Colorado A Classic Western Quarrel: A History of the Road Controversy at Colorado National Monument

Talk of lawsuits was nothing new regarding the controversy over Rim Rock Drive. Rick Enstrom, one of the more outspoken of the Mesa County Commissioners, mentioned in June 1980 that he thought that the only solution to the problem was to give the road back to the county. Enstrom suggested that the county might even file a civil suit to determine to whom the road really belonged. [503] In June 1981, however, the prospect of a lawsuit became more of a reality for the Park Service. During this month, Glade Park property owner John Wilkenson began his five-year crusade against the Park Service's affidavit policy. Wilkenson had purchased property in Glade Park from his brother in May 1981. [504] When he learned of the Park Service's affidavit policy, he began to conduct extensive research regarding both the road's history and the law. What he found convinced him that the Park Service was acting outside its jurisdiction regarding the use of Rim Rock Drive. [505]

Wilkenson spent the summer of 1981 trying to prove to the Park Service that, because a public right-of-way had been established before the Monument was established, the affidavit policy was illegal. Moreover, the language of the affidavits and the windshield stickers incensed many Glade Park residents. In addition to providing a legal description of their property, residents were required to agree to the specific conditions as follows:

I understand and agree that any privilege granted me by the National Park Service for free access across Colorado National Monument is restricted to one short line route of my choice, and that I am otherwise obligated to pay any recreational fees that may be charged in accordance with the Land and Water Conservation Fund Act of 1965, as amended, and with Title 36, Code of Federal Regulations. [506]

Wilkenson contended that by signing the document he was essentially agreeing that he "had no right to use the road" and that the Park Service would give residents the "privilege to use the road." [507] This affidavit was used for the first two weeks of June 1981. Then the Park Service issued a second version of the application that did not include the aforementioned section. Whether the language was removed to mollify local residents is not known.

Wilkenson also believed that the Park Service lacked the authority to control free public access over Rim Rock Drive. [508] His argument was based on his belief that section 1227.3 of Title 36 prohibits the Park Service from collecting recreational fees for nonrecreational purposes. For Glade Park residents, accessing their homes was considered "non-recreational," since they were not using any of the park's facilities. [509] Park Service officials, on the other hand, explained that they would continue to collect entrance fees in accordance with the Land & Water Conservation Fund Act of 1965 as amended, and with applicable sections of Title 36 Code of Federal Regulations. [510] Yet, they made it very clear that they did not require Glade Park residents to pay any fees. Instead they wanted residents to simply sign the affidavits.

Wilkenson's references to federal regulations indicated that the regulations themselves were easily misinterpreted. The Park Service, however, staunchly upheld these rules. Parts one through seven of Title 36 of the Code of Federal Regulations is the framework "used by the National Park Service to protect the natural and cultural resources of the parks and to protect visitors and property within the parks." [511] More specifically, parts one through six are general regulations for all park areas, while part seven includes special regulations that often serve to supplement the general rules. Revisions in these regulations occurred in 1966 and in 1980 in response to widespread changes in the National Park system. The revisions were also made in order to simplify the regulations for the public. [512] Wilkenson focused his attention on Section 6, "Miscellaneous Fees: Recreation Fees; Entrance and User Fees." He specifically pointed to the section about fee exemptions to support his claims.

On the surface, Wilkenson seemed to exhibit the characteristics of a "Sagebrush rebel." Initially, however, he was not anti-government. He wanted the government to be accountable for its mistakes. One of Wilkenson's first actions against the Park Service was his refusal to cooperate with the new fee policy. Case reports for the summer of 1981 kept by fee collectors and law enforcement officers at the Monument indicate that he would not pay or submit to an affidavit on numerous occasions. [513] As a result he was issued citations under Section 6.5 of Title 36, which states in part that "No person shall enter or use park areas ... without paying the required fees and possessing the applicable permits." [514]

Throughout the summer of 1981, Wilkenson also bombarded Park officials with letters demanding that the Park Service state its position on various elements of the road controversy. [515] In what Wilkenson deemed one of his "pre-action letters," he asked that Superintendent Huffman provide a "yes" or "no" answer to four questions regarding the Park Service's authority to control use of Rim Rock Drive. [516] The Park Service concluded that it was "inappropriate" to respond to what they perceived as "loaded questions" regarding the controversy. When his frequent correspondence regarding the road issue became what Chief Ranger Schoch deemed "unnecessarily coercive," relations between the two sides deteriorated. [517] As the weeks passed and as the Park Service refused to respond to Wilkenson's demands, he increasingly discussed the possibility of settling the matter in court. By this time, Wilkenson was convinced that it had been illegal for the Park Service to issue citations to him for refusal to sign the affidavit or pay a fee:

