Judge denies restraining order in Aspen trail dispute | AspenTimes.com

Judge denies restraining order in Aspen trail dispute

Scott Condon
The Aspen Times

A citizens’ group’s motion for a temporary restraining order to prevent a land trust from closing the Verena Mallory Trail on Smuggler Mountain was denied Tuesday by a Pitkin County District Judge.

Judge Daniel Petre wrote in his decision that there was no evidence that “closure of the Trail is irreparable.” He noted that the closure “may be reversed” if the Friends of the Verena Mallory Trail Association Inc. prevails in a lawsuit to keep the route open.

“In the meantime, other, perhaps less scenic and more strenuous aspects of the Hunter Creek Trail continue to be available for use if this alternate loop in that trail system is not in service while the court sorts this out,” Petre wrote.

The closure of the trail isn’t imminent, according to Aspen Valley Land Trust Executive Director Martha Cochran. She said signs to close the trail haven’t been ordered yet. She noted that fall is the best time to revegetate the ground to reclaim the trail, but paying for that work would be a risk before the lawsuit is settled. In theory, the trail could be closed but not reclaimed until a final judge’s decision.

Cochran said Aspen Valley Land Trust’s board of directors hasn’t met since the lawsuit and temporary restraining-order request was filed on Monday. The board has already delayed the closure twice while negotiating with Pitkin County and the city of Aspen, she said. Those efforts were unfruitful.

“They’ve been clear that we tried to have a very patient approach — to let everything play out,” said Cochran of the land trust board. The last deadline set by the board was Sept. 1.

The land trust hired Aspen attorney Matt Ferguson as its representative in the case on Tuesday.

The decision on the temporary restraining order has no bearing on the lawsuit, according to Chris Bryan, pro bono attorney for the Friends of Verena Mallory Trail Association. He said he will file a motion for a preliminary injunction, possibly as early as today, to prevent closure of the trail. If that motion is successful, the trail couldn’t be closed and reclaimed until after the lawsuit is settled.

Aspen Valley Land Trust received the property on Smuggler Mountain from Fritz and Fabi Benedict in 1992. Fritz Benedict created the trail the year before, but the deed said no new trails or roads could be constructed and existing ones had to be removed. The land trust didn’t enforce the regulation and the trail has been used for nearly 24 years. However, once it discovered the requirement during review, it was obligated to enforce it, Cochran has repeatedly said.

The lawsuit by Friends of Verena Mallory Trail Association contends Fritz Benedict’s intentions were clear since he created the trail shortly before conveying the property. In addition, the public has established a prescriptive right to the trail during 24 years of use, the lawsuit said.

Once the “Friends” file their motion for a preliminary junction to keep the day open, Aspen Valley Land Trust will have 21 days to respond.