The Pine Creek Road runs along its namesake creek in a canyon in the Elkhorn Mountains northwest of Baker City.

Two parallel legal processes continue in a dispute about the Pine Creek Road in the Elkhorn Mountains northwest of Baker City, a popular access route for ATV riders, hunters and hikers.

One involves the lawsuit that David McCarty, who owns land that the road crosses, filed against Baker County on April 30, 2021.

The other is the county’s effort to potentially declare the disputed section of road a public right-of-way.

County commissioners started that process in June 2021, passing a resolution “declaring the necessity for the legalization of Pine Creek Lane.”

In response, McCarty, who in September 2020 bought a 1,560-acre property through which the road runs for about 2½ miles, sought a preliminary injunction blocking the county from proceeding with its effort to designate the road as public.

The month he bought the property, McCarty installed a locked gate across the road at his property boundary, citing his concern that people were trespassing and having campfires despite the high fire danger.

On July 29, 2021, Senior Judge Stephen P. Forte granted McCarty a temporary restraining order that prohibited the county from continuing its effort to “legalize” the road through McCarty’s property and secure access to the public.

The county contested that ruling, and on Nov. 5, 2021, Senior Judge Russell B. West dissolved the restraining order. West also ruled that the county can survey the portions of McCarty’s property that the Pine Creek Road crosses.

The county had the road surveyed last fall.

The next step is to have a public hearing to collect comments about the potential designation of the road as public, said Heidi Martin, the commissioners’ executive assistant.

The hearing has been set for Tuesday, April 19, at 9 a.m. at the Baker Community Events Center, 2600 East St.

Written testimony can be emailed by 4 p.m. on April 15 to hmartin@bakercounty.org or mailed to Baker County Commissioners, 1995 Third St., Baker City, OR 97814.

Martin said commissioners will consider comments from the public hearing, as well as a packet of material that County Roadmaster Noodle Perkins has compiled, in deciding whether to designate the road as a public right-of-way.

Lawsuit against county continues

In the meantime, McCarty’s lawsuit is pending in Baker County Circuit Court.

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.

In his lawsuit, McCarty says that before buying the timbered property through which the road runs, he reviewed the title report and other documents, none of which showed a public road through the land.

The existing road is steep and rough, but people have historically used it to access Pine Creek Reservoir, which is on the Wallowa-Whitman National Forest. The road, which is mainly traveled by ATVs and hikers, continues beyond the reservoir, and an unofficial trail crosses a ridge and drops to Rock Creek Lake.

In an Oct. 14, 2021, hearing, retired County Roadmaster Ken Helgerson testified that although the county does not have a deeded easement for sections of the Pine Creek Road that cross McCarty’s property, Helgerson believes the road is a public road under RS 2477, an 18th century federal law that has been superseded but is sometimes cited as proof of public access for a historic route.

In a motion filed Feb. 4, 2022, McCarty’s attorney, Janet K. Larsen of Portland, asked a judge for a summary judgment requiring the county to pay attorney fees and other costs due to what Larsen contends is the county’s failure to supply records that McCarty has requested under Oregon’s Public Records Law.

A hearing on Larsen’s motion on that matter has been scheduled for April 7 at 10 a.m. in Circuit Court.