It is true that a major court action is a hassle, and that I am a very busy person. However, I am not too busy to defend myself against your illegal and unjust attacks. [518]

The Lawsuit

On July 13, 1981, Wilkenson decided to file a civil suit against the Park Service. In a letter he explained his decision to Superintendent Dennis Huffman: "it is with regret that I inform you that you have caused me to anticipate litigation between us to resolve our differences." [519] By August 1, 1981, Wilkenson formally filed a motion in the Mesa County District Court against Superintendent Huffman and Chief Ranger Schoch. District Court Judge William Ela set the hearing for September 1. Huffman's response indicated that the Park Service was ready to resolve the issue one way or another:

It's time the situation was clarified. What comes out in court we can live with. The only place to make a resolution will be in court. For the last 30 years there has been a question of the status of the road. That is the real issue. [520]

Wilkenson's case against the Park Service was unusual for a number of reasons. In the first place, he represented himself. Even before he filed his complaint in Mesa County District Court, he advised Park officials that he was "quite capable" of representing himself. [521] Yet, this caused some problems for Wilkenson. Because he was not formally trained as a lawyer, many of his actions delayed the case's progress in the courts.

Wilkenson's most time-consuming error involved the way in which he filed his suit. His complaint was filed in Mesa County District Court in September 1981. By late October, Assistant U.S. Attorney Richard Jost, who represented Chief Ranger Schoch and Superintendent Huffman, had filed a motion requesting dismissal of Wilkenson's suit on the grounds that the county court did not have the jurisdiction over a federal case. [522] District Court Judge William Ela eventually ruled that he did not have the authority to try the case. Since it involved federal lands, he decided the case should be tried in U.S. District Court. Wilkenson tried to prevent these changes by stating that federal rules did not apply in a state court, but his argument failed to convince the court. The case was removed to federal court where a hearing was set for November 25, 1981. [523]

In the meantime, Wilkenson was also fighting criminal charges filed against him by the Park Service. His interpretation of the events indicated that because he was not willing to sign the affidavit, Park officials wanted him to pay the $1 entrance fee. When he refused, he was issued a citation. He found it ironic that the Park Service stated that there was no fee for traveling between Grand Junction and Glade Park, but when he did not sign the affidavit, they expected him to pay the fee anyway or face violation of Title 36 CFR, Section 6.5. [524] He pleaded not guilty to two criminal charges that he entered the Colorado National Monument without paying the required fee. Although the charges were petty offenses, they could amount to fines of up to $500 and a maximum sentence of six months in jail.

When he appeared before Federal Magistrate Royce Sickler, Wilkenson found that his criminal case would have to be tried either by a magistrate or a federal judge. Sickler's job was to "hold pretrial hearings in an attempt to dispose of cases before they go to trial." [525] In his assessment of the case, Sickler decided that he would transfer the case to Judge Matsch, but advised Wilkenson that he should "give a little bit and conform to the regulations." [526] Wilkenson eventually stated that he would not be tried by "the government" for these criminal charges because it was the government that was accusing him. He wanted a Mesa County jury to try him. [527]

The hearing before U.S. District Court Judge Richard Matsch in late November proved to be bittersweet for Wilkenson. Matsch dismissed Wilkenson's case because he filed a suit against specific park employees (Schoch and Huffman), who he claimed "violated his rights" to use Rim Rock Drive. According to Matsch, Wilkenson should have filed his case against the United States government, which maintains the Monument, rather than against its employees. Instead of making him start all over with a new suit, Matsch gave Wilkenson 20 days to amend his complaint and refile the suit, which he believed raised some important issues. Wilkenson planned to alter his original complaint to include the secretary of the interior, the director of the National Park Service and the Park Service's Rocky Mountain regional director. [528]

By this time Wilkenson had already written to various government officials requesting their position regarding the lawsuit. Between September and November 1981, he wrote letters to NPS Regional Director Lorraine Mintzmyer, Secretary of the Interior James Watt, Acting Deputy NPS Director Stanley Albright and even President Ronald Reagan. Each of these government officials declined to comment on the case as it was currently in litigation. In early September, Wilkenson wrote to County Commissioner Rick Enstrom and requested more information about the case that the county planned to file. At that time, Wilkenson told Enstrom that he would gladly "fade into the woodwork" if Mesa County was interested in filing a suit:

