Court takes Elko grand jury case under submission

Thursday, Feb. 11, 1999 | 12:10 p.m.

CARSON CITY -- A states attorney asked the Nevada Supreme Court Wednesday to rule that the Elko County Grand Jury abused its power in accusing four employees of the Wildlife Division of violating the law but never bringing criminal charges.

Deputy Attorney General Paul Taggert said the four have been called "government thugs" in the press and by "fringe" groups. Yet they have no opportunity to respond, and Taggert urged the court to expunge the full grand jury report.

But Elko County District Attorney Gary Woodbury urged the court to uphold the findings of District Judge Michael Memeo who refused to wipe out the comments in the report about the four individuals, accused by the grand jury of misusing their office to get a mining company to pay a $1.5 million remediation fee.

Woodbury said he could have convicted the four if the statute of limitation had not run out. "As district attorney, I think they were guilty of the crimes," he said.

The court, sitting for the first time with its enlarged seven justices, took the arguments under study and will rule later. But Chief Justice Bob Rose questioned whether a "dangerous precedent" was being set by the grand jury when it accused the four employees of a crime but never brought a criminal indictment.

Woodbury replied the "state and case law are not clear"

This case is another example in the battle between Elko County and the federal and state governments over land uses in rural Nevada and the efforts of local governments to manage the public lands. The jury tried to get federal employees to appear, but they declined based on the legal advise of their lawyers.

Independence Mining Company was exhausting its gold reserve in Elko County and applied to the U.S. Forest Service to expand its operation to other public lands. The state maintained these lands were a prime mule deer habitat. And the wildlife officials --Larry Barngrover, Duane Erickson, Kenneth Gray and former Director William Molini -- were involved in negotiating the $1.5 million settlement with the company. The money was to be used for enhancing other deer habitat.

The grand jury, in its report filed in 1997, accused the four of oppression under the color of office, by using their positions to force Independence into paying the fee. The mining company never objected.

Woodbury said the company would have lost $10 million a month if it had to shut down without getting use of the added property.

The grand jury, Woodbury said, found reasonable grounds for accusing the four of a crime. He advised the jury that the statute of limitations had expired. The report was presented to the district judge with a letter about the statute of limitations. "We put the burden on the district judge," he said.

Eventually the report was filed in open court.

Taggert said the four had no way to defend themselves against the allegation. It's improper to accuse somebody of a crime in a grand jury report and then not bring the criminal charge, he said.

"We want expungement of the report," he said. And he urged the court not to base its decision on a technicality because "fringe" groups would still complain the four were guilty of trying to extort money from the mining company.

There was no evidence to support the allegation, Taggert said, adding that the grand jury had abused its power.

In pre-hearing briefs, Taggert argued the four have "suffered significant damage to their reputation." He said it "was the obligation of the district attorney as supervisor of the grand jury to protect the four from false accusations. "

Woodbury said the four "sought to take criminal advantage of the precarious position of Independence by falsely claiming, demanding and providing false scientific support for the proposition that Independence was impacting the mule deer habitat."

He said, "The grand jury's finding that the indictable activity occurred is only a finding that criminal activity occurred. The grand jury is vested with the discretion whether to return an indictment or a presentment, and it chose the latter."