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Jarbidge lawsuit

Attorney briefs county on Jarbidge road lawsuit

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Forest Road-Legal Battle

In this July 4, 2000 photo, supporters and members of the Jarbidge Shovel Brigade move "Liberty Rock,"opening the road to the Jarbidge Wilderness near Jarbidge, a small town in northern Elko County.

ELKO – Following a weeks-long evidentiary court hearing, Elko County legal counsel doesn’t expect a swift conclusion to an ongoing road lawsuit that has racked up more than a quarter million tax dollars so far.

The legal battle for ownership of the South Canyon Road near Jarbidge began in the ‘90s and was nearly settled in 2003, but an agreement between the county and the U.S. Forest Service was blocked after a couple wilderness groups filed suit.

Kristin McQueary, chief civil deputy district attorney, said because of the federal court reporter’s workload, she didn’t expect to see transcripts of the hearing until the end of the month at the earliest.

Once parties receive those documents, they have 60 days to file a brief.

“By the time the judge goes through an enormous amount of information, I would be surprised if we had a decision by the end of the year,” she said. “But that all depends on when the transcript comes.”

McQueary and former district attorney Gary Woodbury represented the county in the hearing in Reno that concluded this month.

The eventual decision by Judge Miranda Du – the third federal judge to hear the case – probably won’t settle the matter, however.

“In all likelihood, however it turns out, the side that is unhappy will appeal to the 9th Circuit,” McQueary said. “This is just a step on the way.”

To date the lawsuit has cost about $251,000, according to reports requested by the Elko Daily Free Press. That total, however, doesn’t include costs associated with the latest evidentiary hearing. The county is awaiting bills, according to Assistant County Manager Cash Minor.

He expects expenses associated with travel and lodging reimbursement, Woodbury’s attorney fees and payments for expert witnesses.

For supporters of the county, the lawsuit has larger implications. The gist of the county’s argument is that the road had historical use pre-dating federal land agencies, and qualifies as an “RS 2477” road.

“The case is important for the precedent it sets for the West,” McQueary said.

The attorney general’s office filed in March a “friend of the court” brief, siding with the county.

McQueary said the bulk of time during the evidentiary hearing was taken up by the county presenting evidence or cross-examining the other side’s witnesses.

“We presented an enormous amount of evidence to Judge Du,” she said. “Not everything that was in each piece of evidence was highlighted for her in live testimony.”

In McQueary’s opinion, the opposition did not produce compelling arguments. They argued that the county had no map showing the disputed road existed before the Forest Service was formed.

“Just because the government didn’t survey didn’t mean that people weren’t there,” she said.

A flood led to the initial dispute over the South Canyon Road. Residents organized the Shovel Brigade to fix it, disregarding the agency’s worry that activity would harm a threatened trout in a nearby stream.

The government sued Shovel Brigade organizers and eventually the county became a party as well.

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