I really do not like the feeling of being alone in this jurisdictional dispute. I wish the commissioners would actually do something to protect me and other Mesa County citizens in this matter. [529]

Wilkenson had tried to include the county in his case when he issued an official "Memorandum in Support of Plaintiff's Motion to Include the Mesa County Commissioners as Parties" in late September. The motion stated that because the county had proved its role in the Glade Park access case at its meeting with Glade Park residents that the court should include it in the case. In it he stated that in his opinion, the county had failed to get involved in the case for "political reasons." [530] At the time that Wilkenson filed this memorandum, the county had not yet filed a complaint. Wilkenson felt that "the controversy is the same, whether in this ongoing action or an action potentially to be filed by the Board of Mesa County Commissioners." [531] Wilkenson stated that he had been unable to reach any agreement with the county regarding its position on the case. He also promised to supply the court with a copy of the August 1982 county commissioner's meeting with Glade Park residents, which in his opinion reflected the county's intent to join the case. [532]

Mesa County's involvement in the lawsuit officially began in August of 1982, when it made the decision to sue the Park Service over the issue of access to Glade Park. [533] In September, County Commissioner Rick Enstrom and Pueblo land use lawyer Eric Damian Kelly facilitated a meeting with Glade Park residents to determine the local perspective on the history of Rim Rock Drive. What they discovered at this meeting was that local contribution to the construction of Serpents Trail and Rim Rock Drive had been significant. During the meeting Enstrom expressed some typically anti-government sentiments:

We've got one recourse to find out whose road that is and I think you all believe as we do that it's a county road. He who has the most information at that court case is going to get that road. I intend for that to be the citizens of Mesa County. [534]

In December 1982, Mesa County filed a summons and complaint against the National Park Service in U.S. District Court in Denver. The county's suit reflected the eight years it spent fighting the Park Service over commercial vehicle use on Rim Rock Drive. Represented by Eric Damian Kelly, the county requested that escort costs for use of the road be eliminated, and that restrictions on commercial vehicles be lifted. The county based its suit on the belief that Rim Rock Drive was "part of the county network" of roads. [535] Because the Park Service had once allowed "free and unrestricted access to Glade Park," the county did not believe that the Park Service should have changed that policy simply because Rim Rock Drive was opened. They suggested that an easy solution was to move the East Entrance station to the Glade Park cutoff, or simply return to trust the word of residents traveling to Glade Park. They stated that they were not going to join Wilkenson because "the suit is a complex one and Wilkenson is acting as his own lawyer." [536] Ironically, when the Park Service first enacted its affidavit policy, the county provided tax rolls to park officials to aid in verifying property claims of Glade Park residents wishing to use the road. [537]

Local perspectives of both Wilkenson's case and Mesa County's case varied. The Grand Junction Chamber of Commerce, for instance, issued its position on the Glade Park access issue in August 1982:

The Chamber continues its support of the Mesa County Commissioners in the conflict with the U.S. National Park Service regarding free access to the Glade Park area through the Colorado National Monument. The Chamber has long believed that until the U.S. Government provides a suitable alternate route, all citizens should be able to use the Monument access. [538]

County Commissioner George White referred to the county's "friendly lawsuit" against the Park Service and stated that the county did not have a problem with park officials. Instead, the county found fault with "people up the ladder who are not aware of the local situation." [539] Surprisingly, even Glade Park ranchers seemed split on the issue. Rancher Bob Gobbo thought that commercial vehicle restrictions had harmed the economy of Glade Park, and that the Park Service should upgrade Rim Rock Drive. Eugene Vories stated that he had never had problems with the Park Service's affidavits but did question the inconsistency of its fee policy. [540]

The Park Service, on the other hand, defended its position regarding fee collection and commercial vehicle traffic. In an October 1982 interview with the Fruita Times, Superintendent Huffman evoked the Park Service's original mission to explain the Park Service's actions. The original mission emphasized both protection of natural resources and public enjoyment of those resources. He felt that the attitude that all public lands, including national parks, were meant for local and private use, was part of the problem. The increase in visitation (800,000 in 1981) coupled with population growth in Glade Park and Mesa County also contributed to the conflict. When pressed to discuss solutions to the conflict, Huffman answered that the upgrading of Little Park Road was the best alternative. He emphasized that the Park Service had helped to acquire funding for such a project, but that it was told it could only fund a road built within park boundaries. Huffman also stated that the problem of determining for whom the road exists—visitors or commuters travelling to Glade Park—was at the heart of the conflict. [541]

