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County to appeal Jarbidge road ruling to 9th Circuit

ELKO – An 18-year-old federal lawsuit over a remote road will remain active after county commissioners decided to take their case to the 9th Circuit Court of Appeals for a third time.

Commissioners voted unanimously Nov. 15 to file an appeal, after hearing from former district attorney Gary Woodbury that The Wilderness Society is unlikely to be awarded costs from the county, and that giving up now could put access to thousands of other roads at risk.

The dispute over South Canyon Road, which leads to Nevada’s first wilderness area near Jarbidge, began in 1998 – three years after a major flood wiped out portions of the road and rechanneled parts of the west fork of the Jarbidge River. The U.S. Forest Service placed a large boulder in the road to block traffic from entering the once-popular camping and recreation area.

The Jarbidge Shovel Brigade reopened the road by removing the boulder, and the county sought to exert a claim of title to the road based on an 1866 law that promoted mineral exploration in the West.

The federal government sued, but after much legal wrangling over whether the road existed before the creation of the Humboldt National Forest in 1909, the county and Forest Service agreed to cooperate on keeping the road open.

Then two environment groups – The Wilderness Society and Great Old Broads for Wilderness –intervened, claiming the settlement would set an illegal precedent over other disputed roads across the West.

U.S. District Judge Miranda Du ruled against the county last summer and again this fall, stating there was not enough evidence to prove the road existed prior to the national forest.

“The continuous public use of the South Canyon Road requires a demonstration of more than random or merely occasional use,” she wrote.

The decision put Elko County in the position of deciding whether to appeal or accept a settlement.

“The Great Old Broads, they had made an offer to the county to not assess costs against us if we agreed not to appeal,” Deputy District Attorney Kristen McQueary told commissioners at their Nov. 1 meeting.

“We are also trying to get the Department of Justice to look at the precedence this case has set if there is not an appeal,” she said.

The matter was postponed until Nov. 15, when Woodbury told commissioners the “costs” involved should not include attorney fees.

“They are not entitled to attorney fees from us,” he said, “but it is theoretically possible they are entitled to costs.”

Woodbury said The Wilderness Society is claiming $60,000 in unspecified costs. He told commissioners he did not believe the county is liable because the county was not a party to the Administrative Procedure Act under which the group prevailed in court.

“The Wilderness Society saw fit to seek intervention in a quiet title action. The quiet title action is the only action that Elko County had an interest in, but that quiet title action had been dismissed through the settlement agreement signed between the United States and Elko County. It has never, ever been reinstated by anybody,” he said.

Du has not responded to the county’s motion regarding the costs, Woodbury said.

“She’s put you all in a hard spot,” he added.

The county paid for repairs on South Canyon Road as part of the settlement agreement, Woodbury said, and Du’s rejection of the entire agreement left the county with no compensation for its costs.

“We filed pleadings with Judge Du and said ‘Look, the settlement agreement says it’s severable. If in fact you’re going to say that you’re not going to treat it as a consent decree, you have got to come up and have hearings concerning how Elko County is going to get its money back for repairing the road …” Woodbury said.

When asked by Commission Chairman Cliff Eklund what the appeal would cost, Woodbury said he estimated between $20,000 and $25,000.

Commissioner Delmo Andreozzi said the case has already cost the county about $300,000.

“I’m trying to make a very thoughtful and prudent decision,” he said, “but I also feel that if we don’t protect those other 15,000 miles of roads … then how else is that going to impact mining, or recreation, or any of those other things that we do in the public lands?”

“I see that this decision is a threat to our way of life here,” he added.

Commissioner and Shovel Brigade leader Demar Dahl described how the road dispute originally galvanized the community.

“Nearly 2,000 people showed up there to open that road,” he said. “If we hadn’t opened the road we would be in a lot weaker position today.”

Commissioner Jon Karr agreed with Andreozzi’s assessment of the situation and motioned to appeal the case. He was seconded by Commissioner Rex Steninger before Eklund opened the floor to public comment.

“We’re looking at a more favorable federal government here,” Thomas Burney of Carlin said of changes under the Trump administration.

As to whether making the appeal is right or wrong, he said, “I guess at some point you have to decide how much ‘right’ you can afford.”

