Elko County rejects settlement offer in bull trout dispute

Thursday, Nov. 9, 2000 | 5:06 a.m.

The vote came despite warnings by a lawyer Wednesday that a court battle could last years and cost more than $100,000.

The Justice Department has asked U.S. District Judge David Hagen for an injunction to close the South Canyon Road in the Humboldt-Toiyabe National Forest near Jarbidge to protect the threatened bull trout in accordance with the Endangered Species Act.

Hagen has given Elko County until Nov. 22 to decide whether to accept the settlement offer - a year after the mediation began.

The county maintains the federal government has no jurisdiction over the road because it was there before the national forest was established in 1906.

Under the settlement agreement, the county would be granted a right-of-way but not ownership of the road.

The proposal also would allow the road to be rebuilt only if environmental studies conclude it can be done without causing environmental damage.

The commission voted 4-1 Wednesday to reject the offer. Only Commissioner Mike Nannini voted in favor of signing the agreement.

The commissioners also rejected Judge Hagen's suggestion that the county voluntarily agree to keep vehicles off the road until a final agreement is reached.

But the panel voted unanimously to return to mediation if the government agrees to focus on the question of ownership of the road.

The Elko Daily Free Press reported the vote was based in part on the advice of San Diego lawyer John Howard, who spoke to the commission and an audience of about 20 people via speaker phone, saying he apologized for being too ill to attend in person because of the flu.

"We cannot recommend that Elko (County) enter into this agreement. It is a bad deal in almost every possible way," Howard said in a letter to the commission.

Howard, hired by the county three months ago for $5,000 to provide a legal opinion, told the gathering at the Elko Convention Center that no penalties exist for the federal government if it doesn't follow the timelines in the agreement.

But Elko County would be subject to penalties if it didn't live up to the timelines, Howard said.

"The hallmark of any mediation is that both sides have to get something," he said.

Howard warned the county leaders that the federal government "could wait a couple of years and close it (the South Canyon Road) anyway."

He said it may be possible to get free or discounted legal help from groups like the Pacific Legal or Mountain Legal foundations. But he said if a private practice constitutional attorney is needed, it may cost between $75,000 and $150,000, with an additional $20,000-$40,000 for expert witnesses.

He cautioned that a legal fight may "take longer than I'll be in practice or longer than any of you will be on the commission."

He also warned that the litigation may come down to "a bunch of dueling experts."

Regarding the county's claim of sovereignty to the road, Howard said the county could perform routine maintenance on the road as long as it didn't "substantially adversely impact" the environment to the detriment of the bull trout.