History of Western Landscapes

History of the Jarbidge, Nevada, Area

St. Louis, Bob. 2008. History of the Jarbidge, Nevada, Area With Special Emphasis on Matters Pertaining to the South Canyon Section of Jarbidge Road. Western Institute for Study of the Environment

I. Introduction

For almost one hundred years, the Jarbidge area has been the center of numerous controversies. At the turn of the century, the issue was federal protection for interests of local ranchers and other inhabitants against a wave of invading sheepmen. After gold was discovered in the area, the issue became one of local miners petitioning the federal government for a townsite. Later on, part of the area was set aside as Nevada’s first designated wilderness. Subsequently, the Forest Service set upon a crusade to expand that wilderness, in spite of local residents’ objections. Still later, the Jarbidge Wilderness was expanded after the Forest Service unilaterally closed a segment of South Canyon Road. In most recent times, Jarbidge townspeople had to appeal to Congress in order to remove Forest Service authority over their cemetery. The latest controversy returns to an earlier issue: the Forest Service once again attempted to create a de facto wilderness by closing another segment of South Canyon Road.

The following chronicle documents the history of the South Canyon of the Jarbidge River, from the perspective of the on and off relationship between the federal government and the local residents. It is not intended to be a thorough study of the history of this part of Nevada, but rather a detailed introduction into how the role of the federal government has been transformed from the “government of the people, by the people” to a self-serving entity that disregards the interests, and laws, of the local citizenry.

II. Pre-historic period

The archaelogical record indicates that native Americans inhabited the greater Jarbidge area from some 10,000 years before present, through late prehistoric times, and into relatively recent periods. Obsidian quarries on the north slope of the Jarbidge Mountains, and towards Brown’s Bench to the east and northeast, were utilized over a substantial period (Simms, 1993). As recently as October 1894 an Indian game drive was conducted at the D.C. corral; this event was documented by Kitty Wilkins (Simms, 1993).

Deer Creek Cave, situated on the north bank of Deer Creek near its confluence with Jarbidge River, has proven to be a substantial archaeological site. This site provides evidence of human habitation from about 10,000 years before present to late prehistoric times (Johnson, 1997).

The high country of the Jarbidge Mountains was clearly used, not only by the well-known miners of the early twentieth century gold boom, but also by prehistoric people (Simms, 1993). In fact, considerable use was made of the broad ridges between the canyons, even at high elevations. This was largely because of the availability of bitteroot and flakable ignimbrite. Activity appears to have been concentrated near the confluences of drainages, near divides, and at passes between major drainages (Johnson, 1997).

Johnson (1997) examined three sites including one prehistoric site near the confluence of Snowslide Gulch and Jarbidge River comprising a small lithic scatter.

Interestingly, the archaeological record does not wholly support the legend of the Jarbidge Monster (Ja-ha-bich, according to Schrader (1912), or Johrbitch, by the account of Mathias and Berry (1997)). The legend suggests that the Indians would not enter the Jarbidge Canyon for fear of being eaten by the mythical beast. It is possible that the legend developed after the latest volcanic events on the nearby Snake River Plain, which Schrader (1912) states occurred within the prior century or so. Schrader posits that the legend of the fire-breathing monster reflects these late eruptions. If this is so, the local natives might have had some fear of entering the canyon, but given that Kitty Wilkins’ witnessed an Indian game drive in 1894, not all of them were averse to hunting there, even after the last eruptions.

III. Pre-mining boom historic period (1820-1908)

The first non-native people to visit the area were members of Peter Ogden’s party, who apparently entered the Mary’s River/Jarbidge River area in December 1828 (Williams et al., 1971). These people were engaged in reconnaissance of the northern Great Basin as a potential fur-gathering territory for the Hudson’s Bay Company. In the process of working their way across northern Nevada, from north of Winnemucca to the area near Grouse Creek, Utah, the party endured great peril, including near-starvation.

