RENO, Nev. — A dirt road in a national forest at the center of a decades-old dispute between the Forest Service and a rural Nevada county will remain in federal hands after a judge ruled county officials failed to prove it was theirs before President Theodore Roosevelt permanently reserved the remote wilderness in 1909.
Federal Judge Miranda Du says the agency had no authority to cede control of the land to Elko County in a 2001 settlement agreement granting a rare right-of-way to the road running along a mountain river with threatened bull trout near the Idaho line.
Conservationists say it’s a critical victory in the face of similar confrontations across the West with ranchers, miners, states and counties pressing the federal government to relinquish control of tens of thousands of square miles of public land. The Utah Supreme Court currently is weighing that state’s push to claim the right to use about 12,000 rural roads running across more than 40,000 square miles.
“It doesn’t control or decide any claims in Utah or anywhere else, but it says that the U.S. government shouldn’t be in the business of recognizing meritless claims over federal property,” Michael Freeman, a Denver-based lawyer for Earthjustice, said Friday.
Elko County District Attorney Kristin McQueary declined comment.
Forest Service officials said the ruling doesn’t change anything on the ground in one of the most remote stretches of U.S. wilderness outside of Alaska. All but the last half-mile of the 2.4-mile stretch of road has remained open to motorized travel while the legal battle continued, but with limited maintenance and grading so as to minimize impacts on the fish.
“The decision in the Elko County case does not affect public access or limit the U.S. Forest Service’s ability to manage the South Canyon Road,” Forest Supervisor Bill Dunkelberger said, adding the agency will continue to seek Elko County’s input in managing the road.
Du ruled the fact some mining prospectors and sheep herders may have traversed the route before the Humboldt-Toiyabe National Forest was created doesn’t constitute a legal right of way under a 1866 law intended to promote mineral exploration across the West.
“The continuous public use of the South Canyon Road requires a demonstration of more than random or merely occasional use,” she wrote Aug. 16.
Similar fights have been waged in Idaho, Oregon, Alaska and New Mexico over the 1866 law. The statute was repealed in 1976, but right-of-ways legally established previously were grandfathered in.
The 9th U.S. Circuit Court of Appeals twice struck down the agreement in Nevada. The U.S. Supreme Court refused to hear Elko County’s appeal in 2008.
The dispute dates to 1998 when the agency announced plans to replace the road that washed out in a 1995 flood with a non-motorized trail. County commissioners responded with a resolution claiming ownership of the road, and State Assemblyman John Carpenter and others formed the citizen “Shovel Brigade” with plans to rebuild it by hand.
The government sought an injunction blocking reconstruction, filing suit in 1999 against Carpenter after then-Interior Secretary Bruce Babbitt declared the bull trout threatened in Idaho, Oregon, Washington, Montana and Nevada.
But after President George W. Bush replaced President Clinton in 2001, the service reversed course and agreed to the settlement over the objections of The Wilderness Society and others who accused the government of kowtowing to anti-federal activists.
“The consent decree would have put the federal government under a court order to not dispute Elko County’s claim, the legal and practical effect of which was to transfer the title to Elko County,” Freeman said.
The parties resumed negotiations in 2009 and last year Du conducted an eight-day evidentiary hearing before ruling the county failed to prove its claim.
“Without evidence that Elko County owns the right-of-way, the consent decree gives land of the United States to Elko County without following proper procedural requirements,” she said.
