Thursday, March 4, 2004

Trails, public access, legal issues

Quite a number of historic trails have been lost to public use here in Placer County. A variety of causes can be identified. For instance, not a few trails have been casually obliterated during timber harvests. At least as often, a trail has been blocked by a gate and 'no trespassing" signs, as, for instance, in the upper North Fork, the Heath Springs Trail has been arrogated to private use by a group or club known as The Cedars. Or, right here in the Gold Run area, the Fords Bar Trail has been closed to the public for about fifteen years. In this case Placer County signed off on a subdivision at the trailhead, and where the Fords Bar access road forked away from Garrett Road, a county road sign now marks it as "Knobcone Road," an apparent attempt to disguise its true name and history.

Now, one trail connects to another, quite often, and here in Placer County we once had a rich complex of interconnecting trails. Those who used and loved these trails felt a crisis had been reached at least as early as 1953, when a Placer County Board of Supervisors Ordinance was passed which declared all trails depicted on official United States Geological Survey maps of lands in the county, to be public trails. The ordinance provided misdemeanor-type penalties for closing or obstructing any such trail, and specified sixty particular trails to be public trails, without, however, limiting the definition of a public trail to those particular sixty.

The Fords Bar Trail was one of the sixty, but the upper Heath Springs trail, leading down the river from The Cedars was not. Parenthetically, the continuation of the Heath Springs Trail west into Palisade Creek *was* one of the sixty trails specified. I suspect that Cedars members strenuously objected to the inclusion of the Heath Springs Trail in the list, and managed to get it removed; but I do not know that.

Public access to historic trails is quite a difficult issue. It raises controversy. It is nothing at all new. For instance, in 1850, I believe, the nascent legislature of California provided that all "emigrant trails"--such as the Donner Trail, or one of its branches, the Old Emigrant Road leading through Dutch Flat--were public roads. We would probably be safe in imagining that problems had arisen even then--an emigrant road was gated closed, or someone decided to charge a toll for its use. So the legislature acted on behalf of the public.

Somewhat similarly, Congress enacted Revised Statute 2477, as I recall, in the 1860s, and perhaps "revised" it in 1872. This provided in the most general terms for public access across public lands. It was intended in part to provide for *continued* public use of roads and trails across lands which had been Federal lands but which passed into private hands, either through railroad land grants, or patented mining claims, or homesteading. Hence to this day when the public tries to assert its right to use some old trail, R.S. 2477 may at times come into play.

More recently, as California's population grew and spread ever more widely across what had been open space, both historic trails and rough ad hoc paths to our beaches were closed to the public, up and down our coast. It has long been the sense of our lawmakers that the beaches themselves are public lands; usually the boundary is taken to be the "mean high tide line," which can be difficult to define. But as more and more of these beach trails were gated closed, or houses were built right over the trails, the issue of public access *across private lands to public lands* (the beaches) heated up. The public began to go to court.

One case in particular, Gion vs. the City of Santa Cruz, 1970 (as I recall), led to a better definition of old common-law concepts: prescriptive rights, implied dedication, and adverse use. That is--and I suspect the legal history of the notion might be traced back to the Romans, for that matter--the public, or even an individual, can be considered to have acquired a right to use such-and-such road or trail across private property, by using that trail "adversely." It is not required that the trail first be used, say, when the property in question was public land; the use may well have begun when the property was private--but the essential ideas, as I understand them, are that the use was considerable, and that it occurred for a period of at least five years, and that the owner knew about the use and did nothing to stop it. There results an "implied dedication" of that road or trail to the public.

Suppose the owner of the property claims that he did not know of the use, and therefore, the use was not adverse. In such a case the courts may appeal to old (or new) maps. If the trail is depicted on, say, the official USGS map of the area, the courts tend to rule, as I understand it, anyway, that the owner *ought to have known* that there was adverse use.

Sometimes one hears that "adverse use" must be even more extreme to really establish its legal standing, i.e., if the owner puts a gate up, that gate is torn down.

At any rate, one can imagine a lot of problematic gray areas around this whole concept of prescriptive rights and adverse use; and Gion vs. the City of Santa Cruz helped clarify those problems.

Around the same time as this famous case, the California Coastal Commission was formed, in an effort to keep our coastline from being literally lined with houses. Part of the work of this Commission has been to protect public access to the beaches, across private lands. At any one time the Commission is studying various trails to see whether they fall within the scope of prescriptive rights and implied dedication, as set forth in Gion vs. the City of Santa Cruz.

The legal concept that our beaches are inalienable public lands is echoed in the idea that "navigable rivers" are also inalienably public. Some number of cases have gone to trial involving public access to a river, or perhaps more specifically, public use of a river's banks as well as its waters, cases which have appealed to this "navigable river" concept.

Here in Placer County, there was apparently quite an outcry against the 1953 BOS ordinance. I have not researched this supposed outcry, made, presumably, by property owners. In 1954 the BOS repealed the 1953 ordinance and enacted a new ordinance which specifies no one trail, mentions no maps, and provides only that all public trails and roads shall remain open to the public. In effect, the burden of proof was placed on the public itself. The gates remained closed, the no trespassing signs remained in place.

One might well think that the public agencies (Tahoe National Forest, and the Bureau of Land Management) which manage public lands in Placer County would aggressively defend the public's rights to use the historic trail complex. At one time, TNF did work to protect public access. That was several decades ago. Times changed, and today TNF staff do not even realize that their predecessors placed trail signs, maintained trails, and even interceded when some private property owner gated a road or trail closed. Recent decades have seen, in stark contrast, TNF signing off on timber harvests which obliterate the historic trails, and sitting on their hands waiting for The Public to defend its rights.

