So it comes as a bit of a surprise to lawyers for the government and the environmental groups they’ve been battling for 15 years that the county’s district attorney thinks it’s time to end a legal skirmish over protecting a threatened fish and controlling a national forest road.
“There is nothing left to fight about,” Deputy District Attorney Kristin McQueary said about the dispute that pitted a citizen work crew called the Shovel Brigade against the Endangered Species Act.
Mother Nature started the whole thing in 1995 when the Jarbidge River flooded its banks and washed out the final 1.5-mile stretch of the remote road that winds up a steep narrow canyon. The road dead-ends at a wilderness area where motorized vehicles are prohibited in the rugged mountains near the Nevada-Idaho line, about 70 miles west of Utah.
The Forest Service initially made plans to repair most of the road, but backed off when Trout Unlimited objected based on concerns about the impact erosion from the road work would have on bull trout.
The agency abandoned the idea altogether when then-Interior Secretary Bruce Babbitt declared the fish threatened in 1998 in Oregon, Washington, Idaho, Montana and Nevada. That’s when the Elko County commissioners decided to take matters into their own hands and make their own repairs to the road they claimed belonged to the county in the first place, not the feds.
The Justice Department filed suit against the county and Shovel Brigade leaders in 1999, winning an injunction forbidding any unapproved repair work, and the battle for the South Canyon Road was on in what was proudly proclaimed the republic of Elko.
“It never should have been closed in the first place,” Grant Gerber, an Elko lawyer and founding member of the Shovel Brigade, said in an interview last week. “That’s why the citizens went up there and opened it up.”
At its height, the controversy that is as much about principal as a gravel road became a symbol of conflict between private property rights and wildlife protections in the Endangered Species Act and other federal laws under assault in Congress at the time by a number of Western Republicans.
State Assemblyman John Carpenter, another Shovel Brigade leader, likened the uprising to the Boston Tea Party. Supporters shipped 10,000 shovels to the town in a symbolic gesture and a giant shovel was erected in front of the courthouse for the county bigger than the state of Maryland.
A parade down main street took aim at Forest supervisor Gloria Flora, who later resigned citing an “anti-federal fervor” in the state where she said “fed-bashing” had become a sport.
But things have changed in the ensuing decade, according to McQueary, who has filed a formal motion arguing the lingering case in U.S. District Court in Reno should be dismissed because it is moot. She said the relationship between the county and the Forest Service has been downright “cordial” since the agency agreed to reopen all but the last half mile of the road into the Jarbidge Wilderness.
“It is 16 years after the flood that caused the (road’s) damage, almost 13 years after the Shovel Brigade made repairs, almost 12 years after this lawsuit was filed, 10 years after the parties settled, more than six years after the road was fixed,” McQueary wrote in court papers.
“There is no dispute between the Forest Service and Elko County,” she said. “There is no longer a cause of controversy.”
Not so fast, says The Wilderness Society and the Utah-based Great Old Broads for Wilderness. They argue the settlement agreement that reopened most of the road is illegal and have won a pair of favorable rulings from the 9th Circuit U.S. Court of Appeals that have kept it from being formally implemented.
Michael Freeman, a Denver-based lawyer for the Earthjustice Legal Defense Fund who has represented the two conservation groups from the beginning, said the federal appellate court in San Francisco has made it clear — most recently in 2006 — the Forest Service had no authority to cut the side deal without regard to the impact on the fish.
Keeping the last half mile closed is a “definite improvement,” he said. “But the rest of the road is still open. We think it should be closed.”
Freeman said the latest move is the county’s attempt to declare victory, continue its defiance of federal jurisdiction and run roughshod over U.S. environmental protections.
“The broader question here is whether the Forest Service is going to manage public lands that belong to the entire American people for the public, or be allowed to give away that authority away to a small group of people who have flouted the federal government and defied its authority,” he said.
Justice Department lawyers acknowledge that the Forest Service and the county “have developed improved relations, in part through cooperation on a number of watershed improvement projects.”
“In short, the county is correct that there is no longer a dispute between the county and the United States. However, that does not mean the case is moot,” according to court papers by David Gehlert, a lawyer in the Environmental & Natural Resources Division. He said that’s because the status of the proposed settlement “remains unresolved.”
McQueary said the only reason the agreement is unresolved is because the two environmental groups “don’t like it.”
“The interveners got what they wanted, but it wasn’t enough,” she said.
“No matter the semantics, the federal government and Elko County have agreed to not waste any more time fighting about the road, opting instead to expand taxpayers’ resources on more productive projects.”
Surviving leaders of the famed Shovel Brigade are among those backing the motion to dismiss.
“The Forest Service and county shook hands and agreed the road would stay open,” Gerber said.
The county’s claim to the road is based in part on a Civil War-era law, R.S. 2477, that allows for use of historic highways across federal lands in the West if the lands are not in federal use.
Under the settlement agreement, the Forest Service declined to formally recognize the South Canyon Road as an RS-2477 road, but agreed not to challenge the county’s claim that it is.
Twice over the past eight years, federal judges in Reno have given their stamp of approval to the deal only to be told each time by the U.S. appellate court in San Francisco that the deal didn’t pass legal muster.
While the government formally opposes the motion, Forest Service spokeswoman Christie Kalkowski said the agency remains “fully committed to our relationship with Elko County.”
“While differing opinions will occur during our ongoing conversations about resource management, we remain engaged and ready to work towards sustainable solutions,” she said.
The Justice Department recently entered three dozen new documents into the record, including rules governing forest reserves dating to 1897, mining claims in the Jarbidge area in 1912 and Humboldt National Forest sheep and cattle boundaries in 1917.
Last week, U.S. Magistrate Judge Robert McQuaid granted a request to extend deadlines for the latest round of response briefs into November before he decides whether to hold another evidentiary hearing.
Carpenter, another of the original Shovel Brigade leaders, never dreamed the legal battle would continue this long.
“Them enviros, they can’t stand to lose,” said the 80-year-old rancher and realtor who retired from the legislature this year. “The people have won, that’s the main thing.”
“The road is open and it is going to stay open. They’re not going to get it closed no matter what because we’ll just keep opening it.”