By 1983, the complexion of the lawsuit had changed considerably. In March, it was clear that the ease was, in the words of Eric Kelly "snagged in bureaucracy." [542] Kelly claimed that the county's case was slowed by a mistake in mailing summonses without postage to Secretary of Interior Watt and Director of the Park Service Russell Dickinson. The summonses ended up in the dead letter office and delayed any response from these officials. Wilkenson's case, on the other hand, was still in the pre-trial stages. [543]

Wilkenson himself had become increasingly militant in his efforts to fight the Park Service. Whereas he had once stated that he would welcome a county lawsuit so that he could "fade into the woodwork," now he was determined to win his case against the U.S. government. Wilkenson's attitude toward the road controversy changed when it became clear to him that:

The park was not the issue, the road was not even the issue. At a certain point and time with me, the system itself became the issue. [544]

His newly acquired knowledge of the law coupled with his experiences with local politicians, park officials, and government in general soured Wilkenson toward "the system." In March 1983, for example, he joined 25 citizens who decided to form a watchdog group for local government. The group's goal was to publicize government activities, and as Wilkenson put it, promote "accountability in government." [545] Yet, his more noteworthy actions were directed at the Park Service. In addition to increased numbers of letters to the editor of the Daily Sentinel, and his usual letters to park officials, Wilkenson also led a series of protests at the east entrance of the Monument during that summer.

The east entrance protest in June 1983 revealed the extent of government resentment harbored by Wilkenson and his supporters. It also indicated to the Park Service that Wilkenson was hungry for any kind of publicity regarding the road issue. A local television station alerted park officials of a possible protest on June 4 that never occurred. On June 5, however, twenty vehicles led by John Wilkenson held up traffic at the east entrance station for nearly thirty minutes. The protesters refused to pay the fee and many of them thrust tape recorders into the faces of fee collectors. Finally, park officials called the Mesa County Sheriff for back-up since the vehicles blocking the approach road leading to the Monument were violating state laws. By the time the sheriff arrived, most of the protesters had either proceeded to Glade Park (citations were issued) or had gone back to Grand Junction. [546]

Up to this point park officials had taken Wilkenson's antics and the lawsuits in stride. They tried to maintain normal park management while preparing for the trial. When each fee-collecting season arrived (May through September), they informed their seasonal fee collectors of the lawsuit and Wilkenson. They continued to collect fees from visitors and to require the affidavits of Glade Park residents. Through Department of the interior news releases and personal letters, park officials reminded Glade Park residents of the upcoming fee season and told them where new permits could be acquired. They made sure that residents were given plenty of advance notice regarding the permits. [547]

At the same time, Chief Ranger Schoch and Superintendent Huffman began gathering information for the trial. In an effort to establish consistency in fee collection, letters requesting information on the park's past fee policies were sent to former employees. Three of these employees—Robert Powell, Jerry Banta, and Duncan Burchard—indicated in correspondence with Dennis Huffman that between 1970 and 1975, Monument officials had not charged Glade Park residents for access, but had issued special window stickers. All three men stated that the system had been badly abused. [548]

Trying to balance trial preparation with everyday park operations proved to be a challenge. The June protest alarmed the Monument officials for a number of reasons. In his report regarding the incident, Chief Ranger Schoch indicated that the protest was somewhat of a turning point in Wilkenson's conflict with the Park Service. In addition to the fact that the protest was carefully planned—even the media were informed before the Park Service—it was clear that those involved were seeking publicity. Seeking publicity was nothing new to Wilkenson. He had already established himself as a prolific letterwriter; when he was not writing to government officials, his letters were found in the Daily Sentinel, and other local papers. Schoch was also concerned that the protesters would seek out nationally publicized events, such as the annual Coors International Bicycle Classic, which was held in part on Rim Rock Drive, for future protests. More importantly, the protest had "disrupted normal park operations." [549]

Two more protests were staged at the east entrance again in July. During the protest held in late July, Wilkenson distributed flyers to the fee collectors in which he stated that Schoch and Huffman were committing a felony by asking their employees to issue tickets. He said that the tickets were a violation of Code of Federal Regulations 36, Section 6.5, and that Colorado National Monument was acting out of its legal authority. He warned the fee collectors: "Do not be swayed by any attempts at coercion and/or intimidation that may be perpetrated against you by your superiors." [550]

