Rules of the road 

Teller County prosecuting man for blocking road across his property

click to enlarge Darwin Floyd faces criminal charges for blocking a road across his private property. - TERJE LANGELAND
  • Terje Langeland
  • Darwin Floyd faces criminal charges for blocking a road across his private property.

Darwin Floyd just wanted some peace and quiet.

Now he keeps a holstered .45 pistol between the front seats of his SUV.

The pistol is for self-defense. Recently, he's had several altercations with people who drive all-terrain vehicles and motorcycles across his property, a 10-acre former mining claim 15 miles north of Divide, surrounded by the Pike National Forest.

"I've had people tell me I'm gonna get shot," Floyd said recently, bumping along a rutted Forest Service road near his land. "I take those kinds of threats seriously."

Floyd says the motorized-recreation enthusiasts are trespassing on his land. But he can't report them to the Teller County Sheriff's Office. The sheriff's office says Floyd's the one breaking the law.

According to Teller County, two public roads -- Forest Service roads 358 and 364 -- intersect Floyd's property. Motorists have a right to travel those roads, the county asserts.

Floyd, on the other hand, says the roads aren't public.

The dispute is not an uncommon one in the West, where individuals often purchase old mining claims surrounded by public lands, sometimes sparking conflict over access across their properties.

What is unusual about Floyd's case is this: Rather than attempting to resolve the dispute in a civil court, Teller County is trying -- for the second time -- to have Floyd convicted as a criminal.

In a case pending in the 4th Judicial District, the Teller County Sheriff's Office is accusing Floyd of obstructing a public roadway by putting up a locked gate across one of the disputed roads. If he's found guilty, Floyd could face up to six months in prison.

"They have elevated this way beyond a property dispute," said Tim Pleasant, Floyd's attorney.

Floyd, meanwhile, intends to sue the county and has also filed a complaint alleging misconduct by Teller County attorney Chris Brandt.

Seeking solitude

Floyd and his wife bought their land, the site of a former gold mine, in 1993. They lived in Colorado Springs at the time but wanted to get out of the city.

At first, it was quiet.

"We would come up, spend a whole Saturday, just throw a blanket on the grass and maybe see two or three cars come through all day," Floyd recalled.

The couple built a house on the property in 1999 and put up gates across the road entrances.

Floyd had made sure the roads weren't public, he says. The original land patent that created the parcel, issued in 1898, mentions no road or public road easement.

Floyd also says he's not blocking access to public lands, as there are other ways to get to the lands on all sides of his property.

But in the years before Floyd put up the gates, the roads on his land had become popular among ATV-riders and motorcyclists, who would drive across the property at high speeds. Oftentimes, they would drive off the roads, tearing up the terrain.

"They're very destructive," Floyd said. "They don't care about the forest."

When Floyd locked his gates, some motorists would simply drive around them. He would call the sheriff's office, and at first, deputies would respond and issue tickets for trespassing.

At some point, however, the sheriff's office decided Floyd was the lawbreaker.

An e-mail message from July of 2001, written by a Forest Service official and obtained by Floyd, states that then-Sheriff Frank Fehn was "getting ready to cite Darwin Floyd for closing a public road." Two months later, the county commissioners unanimously passed a resolution declaring Forest Service roads 358 and 364 to be public roads. One of the commissioners was Lucile Fehn, the sheriff's wife.

Still, the sheriff's office took no action until this year. On Feb. 25, a deputy came to Floyd's property, cut the locks to his gate, and cited Floyd with obstructing a public roadway.

A judge dismissed the case against Floyd because the prosecutor wasn't prepared at the time of trial. But the sheriff's office simply cited Floyd again, on Oct. 11, ordering him to reappear in court on Nov. 19.

Right to the roads

The sheriff's office, the 4th Judicial District and county attorney Brandt all refused to comment for this story.

Teller County Commissioner Jerry Bergeman, however, says the public has a right to use the roads across Floyd's property, citing the resolutions in which commissioners declared the roads public. He says the resolutions were based on an old federal statute, known as RS2477, which gives counties the power to declare old roads and trails on public lands as public thoroughfares.

"We have citizens here who, for years, have used [those roads] for access to the national forest, for recreation, hunting and those types of things, and they have a legal right to maintain that," Bergeman said.

But Pleasant, Floyd's attorney, says the statute applies only to public lands, making it irrelevant. Besides, the county's resolutions pertain only to Forest Service roads 358 and 364. The Forest Service itself admits that those roads don't cross Floyd's land.

"We don't have a right-of-way through the private property," confirmed Tim Grantham, a Forest Service official, in an interview.

Pleasant also questions the resolutions' legality. The discussion items weren't mentioned in publicly posted agendas for the commissioners' meeting, which is required by state open-meetings laws.

Asked why the agenda omitted the resolutions, Bergeman said he didn't remember. "I'm not sure how it came about," he said.

Bergeman also says he doesn't have firsthand knowledge of why the sheriff's office cited Floyd.

"My understanding is Mr. Floyd is supposed to keep those gates unlocked," Bergeman said. "If he doesn't, I guess the sheriff issues him a summons."

Fighting back

Floyd, meanwhile, has his own opinions as to why county officials want to prosecute him, rather than sue him.

"Maybe they don't think they can prove a civil case," he speculated.

Or maybe, he says, county officials are used to pushing people around. "It just seems like the county commissioners up here have an arrogance, that they [think they] can do whatever they want."

Either way, Floyd is fighting back.

On Aug. 22, Pleasant notified the county that Floyd intends to sue for up to $660,000 in damages for trespass, false and malicious prosecution, violation of private property rights, violation of due process rights, violation of civil rights, false arrest and malfeasance.

Last month, Floyd also filed a complaint with the Colorado Supreme Court's Office of Attorney Regulation, alleging misconduct by county attorney Brandt.

Floyd claims the deputy who issued the latest citation told him the sheriff's office was acting on orders from Brandt. Colorado law bars attorneys from initiating criminal charges as a means of intimidating the opposing party in a civil lawsuit. At the time when Floyd was last cited, Brandt knew Floyd was planning to sue the county.

Floyd says his pending lawsuit isn't about the money.

"We moved up here looking for peace and quiet," he said. "I just want to be left alone."

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