New information surfaces in dispute over trail on Aspen’s Smuggler Mountain
September 7, 2017
The battle over a hiking and biking trail on Smuggler Mountain was rekindled this week when a group of outdoor enthusiasts amended a lawsuit to try to show the public has established the right to use the route through regular, adverse use over 26 years.
Friends of Verena Mallory Trail Association Inc. amended its lawsuit against Aspen Valley Land Trust in an unusual fight that pits organizations whose members would typically be working side by side on issues.
The land trust, one of the oldest and most respected in Colorado, decided in 2015 that it had to close the Verena Mallory Trail due to terms spelled out when it received property in the early 1990s from Fritz and Fabi Benedict, who are now deceased. The deed prohibited creation of trails and roads on the property, which the Benedicts wanted preserved from development.
The use of the trail was uncontested until 2015. AVLT performed a standard review of deeds to the properties in its inventory and learned of the prohibition of roads and trails in what is known as Verena Mallory Park on a lower shoulder of Smuggler Mountain. The park was dedicated in 1993 in memory of Verena, an Aspen girl who died from leukemia.
The land trust interpreted the deed condition to mean the existing, jug-handle-shaped trail had to be closed and reclaimed. The trail has been used since Fritz Benedict created it in 1991 for hikers and bikers as an alternative to a short but steep and rocky stretch of the south Hunter Creek Valley Trail.
The Friends group filed a lawsuit in August 2015 contending that Benedict, a promoter of open space and trails, never intended for the trail to be decommissioned. The land trust said it was simply enforcing conditions of the deed after reviewing all properties where it holds a conservation easement.
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Pitkin County District Judge Anne Norrdin dismissed a portion of the lawsuit Aug. 15 because she found Friends of Verena Mallory Trail didn't have standing to file the lawsuit. However, she said the group could amend its complaint and supplement its claim that the public at-large had established rights to use the trail through continuous use and knowledge by AVLT.
The Friends group, through pro bono attorney Chris Bryan of Aspen, is asking the judge to allow the amended and supplemented complaint. It's asking that the judge prohibit the land trust from closing and reclaiming the trail.
"Keeping the trail open will enhance, not harm, AVLT's reputation and goodwill," the lawsuit said. AVLT hasn't had a chance yet to respond.
The lawsuit was supplemented with an affidavit from Aspen attorney Art Daily, who represented the Benedicts at the time they donated the land for what became Verena Mallory Park and trail to AVLT.
"It is my understanding and sincere belief that Fritz and Fabi intended to reserve and to establish an easement for the entire length of the trail in the trail deeds," Daily said in an affidavit. However, when Daily drafted the trail deeds, he was unaware of the existing trail and Fritz Benedict didn't inform him of it. Daily said he has concluded the trail deeds were drafted erroneously and don't conform to the Benedicts' wishes to donate the existing trail.
"I fully support keeping the trail in place and open to the public and firmly believe that Fritz and Fabi would have wanted — and clearly intended — the same," Daily said in the affidavit completed Sept. 1.