Wilkenson also wrote a letter to Superintendent Huffman in July. Referring to his letter as a "final notice" of Huffman's "criminal activities," Wilkenson stated that the superintendent had "persecuted" him by misinterpreting Code of Federal Regulations 36 Section 6.5. He also told Huffman that if Assistant U.S. Attorneys Richard Jost and Bruce Black continued to represent Huffman and Schoch, then they too were part of the "conspiracy to deny" his rights. Wilkenson's concluding remarks indicated how deeply involved in the lawsuit he had become and how radical his rhetoric had become:

If you want to establish exclusive jurisdiction over the road segment at issue, then I suggest you follow proper procedure and talk to the Colorado Legislature, or go into court against Mesa County and Colorado and fight for it. It would seem that your smug and arrogant criminal persecution of me is nearing the failure that has been its destiny since its inception. Nevertheless, I request that you stop your criminal activities on your own volition before the court stops them for you. [551]

Not long after this letter was written, even Wilkenson began to doubt the court system. In October 1983, he wrote a letter to the editor of the Daily Sentinel, explaining his frustrations with the delay in his trial. He stated that he had "exhausted all possible avenues for obtaining administrative relief," and that he had "work[ed] diligently" in the court system for two years in the hopes that the lawsuit would be resolved. [552] It had been two years since Wilkenson filed his suit and, while the newspapers only discussed the more important events of the case, a great deal of interaction took place in court that was never reported. Between August 1981, when Wilkenson filed a Notice of Citations and January 4, 1984, when Assistant U.S. District Attorney Bruce Black filed the Government's Omnibus Reply, there were 103 separate filings regarding Wilkenson's criminal and civil cases, and the county's civil case. [553]

By January 1984, the lawsuit became even more complex when Assistant U.S. Attorney Bruce Black asked that the county's case be consolidated with Wilkenson's case. In his "proposal for the orderly litigation of issues," submitted to the court in December 1983, Black requested "an order restructuring these cases and providing for a schedule for discovery, motions and trial of all issues." [554] The request further suggested "alternative solutions for the resolution of the procedural logjam that has stalled these cases and proposes alternative methods for the expeditious resolution of legitimate substantive issues." [555] The "logjam" was the result of numerous events occurring simultaneously throughout the duration of the suit: Wilkenson's civil suit in Federal District Court (81-M-1825) filed in December 1981, the criminal case against Wilkenson (81-CR-210) filed in August 1981, the consolidation of those two cases in February 1982, an additional criminal case against those involved in the June 1983 protest (83-CR-388), and Mesa County's civil case (82-Z-217l) in December 1982. [556]

Black suggested that the best solution to the trial delay was to consolidate all criminal and civil eases, since they all dealt with essentially the same issue—"the authority of the Park Service to regulate Rim Rock Drive." [557] The county's lawyer, Eric Kelly, agreed to the proposal, with the stipulation that the "case can be structured so that the board and the other plaintiffs in this case remain separate from the criminal defendants." [558] Kelly stated at that time that the county "abhorred" the "tactics" of Wilkenson. [559]

Wilkenson did not favor Black's proposal; instead, he felt that the criminal cases should be tried first, and then the civil cases. [560] He felt so strongly that he issued an official response to the defendants' "proposal for the orderly litigation of issues." In Wilkenson's opinion, the "logjam" was not attributable to what Assistant United States District Attorney Bruce Black referred to as the "delay in procedural requirements of the criminal and civil processes," but to the "continuing bad faith of the civil defendants." [561] The basis of Wilkenson's argument was that the Park Service displayed a "contempt for justice, the Constitution, the law, and this Court by their ongoing efforts to misstate the truth and deceive the Court." [562] Along with his usual accusations against the Park Service, Wilkenson also pointed out that "the Glade Park Access controversy is a no-win situation for the civil defendants" since "everyone in Mesa County knows it is not a crime to drive between Grand Junction and Glade Park over the road segment at issue." [563] He also stated that the case should be tried in Mesa County with a Mesa County jury. [564]

By July 1984, when Federal District Court Judge Richard Matsch issued his "pre-trial order," the cases had been consolidated, and the trial was set for August 28, 29 and 30, 1984, in the Federal Courthouse in Grand Junction, Colorado. [565] The "pre-trial order" also outlined the arguments that would be presented by the plaintiffs (the county and Wilkenson) and the defendants (the Park Service). In his assessment of the "claims and defenses" of the county, Matsch stated that the county's case was based on three claims for relief. The first of these was 43 U.S.C. Section 932, under which "the United States granted rights-of-way to the public lands not reserved for public use." [566] Essentially, the county contended that the Park Service's policies represented "an arbitrary and unreasonable invasion" of the county's "property rights" to Rim Rock Drive. This assertion was based on the county's contribution of money and labor to road building in the Monument before and after its establishment, and its "understanding" with the Park Service that it could enjoy "unrestricted access" to Glade Park via Rim Rock Drive after the 1959 vacation of Serpents Trail. [567]

