THURSDAY, AUGUST 5, 2021
BAKER CITY HERALD — A5
LOCAL & STATE
ROAD
Continued from Page A1
Joanna Mann/Baker City Herald
Sofie Kaaen, 14, showed her rabbits at the Baker County Fair this week.
FAIR
Continued from Page A1
Grand Champions in sheep,
steer, swine and goat were
announced Wednesday night,
followed by live music. There was
a nervous excitement with each
show, as kids poked, prodded and
answered technical questions
about their animal.
One of the most popular
events at the Fair every year,
the livestock auction, will take
place Friday, Aug. 6 at 6 p.m.
in the Cockram Arena, where
competitors will find out whether
last year’s whopping $307,070.09
record will be broken. That num-
ber broke the record of the year
before, so if things are on track,
2021 could be the most successful
auction yet.
Temperatures soared into
the mid-nineties during the day,
relieved by cool showers in the
evening.
Fifteen-year-old Zoey Justus,
who lives in Baker City and has
been showing animals since she
was just five years old, patted her
market steer named Yankee be-
fore showing him on Wednesday.
“There’s a lot of good cows
here,” Justus said. “I wouldn’t be
surprised if I didn’t win.”
Justus started showing chick-
ens 10 years ago, and her first
fair was in Halfway when she
was seven. Currently she has six
cows, three of which are heifers.
Although she has been showing
for most of her life, she still gets
nervous each time.
“Today’s competition is about
the steer itself more than the per-
son showing it,” Justus said. “So
it’s more about their muscle and
fat than my muscle and fat.”
For some others, this was their
first or second year showing at
the Baker County Fair.
Lexi Rupel, 14, showed her
two purebred rabbits, Daisy and
June, for the first time in Baker
City. Sofie Kaaen, who turns 14
this week, showed her rabbits,
Peter and Marigold, for the sec-
ond time at this fair.
Kids got to learn from the best
in the business before showing
their animals, thanks to classes
held in the Leo Adler Ring. Grant
Hooper answered questions on
Tuesday, Aug. 3 about the best
Joanna Mann/Baker City Herald
way to position the animals and
Lexi Rupel, 14, with one of her rabbits during this week’s
what exactly he’d be looking for
Baker County Fair.
later that night.
COVID
of inpatients; the current figure
is about 6%, Snider said.
He said the COVID-19
Continued from Page A1
patients are much younger on
average than what Saint Alphon-
The rate of positive tests rose
sus hospitals were seeing earlier
from 1.6% for the week starting
in the pandemic, with many
July 11, to 6.3% and then to 29.8%
patients in their 20s or 30s.
the week of July 25-31.
The pandemic has contrib-
The trend has continued into
uted to the influx of hospital
August, with 32 cases reported in
patients in a less direct way,
the county for the first three days
Snider said.
— 10 on Aug. 1, seven on Aug. 2,
He said some people deferred
and 15 on Aug. 3.
treatment for illnesses during
The Oregon Health Author-
the pandemic, but now have
ity (OHA) also reported the 18th
Hospital capacity
symptoms severe enough, for
COVID-19-related death in Baker
The surge has taxed the
County, a 93-year-old woman who capacity of the Saint Alphonsus conditions such as pneumonia,
tested positive on July 8 and died
group of hospitals, including the that they need hospital treat-
on July 29 at Saint Alphonsus
one in Baker City, said Mark
ment.
Hospital in Boise. She had underly- Snider, public relations and digi-
In addition, summer tends to
tal strategy coordinator for Saint be a busy season for hospitals
ing medical conditions, according
due to trauma causes from car
Alphonsus Health System.
to OHA.
Snider said patient numbers crashes and outdoor activities,
“All of us at the Health Depart-
ment are so sad to receive this re- are near record highs in all Saint Snider said.
The rush has led to delays in
port,” Staten said in a press release. Alphonsus hospitals, including
the larger facilities in Boise and moving patients from emergency
“A loss like this is never easy, and
departments to inpatient beds,
we’re thinking of their family and Nampa.
he said.
An increase in COVID-19
friends during this difficult time.”
Snider said Saint Alphonsus
patients is contributing to the
has the capacity to transfer seri-
situation, Snider said.
Vaccination rate rises slightly
At the start of July, people
ously ill COVID-19 patients from
Baker County daily vaccination
who tested positive for CO-
its smaller hospitals, such as
rate has risen a bit over the past
Baker City, to the Boise hospital.
VID-19 accounted for just 0.1%
three weeks.
The running seven-day aver-
age dipped to eight doses per day
on July 11 and 12, but it jumped
to 16 per day on Aug. 2, according
to OHA statistics.
The daily total of 32 doses
on July 30 — 23 Moderna, six
Johnson & Johnson, three Pfizer
— was the most since 33 doses on
July 2.
The county hasn’t exceeded
40 vaccine doses in any day since
June 11, when the total was 91.
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Motion for temporary restrain-
ing order
On July 28 McCarty’s attorney,
Larsen, filed a motion seeking the
temporary restraining order and a
hearing on a preliminary injunction
to block the county from pursuing
a legal designation of the road as a
public right-of-way.
In the motion, Larsen wrote that
the county has violated McCarty’s due
process rights by, in effect, encourag-
ing the public to use the road through
his property “when at best doubt
existed regarding the precise location,
nature, and scope of any purported
public right.”
Larsen also wrote in the motion
that “McCarty and his agents have
been harassed, verbally abused,
and even physically attacked while
attempting to secure the McCarty
Property,” issues she attributes to
the county’s actions that encourage
the public to assume that a public
right-of-way exists through McCarty’s
property.
“To date, the County has offered
McCarty no assistance to address the
public’s violence, harassment, and
unlawful and uncontrolled uses of the
McCarty Property,” Larsen wrote in
the July 28 motion for a restraining
order.
