The Tooele County Commission voted Tuesday night to open Serviceberry Road to all traffic, including motor vehicles, but Thursday morning 3rd District Court Judge Matthew Bates issued a temporary restraining order staying the County Commission’s decision until he holds a full hearing on the dispute.
The TRO was requested by attorneys representing the landowners who claim private ownership of Serviceberry Road — the Ault family and an LLC they own.
In the proposed injunction to stay the County Commission’s decision to open Serviceberry Road, the Ault’s attorneys asserted that by not granting the temporary order the nature of the property would be altered by continued motorized vehicle use, the wildlife on the property would be negatively affected, there would be an increased risk of trespassers and other adverse effects.
Serviceberry Canyon Road has been the source of contention for at least 20 years. It starts north of Ophir, near where Ophir Canyon Road turns from pavement to dirt. It heads northwest up the wall of the canyon for approximately two miles. It rises from the canyon floor to a saddle below Commadore Peak and joins with Tooele County’s Jacob City Loop Trail.
Members of statewide UTV and ATV organizations, as well a some residents of Ophir, claim that Serviceberry Road has been a public road for many years.
The Ault family, however, claims that Serviceberry Road is a trail, originally cut and maintained by private owners as a route to a mining claim. Prior to and after the Aults acquired the trail, which was around 2001, the Serviceberry Trail was a private gated route and they have maintained it as a private route to this day, according to the Aults.
After two years of discussion with then County Commissioner Jerry Hurst, an Ault family spokesperson said the family withdrew certain claims to other roads in the area to help the county create a system of trail loops. At that time the Aults agreed to allow foot and horse traffic on Serviceberry Road, according to the family spokesperson.
The County Commission voted 2-1 to open Serviceberry Road without restrictions during its Tuesday night meeting at the County building.
County Commissioner Myron Bateman made a motion to “go ahead and open that road to all traffic and not have any restrictions to it.”
Commissioner Shawn Milne offered to second the motion.
“I don’t have any proof that it has ever been a private road and I don’t have proof that it has been restricted and unrestricted to the public for at least the last 10 years,” Milne said. “And even as recently as this morning as we met with some staff members that shared that that road was used for access at least to parcels up above and the BLM as far back as 1907.
“I would make a second to that motion, to allow it to be open as a public right of way and to rescind whatever kind of decision may or may not have been made, because we don’t have proof of it being restricted or limited in access,” he said.
Commission Chairman Wade Bitner called for a vote. Bateman and Milne voted “aye” and Bitner voted “nay.”
“I recognize the need for the road as an emergency route out of Ophir Canyon, but property rights have to be carefully considered,” Bitner told the Transcript Bulletin in an interview after the County Commission meeting.
On Monday, attorneys for the Ault family filed for an ex parte temporary restraining order and preliminary injunction to stop Tooele County from opening Serviceberry Road to unrestricted public travel and require the County Commission to honor the agreement reached in 2009 to open Serviceberry Road to horse and foot traffic only.
An ex parte TRO may be granted by a court upon the immediate threat of irreparable injury, loss, or damage.
Bates denied the Ault family’s initial motion for the ex parte TRO and the preliminary injunction, finding that the plaintiff had not proved the threatened damage was “immediate and irreparable.”
However, the Ault’s attorneys re-filed their motion for the TRO and injunction on Wednesday after the County Commission meeting.
In their proposed injunction the Ault’s attorneys make the argument that the 2009 agreement constitutes an enforceable contract.
Milne commented on the lawsuit filed by the Ault family during Tuesday night’s County Commission meeting.
“We got sued yesterday by the Ault family, before we even rendered a decision,” he said. “That kind of makes this a bit moot. While that is unfortunate, my hope is that cooler heads could prevail and we might be able to come to some sort of respectable conversation … and see how we can simultaneously respect their private property rights for the adjoining parcels and make sure the ATV community respects their private property to the side of this road.”
The Ault family has never been contacted by any of the current county commissioners to discuss Serviceberry Road, according to the family spokesperson.
A full hearing on the Ault family request for an injunction to uphold the 2009 agreement to keep Serviceberry Trail open to the public for horse and foot traffic only is scheduled for Sept. 5, according to Tooele County Attorney Scott Broadhead.