The county's second claim for relief stated that it "acquired an enforceable property right" both because of its contribution to the road's construction and because of its use of the road. The third claim for relief asserted that the Park Service had overstepped the authority conferred to it through statutes and regulations. [568] The basis of the county's case was the doctrine of equitable estoppel, which states:

when any one by words, acts or abstentions, has induced someone to act as though a situation or relationship existed or had a certain character, this existence or character may not thereafter be legally denied, if to do so will cause detriment to the person who relied on it. [569]

The defendants (Park Service) addressed each of the county's claims. In defense of the county's first claim, the Park Service stated that no right-of-way existed under 43 U.S.C section 932, and that it had not taken any property rights from the county. To the county's second claim, the Park Service stated that "estoppel and adverse possession do not run against the government." [570] Past court decisions established that estoppel was not applicable in cases where the U.S. government and one of its agents were involved in litigation. Finally, in response to the third claim, the Park Service stated that no "procedural or constitutional defect" existed in the statutes and regulations. The Park Service also contended that the plaintiffs did not succeed in stating a claim that could be granted and that the court still lacked the jurisdiction to try the case. The Park Service asserted that, even if the County did acquire a right-of-way on Rim Rock Drive, in 1959 they formally vacated Serpents Trail. For the Park Service, the 1959 vacation order signalled an abandonment of that right. [571]

In late August 1984, Assistant U.S. Attorney Bruce Black filed a motion to dismiss the criminal cases against Wilkenson and the protesters. Both the U.S. Attorney's office and the Park Service believed that the issues raised in the criminal cases would be resolved in the civil cases. [572] Earlier that summer, the Park Service received an "interim order" from Judge Matsch to continue the fee/affidavit policy for the summer of 1984 in order to "preserve the rights of the parties and protect the public peace." [573]

On August 21, 1984, the plaintiffs submitted a 73-page trial brief to Judge Matsch. The document outlined in full the county's claims against the National Park Service. Beginning with a detailed history of roads between Grand Junction and Glade Park before and after the Monument's establishment, the brief stated that the "unifying theme underlying the whole history of the Glade Park Road is access." [574] Although this statement is true, it is ironic that the county chose to refer to Rim Rock Drive as the Glade Park Road. This only reinforced how the Park Service and the county held vastly different views of the purpose of Rim Rock Drive. The document then discussed the development of the county's right-of-way over Rim Rock Drive and the necessary laws upholding this right. The county asserted that roads existed even before John Otto began to build trails and that the existence of such roads was evidence of an established right-of-way before the Monument was formed. [575] The county also stated that, while Little Park Road was built in 1884 and should have been a sufficient route to Glade Park, "residents of Mesa County needed the same thing 80 years ago that they need now—decent access between Grand Junction and Glade Park." [576] Why Mesa County was not willing to finance the construction of a road remains to be seen. Undoubtedly the Park Service wondered the same thing.

Testimony was to be completed late on August 30, 1984, after which time Judge Matsch stated that he would return to Grand Junction to hear more oral testimony before writing his decision. [577] The official decision was not presented until May 2, 1986. Until then, each side of the controversy formed its own opinions regarding the outcome. Eric Kelly, representing the county, fell that the lawsuit could have national significance. In an order issued in March of 1985 (after the trial), Judge Matsch focused on whether the Park Service should be able to charge fees at all. Kelly noted that Matsch's questions regarding the fees had little to do with the history of the road, which the county and Wilkenson had used in their arguments. Matsch addressed several questions: if fees were valid; if it is valid to charge fees for people driving through the park without stopping; and whether it is valid to charge fees of people or commercial traffic travelling to Glade Park. Kelly said that, if the judge determined that the collection of fees was void, he could avoid the more complex issue of road ownership. If Matsch decided that fees were invalid, collection of fees in all national park areas could be endangered. [578]

Assistant U.S. District Attorney Bruce Black would not comment on the judge's order publicly, stating it was inappropriate. [479] In the meantime, until Monument officials received news of a court decision, they continued to collect fees and require affidavits. [580] Wilkenson, on the other hand, was more impatient regarding the pending decision. In December 1985, he wrote a letter to Judge Matsch reminding him that the road controversy "remains unresolved" and that the lack of decision had affected his life:

