Ruling secures open space |

Ruling secures open space

Scott Condon
Aspen Times Staff Writer

A decision Monday by the Colorado Supreme Court could result in preservation of thousands of acres of open space around Aspen and guarantee that the Mount Sopris Tree Farm in El Jebel remains in public hands.

The Supreme Court ruled that the county’s process of acquiring a mining claim on the back of Aspen Mountain through a tax sale nearly a century ago was legitimate. The plaintiff had claimed the sale was flawed and, therefore, the land was in private rather than public hands.

The case, which cannot be appealed higher, could set a precedent for hundreds, and possibly thousands, of such tax sales made during Aspen’s quiet years ” when the town was withering after the collapse of silver prices.

The decision will also help settle disputes over ownership of scores of mining claims, said Pitkin County Attorney John Ely, who successfully argued the case before the Supreme Court.

“The fight is much more important than just this case,” said Ely.

The county regularly must defend the tax sale process in lawsuits known as “quiet title actions.” And 50 such lawsuits are pending in federal district court over mining

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claims that were traded by Pitkin County to the U.S. Forest Service for the Mount Sopris Tree Farm in El Jebel.

Ely predicted yesterday’s decision will weigh heavily in those federal cases.

The Quiet Years

Many mining claims were abandoned after 1893 when their owners fled Aspen for more active mining camps and corporate owners went bankrupt and dissolved. Taxes weren’t paid on what appeared to be worthless ground so the Pitkin County treasurer regularly held sales where liens to the property were sold. Records show there were rarely bidders.

The county held a tax sale in 1908 on a bunch of property that included the Twilight Lode, located on the back of Aspen Mountain. Henry Powers and Powell Smith acquired a patented claim to the Twilight in 1892, when there was no end in sight to Aspen’s promise.

The promise plummeted the next year. Taxes hadn’t been paid for years by the time the county treasurer got around to holding a tax sale on the Twilight Lode, records indicate.

State law mandated that such sales be held on the second Monday of each November, unless there were extenuating circumstances. Ely said newspaper accounts and legal documents indicate that the county government was a shoestring operation during the quiet years. The treasurer didn’t get around to holding the sales when required.

A lien was offered to the Twilight in December 1908. There were no bidders so the county held that lien. The Twilight was forgotten until 1964, when a treasurer’s deed was issued to the county.

Feds reject Twilight

The county attempted in 1994 to lump the Twilight in with scores of other mining claims used in a land swap with the Forest Service. The county ultimately traded 267 patented mining claims totaling 1,258 acres to the feds. In return, Pitkin and Eagle counties received 125 acres at the old tree farm in El Jebel. That land is now being developed as a community park.

The Forest Service wouldn’t accept the Twilight Lode as part of the swap because it thought Pitkin County’s ownership would be too hard to prove in that case, Ely said.

Basalt resident Grant Timroth alleged he owned the Twilight Lode. He filed a lawsuit to establish ownership in 2001. Pitkin County District Judge Thomas Ossola ruled in favor of Pitkin County in June 2001. The Colorado Court of Appeals reversed Ossola in August 2002. The county appealed to the state Supreme Court, argued the case in January and received the favorable ruling yesterday.

Timroth was represented by Aspen attorney Gary Wright, who argued that since the treasurer didn’t hold the tax sale on the specified day, the county’s acquisition of the Twilight wasn’t legitimate. He also argued that the county shouldn’t be allowed to show why the tax sales weren’t held on the specified day.

The Supreme Court found that the tax sale on the Twilight was “lawfully conducted.” It also ruled that the county had the right to establish why there was a delay in the tax sale made in 1908 and that, if legitimate, the excuses were retroactive to that sale.

Timroth’s case was argued in front of the Supreme Court by Denver attorney Fred Skillern. He declined comment yesterday on the ruling. Wright was out of town Monday, and his office said he couldn’t be reached.

Implications in 50 cases

Ely claimed the Twilight ruling will have implications on 50 other lawsuits filed by Wright regarding mining claims that were swapped by Pitkin County to the Forest Service in the tree farm deal.

In those cases, Wright filed the lawsuits against the Forest Service rather than the county. His arguments are the same ” the county’s acquisition of the mining claims wasn’t legitimate because of the flawed tax sales.

In the terms of the land trade, the federal government said Pitkin and Eagle counties had to reimburse the landowners in any cases where the counties traded land that didn’t belong to them.

In practical terms, Ely said, that meant the counties would have to pay the landowners for swapping their land or give the land back. The county governments don’t have the money so the mining claims would have been given back and the trade for the tree farm would be voided, he said.

That would have reopened the threat of development to hundreds of acres of land, mostly on the backside of Aspen Mountain.

But now, Ely contended, the U.S. Attorney’s Office can cite the Twilight case in the 50 federal lawsuits. Because the ruling pertains to a state lands issue “the federal court will follow the state Supreme Court decision,” Ely said. “It makes it very easy now to defend these things.”

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