Sheep outfits began to move into the Jarbidge-Bruneau area in 1852 (Patterson et al., 1969). The numbers of sheepmen, and sheep, would grow to staggering proportions over the ensuing 50 years.

During the late 1860’s, Silver City, Idaho prospector Jack Sinclair did some work in the area, although precise locations are not documented (Schrader, 1912).

In the 1870’s two Mormon “trailblazers” (essentially charged with locating suitable farming lands) entered the East Fork of the Jarbidge River, and reportedly found gold (Patterson et al., 1969). They built an arrastra, which they carefully concealed when they were not working their ore. The location of this arrastra is not reliably documented.

The 1870’s also saw the arrival of horse and cattle ranchers in the area, especially on the Diamond-A Desert. Among these were Peter Columbet, John Dorsey, Fred Lancaster, Lou Eastman, Frank Winter, and Fred Anderson (Mathias and Berry, 1997). By 1880 the Wilkins brothers had established a large horse ranch on the northern side of the Nevada - Idaho border, on the tableland above Wilkins (Murphy) hot springs (Schrader, 1912).

The severe winter of 1889 - 1890 killed huge numbers of cattle in northern Nevada and southern Idaho. As a result of this die-off, northern Nevada cattle ranchers were all but wiped out, and sheepherders moved in to occupy the niche formerly occupied by the cattlemen (Ward, 1961). Burkhardt (2001) noted that the first substantial summer sheep grazing in the Jarbidge Mountains was in 1890, noting that sheep from both Nevada and Idaho had invaded the area. By the summer of 1897, over 100,000 sheep were in the Jarbidge Mountains (Burkhardt, 2001).

William Mahoney built a cabin in 1892, about one mile north of what would later be the town of Jarbidge, where Deer Creek Trail crossed the Jarbidge River (Frampton and Wilson (1999) stated that the cabin was built in 1902 by William Perkins, who sold the cabin to William Mahoney in 1905). The cabin was used as a sheep base camp for the Williams Estate Company (who, according to John Carpenter, wintered their sheep in the Eastgate/Middlegate/Edwards Creek Valley area, in south-central Nevada). This cabin eventually became the Mahoney Ranger Station, when it was sold to the Forest Service in April 1909 (Frampton and Wilson, 1999). The Williams Estate Company ran sheep from the Bruneau River to the East Fork of the Jarbidge River (Wilcox, 1961). William Perkins also came into the canyon in 1892, and sometime after built his cabin near the headwaters of the Jarbidge river.

Placer gold was discovered in the Gold Creek area, some 25 miles west of Jarbidge, in 1869, and the Wyoming Mining District was organized on November 3 of that year (Hall, 1998). By 1873 additional discoveries had been made, and the Island Mountain Mining District was formed (Hall, 1998). By 1900 the mining operations near Gold Creek were finished, and the town became a livestock base. According to Rowher (1961), in 1902:

“Tellus Forro, a packer for [George B.] Williams, stated that on several occasions 160 to 180 head of pack mules left Gold Creek with supplies for sheep camps. At that time, the supplies were carried with pack animals as far east as Pole Creek.”

IV. Federal Land Surveys

In 1896, Dennis Scully led a group into the area for the purpose of surveying the Ninth Standard Parallel. According to the microfiche records of Scully’s field notes, on file at the Elko BLM office, they worked from June 19 through August 31. Scully’s field notes are preserved in the original handwritten script, making them somewhat illegible in places on the microfiche. Scully’s survey team began their transect east of the Jarbidge Mountains, and worked to the west.

At some point during their expedition, the survey party was in desperate straits. Scully’s field notes for August 7, 1896, detail some of the difficulties the party had run into over the previous days. In addition to one of the men suffering a severe attack of nerves, Scully also noted that one of the men had nearly been killed in a horseback accident some days previously. and had to enlist the assistance of George Baker to exit Jarbidge Canyon (Mathias and Berry, 1997). Baker was a foreman for the George Williams sheep outfit, and had spent a substantial amount of time exploring and leading parties into the Jarbidge Mountains (Mathias and Berry, 1997). Baker most likely took some of the weak or injured party members to Mahoney cabin, and returned at least one of them to the group at some point on the river (although Scully makes no mention of Baker). Baker almost certainly traveled along the Jarbidge River in order to reach this location.

