Validation denied, access granted?

WALLACE – A recent decision from the Idaho Supreme Court may have raised more questions than it answered regarding one of Shoshone County’s most contentious legal disputes. 

In April, the Court heard oral arguments from Shoshone County Prosecutor Benjamin Allen and attorney David Claiborne during a special Law Day session held at the University of Idaho’s Menard Law Building. The case centered on the appeal of a decision involving West Fork Pine Creek Road. 

The dispute began in 2020, when Pine Creek property owner Joe Avery blocked access to a section of West Fork Pine Creek Road, which had long been used to reach a popular recreation area on Bureau of Land Management land. While alternative routes exist, they are either significantly longer or subject to seasonal closures and private easements. Following prolonged debate over jurisdiction, Paul Loutzenhiser, represented by Claiborne and Sawtooth Law Offices, filed the petition for road validation in 2022. 

Road validation is the formal process of confirming the existence of a road that rightfully belongs to the public.

In an opinion authored by Justice Colleen Zahn, the Idaho Supreme Court affirmed the decisions of both the Shoshone County Board of Commissioners and the District Court, denying validation of the disputed section of road. 

While the ruling appeared to conclude a five-year public dispute, it also perpetuated a recent legal ambiguity, which began last year when the Idaho Supreme Court decided the landmark decision of Hill v. Blaine County. In that opinion, the Idaho Supreme Court said for the first time that a county could deny a petition to validate, but if it was determined that a public road previously existed in a particular area, the public would not necessarily lose their rights to access said road. 

Throughout the proceedings, petitioners were required to demonstrate both historical use and public interest to support validation. Claiborne consistently argued that the county had disregarded historical evidence showing the road’s longstanding public use. According to records he submitted, the road was established and recorded by the BOCC in 1909, with no subsequent record of vacation or abandonment by the county. 

Although this evidence was previously dismissed or disputed by the BOCC and lower courts, Justice Zahn acknowledged its validity. However, that alone was insufficient to overturn the prior rulings. 

“While we conclude that the Board erred in determining that the 1909 meeting minutes did not establish a public road, we find no error in the Board’s determination that validation of the road was not in the public interest,” Zahn wrote. “As a result, we affirm the district court’s decision affirming the Board’s denial of the petition for validation.” 

The historical status of the road is now settled, but because this fact was a key rationale used to deny its validation, the question of public interest may theoretically be reopened. During the original validation hearing, the commissioners argued that validation would impose a significant financial burden, requiring the county to survey, upgrade, and maintain the road that it could not previously determine had ever been a public road. 

During oral arguments, Justice Gregory Moeller noted what he viewed as a lack of specificity in the county’s public interest analysis. In response, Allen, as he had done previously during the district court appeal, clarified that under Idaho’s road validation rules, a Board of County Commissioners is not required to provide detailed findings, and that the burden of proof lies with the petitioners. 

Despite this, the ruling provides clarity for Shoshone County in part, which is now relieved of any jurisdictional responsibility over the disputed section of Pine Creek Road. At the same time, the Court’s recognition of the road’s historical establishment, without further explanation of who dictates how the road may be used or controlled, could pave the way for a vacation petition or a renewed validation petition, now that one of the two required elements has been judicially affirmed. 

In the meantime, because of the way the Supreme Court ruled in the matter, the road should be, and remain, open to the public. In a letter to the Allen and Shoshone County, Claiborne expressed the desire of the petitioners for the road to remain public, even if the county has been absolved of its jurisdiction over it.  

“As relates to West Fork Pine Creek Road, though Shoshone County has not accepted jurisdiction of the road, it is still a recognized public road by the Court,” Claiborne wrote. “The decision is clear on this point. The county is not claiming jurisdiction over the road by reason of its denial of validation. But, according to the reasoning in Hill, even though no jurisdiction has been established over the road, that does not mean that it cannot be used by the public. Based on the Court holding that the 1909 Board meeting established the road as a public highway, it is lawful for the public to immediately use this road.”  

Claiborne also asked for assurances from the county that if someone attempted to prohibit access to the section of road, they would uphold and enforce Idaho laws pertaining to blocking a public right-of-way.  

Loutzenhiser spoke on the ruling, highlighting that while it was frustrating that the validation ruling was upheld, the Supreme Court answered the question he set out to have answered when he filed the original petition. 

"The Supreme Court answered that question without any doubt," Loutzenhiser said. "I have sent a letter to BLM explaining that with Supreme Court’s ruling qualifies it as a road and that we expect them to stop trying to illegally close it."

He also added that his motivation wasn't just for the off-road enthusiasts, but to create something sustainable for everyone who wishes to enjoy the area beyond the debated section of road.

"This is a historic access for all recreationalists, including fishing, hunting, and huckleberry pickers. With the opportunity for grants, this should never cost the county anything and only bring revenue."

The initial ruling came from the previous board of commissioners, none of whom are still in office. They declined to comment on the Supreme Court's ruling. Joe Avery did not respond to requests for comments. 

The current board of commissioners also declined to comment, but they did hold a meeting in executive session earlier this month where they discussed the ruling, and the letter from Claiborne. According to Allen, who couldn't provide much information due to meeting's privileged status, the board decided to provide copies of the letter to Avery and other nearby property owners.