Personally I need to know whether I can relax and get on with the rest of my life, or whether I must gear up to defend myself in a political confrontation with the government. I would appreciate a decision before sufficient time has passed to politically justify applying to the Circuit Court for a remedial writ ... . [581]

The Decision

On May 2, 1986, Judge Matsch issued his 32-page decision regarding the road controversy. After a brief overview of the facts of the case, Matsch summarized the heart of the conflict between local residents and the National Park Service that had existed in the Monument since its creation:

The conflict has followed the progress of development of the Monument as a recreational facility and the residential growth in Glade Park and the Grand Junction community. It is a classic Western quarrel over the use of public land in which the early years were characterized by cooperation in pursuit of common interests and where now the parties have sharply conflicting interests and claims. The government's policy has gone from indulgence, through tolerance, to rigid regulation. [582]

Ultimately, Matsch's decision favored the plaintiffs. It was shaped by several factors: the history of the Monument and its fee policy, and the laws regarding the establishment of public rights-of-way. Although the case seemingly dealt with a combination of issues, and was complicated by the merging of the county's and Wilkenson's cases, it focused on one question: whether a public right-of-way existed on the segment of Rim Rock Drive from the east entrance station to the Glade Park cutoff.

In his decision Matsch examined both the history of the Monument's development and its fee policy. This section focused mainly on the history of road-building in the area and Otto's role in publicizing the park. It also discussed briefly the construction of Rim Rock Drive, the 1959 Serpents Trail vacation order, and land added to the Monument in 1933, 1959, and 1976. Matsch's intent was to establish that prior to Otto's work the area that would become the park was used by people for recreation, and by ranchers from Glade Park to transport livestock to the Grand Valley. In addition, he emphasized the strong local role in the park's establishment and in road-building. [583]

Matsch's analysis of the Monument's fee system attempted to show the Park Service's inconsistency in its fee policy from 1937 to the 1980s. He outlined the 1939 policy toward Glade Park residents, in which they were not required to pay a fee. He also traced the policy's development until the Park Service began to restrict commercial vehicle use in the 1970s. [584]

Matsch pointed to the original law regarding public rights-of-way to further support his decision. In 1866, Congress passed a statute that was later codified as 43 U.S.C. Section 932, stating that: "The right of way for the construction of highways over public land, not reserved for public uses, is hereby granted." [585] Matsch thought that the "difference between concepts of a right of way" was at the center of the case. The plaintiffs understood right-of-way to mean "access to the land for the purpose of traversing it," while the defendants believed that "a right-of-way for a public highway must be limited to a constructed roadway over a reasonably definite and specific route." [586] Matsch discussed the history of each segment of Rim Rock Drive, and denied the defendants' claim that the 1959 Serpents Trail vacation order did not have any "legal significance" to the present case. [587] Stating that it had to be considered in context, he said that although the Serpents Trail was abandoned, it must have been the understanding of the county commissioners at that time that they could still use the Rim Rock Drive (often referred to as the New Serpents Trail) as a travel route. [588]

Once Matsch established that a public right-of-way existed, the other elements of the case, such as fee collection and the commercial vehicle issue, were quickly resolved, in his analysis of fee policy, Judge Matsch questioned whether an entrance fee should have been collected from people who were only interested in using Rim Rock Drive to access Glade Park. The Park Service responded that the collection of fees was part of its effort to raise revenue, and that entrance fees are collected in national parks regardless of the intent of the person entering the park. Matsch concluded, however, that the legislation dictating fee collection specifically excluded both commercial traffic and other nonrecreational activities and that the Park Service misinterpreted those statutes. [589]

In his assessment of the commercial vehicle issue, Matsch stated that, while there was a "rational basis for the regulation" regarding commercial vehicle restrictions, the Park Service "misapplied their own regulation." [590] Based on the evidence, Matsch determined that Rim Rock Drive was the only all-weather access to Glade Park and Piñon Mesa and that it was "wholly impracticable" to daily assess the condition of Little Park Road. Matsch decided that, because the court already recognized the public right-of-way in that region, the Park Service's imposition of commercial vehicle restrictions was "contrary to the public's right-of-way." [591] Right of access, according to the Matsch, applied to commercial traffic as much as it did to Glade Park residents. [592]

Matsch's summary revealed that, while there was no legal precedent for his decision, the "unique factual history of the development of the Colorado National Monument" obligated the Park Service to permit public access of the 3.3-mile segment of Rim Rock Drive on the park's east side. [593] Charging fees was both an "unlawful interference" with the public right-of-way, and a violation of 36 C.F.R. section 71.13(d). [594] Matsch then issued his formal decision:

