Feds, county battle over endangered fish habitat

Scott Sonner

Thursday, Oct. 29, 1998 | 3:58 a.m.

RENO, Nev. -- Locked in a classic battle over federal and local control, the Forest Service is trying again to block county officials from rebuilding a road in a national forest that scientists say could harm endangered fish.

But state environmental officers said Thursday they are moving ahead with a permit and Elko County officials say they're rushing to start work on the project before winter sets in along northeast Nevada's Utah state line.

Conservationists say the rekindling of the confrontation over bull trout in the Jarbidge River could end up setting a precedent in similar cases where local leaders balk at federal authority on federal land.

"This is all happening on Forest Service lands, so the county is not supposed to be mucking around in there anyway," said Peter Rafel, a spokesman for Trout Unlimited in Arlington, Va.

County officials say they were there first.

"The road was a public road before the forest became the national forest," Elko County Manager George Boucher said.

"We are proceeding to prove that the road was there before the Forest Service and it is indeed a public road under county definition," he said.

The Forest Service urged the Nevada Bureau of Water Pollution Control this week to deny a special permit the county is seeking to resume stabilization work on the South Canyon Road leading to a national forest campground.

The federal agency says the county broke the law in July when it bulldozed a 1,000-foot section of key habitat for the bull trout - the only remaining population of the endangered fish in Nevada.

"Elko County did not and currently does not have authorization from the Forest Service to engage in any road construction or stabilization activity in the South Canyon Area," said Gloria Flora, supervisor of the Humboldt-Toiyabe National Forest.

"All uses of national forest system land must be authorized in advance by an authorized officer of the Forest Service," she told the state bureau.

The U.S. Fish and Wildlife Service declared the bull trout endangered in August. Agency biologists say reconstruction of the road would accelerate erosion and send harmful sediments into the stream.

But the county says the section of road already "is susceptible to severe erosion.

"It is imperative that the work be conducted and completed before the next high flow and before weather conditions preclude safe operation," Boucher wrote in the permit application.

Federal and county officials have been at odds for months over jurisdiction of the road, which was washed out in a flood three years ago.

"They can list the moon as far as I'm concerned," Elko County Commissioner Tony Lesperance said after the listing announcement in August. "The county still controls the police powers of the property within the county."

The Forest Service asked the state to withhold the pollution control permit until the service and the Army Corps of Engineers check off on the stabilization plan.

But Allen Biaggi, head of the Nevada Bureau of Water Pollution Control, said the State Environmental Commission directed him to "proceed with all due speed.

"There are a couple of other authorizations that may be needed for the county to go forward, but that doesn't preclude us from giving our authorization," Biaggi said Thursday.

"If the county proceeds, they are doing so at their own risk with the other entities. We have been directed to authorize this and that's what we are going to do," he told The Associated Press.

Boucher said the county is in the process of seeking approval from the Army Corps. He said there would be no direct request for approval from the Forest Service, but that the service likely would have input in the Corps' decision.

"They contact whatever agencies they need to. I'm sure one of them would be the Forest Service," he said.

The State Environmental Commission fined the county $1,000 last month after finding it guilty of altering the streambed in July, resulting in "un-permitted pollutants in the form of sand and gravel entering the waters."

The Forest Service is preparing its own plans to stabilize the stream bed. Trout Unlimited leaders said they trust the service to do a better job than the county.

County officials "have shown no interest in the past of respecting federal authority," said Leon Szeptycki, a lawyer for the conservation group in Charlottesville, Va.

County leaders say local volunteers have worked to help protect the fish and that no bull trout have died as a result of the road work.

Rafel acknowledged, "The local people did come in with buckets and rescue the bull trout that were about to be stranded and moved them into the new channel.

"But the issue here is the habitat has been pretty well wrecked," he said.

Rafel said the county wants to rebuild a permanent road. That runs contrary to the preferred alternative outlined in an earlier environmental assessment by the Forest Service.

Flora said no final decision had been made.

But she told the state this week, "Due to the potential impact of the road on water quality and aquatic habitat, and the expense of reconstructing the road in a way that would adequately avoid these impacts, it is unlikely that the Forest Service will decide to rebuild the road."

Szeptycki said the county seems to be "seeking out a confrontation." He said the Forest Service is caught in the middle.

"I think the last thing they want is some sort of confrontation where you've got a crowd of people on one side and federal law enforcement on the other side," he said.

"But I also think they want to see the laws enforced and we want to see the laws enforced."