Councilman John Patrick Rice warned commissioners that there battle could become “quixotic.”

“There are no winners on either side of a prolonged lawsuit,” Rice said, referring to the City of Elko’s long and expensive case with Canyon Construction over concrete work at the airport.

“One-third of my life has been spent in Elko County, and one-third of my life has been spent following this particular lawsuit” over the Jarbidge road, he said. “And it continues to go on and on.”

Rice agreed with Dahl that 2,000 people were marching down Idaho Street with picks and shovels back in the year 2000, “… but now there are three of us in this room. I think that really speaks to what is happening in this community.”

Former county commissioner Brad Roberts told the board that the federal government needs to follow the rule of law. He cited articles in the Constitution supporting the county’s position.

“You guys don’t have a choice,” he said. “You guys have to hold up your oath” to uphold the law. “Just by giving up one mile of road, you’re giving up one mile of my freedom. And I don’t want that to happen, because that will expand and expand.”

Dahl said there are still 3,000 shovels remaining from the 11,000 that were sent here from people in 38 states to show their support for the Shovel Brigade.

“The Shovel Brigade is still an active organization,” he said. “Not very active, but it’s there. I’m still the president of it, and we’re ready to open another road that is closed, and don’t you think the Forest Service knows that?”

Before the commission voted, Steninger said he took the mostly empty chamber to be an indication that county residents trust them to make the right decision.

“They don’t have to come here and shout at us,” he said. “I think if we made the wrong decision, then they’d come and shout at us.”

Steninger said he took The Wilderness Society’s offer as a threat, and a sign that the group is in a weak position. “It’s a 20-year-old fight, but I think we have an obligation to that fight to continue it.”

Continuing the fight is something the county is forced to do, he added.

“I really liked what Gary said about, ‘We stood up to fight the attitude of the federal government that they’re all powerful and we need to shut up and do what they say.’ That just flies in the face of the whole concept of federalism that this country was founded under. They’re supposed to be listening to us. We’re equal sovereign here in Nevada.”

Woodbury said it could be 18 months before oral arguments are heard in the latest appeal.


Lifestyles
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Balloon festival moves to July

ELKO – Hot air balloon enthusiasts will have to mark their calendars for the last weekend in July to take part in the Ruby Mountain Balloon Festival, a decision made by organizers because of inclement weather the past few autumns.

Now set for July 26-29, 2018, the event has endured windy and rainy conditions that have prevented balloon flights on at least one day of the festival, said Jim and Donna Engdahl, owners and pilots of the Acme Balloon Team and organizers of the balloon festival.

“We moved it up to see if the weather is warmer and nicer,” Donna Engdahl said, explaining that the past few years the weather allowed balloons to go up on Sunday only.

One year, the conditions prevented balloons from taking flight at all, she said. This year, the balloon glow and Saturday’s flight was hampered by rainy and foggy weather conditions.

“We think we’ll get more activities and vendors,” said Jim Engdahl.

The Engdahls made the announcement on Facebook and it was met with a “response that was 100 percent positive to changing the date,” Donna Engdahl said.

“We’re hoping it will be better for everyone,” Jim Engdahl said.

Photo contest

The Ruby Mountain Balloon Festival announced winners of the fourth annual photo contest open to youth and adult amateur photographers.

The contest sponsored by the balloon festival awards cash prizes of $50, $30, and $20 for first, second and third place in youth and adult divisions. Contestants may submit up to five photographs.

“We had about 15-20 people submit their photos in the adult division,” said Donna Engdahl. “We did not receive any entries from youth 16-years-old and younger.”

First place winner Emily Stone said this year was the first time she rode in a tethered balloon, calling the experience “enthralling.”

“I would love to [go on] a real ride in a balloon,” Stone said.

Stone said she and her family have watched the balloons from their home in Spring Creek and attended the event the past seven years.

When Stone was invited to ride in tethered balloon, she said it was an opportunity “I wasn’t going to miss.”

“I used my cellphone, snapping as many pictures as I could,” Stone said.

Second place winner was Brandi DeMars and third place winner was Bailey Billington.

