber
mulch netting cover over the mulch may be used as a substitute. The
selected seed and fertilizer mixture shall be reviewed and approved by
the U.S. Forest Service.
Revegetation efforts will take place concurrently with road construction
activities. Road cuts and fills will be.seeded and mulched within 15 days
after final construction grading. Other areas, such as log loading areas,
shall be reclaimed and revegetated within 15 days after equipment has
been removed from the site.
C. Road Construction
All road construction activities will follow the geotechnical guidelines
outlined in the September 15, 1995 geologic report prepared for the
Applicant by Hepworth-Pawlak Geotechnical, Inc.
Water Quality Plan, Appendix to Forest Management Plan
As part of the Applicants water quality plan, stream monitoring will
begin during the spring of 1997. Monitoring stations will be esta i shed
ead
d
on Seaver Creek upstream and downstream of planned logging and
D.
RESOURCE
E N G I N E E R I N G I N C
Mr. Tim Moore
City of Rifle
Page 4
March 31, 1997
construction activities. The stations should coincide closely with those
previously established by the City of Rifle.
Baseline Monitoring. Beginning in May, 1997, paired samples of stream
turbidity will be measured at each site twice a week. This data will be
combined with past monitoring results by the City of Rifie to establish
baseline water quality conditions. The objective of the monitoring is to
collect a sufficient data base to allow statistical analysis of pre and post
development water quality during various times of the year. A staff
gage will be installed at each site to record water depth.
During each site visit, stream discharge will be measured at each site
and a corresponding water stage (depth) recorded. This will allow the
Applicant to develop a stage/discharge relationship at each station.
Once the relationship is established (8 measurements over a range of
flow conditions), future investigators will be able to read the staff gage
and accurately estimate streamflow. In addition to turbidity
measurements, an expanded sampling program will be conducted once
a month, May through September. The parameters to be monitored
monthly are shown in the attached summary table entitled Beaver Creek
Logging Operation, Water Quality Monitoring.
The baseline data will be used to establish existing relationships between
the upstream and downstream sites for, the selected water quality
parameters. Because contributing watershed area and streamflows are
similar at the two stations, Beaver Creek should exhibit a predictable
relationship between sampled parameters. Attachment 1 displays the
relationship between paired turbidity readings collected from a similar
stream system associated with a different project. As is evident from
inspection of Attachment 1, a strong relationship exists between the
turbidity at the two sampling sites. As turbidity increases at one site
there is a corresponding increase at the other site. A similar relationship
is probable on Beaver Creek. As sufficient information is collected a
regression equation expressing the relationship similar to that shown in
Attachment 1 can be developed. Also, a 95 % confidence interval of the
relationship can be described. This confidence interval provides an
expected range of water quality values at the downstream site based
upon what was observed upstream. At a 95% confidence interval, there
is a 95% probability that the downstream sample will lie within the
defined range. If the downstream value exceeds the expected range, it
is highly probable that some process is changing the water quality
relationship in Beaver Creek. Detection of a change outside of the 95%
RESOURCE
E N G I N E E P I N G i N C
Mr. Tim Moore
City of Rifle
Page 5
March 31, 1997
confidence interval would initiate a response from the Applicant's water
quality control officer designed to identify and mitigate any water quality
problems.
Monitoring During Construction and Logging Operations. Potential water
quality problems will be greatest during road construction and timber
harvest. During this period, soils will be exposed to potential erosion
resulting from thunderstorm activity in the summer and snowmelt runoff
during the spring. Accordingly, the field monitoring of turbidity shall be
continued so that problems, if any, can be detected early and mitigation
measures taken.
During road construction and logging operations, bi-weekly readings 'of
stream turbidity at the upstream and downstream sites shall be taken.
