RENO (AP) — The U.S. government says environmentalists are back in court on nothing more than a “fishing expedition” in a decade-old attempt to again close 1.5 miles of a gravel road along a threatened trout stream near the Nevada-Idaho line leading to some of the most remote, federally protected wilderness in the nation.
The conservationists insist they’re trying to save the fish — a job they say has fallen to them because the U.S. Forest Service has shirked its responsibility to enforce locally unpopular laws.
The latest round of courthouse volleys over the bull trout and the South Canyon Road in Elko County has the two sides fighting over tens of thousands of pages of documents that environmentalists say will prove the Forest Service and the county knew a settlement they reached in 2001 was illegal and detrimental to the fish protected under the Endangered Species Act.
Long at odds over who owns the road to Snow Slide Gulch Trail Head near the century-old mining town of Jarbidge, the Forest Service originally fought the county in court to block reconstruction of a section that washed out in a 1995 flood.
Agency scientists and U.S. Fish and Wildlife Service biologists were adamant that silt eroding from the narrow road would warm the stream’s cold mountain waters and choke off trout eggs in the gravel beds of the furthest point south in the nation where the fish is known to survive.
In the years that followed, volunteers in a county known for defying the government rebuilt the road by hand, hundreds marched down main street in the name of the “Shovel Brigade” and helped force the resignation of the regional forest supervisor.
The agreement the arch enemies forged was unlike any the Forest Service had worked out before or since in a broader, ongoing legal battle over right of way claims. The claims — called RS-2477 — allow local governments or individuals to seek ownership of a road based on their belief the road existed before the national forest system was created in 1905.
Richa Wilson, the Forest Service’s regional architectural historian based in Ogden, Utah, concluded a trail that later turned into a road was built in Jarbidge Canyon in 1910. Among other things, he found references to a Western Shoshone legend of an evil man-eating devil — “Johrbitch” or “Jarvidge” — that supposedly kept Indians and settlers from venturing into the wildly, rugged mountain canyon in the years before that.
In the deal with Elko County, the Forest Service made clear that it was not acknowledging the county’s right of way to the road but said it would not formally challenge that right.
Two environmental groups, the Wilderness Society and Great Old Broads for Wilderness, cried foul. They said they should have been allowed to argue that such a deal was illegal under the National Environmental Policy Act and Federal Land Policy Management Act.
U.S. District Judge Miranda Du has scheduled a hearing April 17 in Reno to consider whether the arguments should continue or be put to rest some 17 years after the road washed out.
Environmentalists are asking for boxes of documents from the county and the Forest Service dating to the early 20th century. They are convinced they can prove the government was weary of the case, found it largely impossible to enforce protection of the road in a national forest that stretches more than 6 million acres and decided to appease the locals rather than continue the difficult task of trying to comply with the law.
“If enforced as written, at a minimum, (it) would require Elko County personnel to review virtually all Elko County Commission incoming and outgoing correspondence, meeting minutes, agendas, exhibits and public comment for 78 years,” Elko County lawyers wrote in objecting to the document request. They said that would include accounts of nearly 1,000 county commission meetings alone.
The county said it could not estimate how much time it would take to compile the documents.
Kristin McQueary, the assistant county attorney handling the case, said she has “no idea” how much the fight has cost the county but said it’s “by far the most man-hour intensive case” she’s ever seen in her nearly 20 years in the civil division.
“This case has been going on for so long, there is really nothing to compare it too,” she said.
Alison Flint, a lawyer for Earthjustice in Denver representing the environmentalists, said they can’t be blamed for the lingering costs of an illegal settlement. She said the case could have been resolved years ago if Elko County did not continue to pursue what she called a meritless right of way claim.
Justice Department lawyers said the environmentalists’ demand for documents “bears the hallmarks of a fishing expedition” and seeks private, confidential material protected by client-attorney privilege.
“Those memoranda are prepared and held in the strictest confidence. Destroying that confidence would inflict direct harm on the federal government’s decision-making process,” the Justice Department said.
The Fish and Wildlife Service wasn’t a formal party to the agreement. But USFWS spokeswoman Jeanie Stafford said that based on the Forest Service’s annual monitoring of habitat conditions, “we do not believe this population is suffering adverse effects as a result of current conditions along the road corridor.”
“Generally speaking, USFWS regards this bull trout population as likely stable, provided that road maintenance and other activities throughout the watershed continue to minimize sediment inputs and do not create barriers to fish migration/passage,” she said in an email.
John Carpenter, a former longtime state assemblyman who helped organize the “Shovel Brigade,” said the Forest Service has complied with the maintenance agreement and made no attempt to remove several signs the county has posted declaring South Canyon an RS-2477 road.
“I don’t know what the wilderness outfit thinks they want to do,” said Carpenter, who isn’t sure the litigation will ever end.
“I think those attorneys have got a cash cow so they are going to push it as far as they can,” he told AP. “All I can say is the road is open and it is going to stay open.”