BAKER CITY — The wildfire danger would have to be extreme for more than 26 straight days before a landowner in eastern Baker County could close and lock gates on a dirt road that was the subject of a lawsuit the county filed in 2019 and settled earlier this year.

That’s one of the clauses in the settlement of the lawsuit involving a section of the Connor Creek Road near Lookout Mountain that was closed to public access after the property owner locked the gates in 2017.

Based on that fire danger threshold, the gates could have been locked for two weeks during the summer of 2021, but not at all in 2020 or 2019.

Although the property sold about two weeks after the settlement was signed on Jan. 20, 2022, the deal is binding on the new, and any subsequent, owners, said Kim Mosier, the county’s attorney.

County commissioners voted 2-1 on Sept. 15, 2021, to approve a memorandum of understanding to negotiate a settlement. The proposed pact included a payment of $125,000 from the county to the landowner for a “permanent, undisputed” public right of way on the road.

Negotiations on the terms of the settlement continued through the fall and into the winter.

Mosier said the county has paid $125,000 to the previous owners, who were defendants in the lawsuit the county filed Feb. 7, 2019 — Timber Canyon Ranch LLC, Kennerly Ranches LLC and Forsea River Ranch LLC.

That was a one-time payment.

The other terms of the settlement, however, are binding on the new owner of the 3,500-acre property where two gates were installed, Allen Potato LLC of North Powder.

The road also crosses property owned by Forsea River Ranch LLC, which also granted the county a permanent public right of way. The gates are not on the Forsea River Ranch property.

Commission Chairman Bill Harvey cast the lone dissenting vote. He said in September 2021 that although he supported creating a permanent public right-of-way on the road, he voted no because he believes a section of the proposed settlement — which is retained in the final version — misstates the situation. That paragraph states that when one of the previous owners, Todd Longgood, locked gates in 2017, “one or more responsible officials at Baker County” advised him that he was “legally authorized to do so.”

Harvey contends that’s not true.

“They were only given permission to close a gate by somebody who is representing our road department,” he said. “No one person in Baker County has the legal right to close any road in Baker.”

Although Harvey, along with commissioners Mark Bennett and Bruce Nichols, signed the Jan. 20 settlement, Harvey wrote next to his signature: “I voted not to approve.”

As part of the settlement, both parties agreed to dismiss the lawsuit “with no costs or attorney fees payable to any party.”

The settlement also states that it “shall not in any way be construed as an admission of liability or wrongdoing by either party.”

When can the gates be locked?

The question of when the landowner can lock the gates depends on the fire danger rating for the Northern Blues region, one of six subunits in Northeastern Oregon monitored by the Blue Mountain Interagency Dispatch Center in La Grande.

(The Connor Creek Road property is not actually within the Northern Blues region, however.)

The agreement states, in part: “When a condition of extreme fire danger is imposed by the relevant public agencies and has continued for more than 26 consecutive days in Northern Blues subunit 6, Defendants are authorized to close and lock the gates and to leave them locked until Extreme FDR (fire danger rating) is lifted for the Northern Blues subunit 6.”

In 2021, when the fire danger was at near record levels due to drought and prolonged heat, the rating was extreme for the Northern Blues for 40 straight days — July 13 to Aug. 21.

Based on the terms of the settlement, the gates could have been closed for 14 days, from Aug. 8-21.

The fire danger in the Northern Blues dropped from extreme to high on Aug. 22, 2021.

The criterion wasn’t met in either 2020 — when the fire danger was extreme for just 13 days — or 2019, when the danger never reached the extreme level.

In 2018 the fire danger in the Northern Blues was extreme for 31 straight days, July 27 to Aug. 27, so the gates could have been locked for five days.

In 2017 the fire danger was extreme for 53 straight days, July 29 to Sept. 19. That summer the gates could have been locked from Aug. 24 to Sept. 19.

The settlement also includes a paragraph regarding the possibility of changing the fire danger threshold used to determine when the property owner can lock the gates.

It reads: “The parties acknowledge that fire danger has increased in recent years and that it may be necessary to revise the standard selected as circumstances evolve in the future in order to appropriately balance the goals of preserving public access and protecting the properties crossed by the roads.”

County required to improve, maintain road

The settlement requires the county to improve the section of the road across the defendants’ property, and to maintain it in the future.

The settlement states: “Baker County will make improvements to Connor Creek Road consisting of filling in potholes, installing culverts and grading the road at various locations to reduce erosion and improve travel. Those improvements shall be completed by no later than November 1, 2022.”

As for ongoing maintenance, the settlement requires the county to maintain the road at a relatively low standard, the same as for other “non-all-weather roads.” The road does not have to be graveled, for instance.

Lawsuit history

The road in question connects the Lookout Mountain Road to the Snake River Road, in the upper Connor Creek area.

In 2017, Todd Longgood and the Dennis Omer Hansen Revocable Living Trust bought property in the area and installed locked gates across the road at their property boundaries.

County officials objected to the road closure, and eventually chose to sue.

The contested road 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 gates, however, are at the opposite, western end of the road.

In its lawsuit the county contends that the road is a historic public route that can’t be blocked.

Longgood’s attorneys disagreed, citing historic maps, property deeds and other records as evidence that the gated road was built after the land was converted from public to private.

In the lawsuit the county contended that a resolution county commissioners passed in 2002 affirms the road as public and precludes landowners from blocking access on that road.

Commissioners passed that resolution after a different property owner, on the eastern end of the road at the Connor Creek Mine about two miles from the Snake River Road, also put in a locked gate. The 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 owned, is a public right-of-way that can’t be blocked.

That 1866 statute is commonly known as RS 2477. Other counties have cited the statute to show a route is legally open to the public. The key to proving a claim under RS 2477 is that the route in question was being used before the property it crosses was reserved for another purpose, a common example being that the land was transferred from public to private ownership.

Charles Hudson, the defendants’ attorney, argued that the basis of the county’s argument is flawed because the Connor Creek Road, in its current alignment, was not built until after the property that Longgood owned was transferred from public to private ownership.

As a result, Hudson contended, the county’s RS 2477 claim is invalid.