In addition to documenting some of the incredible difficulties encountered in crossing the Jarbidge Mountains across the grain of the land, Scully’s notes are also remarkable in that they document no roads or trails once the party entered the higher country from the flatland starting point east of the mountains. By the time Scully entered the area, the numbers of sheep in the mountains had swelled to 500,000 or more (Wilson, 1906). It is interesting that no trails were reported, when this number of sheep in the Bruneau-Jarbidge area would certainly have resulted in numerous sheep and tender trails. Perhaps the trails were so numerous that Scully chose not to note any of them, for discerning which ones were main trails was impossible.

Robert Yundt resurveyed the Ninth Standard Parallel in 1935. Yundt’s field notes, in the Elko BLM office microfiche records, comprise typewritten transcripts that were subsequently photographed for microfiche.

V. Forest Reserve/National Forest (1905-1909)

The following section is intended to document the political struggles that occurred during the period that the land in the Jarbidge area became part of the National Forest System Lands. Political battles were waged at the local and federal levels during this period; even within the fledgling Forest Service, there was considerable debate as to whether or not the lands in question were worthy of inclusion in the National Forest System.

In the course of researching the forest reserve/national forest history, numerous chronological ambiguities were found. In fact, Fred Frampton, a historian working for the Forest Service, noted in his 1992 “History of the Humboldt National Forest,” that:

“Throughout its history the Forest Service has consolidated Forests and moved Ranger Districts from one Forest to another. The Humboldt is no exception, and its history may be even more complex than most.”

Wherever possible, the actual proclamations are referenced for accuracy.

Prior to Theodore Roosevelt’s presidency, the forest reserves of the United States were managed by the Division of Forestry (later the Bureau of Forestry), Department of the Interior. In 1901, administration of the nation’s forests was transferred to the USDA’s Bureau of Forestry, which became the Forest Service in 1905, with Gifford Pinchot as its first chief (Miller, 1999). In March of 1907 “Forest Reserves” were officially termed “National Forests.”

Frampton and Wilson (1999) noted that the first Forest Reserve in Nevada was the Ruby Mountains Forest Reserve, which was withdrawn by the Secretary of the Interior on March 29, 1904. This withdrawal was made permanent by President Theodore Roosevelt’s proclamation of May 3, 1906 (34 Stat. 3198).

Withdrawal of the Independence Mountains

On November 5, 1905, Secretary of the Interior Ethan Hitchcock temporarily withdrew the Independence Mountains Forest Reserve, apparently in response to a petition from local ranchers (Frampton and Wilson, 1999).

A few weeks later, on November 23, 1905, the Secretary of Agriculture’s recommendation for the temporary withdrawal of land for the Proposed Bruneau Addition to the Independence Forest Reserve was approved by the Department of the Interior. The term “withdrawal” refers to the administrative process whereby entry under the homesteading laws was precluded, and the cutting of timber regulated. Entry under the mining laws was still allowed after lands were withdrawn. Note that at this point, 1905, the Proposed Bruneau Addition was not part of a Forest Reserve; only the Independence and Ruby Mountains enjoyed this status in Elko County.

The 1905 withdrawals served as the cornerstone for what would become a much larger piece of real estate ultimately including the Jarbidge Mountains. A large measure of the credit for this action rests with a group of Ruby Valley ranchers, who had petitioned Chief Forester Gifford Pinchot for the inclusion of the Ruby Mountains into the Forest Reserve as a means to protect their interests (Tremewan, 1915; Frampton and Wilson, 1999).

The withdrawal was described in a November 23, 1905 letter to the Commissioner of the General Land Office, written by Ethan Hitchcock, Secretary of the Interior, with the following:

“In view of the foregoing I hereby withdraw from all forms of disposition, excepting under the mineral laws, all of the vacant un-appropriated public lands in the State of Nevada within the area shown on the diagram, and so described in your letter, with a view to the ultimate creation therefrom of the Independence Forest Reserve.”

