Replace, replant trail, judge says

MAPLETON — Landowner Wendell Gibby must replace the portion of the Bonneville Shoreline Trail that runs through his property, Mapleton Municipal Court Judge Dean Olson said Thursday.

Olson will issue a written ruling next week, but he said it would include an order that Gibby fix the trail he plowed under in 2002 and revegetate the area around it.

The trail above Mapleton has been used since the 1930s as a firebreak and is also critical for emergency vehicles that need access to the face of the mountain, city attorney Eric Johnson said.

The ruling doesn't clear the way for hikers, bikers and emergency vehicles to use the trail again, however. Gibby contends the property is his and that he can keep it private. He plowed the trail after fences and signs failed to keep the public from crossing his land.

A separate civil case is pending with a hearing scheduled Tuesday on the city's request to use its powers of eminent domain to condemn the 10-foot-wide strip of land through Gibby's property and take it for public use.

Johnson said the city believes it has had a public right of way for the trail for 70 years, since a local man used a team of horses to plow the trail as a fire break. However, the city is offering to pay Gibby for the part of the trail on his property.

City officials and Gibby representatives met Thursday afternoon to discuss a possible settlement.

Gibby was convicted of three counts of illegally plowing up the land earlier this year, but the criminal case returned to Olson's court on Thursday for clarification of what Gibby would be required to do.

Gibby previously submitted a plan to reseed the trail, but city engineer Bob Gunnell rejected the plan, saying the city needed the hard surface dirt road restored, along with 50 feet of vegetation on each side of the trail.

Gibby's attorney, Doug Finch, said that was excessive and argued that only part of that area was plowed up by Gibby in 2002. Other portions of the area Olson ordered restored had been plowed earlier, Finch argued, and were not part of the criminal case because time had run out on the statute of limitations.

"This is a criminal case and the court has to abide by the criminal statute of limitations," Finch said. "This court doesn't have jurisdiction for anything beyond that."

Gibby "is committed to do the restoration on this property," Finch added. "His concern is the court is going beyond its scope of authority on the statute of limitations."

An appeal of the criminal conviction is scheduled to be heard Aug. 4 in 4th District Court in Provo.

Both sides agreed that the revegetation should take place in October for it to effectively take root and sprout in the spring.

Gibby wants to plant grass suitable for grazing cattle but has also talked about developing the land. The city is determined to keep the mountainside free of development.

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