No end to legal battle over Nevada forest road, fish

RENO - Environmentalists waging a legal battle for more than a decade that's aimed at shutting down a national forest road that runs through the habitat of threatened fish in northeast Nevada say the laws of nature eventually will hand them a victory in the form of another flood that washes out the South Canyon Road leading to some of the most remote wilderness in the West.

But in the meantime, they're trying to persuade the 9th U.S. Circuit Court of Appeals to do it for them based on their claims the U.S. Forest Service illegally bowed to local political pressure and rebuilt the road after a 1995 flood in violation of a series of federal environmental laws.

"The agency decision basically ignores the law and ignores the U.S. Fish and Wildlife Service's determination that this very activity of letting vehicles drive through the river is a threat to the habitat of the bull trout," said Alison Flint, an Earthjustice lawyer based in Denver who last week argued the case on behalf of The Wilderness Society and the Utah-based Great Old Broads for Wilderness.

"What happened here is they cut a deal with Elko County. There was strong local pressure to open this canyon and the Forest Service ultimately bent to that pressure. They made a management decision to violate the law," she said in an interview after her appearance before a three-judge panel in San Francisco on Tuesday .

Specifically, the conservationists are appealing the latest related ruling in August by U.S. District Court Judge Roger Hunt in Las Vegas, who denied their request to throw out a 2005 settlement agreement between the federal government and local officials in Elko County that would legitimize the existence of the gravel road along the Jarbidge River near the Nevada-Idaho line.

The Forest Service initially decided not to rebuild the road, citing fears the road would encourage erosion and wash silt into the water, harming the river's bull trout. But protesters known as the "Shovel Brigade" worked to rebuild the road themselves in 1998 and the matter has been tied up in court since.

In addition to violating the National Environmental Policy Act and Endangered Species Act, the road violates an executive order President Jimmy Carter signed in 1977 prohibiting road construction in flood plains unless there is no practical alternative, the environmentalists say.

"This road has washed out five times in 25 years. It is in a flood plain," Flint said. "It is just a matter of time until the next major flood comes roaring down the canyon and causes major damage again, and the Forest Service will be faced with another very expensive, reconstruction project."

"In the meantime, the resource and the bull trout suffer. And the real point here is that the Forest Service needs to be held accountable and comply with federal laws designed to protect these resources. A court ruling that recognizes that this road violates federal law would accomplish that," she said.

Elizabeth Ann Peterson, a Justice Department lawyer for the Forest Service, told the panel the critics shouldn't even be allowed in court yet because they have not legally exhausted all their administrative appeal avenues. She said the groups' public comment criticizing the road project didn't qualify as a formal appeal and that a subsequent letter notifying the agency of intent to appeal was insufficient in part because the detailed arguments were included as attachments to the letter, not in the formal body of the letter itself.

Peterson said the agency would have been happy to explain to the groups why some of their arguments were not relevant to the project if they had sought out informal negotiations rather filing a lawsuit.

"Had they raised it, it could have been answered," Peterson told the judges. "The purpose of having administrative appeals prior to judicial review is for just that reason. It allows the agency most familiar to resolve any issues that are raised. In this case, their failure to do so clearly made that impossible in a way that was unnecessary."

Judge Milan Smith - who heard the arguments with Judges Ronald Gould and Robert D. Stack (a member of the 2nd Circuit who participated via teleconference in Seattle) - asked both sides to file additional written briefs regarding the question of administrative remedies by Nov. 21. It's not known when the court will rule.

Lawyers for the Forest Service argue in their legal briefs that the executive order "is binding on the agency as an internal executive branch policy directive, but does not have binding legal force."

Peterson said the Wilderness Society ignores the fact the road had already been sitting in a flood plain for decades before the order was signed. She said the agency correctly concluded there was no practical alternative to building the road there, and that the conservationists' claim to the contrary were invalid as part of the attachments to the appeal, not the appeal letter itself.

The critics countered that the agency examined a number of alternatives, including building the road on the side of the hill or turning the road into a trail.

"We made it clear with our arguments in the appeal the decision to run the road through a flood plain violated the central requirement of the order - that you must stay out of flood plains entirely unless you make the expressed determination there is no practical alternative," Flint told the panel. "The agency's position is it is free to ignore those based on where they are located in the submission."