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Judge weighs in on easement dispute near Satank Bridge

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By John Colson
Sopris Sun Staff Writer

As the Roaring Fork Transportation Authority (RFTA) continues the lengthy process of updating its controversial Access Control Plan governing the Rio Grande Trail, the agency recently reached a tenuous and perhaps only temporary truce with one of the private property owners who lives next to the trail.

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Amy Fulstone, owner of the Confluence Lodge located near the juncture of the Roaring Fork and Crystal rivers, reached a sort of stand-off with RFTA in a federal court case last year, after the transit agency filed what is known as a “quiet title” action to resolve a dispute about ownership and control of a 200-foot-wide right-of-way underneath and on either side of the trail (100 feet in either direction from the center line of the trail).

In the end, according to a “consent order” from U.S. District Judge William J. Martinez in Denver, the two sides “agreed to disagree” about who owns the land containing the right of way, as Fulstone characterized it.

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But the order itself, issued by the judge in January, declares that both Fulstone and RFTA agree that the agency has an “easement” to the 200-foot right of way.

The consent order also allows that RFTA has the right to make improvements to the property, and that Fulstone “is hereby enjoined from interfering with RFTA’s use, maintenance, operation, improvement and enjoyment of the surface of the Property,” including a prohibition from arguing with or confronting RFTA workers, except with written permission from RFTA.

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In addition, RFTA agreed to give Fulstone four weeks’ notice prior to “commencement of any construction or substantial maintenance” of the property, so that she has time to address the plans, object to them or appear before the RFTA board about the matter.

The consent order carefully avoids further clarification of the nature of the “easement,” such as whether it imparts “ownership” of the property to either party, and declares clearly that “the parties [Fulstone and RFTA] remain in disagreement on this issue.”

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Officials of the agency have repeatedly pointed out that RFTA’s predecessor, the Roaring Fork Railroad Holding Authority (RFRHA), purchased the 34-mile Denver and Rio Grande Western railroad right of way in 1997 at a cost of $8.5 million.

The property subsequently was transferred to RFTA in 2001, according to a timeline put together for the RFTA board, and the trail was built over the next few years under a “rail-banking” agreement to preserve the right of way against the possibility of future resumption of rail service in the valley.

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Confrontational beginning

“We really didn’t have a major issue with Ms. Fulstone until she started directing our employees to cease and desist,” said RFTA’s CEO, Dan Blankenship, referring to the agency’s plans last year for construction of a flight of stairs down to the Roaring Fork River, on land next to the Satank Bridge northwest of Carbondale.

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Blankenship and RFTA’s attorney in the case, Paul Taddune, said the employees reported that Fulstone or others claiming to speak on her behalf had become abusive and insulting toward the RFTA workers at the construction site.

Fulstone, on the other hand, maintained that it was the RFTA employees who overstepped their bounds, and that one of them “yelled at” a tenant at her lodge, “This is our (RFTA’s) land, and we can do what we want to with it.”

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Fulstone, 54, denied that she, personally, had ever confronted any RFTA employees.

But, she maintained, RFTA had no right to build a staircase down the bank of the river, despite claims by Blankenship and Taddune to the contrary.

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Fulsone maintained that she is in the right because RFTA’s easement goes only to the very edge of the river while her property rights, she argued, extend to the middle of the river — meaning she believes RFTA is “encouraging people to trespass on my property.”

The transit agency, considering the confrontation with Fulstone’s tenants and the agency’s concern that she might be preparing to fight RFTA’s rights to use the righ-of-way, took the matter into federal court last October.

Blankenship said that the judge’s order has given the agency what it needs to continue to preserve the right of way for its current use as a trail or, depending on a number of variables, the ultimate resumption of rail travel either for freight or passengers, which was part of the underlying reasoning for buying the right of way in the first place.

Not a trail opponent

Fulstone, who bought the Confluence Lodge out of bankruptcy in 2012, explained that she initially bought it “to have a place where I could live, that would bring in a side income” by operating it as a fishing lodge on the Roaring Fork River.

She said she never expected to find herself in a fight with RFTA about its use of the old right of way, and insisted that she is a supporter of the trail.

“I love the Rio Grande Trail; I don’t want people to think I’m trying to do something that might endanger the trail,” she told a reporter. “I want to live in peace with my neighbors, and to just be left alone” by RFTA and its plans for the trail.

On a March 4 tour of her property with a reporter, Fulstone pointed out the steep, eroded trail next to the Satank bridge that leads to the river, as well as the presence of several fishermen wading the river where she claims property rights, as examples of the continuing problem of trespassing.

She reeled off a list of additional troubles she said she has encountered with RFTA, including the felling of 11 old Cottonwood trees next to the trail that she understood would be “trimmed,” not cut down. The trees once provided her with a vegetative screen between her and the trail, she said, and she condemned RFTA’s removal of the trees.

Blankenship, however, said Fulstone had been included in the planning to remove the trees, which he said a professional arborist had found to be old enough to pose a hazard to the trail and to Fulstone’s property.

Fulstone also said she pays property taxes on the land where her lodge sits, which she cited as proof that it is hers and not RFTA’s.

“That’s her issue and the county assessor’s issue,” Blankenship rejoined, maintaining that she might have a case for tax abatement and that she should call the assessor’s office.

Despite the judge’s consent decree in the “quiet title” case, it appears that the enmity between Fulstone and RFTA has scarcely been resolved, though neither would reveal whether or how it might be resumed in the future.

Published in The Sopris Sun on March 9, 2017.