It’s reasonable for Baker County commissioners to strive to ensure the public can drive on roads for which there is legal access.

But commissioners need to be cautious as they pursue a legal judgment requiring a landowner to unlock a gate on a road in the eastern part of the county.

Although some people will appreciate the commissioners’ efforts to regain public access, the public won’t be pleased if the county runs up a big tab for legal services but ultimately fails.

That’s what happened in 2016 when a judge ordered the county to pay $324,000 in legal fees to David McCarty, who owns a helicopter business in Baker Valley that county officials contended violated zoning laws. The county lost its case in court and was saddled with the full legal bill.

Commissioner Mark Bennett said he has been “assured on multiple occasions” that the commissioners’ decision Wednesday to file a civil complaint asking a judge to order the gate to be unlocked can’t make the county liable for the landowner’s legal costs.

This is a good thing, because the county’s arguments in the matter of the locked gate are not compelling.

The road in question connects two county roads — Daly Creek Road, northeast of Lookout Mountain, and the Snake River Road just above Brownlee Reservoir.

The road is commonly called Connor Creek Road, as it follows that stream for a few miles from its eastern terminus at the Snake River Road. The gate, however, is at the opposite, western end of the road. Todd Longgood, who along with Dennis Omar Hansen bought a parcel of land in that area in early 2017, locked the gate in August 2017.

On Wednesday commissioners agreed to file a civil complaint asking a judge to order Longgood to unlock the gate. The complaint cites two reasons why the road through Longgood’s property is public and thus can’t be blocked.

The first is a resolution passed by commissioners in 2002 after a different property owner, on the eastern end of the road at the Connor Creek Mine, also put in a locked gate. That resolution, citing a one-sentence federal statute from 1866 that assures public access to routes not otherwise reserved, states that the entire Connor Creek Road, including the section crossing the property Longgood now owns, is a public right-of-way that can’t be blocked.

Alternatively, the commissioners argue, if a judge doesn’t conclude that the 2002 resolution confirms that the entire road is public, then that 1866 statute, known as RS 2477, does so.

The weakness of the county’s case has much to do with maps and property deeds.

As Longgood’s attorney, Charles F. Hudson, outlined in a July 2018 letter to the county’s attorney, Larry Sullivan, multiple historic maps, the earliest from an 1882 survey, do not show a road following the route of the current gated road on Longgood’s property.

Those maps do, however, show a road on a different alignment, to the south.

For a road to be declared public under RS 2477, there must be evidence that the route existed, on public land, before the land was withdrawn for other purposes — including being transferred to private ownership.

Hudson included with his letter copies of deed records showing that the property Longgood owns was transferred from public to private ownership between 1912 and 1923. Hudson also cites a 1933 map which does not show the current road — the road Longgood gated — but does show the road to the south.

Hudson contends that the earliest record of a road that follows, at least in places, the route of the current gated road is a 1938 federal survey.

But because that survey was done more than a decade after the property became private, that road can’t be deemed public under RS 2477 because it must have been built after the land was transferred to private owners, Hudson argues.

Hudson also wrote that in 1978 the BLM negotiated an easement to use the road to allow logging on public land in the area. That easement “expressly acknowledged that the road was private and might be locked by the owner,” Hudson wrote in his letter.

As for the county’s contention that the 2002 resolution suffices to establish the entire Connor Creek Road as public, Hudson argues that although the resolution refers to the entire road, the county in 2002 focused on the section near the mine, and did not notify other property owners, including the then-owner of the Longgood property, that the entire road could be, and subsequently was, deemed public under RS 2477.

Hudson argues that the lack of notification invalidates the county’s claim that the entire road — most notably the section crossing Longgood’s property — is a public right-of-way.

Flimsy though the county’s case might be, it’s reasonable to at least bring the matter before a judge, so long as, per Bennett’s point, the county isn’t risking having to pay Hudson’s fees as well as Sullivan’s.

But if the judge denies the county’s claim, commissioners would be wise to seek a compromise — it might be possible to reopen an older road that has better evidence for RS 2477 status, for instance — rather than amass additional legal bills.

Dan Forsea, a Richland rancher whose family owns property adjacent to Longgood’s, pointed out in a Jan. 30 letter to the editor that the public already has access to the area from the east, via the lower section of the Connor Creek Road. That’s true, although that section of the road is much rougher than the upper section through Longgood’s property.

— Jayson Jacoby, Baker City Herald editor

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