Idaho politicians were the principal opponents of the Independence withdrawal (Wilcox, 1961). As late as 1920, ranchers from the Three Creek, Idaho, area grazed cattle on what would then be the National Forest without permits, apparently as a sign of their indignation. CHECK THIS; IT MIGHT BE REFERRING TO JARBIDGE, NOT INDEPENDENCE

President Theodore Roosevelt signed a proclamation on November 5, 1906 (34 Stat. 3251) creating the Ruby Mountains and Independence Forest Reserve (Tremewan, 1915). In an apparent chronological contradiction, Tremewan (1915) notes that the Independence Forest Reserve was established in 1908. He stated that:

“In 1907, to get the ball rolling, Frank Winters and I went up north and told the people about putting the Independence into the Forest Reserve. When they learned that this would give them first chance at the range adjacent to their homesteads, they were quick to sign the petition calling for the creation of the Forest.”

Furthermore, the proclamation signed by President Roosevelt on November 5, 1906, only concerned the Independence Reserve, without addressing the Ruby Mountains Reserve at all. The Ruby Mountains Forest Reserve was created by presidential proclamation on May 3, 1906 (34 Stat. 3198).

Addition to the Forest: Timber vs. Grazing

In the fall of 1904, R. B. Wilson, Forest Assistant, was sent to examine the area of what was to become known as the Proposed Bruneau Addition to the Independence National Forest (Wilson, 1906). Overgrazing by sheep was cited as a major reason for Government control, via a forest reserve. Wilson also mentioned observations made in June, 1906.

Wilson (1906) suggested that the amount of timber in the proposed addition was limited, and added that timber and watershed issues were raised only as secondary issues to grazing, especially in the context of apparently overwhelming numbers of sheep, which he determined to be some 392,350. Wilson noted that the large sheep outfits were well-funded and politically-connected, suggesting that any reduction of sheep in the area would not be accomplished easily.

In this same report, Wilson (1906) made mention of the North Fork Forest Reserve examination, conducted in the fall of 1905. He recommended that the Proposed Bruneau Addition be combined with the North Fork, both areas together to be called the Bruneau Forest Reserve. The combined Bruneau and North Fork areas extended from west of the Bull Run Mountains almost to Elk Mountain (east of the Jarbidge Mountains), and from Wildhorse Reservoir north to the Idaho state line. He further suggested that the Bruneau should be administered at the same time as the “…Ruby Forest Reserve, created in May, 1906,” with one supervisor headquartered in Elko. He went on to state:

“There is no one of any reserve experience native to Nevada, so a temporary man will have to be brought from outside.”

Later in the report, Wilson suggested that C. S. Tremewan, being a Mountain City rancher, would become a good candidate for the supervisor’s job, after gaining more experience.

Subsequent to the proclamation establishing the Independence Forest Reserve, a number of residents of the northern part of Elko County petitioned Senator Francis Newlands to have the Independence Forest Reserve established as a National Forest, to include the Proposed Bruneau Addition. Among these residents were W. W. Williams, State Senator, who ran the largest sheep outfit in the area, and Frank Winter, State Assemblyman.

The impetus for the residents’ desire for the Bruneau Addition was the decimation of the range by non-resident sheep outfits. The number of sheep in the general Bruneau area was placed somewhere between 500,000 and 1.5 million, depending on whose estimates are used. The practice at the time was to put as many sheep on the range for as long as possible, thus severely limiting the opportunity for seed production and therefore the continuation of good forage. Furthermore, a number of the shepherds set fires as they left the country. These fires were intended to destroy brush and small trees, in an effort to “improve” the range. Larger trees were ringed in the interests of killing them. The local ranching outfits were finding it very hard to find sufficient forage for their own herds in the wake of the outsiders. Evidence also suggests that the watersheds were seriously impacted by the large numbers of sheep.

