Judge denies injunction against shovel brigade

Sandra Chereb

Friday, June 30, 2000 | 10:04 a.m.

ELKO, Nev. - A federal judge rejected a Justice Department request to stop a citizens' revolt aimed at reclaiming a remote dirt road in Elko County that has come to symbolize western tensions over federal control of public land.

U.S. District Judge Philip Pro ruled Thursday that the government failed to prove work by the Shovel Brigade to reopen South Canyon Road in the tiny hamlet of Jarbidge would violate the Clean Water Act and cause irreparable harm to a threatened fish.

Pro also rejected arguments by Assistant U.S. Attorney Steve Myrhe that the July Fourth gathering of shovel-toting citizens would amount to trespassing because they lacked proper permits.

"They have no intent to hike, camp, ... have speeches," Myrhe argued. "They're going for one purpose only - to dig open that portion of the road."

But the judge said issuing an injunction on that basis came too close to infringing on constitutional protections of free speech and assembly.

However, he also warned Shovel Brigade President Demar Dahl and others that the government has other means to enforce its laws and that violations carry potential prison time and hefty fines.

"This ruling should in no way be construed ... as an approval by the court of any intended violations" of trespass laws, the Endangered Species Act or the Clean Water Act, Pro said from his Las Vegas courtroom.

The ruling was met with relief by organizers who argued their case by teleconference from Elko.

"We got it. That's what counts," Dahl said. "We're going on the mountain. We're going to open it."

A court order had blocked a previous attempt orchestrated by Assemblyman John Carpenter, Elko lawyer Grant Gerber and others to reopen the road last October.

Dahl, who ran unsuccessfully in 1992 as a Republican U.S. Senate candidate, has maintained that no permits are needed because no road work will be done near the river or bull trout habitat.

Dahl is also a Gov. Kenny Guinn appointee to the Nevada Environmental Commission.

Gerber, the Shovel Brigade's attorney, argued that an injunction would jeopardize the safety of thousands of people who are planning to turn out for the reopening of the road July 3-4.

He said organizers had arranged for onsite emergency teams and other measures that would be jeopardized if an injunction were issued.

He further contended that the Shovel Brigade can't be responsible for individual actions by other people.

"When citizens get there, that is there choice," whether to dig in the river. "If they (federal government) want to arrest those citizens on those grounds, then that's their choice."

The road in the Humboldt-Toiyabe National Forest was washed out by a flood in 1995. It runs next to the Jarbidge River, home of the southernmost population of threatened bull trout, and leads to campgrounds at the edge of a wilderness area.

Elko County maintains that the Forest Service promised to fix the road but never did.

The U.S. Fish and Wildlife Service, acting on a petition from Trout Unlimited, declared the bull trout a threatened species. That prompted federal authorities to resist efforts to reopen the road out of fear the work will disturb the trout's habitat.

The county argues the road belongs to the county because it existed before the national forest was formed.

The dispute has been in court-ordered mediation, which did not directly involve the Shovel Brigade.

A proposed agreement reached last week remains in limbo.

County commissioners on Wednesday postponed a decision on whether to accept the agreement with the federal government until after the Independence Day holiday.