Judge voids Elko County road deal - Conservation groups challenge Forest Service

By SANDRA CHEREB
THE ASSOCIATED PRESS
Las Vegas Review Journal

6/25/03

RENO, Nevada-- A 2-year-old agreement that ended litigation between Elko County and the federal government over a disputed dirt road and a threatened fish has been set aside by a federal judge after it was challenged by environmentalists.

Lawyers for Elko County, the Justice Department and the conservation groups are trying to determine how the order affects the effort to rebuild South Canyon Road in the Humboldt-Toiyabe National Forest near Jarbidge.

"Until we figure out what it means, we don't know whether to be concerned or not," Kristin McQueary, Elko County chief civil deputy district attorney, said Tuesday.

At issue is the legality of the Forest Service giving Elko County a right of way to the road, which has been at the center of a dispute since a flood washed it out in 1995. Federal officials have blocked county efforts to rebuild the road over concerns the work might damage the habitat of the threatened bull trout in the Jarbidge River.

The land battle created the Shovel Brigade, a citizen effort to rebuild the road in defiance of federal authorities.

In his June 13 ruling, U.S. District Judge David Hagen said the settlement reached in April 2001 "was sufficiently ambiguous" to prevent the court from concluding the federal government had disclaimed ownership to the road.

But Hagen said the appeal of the agreement by The Wilderness Society and Utah-based Great Old Broads for Wilderness(cq) produced evidence that suggested otherwise.

"The United States insisted that it had disclaimed any property interest in the South Canyon Road via the settlement agreement," the judge wrote. "This position sharply contrasts with the Forest Service's historical stance regarding its ownership of the road and runs counter to considerable evidence before the court, including the settlement agreement itself."

Hagen wrote, "This court no longer finds the settlement to be fundamentally fair to the public interest because it allows the government to circumvent the procedural mandates laid out by Congress."

Michael Freeman, a Denver lawyer representing the conservation groups, welcomed the decision.

"The upshot is, the court realized that essentially with the settlement the government was trying to do an end run around the legal requirements with the right of way," he said.

The Forest Service is conducting an environmental study to determine whether the road should or can be rebuilt without harming the bull trout, listed as a threatened species in 1999.

The conservation groups opposed the deal and said it gave too much control over the road to Elko County and set a dangerous precedent for resolving public land disputes.

In May 2001, Hagen denied the groups' motions to intervene, agreeing with government lawyers who argued the move could undo the deal.

Hagen's decision was overturned by the 9th U.S. Circuit Court of Appeals, which led to the latest ruling.