Government sues Shovel Brigade for trespassing

TOM GARDNER

Thursday, Aug. 10, 2000 | 3:24 a.m.

TOM GARDNER

ASSOCIATED PRESS WRITER

RENO, Nev. - The federal government has sued a citizens group for trespassing in its Independence Day rally intended to assert local rights on a washed-out dirt road along a remote stream that's home to the threatened bull trout.

"It is a county road," Shovel Brigade leader Demar Dahl said Thursday in response. "I think they would have to prove that it's their road before they could make a trespass charge stick."

The question of who controls South Canyon Road has been a point of contention - and litigation - for years between Elko County and the U.S. government.

More recently, it has come to symbolize the friction between some rural westerners and the federal government over the control of public lands, which prompted the peaceful July 4 demonstration led by the Shovel Brigade citizens group. The group took its name after sympathizers donated hundreds of shovels for an earlier failed effort to reopen the road.

Last month hundreds of protesters from across the nation converged on tiny Jarbidge, Nev., near the Idaho border to reopen the washed out road despite warnings from the Forest Service that the work could threaten the survival of the bull trout's southernmost U.S. population by damaging the stream bed and adding silt to the river.

"It's our theory that they still have to get a permit to go on Forest Service land to do the work they did," Assistant U.S. Attorney Steven Myhre said Thursday.

The Fish and Wildlife Service declared the fish threatened two years ago, entitling it to the protection of the Endangered Species Act. The law prohibits any action that would harm a protected species, including destruction of its habitat.

South Canyon Road washed out in a 1955 flood. Locals claim the Forest Service has no jurisdiction over the road because it was there long before Congress established the national forest in the early 1900s.

U.S. District Judge David Hagen ordered all parties into mediation to avoid a costly trial.

Those talks produced a shaky agreement that would allow the road to be rebuilt only if environmental impact statements conclude it can be done without harming the fish.

The proposed settlement also would absolve the county from potential fines for any alleged environmental damage caused by its 1998 road work and give it a right of way - but not ownership - of the road.

The complaint said the U.S. Forest Service stabilized the area around the river after it shooed the county away in 1998 so it could better withstand another flood, then put three boulders at the north end of the restored area to block vehicles.

The Shovel Brigade moved a 4-ton boulder dubbed the "Liberty Rock" off the road in last month's protest.

"Defendants then caused a road to be hewn from the area restored by the Forest Service in 1998," the complaint said. "The ground-disturbing activities directed by the defendants caused injury to the United States."

The complaint does not claim any harm to the fish, but seeks unspecified damages for restoration of the area and an order barring the brigade from any more activity on South Canyon Road without proper permits.

Dahl noted that the boulder has not been moved back since the Shovel Brigade left in July.

"It seems that if they think that the fish is going to be endangered and they own the road that they should go up there and take whatever measures they think are necessary to prevent that," he said.

A Forest Service spokeswoman deferred comment to the U.S. attorney's office.

"That's really not a decision by the U.S. attorney's office at this point," Myhre said.