A common practice at the time was the staking of placer claims to control surface waters. These waters would then be leased to sheepmen during the grazing season, or the bottomland controlled for base camp operations. This was commonly referred to as “sheep mining” (Wilson, 1906).

Because of the early emphasis on grazing control, Gifford Pinchot, Chief of the Forest Service in Washington, D.C., wrote a memorandum on February 14, 1908, stating:

“I consider this proposed Bruneau addition to the Independence Forest mainly a grazing proposition, and can not approve its creation as a National Forest.”

Franklin W. Reed, Inspector (Forest Service) wrote “Arguments in Favor of Creating the Bruneau Addition to Independence National Forest, Nevada” on February 14, 1908. In this document, Reed noted:

“The existing Independence National Forest is of exactly the same character as the proposed Bruneau Addition, and was recommended and created on exactly the same grounds as those outlined above.”

R. E. Benedict, Chief Inspector for the Forest Service in Salt Lake City, wrote on April 1, 1908, that the grazing issue in the Proposed Bruneau Addition was paramount. In addition, he noted, with some prescience:

“Before long, if grazing continues unregulated, the range will be seriously overstocked. The destruction of young growth, of brush cover, and the prevention of reproduction by too close feeding and trampling, and the destruction of large timber by accompanying fires will come as a matter of course, as has happened in other similar countries (viz: Manti, [Utah] Cassia, [Idaho] etc.).”

Thompson (1908) determined that there were upwards of 800,000 sheep in the “Bruneau” in 1908.

C. S. Tremewan, Acting Supervisor for the Ruby Mountains and Independence National Forests in Elko, replied to Benedict on May 24, 1908. His closing paragraph states:

“I have been promised some pictures of the timber in that country that will show that it is far from being a strictly grazing proposition. I hope they will not restore it to entry before we be given a chance to submit them.”

This statement refers to the Ethan Hitchcock action of November 23, 1905, which withdrew the Proposed Bruneau Addition from homestead/agricultural entry.

On May 29, 1908, C. G. Winter, a local resident rancher, wrote Tremewan in support of the Bruneau Addition to the National Forest. The final paragraph of his letter gave an indication of how times have changed:

“Every one here is a friend of the Forest Service and should you or any of your Superior Officers care to come up and look around our time and horses are yours to command and we will show you that this country and the settlers sorely need protection.”

Over the next 90 years this relationship between the local residents and the Forest Service would undergo a 180 degree turn.

On June 9, 1908, C. S. Tremewan wrote Gifford Pinchot, Chief Forester, in Washington, D. C.:

“In reply to your letter of June 3, 1908: There is no doubt that the Bruneau Addition is needed as much for water protection as for timber protection, as five large streams head in its mountains, but it has always been understood and expected by the people that it would be confined to the Timbered portions; they realize that in the tract originally withdrawn there was much land that was fit only for grazing but they thought that the Inspector who examined it would eliminate those parts and that as finally accepted it would include only the timbered areas.”

Also on June 9, 1908, in reply to a letter written to him by Forest Service Chief Inspector R. E. Benedict on June 8, 1908, C. S. Tremewan wrote:

“I like the plan very well of the new report and map; I was getting tired of fighting for the proposition and defending it as it was withdrawn, and if I had any idea that the Washington office had thought that we wanted the whole country included I would have explained that the people understood and expected that there would be a vast amount of the land that was originally withdrawn that would be eliminated from the accepted forest.

There is a strip running almost entirely around the whole proposition that is fit for nothing but grazing and as I look over the map I can follow the timber line within one mile almost as correctly as it has been done on most of the Forests that have been created up to date, as I have spent a number of years riding over that very territory.”

On July 2, 1908, President Theodore Roosevelt signed an executive order (908) which consolidated the Ruby Mountains and Independence National Forests under the name of the Humboldt National Forest. This was largely an administrative move, and did not increase the size of the National Forest.

