ELKO — A nearly 20-year-old lawsuit between the federal government and Elko County regarding a short strip of road near the Jarbidge Wilderness could soon come to a close.
Elko County Commissioners voted 4-1 Wednesday to approve a settlement that would allow the county use of the road with an easement from the U.S. Forest Service. County Commissioner Demar Dahl opposed the settlement.
“I adamantly oppose the idea of a settlement,” Dahl said July 11. “We won when we opened the road, and then when our county commission decided they needed to work on a settlement to show that everybody in Elko County wasn’t unreasonable — I think that was a mistake, and it has drug on for a long time ...”
The dispute over South Canyon Road, a 2.4-mile unpaved route leading 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, according to Elko Daily Free Press archives. 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 was organized to reopen the road by removing the boulder, following a rally in Elko that drew support from people in 38 states.
When 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. 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 environmental 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.
A U.S. district judge ruled against the county, stating there was not enough evidence to prove the road existed prior to the national forest.
The county decided to appeal the decision to the 9th Circuit Court of Appeals a third time on Nov. 15, 2017. One of the parties in the lawsuit – former Nevada Assemblyman and Shovel Brigade organizer John Carpenter – died a year earlier.
Dahl, who helped lead the Shovel Brigade to open the road, narrated the sequence of events that led to the lawsuit for the commissioners. He said he did not agree with the idea of a settlement when it was first proposed years ago.
“We said, ‘The road’s open. What is there to settle? Why are we putting ourselves in the position of being in the position to have to defend the right to use the road by doing a settlement on it because the road is open, right?”
Brad Roberts, who served as a county commissioner during the early stages of the case, said July 11 that he supported settling at this time.
“I would say going to the 9th Circuit is a waste of time and money,” he said. “Get the thing on paper and see what it says.”
Dahl maintained his opposition.
“Let’s just say the road is open and walk away from this thing, and if they close it, we will open it again,” he said. “You know, I have not had anyone convince me that this isn’t our best position.”
The other commissioners were cautious of moving forward to accept the settlement but wanted to see the lengthy lawsuit come to an end.
Concerns about environmental groups suing again to close the road, along with a changing political policy regarding public lands, topped their concerns.
“I firmly believe that roads in Elko County, as well as other roads in the West, are lifeblood to our economy,” said Delmo Andreozzi, chairman of the Elko County Board of Commissioners. “They’re our lifeblood to our recreation and multiple uses. They’re an essential part of this county.”
Andreozzi said the easement in the present agreement was not part of the first settlement offer, and being able to use the road has been the goal all along.
“That’s the important thing for me when considering a settlement ... that we have assurances that easement will be there to protect that roadway going forward,” he said.
Dahl disagreed, saying they should not need Forest Service permission to use the road under Revised Statute 2477, a law passed by Congress in 1866 granting right-of-way for the construction of highways across public lands not otherwise reserved for public purposes.
“That isn’t where we were when we opened the road,” he said. “That isn’t where we were before, and if we do that settlement, I think it puts us in a position of having to prove RS2477 on whatever issue comes up in the future that is something similar to this road. And if they give us the permission to use the road, and then something changes with a flood or whatever else, and they may change their mind and say, ‘Well, no. We can’t.’ And it seems to me that is really more of a political decision than a legal decision.”
“And I heard that from you,” Dahl added, addressing attorney Gary Woodbury, who has been representing the county.
“And I’d be glad to repeat it,” Woodbury responded.
The county will have the opportunity to review the settlement before signing. If the commissioners disagree with the wording, they have the option to not sign it, Woodbury said. The county has until mid-August to cancel its appeal.
“We still have, when it comes back for signing, if it truly is outrageous, we have the opportunity not to sign,” reiterated Commissioner Jon Karr, making the motion to have county legal staff proceed. “I still believe we have proved we won. Now we [will] have a document that says it’s open, and it’s ours – ours to use, I guess would be the technical term.”
The motion was seconded.
“Ours to use with the permission of the Forest Service,” Dahl said before casting his dissenting vote: “No.”