LAKE COUNTY, Calif. – This week a Lake County Superior Court judge issued a tentative ruling in a case filed against the county of Lake regarding use of the easement road for Mt. Konocti County Park.
On Tuesday, Judge Andrew Blum ruled in the county's favor in the case filed in October 2012 against the county by Emily Ford and Mike Fowler.
“We aren’t happy with it,” said Ukiah attorney Thomas Brigham, who represents Ford and Fowler in the case.
The Fowler family sold the county 1,520 acres on top of Mt. Konocti in 2009 for $3.6 million. The land has since become the county's largest park.
As part of the sales agreement, Ford and Fowler maintained a 159-acre parcel in the middle of the park where they continue to live.
According to court documents, they also granted the county three road easements through their remaining property between October 2009 and September 2011.
The first two easements were for construction, use, maintenance and repair of the communications towers and other facilities on Mt. Konocti, while the third – granted in September 2011 for a different area of the property – was for maintenance vehicles, the county’s licensees and other persons authorized by the county, according to the suit.
In September 2012, the county announced that it would launch a pilot bus tour program in cooperation with Lake Transit Authority for a limited number of bus trips per year.
Plans were for two trips a day for 12 days annually – six in spring, six in fall – to take people who otherwise couldn't make the trip to the top of the mountain.
It was a pilot program that the Board of Supervisors put in place in response to numerous requests from people who were unable to make the hike otherwise, said County Counsel Anita Grant, whose office represented the county in the case.
She said the program also was an effort to try to minimize vehicular traffic by organizing controlled trips.
“I don’t think that anyone intended to have it be a thoroughfare,” she said.
However, Brigham said the Fowlers never envisioned motorized tours would take place on the mountain.
Discussions with the Board of Supervisors about the property purchase had included statements about Mt. Konocti being treated like Mount St. Helena, which is pedestrian-only, said Brigham.
The bus pilot program was the precipitating event in the decision to file the suit. “It signaled a difference in interpretations at least of the scope of the easement,” Brigham said.
The following month, Ford and Fowler sued the county, alleging that the bus trips violated the road easement they had negotiated with the county as part of the sales agreement. They also sought attorney's fees and costs.
The Fowlers' concerns about their privacy, peace and quiet is all over the agreement they entered into with the county, Brigham said.
“They did what they thought they needed to do in the paperwork to protect themselves,” said Brigham. “But here we are.”
Lake County Public Services Director Caroline Chavez, who oversees the park, said the suit caused the county to stop the bus tours. At that point, “I think we had one or two days left to do it,” she said.
Requirements of the tentative ruling
Grant said that Blum, in his tentative ruling, determined that the easement is not limited to maintenance vehicles and licensees of the county.
He also ruled that authorizing a total of 24 buses per year for people who otherwise wouldn't be able to hike the mountain doesn't violate the easement agreement and doesn't constitute an excessive burden on it, as long as the county keeps within the intended uses of the park property and maintains its natural condition, Grant said.
In addition, Blum ruled that both sides needed to pay their own attorney's fees and costs, and that the Fowlers needed to restrain their animals from disturbing people who use the hiking trail, Grant said.
Chavez explained that the animals of concern who had frightened hikers are dogs, a horse and an aggressive mule.
In November 2012, the Board of Supervisors gave county staff the go-ahead to work with another neighboring property owner on the possibility of establishing an alternate access easement through his property, as Lake County News has reported.
The Tuesday decision means that the county doesn't have to pursue that option, said Chavez, noting that in his tentative decision Blum said there was no need to build an additional road.
She said the county did investigate the second easement option, and had brush cut to look at the land contours and topography more closely.
“It became too difficult,” she said, explaining that the work that would have been needed would have been very visible.
“That’s not what we’re trying to do to conserve the mountain,” she said, adding, “So we never even entered negotiations with the adjacent property owner on that.”
While Brigham and his clients don't like Blum's tentative ruling, he said there are a number of “silver linings.”
For one, while the scope of use is not as limited as the Fowlers wanted, Brigham's interpretation of Blum's intended decision is that it does limit the easement “pretty significantly.”
“The scope of the easement needed to be clarified,” Brigham said.
Brigham said his clients are hoping for two things: to better define the scope of the easement and who can use the road, and to eliminate – or at least limit – the bus tours.
He said the next step for his clients is that they will request a statement of decision, which he said is a more formal document than the tentative decision. They can then identify specific issues that the court needs to address.
Among those issues, said Brigham, is his interpretation of the language of the Fowlers' deeds with the county, which he argued limit the easement to maintenance vehicles and licensees – such as individuals with agreements for the communications towers on Buckingham Peak – not Lake Transit.
That's different than the judge's – and the county's – interpretation, which is that anyone who is granted access by the county can use the easement.
Grant quoted a portion of the deed that stated “other persons authorized by grantee” – with the county being the grantee – as those who may use the road.
What's ahead
The statement of decision is due to be drafted by Grant's staff by May 12, she said.
Both Grant and Brigham estimate that by the time a final judgment is entered, along with post-trial motions and the appeal period, it will be sometime in August before the suit is fully settled.
Brigham said the Fowlers could still decide to take their case to a state appellate court, which could lead to a year-and-a-half-long process.
As for whether the Tuesday decision will lead to the county restarting the bus tours, Chavez said, “We're going to wait through this.”
Once the case is finally settled, Chavez said county staff, the Board of Supervisors and Lake Transit will need to reevaluate the program to determine if they will do it again.
“We’d like to, that’s the short answer,” she said. “It was very well received.”
Grant noted that as part of the lawsuit, the county received a number of testimonials in support of the bus tour pilot program from those who had taken the trip and were grateful to have had the opportunity.
She said if the Fowlers appeal the decision, it would be up to the Board of Supervisors whether the program would continue.
Chavez said the park remains open to hikers during daylight hours. There is a parking lot below a locked gate with a turnstile to allow hikers through. Park users can't stay overnight and must keep to the hiking trail.
More information about the park and its hiking trails is available at http://konoctitrails.com/trails/mt-konocti-county-park/ .
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.
Judge issues tentative ruling in county's favor in Mt. Konocti Park road easement lawsuit
- Elizabeth Larson
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