From June 15 through July 22, 1908, George C. Thompson, Land Examiner from Ogden, Utah, performed a field examination of the Proposed Bruneau Addition. From July 23 until August 12, 1908, he compiled his map and report in Elko. On August 15, 1908, he submitted his report to Forest Service Inspector F. W. Reed. This report, comprising some 15 pages, highly favored the Proposed Bruneau Addition. In his recommendations, he noted:

“It is recommended that the Bruneau Addition to the Humboldt National Forest, with the boundaries as indicated on the accompanying map, be created and put under control by no means later than the beginning of the next grazing season.

In this connection special attention is called to the high, open grassland supporting scattered bunches of scrubby aspen on the northeast slope of the Jarbidge Mountains which is recommended for inclusion as shown on the map for the following reason: The Idaho sheep are in the habit of sneaking across the State Line onto this area early in the spring before the State or Government scab inspectors can get around to inspect the bands and give them their clean bills of health. The inclusion of this area by the establishment of the Forest Grazing Regulations would tend greatly to eliminate such operations. This point has been discussed personally with most of the stockmen using this and the adjacent range and the inclusion of the area as outlined meets with their hearty approval.”

Reed approved the Thompson report on August 24, 1908.

It is worth noting that the wild bighorn sheep in the Jarbidge Mountains began to seriously decline when domestic sheep with scabies moved onto their range (Tremewan, 1915).

Yet another example of how the politics played out in this drama is given in an August 18, 1908 letter from C. S. Tremewan, Acting Supervisor of the Humboldt National Forest, to Forest Service Inspector F. W. Reed. The letter addressed Senator George Nixon’s opposition to the proposed addition; Tremewan contended that Nixon’s interests in certain banking concerns (he was president of First National Bank of Winnemucca) were the reason for his opposition. Apparently, Nixon’s banks had loaned substantial sums to so-called “Transient Bascoes” for sheep purchases. As a result, if the non-resident herders were adversely impacted by the Bruneau Addition, Nixon would suffer financially.

The area encompassed by the Proposed Bruneau Addition was clearly intensively overgrazed, as noted by Frampton (1992):

“When the Forest Service took over management of the land, much of the area had been overgrazed to the point that some places, such as that around Pole Creek [some ten miles east of Jarbidge] were considered ‘dust bowls.’ A large part of the early Rangers’ duties was dividing grazing allotments and counting livestock numbers. This task was not an easy one, as local ranchers considered it a game, rather than an illegal act, to run more stock than was paid for or permitted.”

Other Senators, including Hayborne of Idaho and Mondel of Wyoming, were also opposed to the expansion of the forest. In his “History of the Humboldt National Forest,” (no date available) C. S. Tremewan noted that these two Senators were strongly opposed to “…President Roosevelt’s conservation policy as exemplified in Gifford Pinchot, as Chief Forester.” Apparently, things got nasty in Washington, D. C.

F. W. Reed, now promoted to Acting Chief Inspector, submitted Thompson’s report to Gifford Pinchot in Washington on August 25, 1908. In his cover letter, Reed mentioned the earlier report on the Bruneau Addition written by R. B. Wilson in 1906. Reed criticized Wilson’s report, noting that Wilson spent hardly three weeks in the field prior to writing his report, and recommended that Thompson’s report be considered much more reliable. Reed endorsed Thompson’s recommendation of including the Bruneau Addition in the National Forest. While he stated no specific reasons for his criticism of Wilson’s report, it may derive from Wilson’s down-playing of timber and his obvious emphasis on grazing issues as reasons to support the Bruneau Addition; these perspectives have already been shown to fly in opposition to Gifford Pinchot.

C. G. Winter, an Elko County rancher and miner, wrote to Gifford Pinchot, Chief Forester, on October 23, 1908, again stating reasons that the proposed Bruneau addition (Winter called it “the proposed Bruneau extension of the Humboldt National Forest) should be enacted.

On October 26, 1908, a “Memorandum for Forester’s report” states:

“During the past week the Forester approved the creation of the Bruneau addition to the Humboldt, amounting to 600,000 acres.”

