A new state law that provides steps for people seeking access to public land that can only be reached by traveling through private land is stirring confusion from both sides of the fence.
“We’re still going through it and figuring out how to implement it,” said Elko County Natural Resources Director Curtis Moore. “It’s not a license to cut a gate’s lock. It’s not a license to use private land, just to travel over private land. They can’t go off road.”
SB316 is a mechanism for a citizen to file a complaint if a locked gate prevents access to public land, he said.
At the same time, the bill is designed to allow access to public land, and the county supports both access to public land and private property rights, Elko County Manager Rob Stokes said.
“The question is clarification on how to properly enforce it, so property owners are protected and others have access to public land,” Stokes said.
Elko County Commissioners will be talking about SB 316 on Wednesday at their meeting in Jarbidge. This will be their first meeting since the county received a legal opinion that explains the bill. Commissioners won’t be taking any action, however.
Stokes said SB316 will be coming before the board at future meetings, as well.
Additionally, Moore said the Elko County Natural Resources Advisory Board will be talking about the new law at its 6 p.m. meeting Monday at the Nannini Administration Building in Elko. Earlier this month, the Elko County wildlife advisory board talked about SB316.
Assemblyman John Ellison, R-Elko, said concerns arose that people thought the bill gave them the freedom to “go across private property and cut gates.” Instead, the bill allows people to file grievances with the district attorney’s office.
Ellison said Sen. Pete Goicoechea, R-Eureka, sought an opinion from the Legislative Counsel Bureau because of confusion.
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State Sen. Ira Hansen, R-Sparks, was the primary sponsor of the bill, with Sen. James Settlemeyer, R-Minden, as co-sponsor.
The opinion issued Aug. 14 was in response to questions about whether the new law applies only to roads that have been dedicated or recognized for public use and whether the law authorizes a person to enter property of another based only on that person’s determination as to whether the road has been dedicated or recognized for public use.
According to the opinion, SB316 “makes it a public nuisance for a person, by force, threat, intimidation or any other unlawful means, to prevent or obstruct free passage or transit over or through certain highways, public lands, lands dedicated to public use or certain roads or to knowingly misrepresent the status of or assert any right to the exclusive use and occupancy of those highways, lands or roads, if the person has no leasehold interest in or claim or color of title, made or asserted in good faith, to the highway, land or road.”
The crime of being a public nuisance is a misdemeanor, and a court can order the person to stop being a nuisance and pay a civil penalty of not less than $500 but no more than $5,000, the LCB opinion states.
The roads involved can be RS 2477 roads, which are those roads of early origin, the opinion points out. One such RS 2477 issue was the South Canyon Road at Jarbidge that went back and forth through the courts for 20 years before settlement. Commissioners will hear a report from Rand Greenburg, Elko County civil district attorney, at Wednesday’s meeting.
The government grandfathered in RS 2477 roads when Congress repealed the provisions regarding public access over public lands under the Mining Act of 1866.
The counsel bureau concluded that the state would bear the burden of proving the existence of an SR 2477 road, and that “nothing in the provisions of SB316 authorize a person to enter property of another based upon the person’s own determination as to the status of a road.”
Hansen stated in a letter to Elko County District Attorney Tyler Ingram that “one of the most common complaints I receive as a legislator is from frustrated sportsmen and other outdoor recreation enthusiasts that find access to the public domain increasingly blocked.”
He wrote that SB316 is the first law making the blocking of legal easements and rights of way of the public lands a crime, with the intent to give authority to county and state law enforcement agencies to take action against road closures.
“It’s not a license to cut a gate’s lock. It’s not a license to use private land, just to travel over private land.”