Ordered, adjudged, and decreed, that a public right-of-way exists in the portion of Rim Rock Drive extending from the East entrance of the Colorado National Monument to the Glade Park Cut-Off, connecting the DS Road in Glade Park with the Monument Road to Highway 340, and the use of that road for the purpose of continuous travel through the Monument is a non-recreational use for which no entrance fee may lawfully be charged, and the defendants are enjoined from charging any such fee or otherwise preventing such non-recreational use of the roadways. [595]

Not surprisingly, reaction to the decision was mixed. In an interview with the Daily Sentinel, Superintendent Huffman stated that the ruling probably would not affect the Monument's normal operations. He also discussed alternatives for fee collection: the popular idea of moving the fee booth up near the Glade Park Cutoff was one way to satisfy the judge's decision and to maintain good relations with the local residents. Both Huffman and Assistant U.S. Attorney Bruce Black felt that the ruling "left many questions unanswered." [596] Their primary concern involved the issue of road ownership. Huffman stated that, if Rim Rock was considered a county road, then the county should pay for its maintenance. At that time, the Park Service was considering appealing the decision. [597] The Park Service also felt that Judge Matsch's decision was historically weak regarding the right-of-way issue. According to Matsch, a road through No Thoroughfare Canyon existed and was used prior to the park's establishment. The Park Service, however, researched the history of the area and was unable to find the road to which he referred. [598]

Wilkenson's reaction was tentative. Shortly after the decision was made, he told the Daily Sentinel: "If we get to use the road I will be happy." [599] Nevertheless, he later admitted that the judge had bypassed the real issue of the case. While the decision seemed to favor Wilkenson, he felt that "it was somewhat of a compromise." [600] The judge's decision centered on the issue of right-of-way. Wilkenson thought that the decision should have focused on the regulations and statutes. Even though the regulations clearly stated that the Park Service could not collect recreational fees for nonrecreational use, Park Service employees proceeded to collect anyway. In his opinion, the overall issue, that of "government disobedience to the law" was never addressed. [601] In addition, Wilkenson contended that he should be compensated for the time he spent on the case. Judge Matsch disagreed. [602]

By November, the road controversy had officially ended. The Park Service's decision not to appeal Matsch's ruling contributed to the finality of the situation. Jim Harpster, the Rocky Mountain Regional Chief of Public Affairs, cited several possible reasons for the Park Service's decision:

I can only assume that the question of whether to appeal hinged on the likelihood of success and the impact of the ruling as issued by Judge Matsch, as well as the legal correctness of that ruling. I think there's a tangible here; the desire of the park and the park staff to be recognized as good neighbors to the people of the community. [603]

Perhaps Harpster's assessment was accurate. The Monument's history indicates that local involvement was important to the park's early development. As the administration of the Monument shifted, park managers were careful to maintain good relations with local residents, civic organizations, and government officials. The road controversy, however, illustrates that park officials did not base their decisions on the needs of the local community, but on the needs of the park itself. The Monument's early fee policy, toward Glade Park residents was based on good faith. it was never an institutionalized policy. An increase in Glade Park's population, and abuse of the fee policy prompted the Park Service's implementation of a new system. Unfortunately, changes in policy were perceived as arbitrary and inconsistent by local residents who had a heightened sense of their past contribution to the park. This contribution, and the simple proximity of the Monument initiated a strong local influence on park policy—an influence that former Superintendent Huffman identifies as both important and somewhat unavoidable. [604]

A more viable reason for the Park Service's reluctance to appeal Matsch's decision was political in nature. The lawsuit and the eventual decision took place during the presidency of Ronald Reagan. His choice of James Watt as secretary of the interior in 1980 reflected a careless and limited knowledge of the Park Service and its history. Prior to his appointment to the position, Watt had expressed his "hostility" toward conservationists, and proposed that the Interior Department "unleash" private industry by opening park lands for development. [605] Although the Watt years were short-lived, they left a legacy of poor policy toward the Park Service. Future Secretary of the Interior William Clark and his successor Donald Hodel felt that existing legislation regarding the protection of parks from external threats was satisfactory. [606] In order for the Justice Department to pursue an appeal of Matsch's decision, Secretary of the Interior Hodel had to request such an action. Despite the Justice Department's belief that the case carried a significant precedent for the region and should be appealed, Hodel did not do so. [607] This left Monument officials with a court decision that they did not believe was necessarily accurate, but that they were obligated to uphold.