Garfield County's bid to have a one-mile stretch of the Burr Trail declared a public right of way was rejected Wednesday by a federal court judge.
The county's lawyers argued the milelong stretch within what's now Capitol Reef National Park became a public right of way through more than 10 years of continuous public use between the late 1800s and 1917.And when the park was created in 1969, it was subject to prior valid rights, added attorney Ron Thompson. Under that theory, Garfield County contends it had the right two years ago to widen the right of way and cut back a sharp curve in the course of routine maintenance and repair work.
"There is no dispute that the right of way exists; just the scope and width," Thompson said.
But U.S. government and environmental action attorneys said even if the county had a claim on the trail - a point they don't concede - it had no right to bulldoze national park property.
"Even if the scope of the right of way had been determined and the 1996 bulldozing was within that scope, the work was done without the permission of the federal government and is trespass," said Assistant U.S. Attorney Margo Miller.
However, returning to the dispute before the court on Wednesday, Miller said the county had failed to show 10 years of continuous public use of the trail before a law establishing such rights of way was repealed in 1917.
U.S. District Senior Judge Bruce Jenkins agreed, saying it remained a "question of history" that still "lacked clarity" and could only be settled at trial.
While emphasizing that he was neither endorsing nor rejecting the government's legal assertion, Jenkins said, "The factual disputes compel us to move forward."
The judge scheduled a pre-trial conference for May 11 to settle several remaining, mostly technical issues.
At stake in the case is the county's claim over the rugged trail, which runs from Boulder to Bullfrog. County officials argue they have an obligation to maintain all county rights of way in the interest of public convenience and safety. Federal officials say they have an obligation to protect the integrity of the park. About 8.4 miles of the Burr Trail cuts through Capitol Reef National Park.