President Roosevelt signed a proclamation on January 20, 1909 (34 Stat. 2215, or Presidential Proclamation 832), which enlarged the Humboldt National Forest. The proclamation states, in part:

“The withdrawal made by this proclamation shall, as to all lands which are at this date legally appropriated under the public land laws or reserved for any public purpose, be subject to, and shall not interfere with or defeat legal rights under such appropriation, nor prevent the use for such public purpose of lands so reserved, so long as such appropriation is legally maintained, or such reservation remains in force.”

With the enactment of this proclamation, the Proposed Bruneau Addition (including the Jarbidge area) officially became part of the National Forest System Lands.

VI. Prospecting and Mining (1890-1940)

Placer Miners

Frank H. Winter, in a written narrative dated January 16, 1924, stated that the first prospecting in the Jarbidge area he knew of was in August 1891, when George Knapp, Ernest Bingham, Teen (?) Plunkett, Ed Allen, and himself entered the Jarbidge Mountains. They spent about ten days hunting, fishing and prospecting. Winter went on to say that on April 18, 1892 he and Fred Lancaster located some placer claims on the Jarbidge River and Pine Creek. Records in the Elko County Recorder’s Office also show that on April 9, 1894, F. H. Winter, along with L. S. Eastman, A. N. Green, C. Irland, L. Owens, M. Owens, C. Owens, and J. Eggers staked several placer mining claims in the Jarbidge area. Of principal interest is the Avalanche Placer Mine, which was staked:

“…commencing at the mouth of Pine, Creek and running up the Jarbidge Fork of the Bruneau River 2 miles long by 1/8 mile wide in a Southerly Course, 2 miles.”

The notice of location of this claim is in the Elko County Recorder’s Office, Mining Locations, Book 2, page 571. The reason that eight names appear on the notice is that under the mining law at the time, each individual was entitled to claim 20 acres. By forming an “association,” a claim encompassing 160 acres was allowed.

In addition to the Avalanche, Winter et al. staked other claims on April 9, 1894, all of which were recorded in the County Recorder’s Office on April 26, 1894: MAP OF CLAIMS

Winter Placer Mine: “…up this Pine Creek, …commencing at the stake and monument marked east erected under a red bluff at the mouth of the said creek and the junction of Jarbidge Canyon and running up the creek two miles long x 1/8 mile wide.” Elko County Mining Locations, Book 2, pp. 577 - 578.

Noontide Placer Mine: “commencing at a post erected at the mouth of a creek to be known as Snow Creek. Said creek empties into the Jarbidge Fork of the Bruneau River about three and a half miles above the upper Wilkins Crossing. We claim 2 miles up Snow Creek by one eighth of a mile wide.” Elko County Mining Locations, Book 2, pp. 571 - 572.

Golden Era Mine: “Up a creek named Grouse Creek which emptys into the Jarbidge Fork of the Bruneau River about 3 miles above the upper Wilkins Crossing. Commencing at a post and monument erected at the mouth of said Grouse Creek and running up the creek 2 miles long by 1/8 mile wide.” Elko County Mining Locations, Book 2, p. 572.

April Fool Mine: “…commencing at a post erected about 2-1/2 miles upstream from the upper Wilkins Crossing on Jarbidge Fork of the Bruneau River…and running up the main river 2 miles long x 1/8 mile wide.” Elko County Mining Locations, Book 2, p. 576.

One of the most important historical aspects of the Avalanche and Winter Placer Claims is the distinct reference to Pine Creek. The fact that the creek was known by this name as early as 1894 strongly suggests that the area had been frequented by sufficient numbers of people to have named that major tributary to the Jarbidge River, and that name was recognized by the claimants.

Other prospectors were in the area, including George B. Williams, who, with his partners, staked the Jaw Bridge placer claim on September 15, 1901:

“…in Jaw Bridge Canyon where the trail crosses the creek from Anunicaa (sp?) Canyon to
Wilkins Island. This claim extends 1 mile north and 1 mile south from this notice 1/8 mile wide.”