Larsen also wrote that McCarty
has had to interrupt logging on his
property “Due to the public’s unfet-
tered entry and use of the McCarty
Property.” McCarty “resorted to re-
moving all the equipment he used for
his logging activities on a daily basis
to protect it from vandalism and dam-
age,” Larsen wrote.
Larsen contends that commis-
sioners’ decision to try to designate
the road as a public right-of-way is
tantamount to admitting that such a
right-of-way doesn’t exist now.
“These concessions confirm the
County’s lack of authority to declare
the existence of a public road and an
unrestricted public right of access to
the McCarty Property when it did so
on September 30, 2020 and that it
was reckless, at best, when it directed
its Roadmaster to enter onto the
McCarty Property to cut the locks on
gates McCarty has installed to secure
and protect his property.”
Larsen also reiterates a point Mc-
Carty has made since last fall — that
the county has failed to provide public
records related to the road.
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1-855-839-0752
the disputed section of road, which
runs for about 2 1/2 miles through
the 1,560-acre property that McCarty
bought in September 2020, as a public
right-of-way based on Oregon law.
Commissioners approved a
resolution on June 16 “declaring the
necessity for the legalization of Pine
Creek Lane.”
Commissioners discussed during
July hiring someone to survey the
disputed road, but the judge’s order
forbids the county from “entering
onto, inspecting, and/or surveying the
McCarty Property.”
The restraining order also
prohibits the county “from making
public announcements, declarations,
or statements regarding the McCarty
Property that mislead the public
regarding its right to access, enter,
and use any part of the McCarty
Property.”
In filings as part of his lawsuit,
McCarty’s attorney, Janet K. Larsen
of Portland, contends that “as a result
of the County’s actions, the public
continues to trespass on the entirety
of the McCarty Property for reasons
beyond the purpose of travel, includ-
ing recreation such as hunting and
camping. Indeed, on several occasions,
trespassers to the McCarty Property
have lit illegal fires which present a
legitimate risk both to the McCarty
Property and the public at large.”
Forte ordered the county to ap-
pear on Aug. 16 in Baker County
Circuit Court for a hearing regarding
McCarty’s motion for a preliminary
injunction that would prevent the
county from proceeding with its effort
to declare a public road through Mc-
Carty’s property.
The temporary restraining order
will be in place in the meantime.
In his ruling, Forte wrote that
without the restraining order being
“immediately” imposed, “immediate
and irreparable injury, loss, or dam-
age will result to plaintiff.”
Baker County Commissioner
Mark Bennett said the county is not
commenting on the ongoing litigation.
History of the dispute
In his lawsuit, McCarty says that
before buying the timbered property
through which the road runs, he
reviewed the title report and other
documents, none of which showed a
public road through the land.
The existing road is steep and
rough, but people have historically
used it to access Pine Creek Reservoir,
which is on the Wallowa-Whitman
National Forest. The road, which is
mainly traveled by ATVs and hikers,
continues beyond the reservoir, and
an unofficial trail crosses a ridge and
drops to Rock Creek Lake.
Soon after buying the property, in
September 2020, McCarty installed a
metal gate, with a lock, at his eastern
property boundary, near the edge of
Baker Valley.
On Sept. 30, 2020, county commis-
sioners voted 3-0 to order workers
from the county road department to
remove the lock. That happened on
Oct. 1, 2020.
After commissioners contended
that the Pine Creek Road is a public
route, including the section through
McCarty’s property, McCarty asked
county officials to supply records
documenting the road’s status as
public.
During their Sept. 30, 2020, meet-
ing, commissioners referred to an
1891 county document that describes
the surveying of a road along Pine
Creek. The document includes a map
of the route that, based on the town-
ship, range and sections shown on the
map, appears to follow the route of the
existing road through the eastern por-
tion of McCarty’s property, leading to
the Baisley-Elkhorn mine, although
it doesn’t show a route through the
western part of the property.
In the lawsuit, McCarty contends
that the 1891 document does not
prove a legal public right-of-way
across his property.
McCarty cites two other records
regarding his property, neither of
which mentions the existence of a
public road across the land.
One is a 1966 transfer of the
property, which has “no reference to a
public road,” according to the lawsuit.
McCarty also notes that when the
county approved a subdivision near
the Pine Creek Road in the early
1970s, county officials did not require
that any public road be vacated in the
area.
In a written response to McCarty’s
lawsuit, an attorney representing
the county, Robert E. Franz Jr. of
Springfield, contends that the road is
a county road that has “been used by
Defendant and members of the public
since July 10, 1891 ...”
Franz also contends that McCarty
himself, by using the road before he
bought the property, in effect acknowl-
edged that the road is public, and that
he can’t now argue in a lawsuit that
there is no public right-of-way.
Franz also argues that because the
public has used the road for decades,
the county has “obtained title over the
lands at issue where the roads are
located by adverse possession ...”
In his lawsuit, McCarty, who re-
quests a jury trial, is seeking either a
declaration that the disputed section
of the Pine Creek Road is not a public
right-of-way, or, if a jury concludes
there is legal public access, that the
limits of that access be defined and
that the county pay him $480,000 to
compensate for the lost value of the
land based on the legal public access.
McCarty is also seeking a judg-
ment requiring the county to pay
him at least $250,000 for “damages
McCarty has incurred to investigate
and respond to this dispute and to
protect his property rights,” according
to the lawsuit.
Franz, in his response, argues that
the county is entitled to have the law-
suit dismissed because the suit is not
a “plain and concise statement of the
ultimate facts,” as required by law, but
is “rambling and redundant improper
pleading of evidence, maps, opinions,
legal conclusions of law, hearsay, false
facts” and “immaterial and irrelevant
facts and conclusions.”
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