In addition, during heavy thunderstorm activity, turbidity shall be
measured at the sample stations both during and immediately following
storm events. Turbidity was selected because it can quickly be
determined in the field and is relatively inexpensive to measure. This will
eliminate delays associated with sending samples to a laboratory. If
problems are detected, mitigation can be initiated immediately. Further,
turbidity was selected because it is closely related to total suspended
solids, which is the most likely pollutant that could be produced during
construction and logging activities. The Applicant will provide the City
with a summary of its monitoring results on a monthly basis.
A significant increase in turbidity between the upstream and downstream
sampling stations indicates that 'pollution is probably occurring from
activity within the upper basin. A significant increase will be determined
by the regression equation described previously (Attachment 1). If the
upstream/downstream relationship between turbidity falls outside the
expected 95% confidence interval, a water quality mitigation plan shall
be initiated. The first step in the plan is to immediately repeat the
sampling at both sites to ensure the results were not due to sampling
error. If the second sample reading is also outside the 95% confidence
interval, the water quality officer shall immediately notify the City of
Rifle and inspect the property to identify the source of sediment and
implement a plan to mitigate its impact. Mitigation could include
construction of additional sediment traps, filter fences and other
structural or nonstructural controls discussed in the water quality plan.
The City will, on occasion, monitor Beaver Creek turbidity at the
established monitoring sites. The data will be compared to the
Applicant's monitoring results to ensure consistency in field sampling
and test equipment.
RESOURCE
ENGINEERING INC
Mr. Tim Moore
City of Rifle
Page 6
March 31, 1997
E. Annual Meeting and Operating Plan
By March 15th of each year, the Applicant will submit a proposed
operating plan for the upcoming logging season. The plan must be
reviewed and approved by the City prior to any road construction or
timber harvest activities planned for the following year. The plan would
contain as a minimum the following items.
1. A map of proposed road construction activities accompanied by
a description of expected site conditions including soils, geology
and land forms. Include discussion on proposed construction and
revegetation techniques.
2. A map of the planned logging activity for the upcoming year.
3. Identification of any changes in key personnel including Project
Forester or designated Water Quality Control Officer.
4. Updated inventory of erosion control materials maintained on site
(Le. stream banks, filter fence, rock rip rap, etc.)
5. Provide a summary of the previous years revegetation efforts.
Discuss whether or not changes are needed in seed mixture,
application rates or general revegetation procedures. Identify
areas that did not take and describe plans to initiate additional
revegetation efforts.
6. Provide a summary of the previous years water quality monitoring
results.
On or about April 1st, the City and the Applicant shall meet to discuss
the annual operating plan and to review the prior years compliance with
the permit conditions. Once the City is satisfied that the App
licants
have met the required conditions, the annual operating plan shall be
approved and additional work can commence within the Beaver Creek
watershed.
F. Surety Bond
As provided in Section 10.05.050(5) of the City's Watershed Ordinance
we recommend that the Applicant post a surety bond in an amount
RESOURCE
N GINE E RING I N C
•
March 31, 1997
Mr. Tim Moore
City of Rifle
Page 7
sufficient to insure compliance with the District permit. The purpose of
the bond is to allow the City to step in and take corrective action should
the Applicant default on the permit conditions. Specifically, the bond
should be in an amount that would allow the City to reclaim and
revegetate any areas left in a disturbed state and to offset the increased.
treatment cost to the City in the event it is forced to use its Grand Mesa
Treatment Plant. The amount of the bond shall be reviewed and adjusted
annually as plans and conditions dictate. The initial bond for year 1
should be set at approximately $100,000.
We hope that the information contained in this letter will be helpful to you and City
Council in further review of the Tepee Park Timber Management Plan.
Sincerely,
RESOURCE ENGINEERING, INC.
R. Scott Fifer
Hydrologist
RSF/mmm
341-1.2
tmwatershed.341
CC: Mr. Lee Leavenworth
RESOURCE
E N G I N E E P, N G i N C.