Locally, in the early 1980s a historic road to the Bear River near Dutch Flat was gated closed. At the river is a lovely pool for swimming. The place is called Smarts Crossing; there once was a bridge across the river there, and the road climbed to Liberty Hill, on the north canyon rim. With the pro bono help of several attorneys, most notably Ed Stadum, local residents filed suit to establish the public's right to use the road to Smarts Crossing. They won the case in Superior Court, Hon. James Garbolino presiding. A combination of old maps and testimony by people who had used the road over the course of many years decided the issue.

Still more recently, a canal in the Nevada City area with a nice berm, long used by hikers, was gated closed. An ad hoc group called Friends of the Trails formed and went to court in 1997 to defend the public's rights to use that canal berm; and they won.

Consider the (upper, more easterly) Heath Springs Trail, which leads down the North Fork from The Cedars, to Heath Springs, and then continues beyond into the basin of Palisade Creek (we could call these two segments of one trail the "eastern" and "western" Heath Springs Trail). There it (the Western HST) joins the Palisade Creek Trail and one may continue west on the Long Valley Trail (or one could; there have been recent timber harvests in Long Valley, and this old trail may have been obliterated). These trails are depicted on current USGS 7.5 minute topographic maps, specifically, the Royal Gorge, Soda Springs, and Norden quadrangles. It is very likely that they are shown on many older USGS maps, and the Heath Springs Trail in particular is depicted on TNF maps dating from 1928, 1939, and 1962 (and likely other editions of TNF maps as well).

There are a number of old magazine and newspaper articles and even one diary which describe public use of trails in this area, without ever mentioning the Eastern or Western Heath Springs Trail by name. I guess, but do not know, that use of these trails continued unopposed by the Cedars down to at least the 1930s, if not later. I suppose we would have some trouble finding anyone alive able to testify to the public's use of the Eastern HST in the 1930s. It is not impossible, just unlikely. There may be TNF records pertaining to this trail which would serve to demonstrate that it indeed was, as one would surely think to look at the maps, part of the TNF trail system.

The 1997 Friends of the Trails case went to the California Court of Appeal, Third Apellate District, which filed its opinion upholding the public's right to hike on the canal berm on February 28, 2000. Within this document the Court discusses Gion vs. the City of Santa Cruz in detail, and the concepts of adverse use, implied dedication, and prescriptive rights. One footnote, perhaps bearing upon the Heath Springs Trail, is as follows:

"We caution that the court's comment concerning an occasional hiker on
isolated property should not be construed as suggesting that any instance of
recurrent "public" passage over private property could qualify as adverse
use for purposes of implied dedication. The use must be substantial,
diverse, and sufficient, considering all the circumstances, to convey to the
owner notice that the public is using the passage as if it had a right so to
do. Thus, e.g., a long history of continued passage by a diverse group of
occasional hikers across a well defined privately owned trail segment
leading to a network of trails, say on a pubic wilderness area, might

The significant thing here is use of a privately-owned trail segment "leading to a network of trails." That is the case with the Eastern HST. It is just one of the facts which The Cedars must regret, for it is only natural for sane and sensible judges to give more recognition of public rights, when a trail, on private property, actually goes through to public lands and connects to other trails which are unequivocally public. Thus The Cedars' Ted Beedy was quite insistent, in correspondence with me, that the Heath Springs Trail did not go through to Palisade Creek until the late 1970s. However, the old maps prove him wrong.

The Placer County trail complex is in tatters, partly ruined by logging and the road-building which enabled logging, partly ruined by gates and "no trespassing" signs. Were it not for Harry Mayo's Rawhide Mine and The Cedars, one could walk from Alta to Squaw Valley, paralleling the North Fork of the American. In 1870 I.T. Coffin of Dutch Flat hiked from Old Soda Springs to Blue Canyon along much of this route, and almost certainly used the Eastern and Western Heath Springs trails--for there is pretty much no alternative. His description of that hike is threadbare and without detail. He records camping in Big Granite Creek canyon, then known simply as Granite Canyon, the first night out. The Long Valley Trail leads over a pass from Palisade Creek into the basin of Big Granite Creek, just north of Snow Mountain. And the Heath Springs Trail is the most direct way to get from Old Soda Springs to the Long Valley Trail. I am certain I.T. Coffin used this route.

Such, then, is a little background about our historic trails, and the problems we confront in using them, and the legal remedies which exist.

In some cases I believe that land acquisition is the best answer. Take the Rawhide Mine, just east of Alta, at the confluence of Blue Canyon and the North Fork of the North Fork, where all kinds of "no trespassing" signs and gates block the public from using the historic trail which leads through the private property to other trails on TNF lands. The crucial 80 acres which has pinched off our access is for sale, right now. Obviously (I think), TNF should buy it. But money is a problem. TNF did not even get the FY2004 Land & Water Conservation Act funds for its long-planned acquisitions of old railroads lands (now owned by Sierra Pacific Industries, a lumber company) farther up the North Fork.

What will happen? Probably someone will buy the Mayo/Rawhide property and a whole new crop of "no trespassing" signs will be nailed up beside the old signs.

In other cases, like The Cedars, land acquisition would not be the answer. To protect our right to hike the Heath Springs Trail we would have to go to court. I believe we would prevail. And I can imagine some compromises which might conceivably be made, which would on the one hand allow public use of the trail, and on the other hand, work to protect The Cedars' privacy.

These are difficult issues. If we care about the future of the North Fork, we've got our work more than cut out for us.

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