Judge chastises both sides in Shovel Brigade dispute, urges settlement

Scott Sonner

Wednesday, Nov. 1, 2000 | 10:42 a.m.

RENO, Nev. - A federal judge chastised both sides Wednesday for quarreling like school children and urged Elko County to voluntarily close a road in a national forest in a dispute with the government over land rights and threatened fish.

U.S. District Judge David Hagen said he won't rule on the government's request for a court order blocking vehicles from South Canyon Road in the Humboldt-Toiyabe National Forest near Jarbidge until the Elko County Commission has a chance Nov. 8 to vote on a temporary closure.

But he sternly urged the county and the leaders of the so-called "Shovel Brigade" that forced open the road July 4 to find a way to settle the disagreement over the bull trout and jurisdiction of the road before a Nov. 22 mediation deadline passes and the matter goes to trial.

"Litigants in federal court deserve the benefit of the doubt not to be regarded as grade-school children in a school-yard quarrel," Hagen said.

But the arguments back and forth "give the impression that is the case here," the judge said.

The Justice Department, representing the Forest Service, has been in mediation for nearly a year with the County Commission and leaders of the shovel rebellion over the road that washed out in a flood in 1995.

County officials so far have refused to accept a mediation settlement proposal that the Forest Service try to find a way to reconstruct the road without violating federal laws protecting the threatened bull trout.

"Until Nov. 22, you have the ability to embrace the settlement. You have control of your destiny," Hagen said.

"Neither side should be confident of the outcome of this case if you do not settle it," he added.

The Forest Service initially planned to rebuild the washed-out road but abandoned the idea when the bull trout was declared a threatened species. Officials feared work on the road along the Jarbidge River would harm the fish in violation of the Endangered Species Act.

Instead, agency officials two years ago piled dirt and boulders on the road to block vehicles from using the road. The dispute became a rallying point for citizens upset with federal control of public lands and sympathizers from around the nation sent shovels to the group to show support.

The county refuses to recognize federal jurisdiction of the road, arguing it was in county control long before the Humboldt National Forest was established in 1906.

"They are trying to restrain people from using a road that has been in use for many years, predating this century probably," said Brent Kolvet, a lawyer helping to represent Elko County.

State Assemblyman John Carpenter, R-Elko, named as a defendant in the legal dispute, said during Wednesday's teleconference hearing that the road was under the control of Indians, ranchers, shepherds, loggers and miners "long before the Forest Service was established."

"I was on the County Commission 25 or 30 years ago and we always maintained the road," he said.

Carpenter and others helped organize the Independence Day rally that removed the government's boulders and reopened the road to some vehicles.

As a result, the government asked Hagen to issue a temporary injunction allowing the Forest Service to close the road again until the ownership issue is resolved.

"The Forest Service has duties to protect, preserve and conserve natural resources in a national forest, including endangered species," said Blaine Welch, an assistant U.S. attorney. "As a result of those responsibilities, the Forest Service needs to take action to temporarily restrict the motorized access.

"We hope we can achieve a mediated settlement," he added.

Welch said the government would agree to Hagen's request that both sides voluntarily agree to stop vehicles from using the road while both continued to make their ownership arguments.

Kristin McQueary, Elko County's deputy district attorney, said the County Commission would have to consider the request at its Nov. 8 meeting. But she noted that 7 1/2 inches of snow at Jarbidge has restricted access "independent of any action by the federal government or Elko County."