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Elko County wants to end battle over bull trout

RENO — Never one to back down from a fight with the U.S. government, Northern Nevada’s rural Elko County has been feuding with federal land managers for decades over environmental protections they say go too far.

So it comes as a bit of a surprise to lawyers for the government and the environmental groups they’ve been battling for 15 years that the county’s district attorney thinks it’s time to end a legal skirmish over protecting a threatened fish and controlling a national forest road.

"There is nothing left to fight about," Deputy District Attorney Kristin McQueary said about the dispute that pitted a citizen work crew called the Shovel Brigade against the Endangered Species Act.

Mother Nature started the whole thing in 1995 when the Jarbidge River flooded its banks and washed out the final 1.5-mile stretch of the remote road that winds up a steep narrow canyon. The road dead-ends at a wilderness area where motorized vehicles are prohibited in the rugged mountains near the Nevada-Idaho line, about 70 miles west of Utah.

The U.S. Forest Service initially made plans to repair most of the road, but backed off when Trout Unlimited objected based on concerns about the impact erosion from the road work would have on bull trout.

The agency abandoned the idea altogether when then-Interior Secretary Bruce Babbitt declared the fish threatened in 1998 in Oregon, Washington, Idaho, Montana and Nevada. That’s when Elko County commissioners decided to take matters into their own hands and make their own repairs to the road they claimed belonged to the county in the first place, not the feds.

The Justice Department filed suit against the county and Shovel Brigade leaders in 1999, winning an injunction forbidding any unapproved repair work, and the battle for the South Canyon Road was on in what was proudly proclaimed the republic of Elko.

"It never should have been closed in the first place," Grant Gerber, an Elko lawyer and founding member of the Shovel Brigade, said in an interview last week. "That’s why the citizens went up there and opened it up."

At its height, the controversy that is as much about principle as a gravel road became a symbol of conflict between private property rights and wildlife protections in the Endangered Species Act and other federal laws under assault in Congress at the time by a number of Western Republicans.

Assemblyman John Carpenter, another Shovel Brigade leader, likened the uprising to the Boston Tea Party. Supporters shipped 10,000 shovels to the town in a symbolic gesture and a giant shovel was erected in front of the courthouse for the county bigger than the state of Maryland.

A parade down main street took aim at Forest Service supervisor Gloria Flora, who later resigned citing an "anti-federal fervor" in the state where she said "fed-bashing" had become a sport.

But things have changed in the ensuing decade, according to McQueary, who has filed a formal motion arguing the lingering case in U.S. District Court in Reno should be dismissed because it is moot. She said the relationship between the county and the Forest Service has been downright "cordial" since the agency agreed to reopen all but the last half mile of the road into the Jarbidge Wilderness.

"It is 16 years after the flood that caused the (road’s) damage, almost 13 years after the Shovel Brigade made repairs, almost 12 years after this lawsuit was filed, 10 years after the parties settled, more than six years after the road was fixed," McQueary wrote in court papers.

"There is no dispute between the Forest Service and Elko County," she said. "There is no longer a cause of controversy."

Not so fast, says The Wilderness Society and the Utah-based Great Old Broads for Wilderness. They argue the settlement agreement that reopened most of the road is illegal and have won a pair of favorable rulings from the 9th U.S. Circuit Court of Appeals that have kept it from being formally implemented.

Michael Freeman, a Denver-based lawyer for the Earthjustice Legal Defense Fund who has represented the two conservation groups from the beginning, said the federal appellate court in San Francisco has made it clear — most recently in 2006 — that the Forest Service had no authority to cut the side deal without regard to the impact on the fish.

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