Aspen group sues to prevent closure of Verena Mallory Trail |

Aspen group sues to prevent closure of Verena Mallory Trail

Scott Condon
The Aspen Times
The controversy over a trail through Verena Mallory Park on Smuggler Mountain became the subject of a lawsuit on Monday. The park's overlook and picnic table can be used regardless of the outcome, according to Aspen Valley Land Trust.
Jeremy Wallace/The Aspen Times |

A newly-formed Aspen citizens’ group filed a lawsuit against Aspen Valley Land Trust on Monday to try to prevent closure of a short but popular trail on the shoulder of Smuggler Mountain.

The Friends of Verena Mallory Trail Association Inc. wants a judge to declare that Fritz Benedict didn’t intend for an existing trail to be closed and reclaimed after he donated the land surrounding it to the land trust after his death in 1992, the lawsuit said. Benedict, a trails advocate, created the trail in fall 1991 as an alternate route to the steeper and rockier South Hunter Creek Trail.

Benedict was embroiled in the Hunter Creek Valley access dispute and was seeking ways to make the south trail into the valley more alluring so that pressure would be eased to use the North Hunter Creek Trail. A nasty legal battle was brewing at the time over ownership of the north trail.

To make the south route more alluring, Benedict built a jug handle-shaped route that gets users off about one-quarter mile of the South Hunter Creek Trail.

The trail was later named in memory of Verena Mallory, an Aspen girl who died at a young age from leukemia.

Aspen Valley Land Trust didn’t restrict use of the trial for 23 years but discovered the key wording on the deed last year. Martha Cochran said the deed says “no roads or trails of any kind shall ever be established or permitted to remain.”

The land trust must uphold the conditions of a gift or risk its credibility, the organization has said in correspondence with Pitkin County.

Even if Benedict’s intentions cannot be determined, the Friends of Verena Mallory Trail Association contends it is too late for Aspen Valley Land Trust to close the trail. The lawsuit contends that the public established a prescriptive easement to the route through “visible, open and notorious use therefore of, and, until now, (the trust) has not objected to or attempted to restrict the use of the trail by Friends’ members or the general public.”

“The continuous public use of the trail, coupled with Pitkin County’s inclusion of the trail in the PitkinOutside database and the county’s management and maintenance of designated open space and trails, constitute use under a claim of right,” the lawsuit said.

The public has been using the trail for almost 24 years. A public prescriptive right was established after 20 years of use, according to Chris Bryan, an attorney for Garfield and Hecht. The firm is representing the Friends of Verena Mallory Trail Association pro bono.

“We were saddened to see Pitkin County wasn’t going to take legal actions” to keep the trail open, Bryan said.

Aspen Valley Land Trust delayed a closure of the trail last year to seek a different solution with Pitkin County and the city of Aspen. The respected land trust’s deadline for resolving the issue was today. Cochran last week said the organization intended to close the trail as soon as signs arrived and a contractor could mobilize for the reclamation work.

Cochran stressed Monday that the Verena Mallory Park, which includes an overlook and a picnic table, won’t be closed. The uses were specified in the deed granted by Fritz and Fabi Benedict, she said.

Cochran said she couldn’t comment on the lawsuit because the nonprofit organization’s attorney wasn’t available Monday and its board of directors hadn’t had time to confer. She questioned if a citizens’ group has the legal standing to sue the nonprofit.

She also said it was “painful” for the land trust to be the target of litigation and said it will siphon a lot of time and money from its mission of protecting land.

When asked if she would welcome the lawsuit as a way to end a controversy that popped up more than one year ago, Cochran said she would have preferred Pitkin County work with Aspen Valley Land Trust to get a declaratory judgment from a judge.

“I would have welcomed it from somebody that represents the public interest,” she said.

The lawsuit said the Friends group was “created by outdoor enthusiasts in the Roaring Fork Valley to preserve, protect and raise awareness about the trail and to preserve access to, and use and enjoyment of, the trail.” The members don’t have to individually be named as parties to this type of lawsuit, the complaint contended.

Bryan Erickson was listed as a representative of the association.

The Aspen-based Roaring Fork Mountain Bike Association has lobbied Pitkin County and Aspen officials to intervene to keep the trail open. It posted a note from Bryan on its Facebook page about the lawsuit at about 4 p.m. Monday.

The Friends of Verena Mallory Park is seeking a temporary restraining order to prevent the land trust from closing the trail today. No ruling was made by a judge on the request as of 5 p.m. Monday.

The lawsuit asks a judge to approve a preliminary injunction, which would essentially extend a temporary retraining order until the lawsuit is ruled on. If the Friends group prevails, it asks that a permanent injunction be granted that prevents closure of the trail.