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Mr. Tim Moore
City of Rifle
PO Box 1908
Rifle CO 81650
RE: Tepee Park Timber Management Plan, Revegetation Requirements
Dear Tim:
April 22, 1997
The purpose of this letter is to describe the revegetation requirements recommended for
the Tepee Park Timber Management Plan. These requirements were discussed with the
Applicant and their professional forester, David Levy on April 16, 1997.
1. All new road cut and fill slopes will be revegetated and fertilized. The seed
mixture and application rate shall be approved by the U.S. Forest Service.
Revegetation efforts will take place concurrently with road construction
activities (within 15 days of final construction grading).
2. The seed will be broadcast applied at the prescribed rate and raked
(drag/harrow/chain) into the soil.
3. Cut and fill slopes within 300. feet of a Class 1 stream and within 200 feet
of the Class 11 stream will be mulched with clean, weed free, straw at a rate
of 2 tons per acre. The mulch should be either crimped into the soil by
mechanical or hand methods or held in place by ari organic mulch tackifer.
4. Other disturbed areas such as major skid trails, landing areas, etc. will also
be revegetated when logging activities cease. These areas will be reclaimed
(graded and water barred as necessary) and revegetated within 15 days
after equipment has been removed from the site.
Please give me a call if you have any questions concerning the recommended revegetation
requirements.
Sincerely,
RESOURCE ENGINEERING, INC.
R. S tt Fifer
Hydrologist
RSF/mmm
341-1.2
tmrevep.341
CC: + If: Lee Leavenworth
Mr. David Levy
LEAVENWORTH & ASSOCIATES, RC.
Consulting Engineers and Hydrologists
909 Colorado Avenue Is Glenwood Springs, CO B1601 ■ (970) 945-6777 ■ Fax (970) 945-1137
BEFORE THE CITY COUNCIL OF THE CITY OF RIFLE, COLORADO
EXHIBIT
8
CONCERNING RIFLE WATERSHED DISTRICT PERMIT NO. 1-97 HELD BY
INTERMOUNTAIN RANCHES, LLC
FINDINGS OF FACT, CONCLUSIONS OF LAW AND AMENDMENTS TO RIFLE
WATERSHED DISTRICT PERMIT NO. 1-97
I. FINDINGS OF FACT
1. Rifle Watershed District Permit No. 1-97 (the "Permit"), issued by the Rifle City
Council to Tim D. Frase, Stacey D. Frase, Dave P. Frase, Clay K. Tucker, Sharon L. Tucker,
Paul R. Quatraro and Kay Quatraro (the "Original Applicants") became effective on May 22,
1997.
2. The Permit allowed for certain logging activity to be conducted within the Beaver
Creek Watershed pursuant to various terms and conditions set forth therein and in attachments
thereto.
3. The Original Applicants assigned their rights and obligations under the Permit to
Intermountain Ranches, LLC on October 15, 1997, and said assignment was approved by the
City of Rifle on the same date.
4. As of October 15, 1997 Intermountain Ranches, LLC, a Colorado limited liability
company of which Mr. Chris Meyers is a member, owned the real property (the "Subject
Property") on which the logging activity is to occur, as well as the timber harvest rights
associated with the Subject Property.
5. On November 5, 1998 Intermountain Ranches, LLC executed a Timber Deed
whereby it conveyed certain timber harvest rights for the Subject Property to Intermountain
Resources, LLC, a Colorado limited liability company of which Mr. Meyers is a member.
6. On February 10, 1999 Intermountain Ranches, LLC conveyed the fee title
ownership of the Subject Property to LeeLynn, Inc. and Wiley Mountain, Inc., two Oregon
corporations whose principals are also members of a member of Intermountain Resources, LLC.
7. By a separate lease agreement to be reached between the Permit Holders,
LeeLynn, Inc. and Wiley Mountain, Inc. shall agree to provide Intermountain Resources, LLC
access to the Subject Property in order to harvest timber pursuant to the Timber Deed and
F:11999\Resolutions\RIFLE-1-97-amendment.wpd
-1-
subject to the management and oversight of Intermountain Ranches, LLC.
