Mallory Park Sign

A settlement may be close in the lawsuit between trail users and the Aspen Valley Land Trust over whether to keep open the Verena Mallory Trail in the Hunter Creek Valley.

The lawsuit over whether the public should be able to continue to use a popular trail in the Hunter Creek Valley, or if it should be closed because of deed language that the owner, Aspen Valley Land Trust, says it must abide by, is moving closer to a settlement.

The sides in the Verena Mallory Trail case on Monday asked a judge to stay the lawsuit, saying the pause will allow them “to focus on finalizing settlement terms instead of focusing on meeting procedural deadlines in this civil action.” Judge Jonathan Pototsky of the 9th Judicial District on Tuesday approved the stay.

Lawyers for AVLT and the Friends of Verena Mallory Trail Association, which sued the land trust in 2015, declined comment on what the agreement may look like and what it may mean for use of the path. AVLT’s executive director, Suzanne Fusaro Stephens, was out of town and unavailable to comment.

Attorney Chris Bryan of Aspen, who is representing the Friends group pro bono, wrote in Monday’s filing that settlement talks have been ongoing since December. The unopposed motion asked to stay the case “pending consummation of settlement.”

The unusual litigation commenced after AVLT, in 2014, said deed language found in the donation of the land by Fritz Benedict and his wife, Fabi, to AVLT’s predecessor organization in the early 1990s prohibits the trail, a quarter-mile section of single track. Fritz Benedict was a renowned architect who is widely credited with helping shape modern-day Aspen, and also a lover of the outdoors and trail building.

He and a crew he hired built by hand the Verena Mallory Trail, and opponents of AVLT’s stance say Benedict wanted nothing more than for it to be open to the public. The trail — which AVLT has kept open amid the lawsuit — allows beginner- and intermediate-level cyclists, and older and younger hikers, to avoid the rocky terrain and 20-percent grade in some places on the main Hunter Creek Trail. The Verena Mallory Trail’s 6- to 8-percent grades offer much easier access to the Hunter Creek Valley and Smuggler Mountain, as it loops around the steep section and connects back with the Hunter Creek Trail. It is named for the late daughter of Howard Mallory and Nora Berko, who were close with the Benedicts.

But AVLT has maintained that to protect its mission, it must honor the land-donation language from the Benedicts. In conveying 11 acres that includes the Verena Mallory Trail in the 1990s, the deed agreement mandated: “With the exception of the [Hunter Creek] trail and temporary road access easements hereinafter provided for, no roads or trails of any kind shall ever be established or permitted to remain within” the parcel.

The land trust’s stance is that it must adhere to that language. Doing otherwise could jeopardize future land donations, according to AVLT.

“Key to AVLT’s mission is its responsibility to carry out the directions it receives as part of land grants [and] honoring the wishes of the public’s benefactors in perpetuity,” wrote one of the nonprofit’s attorneys in a filing in 2015. “These directions represent the will of the public’s benefactors, and if benefactors are unable to trust AVLT to carry out their wishes, donations of land will diminish, and the public will be harmed as a result.”

The Friends group “seeks to undermine benefactor trust and donations to accommodate a small group of individuals who prefer one dirt path through the woods to another,” the AVLT filing said, adding that liability is also an issue.

“Plaintiff’s interest in continued use of a loop trail that is not necessary is severely outweighed by the maintenance and insurance obligations that will be imposed upon AVLT if the requested injunction is granted,” the filing said.

Bryan countered by filing sworn affidavits from Howard Mallory and others who lent a hand building the path. Mallory’s says that “Fritz intended that the trail remain open to, and used by, the public even after he donated the land on which it is located to AVLT.

“Because it was not his donative intent that the trail be closed, Fritz would have disagreed with AVLT’s position in this case and would have disputed AVLT’s stated position that the trail must be closed,” Mallory’s affidavit says. “Fritz was not the type of person to put in the time and resources to create a trail only to sign legal documents requiring it to be removed months later. Fritz would have wanted the trail to remain open and accessible to the public.”

Under the court-approved motion, the case will be stayed until July 7.