Judge allows county to survey land in Pine Creek Rd. lawsuit

Nov. 8—A judge has ruled that Baker County can survey a section of property owned by the man who sued the county this spring over the status of the Pine Creek Road in the Elkhorn Mountains northwest of Baker City.

David McCarty filed the civil suit in Baker County Circuit Court on April 30.

He is asking for either a declaration that the disputed section of the Pine Creek Road crossing his property is not a public right-of-way, or, if a jury concludes there is legal public access, that the limits of that access be defined and that the county pay him $730,000 to compensate for the lost value of the land based on the legal public access and for other costs he has incurred as a result of the county's actions.

The Pine Creek Road, which accesses public land in the Elkhorns, runs for about 2 1/2 miles through the 1,560-acre property that McCarty bought in September 2020.

On June 16, Baker County commissioners started a process intended to declare the disputed section of road as a public right-of-way.

In response, McCarty, who is represented by attorney Janet K. Larsen of Portland, sought a preliminary injunction that would block the county from proceeding with that process.

On July 29, Senior Judge Stephen P. Forte granted McCarty a temporary restraining order that prohibits the county from continuing that process.

Attorneys from both sides — the county is represented by Robert Franz of Springfield — made arguments during an Oct. 14 hearing before Senior Judge Russell B. West.

West made his written ruling on Thursday, Nov. 5.

He dissolved the temporary restraining order that had prohibited the county from surveying part of McCarty's property. West also declined to issue a preliminary injunction based on McCarty's contention that the county has failed to comply with his requests for records under Oregon's Public Records Law.

West's decision allows the county to conduct the survey giving McCarty at least one week notice, and complying with any safety restrictions related to logging on McCarty's land.

West ruled that continuing to prevent the county from pursuing a designation of the road as public would not be in the public interest, since doing so "could potentially exclude the public for a significant period of time from important access to public lands that they may very well have a right to ..."

West wrote that Forte, the judge who issued the temporary restraining order, did so without notifying the county or giving the county a chance to respond.

Forte, West determined, did not have the authority to halt the county's effort to declare the road through McCarty's property as a public right-of-way.

West heard testimony from several people during the Oct. 14 hearing, including Ken Helgerson, who retired as Baker County Roadmaster.

Helgerson, who lives near Pine Creek, testified that he has traveled the road across McCarty's property as a private citizen, and as roadmaster he used county equipment to repair flood damage to the road.

Helgerson said the county does not have a deeded easement across McCarty's property, but he testified that he believes the road is a public access route through RS 2477, an 18th century federal law.

As for McCarty's claims about the county failing to provide records under the Public Records Law, West wrote the county "has offered substantial evidence that it has complied with the records requests ..."

West concluded that it would not be in the public interest to grant McCarty a preliminary injunction based on McCarty's claims about the county failing to comply with public records requests.