Court hearing continues in Elko County forest road fight

RENO — Elko County’s lawyers head back to federal court Monday with century-old newspaper clippings and mining claim maps from the 1890s that they say prove they’re in charge of a road on a national forest near the Idaho border.

The county, U.S. government and environmentalists have been arguing for two decades over the South Canyon Road and protection of a threatened fish in the river next to it.

The government first sued the county and leaders of a group called the “Shovel Brigade” in 1999, accusing them of violating the Endangered Species Act with the unauthorized reconstruction of the washed out road along the Jarbidge River.

Legal arguments center on an 1866 law that established so-called RS 2477 roads by granting states and counties the right of way to build highways on federal lands. Congress repealed such rights of way in 1976, but grand-fathered in roads established on lands before national forests were formed or the land was placed into federal reserve.

Elko County maintains their road enjoys such status because miners and ranchers regularly traveled the route before the area first was reserved in 1905, then designated a national forest by President Teddy Roosevelt in 1909.

The government denies such a right of way exists. But under political pressure, the Forest Service signed a settlement agreement in 2003 with assurances it no longer would challenge the county’s claim.

The Wilderness Society and Great Old Broads for Wilderness sued to block the deal, saying U.S. officials lacked the authority to cede control of the road and shirked their responsibility to protect the bull trout. The 9th Circuit Court of Appeals agreed and tossed the agreement out in 2005, before the agency signed a similar deal in 2011 and conservationists sued again.

The latest evidentiary hearing began last Monday and continues this week before U.S. District Judge Miranda Du.

Environmentalists say the county must prove a highway formally was established under Nevada law before the forest designation.

“Not a single map shows a trail or road there before 1909,” said Michael Freeman, a lawyer for The Wilderness Society. Dennis Scully, who surveyed the land for the U.S. General Land Office 1896, described the canyon as “some of the roughest country in the United States.”

Conflicting accounts introduced as evidence include a Western Shoshone legend of an evil man-eating devil that supposedly kept Indians from venturing into Jarbidge Canyon, and a livestock census estimating 500,000 sheep were grazing in the area by 1908.

County officials cite mining claims filed as early as 1894, a cabin built in 1903 and the 1910 U.S. Census with the town of Jarbidge, population 650.

Professional land surveyor William Price testified on behalf of the county for nearly eight hours last week, pointing to maps of mining claims and reading Elko Free Press accounts of the canyon’s development, including a 1907 report about a state senator who was fined $400 and sentenced to a day in jail for illegally fencing public land nearby.

Price said more than a half-dozen claims were “placer claims,” meaning they searched stream bottoms for gold, not mountain outcrops. He said miners with claims both north and south of the river canyon couldn’t have moved between them without traveling the same route that exists today between 10,000-foot mountain peaks.

“On foot, there was only one practical way to go,” he said.