For information about the Ruby Mountain Balloon Festival, find them on Facebook or visit www.rubymountainballoonfestival.com.


Mining
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Kinross earns first sage-grouse conservation credit

CARSON CITY — The Nevada Department of Conservation and Natural Resources and Kinross Gold U.S.A. announced the first sage-grouse credit transaction under the Nevada Conservation Credit System program.

This first credit transaction is expected to protect nearly 10,000 acres of primary sage-grouse habitat in northeastern Nevada.

This first sage-grouse transaction sets a precedent and is expected to make the process more efficient for landowners to participate in the CCS in the future.

The program was created by the state of Nevada, in partnership with stakeholders, to preserve and enhance sage-grouse habitats by trading conservation credits to offset potential environmental impacts of land use and aims to maintain the multiple-use concept on public land, and to improve habitats on private and public lands.

Kinross’s wholly-owned subsidiary, KG Mining (Bald Mountain) Inc., enrolled in the CCS program to meet its voluntary compensatory mitigation obligations to offset potential sage-grouse effects due to its mining activities at its Bald Mountain gold mine in northeast Nevada. KG enrolled the company’s privately owned ranch, Tumbling JR, into the program to help protect nearly 10,000 acres of sage-grouse habitat that supports the species’ entire lifecycle.

The project includes limiting new disturbance and infrastructure on the property, prohibiting conversion of the properties from rangeland to cropland, maintaining fencing, and implementing grazing management practices to preserve and conserve sage-grouse habitat. The company is committed to undertake these conservation actions for the next 30 years.

Gov. Brian Sandoval praised Kinross and the project, saying, “This demonstrates that the state plan works and how good-faith efforts between public entities, private industry and land managers can produce results that are beneficial to the environment and wildlife.”

“We are proud to be the first company to be part of the sage-grouse credit transaction to help protect the habitat of this important species in Nevada,” said Randy Burggraff, president and general manager of Bald Mountain mine. “The CCS program is an effective strategy to help conserve the sage-grouse by off-setting potential effects to sagebrush habitat through the credit system. In the spirit of responsible mining and sound environmental stewardship, we have committed to a variety of voluntary environmental protection and mitigation measures so there is a net conservation gain to the sage-grouse.”

“This is an excellent example of partnership and stewardship by federal, state and private sector stakeholders to conserve sagebrush habitat,” said Marci Todd, acting Nevada Director of the federal Bureau of Land Management. “This is about working cooperatively and working smartly. The BLM is proud to be a part of this first-ever transaction under the Nevada Conservation Credit System.

“The long term preservation and maintenance of these mesic habitat types is of significant importance to sage-grouse and other wildlife in the area,” said Kelly McGowan, program manager for the Sagebrush Ecosystem Program. “I want to thank Kinross for being such a willing participant in the first Nevada CCS transaction.”

Carolyn Swed, Reno field supervisor for U.S. Fish and Wildlife Service, added, “The Service appreciates the Nevada Sagebrush Ecosystem Program’s dedication to greater sage-grouse conservation and congratulates them on the first sale of credits through the Conservation Credit System. Avoiding and minimizing habitat fragmentation is important for sage-grouse conservation and the CCS can help achieve that goal. We look forward to continuing to work with the SEP on the Conservation Credit System, ensuring it is both ecologically and economically successful into the future.”


Local
Elko presents Flood Awareness Week presentation

ELKO – Gov. Brian Sandoval has declared Nov. 12-17 Nevada Flood Awareness week, and Elko will be hosting a presentation featuring experts from the Division of Water Resources.

The event beings at 2:30 p.m. Nov. 17 at Walmart’s parking lot. It will include a flood model for kids, and the experts will talk about flood preparedness.

Additional information will be handed out to the public at the event, which will be moved indoors if inclement weather arises, according to environmental coordinator Ann Thiabault.

Mayor Chris Johnson also issued a flood awareness proclamation and spoke to the dangers of flooding risks due to winter snow-melt and the swift flash flooding Elko faces in the summer months.

Johnson encouraged all city residents to take action to be prepared.

Residents can visit www.nevadafloods.org to determine if they live or work in a flood plain, to read additional information about flood insurance, and to learn about flood preparedness.