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

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.