Attorneys for Garfield County say that High Lonesome Ranch is blaming the county, federal district court and the Bureau of Land Management for the existence of public roads at issue in an ongoing lawsuit, but Paul Vahldiek Jr., the Texas lawyer who spearheaded the ranch’s purchase, failed to do sufficient prepurchase due diligence.
Both the title insurance commitment and warranty deed identified the public roads, the county says in a brief responding to the ranch’s appeal of a lower-court ruling in the 10th Circuit Court of Appeals.
“The Ranch ignored that information and filed this lawsuit,” the county says in the filing.
At issue is the status of North and Middle Dry Fork roads, about 20 miles northwest of De Beque. Last December, Judge R. Brooke Jackson with the U.S. District Court of Colorado ordered the ranch to unlock a gate on North Dry Fork Road, also called Garfield County Road 200. He agreed with the county that the road beyond the gate and Middle Dry Fork Road, also reached beyond the gate, are public. The action improved public access to tens of thousands of acres of federal land. The ranch had sued the county over the county’s efforts to get the gate unlocked.
While the ranch had kept the gate closed for decades, Jackson ruled that the roads were public under state and federal laws based on a past history of public use and the fact that the county had never acted to abandon them.
The ranch appealed the ruling. It has said in a court brief in support of its appeal that “if rights-of-way can be created based on century-old assumed use, as the district court held, litigants will be able to transform Garfield County, and indeed the entire western United States, into a spiderweb of unrestricted public highways, harming conservation and responsible land management.”
The appeals court largely has rejected the ranch’s request to keep the roads closed pending the appeal. It recently allowed the reclosure of the roads on an emergency basis after the ranch accused the county of causing damage to its property during roadwork. But it lifted that emergency closure order after the county responded in a court filing about the ranch’s concerns.
The county says the roadwork was undertaken through a Natural Resources Conservation Service watershed protection program to address debris flow issues after last year’s Pine Gulch Fire. It says it bladed debris onto an area beside North Dry Fork Road that already was covered in debris, meaning that effectively, according to its response in court, “mud was pushed on top of other mud.”
The ranch said in an answer in court that that description trivializes the issue, and that the worst roadwork the county did occurred far up-valley past the area of the NRCS project. But the appeals court ruled that it hadn’t met its burden of proof for the road to be kept closed during the appeal.
During the trial, an attorney representing the county had raised questions about the adequacy of the due diligence by Vahldiek about the roads’ status. An attorney representing the ranch said during the trial that the gate was locked when Vahldiek bought it in 1993 and the road beyond it long had a reputation locally as being private.
In its appeal response, the county cited testimony by witnesses who described unlocked gates on the roads at an earlier time for cattle control. One landowner described starting to lock a gate on North Dry Fork Road around 1990 during hunting season to keep a “rabblerouser” from hunting on private property, but said she didn’t lock the gate year-round and many others used the roads without permission, according to the appeal response.
Frederick Yarger, an attorney representing the ranch in the appeal, said in an email Wednesday that Vahldiek did extensive diligence before buying the ranch, hiring more than one law firm to conduct a full title investigation.
"There was absolutely nothing in the public record that would have indicated there was a 'public highway' across the land. The previous landowners had litigated that issue and won in the 1980s, and two state courts confirmed that the roads were private and always had been," he said.
The county wasn't a party to that previous litigation.
Said Yarger, "The County needed a judge to declare the roads to be public for the first time in 2020 — the roads were never public before that. It was impossible for Mr. Vahldiek or anyone involved in the purchase to do 'due diligence' for litigation that the County suddenly decided to force 25 years after the property was purchased," Yarger said.
The county’s court response regarding whether the road should be closed pending the appeal included declarations from members of the public who say they were affected by the recent road closure. Two visitors said they nearly were locked in when the gate was closed, and another voiced dismay over the closure because he had placed game cameras on public land beyond the gate to monitor the area for a planned hunt.
Both the county and ranch have asked the appeals court to allow oral arguments in the appeal.
(The above story has been updated to include comments from Frederick Yarger, the attorney representing High Lonesome Ranch in its appeal.)
