Kitsap Forest Theater will open May show after judge's order on access rights

Summer productions of "The Sound of Music" by The Mountaineers are set to open this weekend at Kitsap Forest Theater, after judge in Western Washington District Court on Wednesday ruled to provide the theater troupe temporary access to property off Seabeck Highway owned by the Keta Legacy Foundation, while litigation over easement rights between the two organizations continues.

Last Friday, CEO Tom Vogl of The Mountaineers, Seattle-based nonprofit that includes a theater program among other activities, announced in a blog post that the nonprofit was considering a cancellation of summer shows at the Kitsap Forest Theater, an outdoor performing space just west of Bremerton that has operated for 100 years. In the post, Vogl placed the Foundation at fault, claiming the organization blocked off access to a road essential for transporting props and ensuring accessibility to the theater and upset theater-goers took to social media, creating a swirl of critical comments directed at the Foundation.

"People have just developed a real love for coming out to this theater. … And, it's a real service to our community,” Vogl said in an interview with the Kitsap Sun about the scenic area off Seabeck Highway. “…It's kind of become this really wonderful tradition for families, for people of all ages, to come out and to have this amazing cultural experience in this beautiful natural environment there in the in the old growth forest.”

Vogl explained that his organization went to court, filing a motion for a temporary restraining order (TRO), in an effort to gain access to the road before performances scheduled to begin this weekend.

But the Foundation, in its court filing in response to the TRO request, claimed The Mountaineers should look inward when placing blame.

“Any urgency here arises from (The Mountaineers’) own mismanagement,” the response states, pointing out that The Mountaineers did not request access to the Foundation's access road for their summer shows until April of this year and that The Mountaineers have access to the theater via their own property.

Though the recent court decision and imminent start to The Mountaineers' summer schedule are what gained public attention, the issue between the two groups dates back years.

Preserve land and theater transferred decades ago

In 1985, The Mountaineers transferred ownership of 170 acres of their land to the Mountaineers Foundation, which in Vogl’s words, “(previously) served as the primary fundraising arm for The Mountaineers.”

Over the subsequent years, the Mountaineers Foundation gradually separated from The Mountaineers in mission and name. The Mountaineers Foundation is now known as the Keta Legacy Foundation, with a mission to conserve the Kitsap Rhododendron Preserve, a 466-acre property located just west of the theater and encompassing the Chico Creek watershed and what is known as Hidden Valley.

Because of the shared history, questions remain regarding property ownership and easement rights, leading to legal battles that led to the TRO request and have yet to be resolved.

Read more: Homesteaders' dream to turn this Kitsap property into a forest 'oasis' coming true

While waiting for an official court decision specifying the organization's easement rights, The Mountaineers and the Foundation created a 2022 Reciprocal Access Agreement, which allowed The Mountaineers access to a piece of land near the highway used for parking and the access road, which the Foundation had locked. Both are on the Foundation’s property.

This access agreement, signed by Vogl and Keta Legacy Foundation President Jeff Wirtz, was active from April 1 to Dec. 31, 2022.

The Mountaineers continued to use the Foundation’s property past the expiration of the agreement, including the back access road to the theater.

“Yes, we absolutely continue to use that access road, like we always have until they locked us out,” Vogl confirmed, adding that he believes The Mountaineers have a right to access the road without an access agreement.

“From our perspective, it was a nice thing to have in place so that there wouldn't be misunderstandings like this, but it was unnecessary," Vogl said in an interview this week, before the judge's order was announced. "We still believe 100% that we still have access and that we're being shut out of the theater inappropriately.”

However, Keta Legacy Foundation believes the continued use of their property after the expiration of the agreement is trespassing, and a representative told the Kitsap Sun they changed the locks after being made aware that The Mountaineers were doing so.

“Let's say you have a key lock on your home's front door, and you gave the code to a neighbor to access your home,” Mindy Roberts, Board of Directors Secretary at Keta Legacy Foundation, explained in an email to the Kitsap Sun. “After you and your neighbor finish that business, you can change the code at any time to secure your property.”

Planning for 2023 season and access agreement negotiations

Wirtz said The Mountaineers did not reach out to create a new reciprocal access agreement for 2023 until April of this year, less than two months before the opening performance of "The Sound of Music."

According to emails provided in Jeff Wirtz’s court declaration, filed on May 22, The Mountaineers Board of Directors President Gabe Aeschliman emailed Wirtz on April 7, inquiring about a 2023 agreement. Wirtz responded on May 6, stating, “It’s probably a good idea to table any discussions until we hear back from the court on the parties’ easement rights, and hopefully that will be soon.”

In later emails obtained by the Kitsap Sun, Wirtz asked The Mountaineers to sign a non-disclosure agreement (NDA) before discussing an access agreement for the summer’s theater shows.

“When they reached out after a prolonged silence, the Foundation offered a good faith approach to reach an agreement that would include access across Foundation property,” Wirtz said. “Unfortunately, the Mountaineers chose to reject our offer and, instead, planned to access our land without our permission.”

In its response to the TRO request, the Foundation explained that they asked The Mountaineers to sign an NDA to prevent court rulings and discussion from being publicly shared by The Mountaineers through its website or on social media, which Vogl has done several times over the past few years.

“They can try to deflect their responsibility to the theater group, members and ticket holders, but by delaying their request to the Foundation for an access agreement and then rejecting the offer outright, they are solely at fault for the uncertainty they claim is facing the theater programming," Wirtz said.

Rather than sign the NDA and proceed with discussions, The Mountaineers went to court to obtain a TRO to retain access to the road. The Foundation, in an interview prior to the judge's decision, said the reasons stated in the request are unsubstantiated.

For one, the request claims the back access road that is now locked is essential for accessibility purposes.

“The Mountaineers has its own access to the Kitsap Forest Theater - it does not need to use the Foundation’s property,” Wirtz explained. “There are no ADA-compliant routes to enter or exit (the) theater from either the Foundation or The Mountaineers access points, despite their claim and their promise to patrons of that level of accessibility."

The Foundation also questioned why The Mountaineers have yet to work on the accessibility of the road on their own property, which provides an alternate access route to the theater.

Vogl, in response, said there is no practical way to put an ADA-compliant road on their property because of the steep, winding condition of the land.

"It's just not realistic for somebody that might be using a walker or in a wheelchair or something. There's really no way to get down this woodland trail (on The Mountaineers' property). So, we provide disability access via this road that goes across Keta's property," Vogl maintained.

The Foundation also expressed liability concerns and requested a $5,000,000 bond to cover the potential of injury on their property.

The court ruled on the TRO on Wednesday, imposing a $10,000 bond and granting The Mountaineers access to the parking parcel and back access road from May 25 to Aug. 31, 2023. "The Sound of Music" shows are scheduled for May 28 and 29 and June 3, 4, 10, 11, 17 and 18. Later in the summer, "Seussical, The Musical" shows at the Kitsap Forest Theater are scheduled for July 29 and 30 and Aug. 5, 6, 12, 13, 19 and 20.

The Court also stated that it will issue a decision on the pending easement litigation on Sept. 1.

"The big news is the show will go on as scheduled," said Mark Firmani, who represents The Mountaineers.

This article originally appeared on Kitsap Sun: Forest Theater shows to open, but neighbor dispute remains