State wants to help rural Nevada county in 15-year-old road fight

By Scott Sonner, Associated Press

Sunday, March 22, 2015 | 2 a.m.

Nevada's attorney general for the first time is joining a rural county in a 15-year-old legal battle with the U.S. government and environmentalists over control of a remote national forest road — one of the longest running of many similar disputes across the West.

Arizona and Idaho have mounted claims to such roads before, and Utah's attorney general has filed dozens of lawsuits in recent years asserting county rights of way on more than 14,000 roads on federal land.

Nevada hasn't tried to intervene since the federal government first sued Elko County in 1999 to halt the reopening of a washed-out road near the Idaho border for fear of harm to the threatened bull trout in the Jarbidge River.

But newly elected Attorney General Adam Laxalt announced the change of course last week when his office filed a request in U.S. District Court in Reno for friend-of-the-court status in the proceedings. "Nevada's voice deserves to be heard," according to the filing.

U.S. District Judge Miranda Du has scheduled an April 27 evidentiary hearing in a case that centers on the interpretation of an 1866 law that established so-called RS 2477 roads by granting states and counties the right of way to build highways on federal lands. The goal was to help settle the West and applied in some cases to even crude paths such as wagon trails.

Congress repealed such rights of way in 1976 but recognized those roads that were established on lands before national forests were formed or the land was placed into a federal reserve.

Elko County's lawyers maintain the Jarbidge South Canyon road enjoys such status because miners and ranchers traveled the route in the 1890s before President Teddy Roosevelt effectively established what is now part of the Humboldt-Toiyabe National Forest in 1909.

Environmentalists argue that's not necessarily the case.

Other states that have proved their claims to RS 2477 roads did so under their own state laws that allowed for establishing public highways on the basis of "continuous public use," said Michael Freeman, a Denver-based lawyer for The Wilderness Society, who has been involved in the court battle from the beginning.

However, Nevada law in effect at the time required action by the Elko County Board of Commissioners to establish a public highway, and the county has no evidence that ever occurred, he said.

The case is unique because while the U.S. government denies Elko County has established such a right of way, the Forest Service signed a settlement agreement in 2011 that included its assurances it no longer would challenge the county's claim it exists.

The Wilderness Society and Great Old Broads for Wilderness sued to block the deal, saying U.S. officials lacked the authority to cede control of the road and shirk their responsibility to protect the fish. Last month, the groups filed their latest request to re-establish federal authority over the road.

Laxalt, the conservative Republican grandson of former Gov. and U.S. Sen. Paul Laxalt, said he wants a seat at the table to address an issue of "tremendous importance to all of Nevada," where about 87 percent of the land is federally owned.

"Public access is vital for many different important activities in Nevada, including recreation, ranching, mining and a host of other activities," he said. He said the question of whether a public road can be established in any way other than by formal county approval is a question of Nevada law, not federal jurisdiction.

Freeman said he didn't anticipate Laxalt's motion, but doesn't believe it changes anything.

"We were surprised to see that Elko has enlisted the state in support of its meritless right of way claim," he said in an email Thursday.