Las Vegas Sun

December 12, 2017

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18-year-old Nevada battle over US forest road may be over

RENO — One of the nation's longest-running court battles over local property rights and ownership of national forest roads may have finally come to an end in Nevada to the delight of environmentalists.

A federal judge in Reno ruled against rural Elko County this week — again — and closed the 18-year-old case stemming from a sometimes volatile feud over the road in remote wilderness near the Idaho line.

"For nearly two decades, Elko County has tried to claim ownership of a road that belongs to the American public," said Michael Freeman, a staff attorney for Earthjustice representing The Wilderness Society and Great Old Broads for Wilderness.

"We hope this ruling will finally bring this long-running case to an end," he said.

The case has spanned four presidential administrations.

It began in 1999 when the Clinton administration filed suit against then-Nevada Assemblyman John Carpenter, one of the leaders of a "Shovel Brigade." They had vowed to rebuild a washed out road near threatened fish habitat along the Jarbidge River in defiance of the government. Carpenter and one of his lawyers, Grant Gerber, have since died.

The county claimed it owned the road under a Civil War-era law that granted state and local governments' rights of way to existing roads in places where national forests and parks later were established.

The so-called "R.S. 2477 roads" — named after the statue number — became a lightning rod for property rights advocates and anti-federal forces in the 1990s, with similar court battles in Utah, Idaho, Colorado, Oregon and New Mexico.

Like other cases, the federal government denied Elko County's claim it owned the road before the Humboldt National Forest was established in 1909.

But the Nevada case is unique because, despite the government's position, the Forest Service signed an agreement with the county in 2001 that said it wouldn't challenge the county's alleged right of way.

Conservationists cried foul, accusing the government of kowtowing to protesters who paraded through downtown Elko with 10,000 shovels in protest and fostered a hostile, anti-federal environment that eventually prompted local Forest Service supervisor Gloria Flora to resign.

They said the government had no authority to cede control of U.S. lands in violation of laws protecting the threatened bull trout.

The 9th Circuit Court of Appeal twice overturned lower court rulings allowing the agreement to remain intact and the U.S. Supreme Court refused to hear Elko County's appeal in 2008.

But the latest ruling by Judge Miranda Du — a year after she made a similar ruling — could finally be the end of the road for the Shovel Brigade.

Nevada Attorney General Adam Laxalt joined the county's argument that the agreement was within the government's authority under the U.S. Constitution to enter contracts to settle disputes.

But Du said the 9th Circuit has made it clear the government's authority to settle litigation "stops at the walls of illegality."

"Contrary to Elko County's argument, the Department of Justice does not have authority to ignore federal law in settling quiet title actions against the United States," she wrote Monday.

Elko County District Attorney Tyler Ingram declined comment but has asked the county commission to consider at its Oct. 4 meeting whether to file another appeal.

Alison Flint, a lawyer for The Wilderness Society, said the ruling is limited to technical legal issues related to Elko County's specific claim.

But "it stands for the important proposition that the United States cannot give away our public lands by recognizing a meritless right of way claim through a settlement agreement," she said.