A historic use trails off in Marble

MARBLE – In the summer of 2004, a change took place outside of the tiny mountain hamlet of Marble. Suddenly, hand-painted signs began appearing at the base of the town’s famous Marble Quarry Trail. They asked for a $5-per-person access fee to hike the formerly free trail.

What had changed was that Steve McIntyre had finally triumphed in his six-year legal battle with Gunnison County.

“We feel like we stopped abusive government efforts to take people’s land based on legal right alone,” said McIntyre. “It cost us a lot of money, it cost us a lot of grief, but you have to stand up for what’s right.”

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McIntyre and his wife, Kim, bought a number of small mining claims in 1994 with the intention of building themselves a summer home where they could retreat from the withering heat in Arizona. In 1998, after building a cabin, the McIntyres raised a gate at the entrance to their property and closed off public access to the quarry trail, which crosses approximately 1,200 yards of the McIntyres’ property.

A furor ensued. Gunnison County immediately filed suit against the McIntyres, backed in no small part by some Marble residents who wanted to keep the trail open to the public and free. McIntyre says that his is a completely legitimate business in the entrepreneurial tradition of America, but a number of residents view his actions as blatant profiteering.

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“What it’s boiled down to is the assertions of people who believe that their right to profit comes above public use, public access,” said Marble resident Vince Savage.

Savage, who sat on the Marble Town Council for 16 years, has followed the case closely since its beginning eight years ago. He believes the public had established ownership via usage dating back to 1941, when the quarry closed its doors and the trail became a de facto public domain.

“In this case, we did our research and that had been an open thoroughfare ever since the early 1900s. Elmer Bair, who at the time was in his late 90s, came up and testified.”

Savage said that Bair testified that he’d been using the trail since he was 10 years old, and that it was always a public trail.

“It gets right down to the whole issue of private property ownership. Native Americans felt that the Earth owns us, we don’t own it,” said Savage. “That’s kind of the basis of the issue.”

The trail was originally built for an electric tram that quarry operators used to ferry massive blocks of marble down the gorge to the valley floor. It winds up the side of a beautiful marble-studded ravine to a lookout point, from which visitors can see down into the quarry. After the quarry became defunct and all the equipment removed, the trail, which also provides access to the Yule Creek valley beyond, was adopted as part of the tourist attraction.

The catch is that public ownership was never made official. The land through which the trail passes was purchased from the county in 1960 by a private landowner, and was eventually sold to the McIntyres 34 years later. During that entire time, whoever owned the land simply didn’t care that hikers were crossing it.

But the McIntyres do care.

“The crux of the whole argument is not whether we have a right to charge an access fee. It’s simply that this is private property. It’s for us to decide who comes and goes on our property. It’s the best compromise for everybody,” said McIntyre. He added that as a private property owner, he’d be liable to anyone who sustained an injury while crossing his land. He said he pays for liability insurance, in addition to what he spends on trail maintenance for the public.

As one of his signs attests, he took his case all the way to the Colorado Supreme Court, and despite losing twice before, in District Court and Appellate Court, he won when it counted.

At this point, the case is essentially over. The Supreme Court decision was upheld by both the District Court and the Appellate Court the second time around. Gunnison County Attorney David Baumgarten is submitting a last-ditch petition to the Colorado Supreme Court and asking them to reconsider some additional evidence in the case, but whether or not the justices hears the case is entirely up to them. The Supreme Court’s decision on whether or not to hear the case is expected in the next few months.

Still, there is a chance, Baumgarten said.

“Gunnison is making a good-faith effort to keep public access where public access historically has been,” said Baumgarten.

The chance that the decision may be reversed hinges on just how and what the Supreme Court decided in 2004. What they did was to redefine the standard for a state, county or town to claim dominion on a piece of land.

Previously, the law was understood to have been a kind of natural default, whereby if the government behaves as if a certain piece of land belongs to it for 21 years and there’s no objection from any quarter, then after that 21 years, the land does legally belong to the government.

What the Supreme Court said was that the county would have to provide evidence that there was maintenance or some sort of expenditure not only on the quarry road but on each particular piece of the McIntyres’ land in question.

Baumgarten says he has such evidence, but both the District Court and the Appellate Court rejected it. Now, he’s hoping that the Supreme Court will take one last look.

McIntyre, meanwhile, is quite confident it won’t.

“It’s done,” he said.

McIntyre’s win, however vindicating it may have been, came at a cost. The feud has created a lot of ill will. There’s definitely no love lost between McIntyre and Savage.

Savage, as well as others like Marble Historical Society member Tom Williams, is also unhappy over the wording of some of the signs, ads, and parts of the Web site that McIntyre has put up (www.marblequarrytrail.com). One of the signs at the entryway to the trail reads, “Help keep the trail open”; another reads, “Access fees work.” Savage and Williams contend that this is misleading and gives the impression that McIntyre is running some sort of not-for-profit organization.

“So they’re depicting themselves as the protectors of the trail when they in fact are the threat. They’re saying, pay us money and we’ll keep it open. But they’re acting as though someone wants to close it,” said Savage.

“It’s very deceptive. It’s basically a spin on what is the truth,” said Williams.

McIntyre said he fails to see how his signs are anything but up-front and truthful.

“I think the language on the signs is very accurate,” McIntyre said. “I can’t see how our sign can be construed as spin. We put them up to answer questions that the public has, such as why are we paying a fee.”

“They seem to be in denial that it’s private property,” McIntyre said of Savage and Williams.

McIntyre has also faced problems with continuing rumors and misinformation about whether or not he’s in the right. In August, a confrontation took place between McIntyre and a number of tourists. McIntyre was so fervent in defending his right to charge whatever he wanted for people to cross his land that the group simply left.

“He’s like a little troll,” said Redstone resident Rose Nelson, who was with the group. “He just really intimidated us. He had a really crazy look in his eye.”

McIntyre said some of the visitors contributed to the hostility of the situation.

“If you try to tell me to shut up on my own land, then I’m probably going to get a little angry,” McIntyre said.

“It makes it very tough for us when people come up and they’ve been told something by someone they think they can trust and it turns out to not be true,” McIntyre added.

Nelson acknowledged that she was told that the trail was open to the public and free of charge.

Unless Baumgarten’s petition sways Supreme Court enough to get another hearing, visitors to the Quarry Trail will have to cough up $5 to get to the top.