8. No logs have been removed to date, but the parties expect such activity to begin
in 1999.
9. The Permit should be amended to identify the additional parties involved in the
management and operation of the logging activity contemplated by the Permit, subject to all of
its original terms and conditions as well as the conditions and clarifications listed below, and to
further provide that the Permit is still valid.
II. CONCLUSIONS OF LAW AND AMENDMENTS TO THE PERMIT
10. The City incorporates the foregoing recitals as findings and determinations by the
City Council, and conclusively makes all of the Findings of Fact, Determinations and
Conclusions contained herein.
11. An undivided interest in the Permit shall be assigned by Intermountain Ranches,
LLC to Intermountain Resources, LLC, LeeLynn, Inc. and Wiley Mountain, Inc. to properly
reflect the identity of the four parties (collectively referred to herein as the "Permit Holder")
involved in logging activity pursuant to and in reliance upon the Permit, and such assignment
is hereby approved.
12. As soon as possible, but in no event later than July 1, 1999, the Permit Holder
shall submit its proposed logging plan for 1999 to the City's Consulting Engineer, Resource
Engineering Inc., with copies to the City Manager and City Attorney. The City Engineer shall
use his best efforts to notify the Permit Holder of objections to the plan within 14 days of
receipt, however, if the City Engineer fails to do so respond within 30 days of receipt, such plan
shall be deemed approved.
13. The Permit requirement of twice -weekly baseline water quality monitoring,
consisting of turbidity measurements at various flow levels on distinct points along Beaver
Creek, shall be conducted for four to six weeks, as determined by the City's Consulting
Engineer, prior to the commencement of any logging activity. Such water quality monitoring
shall be at the Permit Holder's sole expense.
14. The monthly extended baseline water quality sampling program required by the"
Permit shall commence as soon as practicable and shall continue until five samples have been
taken. At least one sample must be taken prior to the commencement of any logging activity.
Such water quality monitoring shall be at the Permit Holder's sole expense.
15. The ongoing water quality monitoring required by the Permit (bi-weekly and
storm event turbidity testing) shall occur at the Permit Holder's expense, but may be subject to
F:\19991Resolutions\RIFLE-1-97-amendment.wpd
-2-
cost-sharing with other active permit holders within the Beaver Creek Watershed. The burden
to negotiate such cost-sharing rests solely upon the Permit Holder and the other active permit
holders and, in the event a cost-sharing agreement cannot be reached, each permit holder is
responsible to conduct whatever water quality monitoring is required under its permit.
16. The $100,000 performance bond required by the permit shall be posted in a form
suitable to the City Attorney and provided to the City Manager prior to the commencement of
any logging activity.
17. The reasonable costs incurred by the City of Rifle in amending the Permit as
provided for herein and ensuring that the Permit Holder begins to comply and continues to
comply with the terms and conditions set forth herein and in the Permit, including without
limitation attorney fees and engineering fees not listed in paragraphs 13 and 14 above, shall be
borne by the Permit Holder.
18. Subject to approval by the Board of County Commissioners of Garfield County,
the Permit Holder shall hire Bill Gherardi of Woodland Management Consultants, Fort Collins,
Colorado, or such other consultant as the parties may mutually agree upon, to act as the forest
management practices compliance consultant required by the Permit as well as the erosion
control/water quality supervisor required by the Permit.
19. Unless an extension is requested and granted, the Permit shall expire and become
void if the log removal is not commenced by November 20, 1999.
20. Any notice to the City required by the Permit or this Amendment shall be
provided to:
Selby Myers, City Manager, 202 Railroad Avenue, Rifle, CO, 81650
Lee Leavenworth, Esq., City Attorney, 1011 Grand Ave, Glenwood Springs, CO, 81602
Paul Bussone, Consulting Engineer, 909 Colorado Ave., Glenwood Springs, CO, 81601.
21. Any notice to the Permit Holders required by the Permit or this Amendment shall
be provided to:
Chris Meyers, 11925 6530 Road, Montrose, CO, 81402
J.D. Snodgrass, Esq., 200 N. 6th Street, Grand Junction, CO, 81502-0338
Larry Gildea, Esq., 38437 Dexter Road, Dexter, OR, 97431.
22. This Amendment was discussed at a duly noticed public hearing of the Rifle City
Council at the Rifle City Hall on June 16, 1999.
23. This Amendment shall not be effective until agreed to and approved by the Permit
F:\19991Resolutions RIFLE-1-97-amendment.wpd
-3-
-I.oldt.r and '..he City i $ t-;Vidst ced by their re.snective below.
24. Fa.Csimi sigrv;rares cr on behalf of any r.3arty ti? this Amer: roam^.i
shall be effective s.:- ..i purposes.
25. Except as expressly modified herein. the :c:rr:s ar;4 condi:ions of Rifle Watrsl'ccd
Dist-ria Per:nit No. 1-97 shall remain in Tun fcorce and eff cr.
C''_'w' )F .RIFT.E, COLORADO
AGREED TO BY:
WILEY MOUNTAIN, INC..
3Y: Mr. Nn_-:nan2 ti.lvf ougal
INTERMOUNTAIN RANCHES, LLC 1N E_MO"' AIN RESOURCES, LLC
1 VAIAgrsnh:dnpnk1R:.L• n»-.urea:mcu xr-
. Mr. Chris Mev
JUti. 1: 99 ;FR:: 09:46 Co/NUN:CA:IO Nz:44 PACE. 7
EIlII ..■■ I
■R E
■■.■■
■UI E N G I N E E R I N G I N C.
James Neu, Esq.
Leavenworth & Tester PC
PO Drawer 2030
Glenwood Springs CO 81602
RE: City, of Rifle Watershed Permit No. 1-97
Intermountain Resources, LLC
Dear Jim:
EXHIBIT
c
June 14, 2001
At your request we reviewed the proposed renewal of Rifle Watershed Permit No. 1-97
held by Intermountain Resources, LLC. We have no specific comments or changes
other than those we conveyed during our meeting but we would like to offer the
following general information.
1. The baseline and extended baseline water quality data collection,
required by paragraphs 13 and 14 of the amended permit dated June 11,
1999, has been completed.
2. Additional water quality sampling is required to be on-going during all
phases of the road construction, logging activity and reclamation and is
the responsibility of the permit holder.
3. The proposed 1999/2000 logging plan was reviewed by RESOURCE and
we recommended approval of the plan. Some of the work was
completed but it is our understanding that no actual logging was done.
We recommend that Intermountain Resources submit an updated
2000/2001 logging plan for our review and allow 30 days for the review
process prior to any logging activity.
4. We suggest that Intermountain Resources be reminded of the
requirements outlined in the March 31, 1997 Resource Engineering
letter, which was a part of the amended permit and we recommend that
it be a part of the new permit. We see no reason to change any of these
requirements.
5. During our inspection of the 1999 road construction activity we found
that some of the silt fencing had been improperly installed. We suggest
that RESOURCE conduct at least two inspections of the logging activities
per year to assure compliance with the watershed protection
requirements.
Consulting Engineers and Hydrologists
90J Colorado Avenue • Glenwood Springs, CO B1601 ■ (970) 945-6777 ■ Fax (970) 9_45-11 37
LS l l 5V6 0L6 ON I d33N I ON3 332:110S3d 1,10dd WdEZ = V l ez-V l -6
James Neu, Esq. June 14, 2001
Page 2
We will attend the Rifle City Council meeting on Wednesday, June 20, 2001 to answer
any questions Council may have at that time_
Sincerely,
RCE ENGINEERING, INC.
Paul S. Bussone, P.E.
Water Resources Engineer
PSB/mmm
341-10.1
jn intermtn permit.341.wpd
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RESOURCE
C N G N Cr N C i N C
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