Frampton and Wilson (1999) also had trouble deciphering the spelling of the canyon named on this notice, writing it as Anunicau(?). Williams was heavily involved in the sheep industry, being a half-brother of Warren Williams, head of the Williams Estate Company (Frampton and Wilson, 1999), and may have staked this claim as a “sheep mine,” effectively giving him control of the important trail crossing and water where his claim was situated. In fact, Warren Williams was one of the partners in the Jaw Bridge claim, adding credibility to the “sheep mine“ assertion.

Hard Rock Mining

One of the earliest recorded lode gold discoveries in the Jarbidge district was that of sheepman John Pence and one of his tenders, known as either Vishim or Ishman (Schrader (1912) notes the name as Vishim, but others, including Frampton and Wilson (1999), note the name as Ishman). Apparently the tender found lode gold in the canyon, but died mysteriously before he could provide details of the location (Mathias and Berry, 1997).

Around 1907, Charles M. Howard, a sheepman, prospected the area around Bourne Gulch, but apparently was rewarded only with low grade discoveries (Mathias and Berry, 1997; Schrader, 1912). Because of the lack of grade, he staked no claims. However, Mathias and Berry (1997) suggest that Howard had found the old arrastra built by the Mormons, and told Ralph E. Herbert about it. Mathias and Berry (1997) indicate that the arrastra was found in Jarbidge Canyon, buried beneath trees and brush.

During the fall of 1907, F. H. Winter met with David Bourne in Mountain City. Winter told Bourne about finding placer gold in a gulch which is now named after Bourne (Bourne Gulch). Winter wrote that Bourne went into the Jarbidge area in the spring of 1908, and began prospecting up the river, eventually finding the outcrop of the Bourne Mine. In fact, Bourne staked the North Star, North Star No. 1, North Star No. 2, North Star No. 3, and Reliance No. 1 claims on June 29, 1909. These proved to be the start of the Jarbidge hardrock mining boom.

Meanwhile, John Escallon (commonly written Escalon in various texts, but the spelling as shown on the location notices on file in the Elko County Recorder‘s office is used here as the official spelling of the name) left Charleston afoot, heading for Jarbidge Canyon. After prospecting for some time, he found a good outcrop of ore about two miles south of Bourne’s discovery. Upon learning that Bourne was working in the canyon, Escallon immediately staked the Pick and Shovel claims on September 15, 1909. He then left the canyon to record his claims in Elko. Escallon probably stopped in Charleston and reported his discovery, for soon after the Pick and Shovel claims were staked, several Charleston area residents, including Mac Prunty, staked claims in the vicinity of Escallon’s claims.

The Bourne and Escallon discoveries set into motion the last major 1849-style gold rush in America. Within a year of their discoveries, claims were staked on most of the core of the Jarbidge district, covering some 14 square miles of ground along both sides of the crest of the Jarbidge Mountains.

The Jarbidge gold rush, subsequent mining, and growth of the town of Jarbidge, is well documented in Mathias and Berry (1997), Wilson (1974), and other texts. The interested reader is referred to these works for detail.

Settlement and Access

As word of the June 1909 gold discovery in Jarbidge spread, people began to move to the area in droves. In less than six months the area, often referred to as one of the most remote in the lower 48 states would be teaming with miners. Access was a problem from the beginning, with the main trail leaving Gold Creek, on to Rowland and then the Diamond-A Ranch, some six miles from Jarbidge (Mathias and Berry, 1997). The other, more difficult route into the canyon took off from Three Creek, Idaho, descended into the East Fork of the Jarbidge River at Wilkins Hot Hole (Murphy Hot Springs), and then headed south, ascending to the tableland on top of Wilkins Island. This trail continued south to Jack Hole, and then descended into Jarbidge Canyon via Moore Gulch.

Mathias and Berry (1997) noted that rumors abounded regarding the descent from the Diamond-A Ranch into Jarbidge, suggesting that the trail was almost vertical over its 1,000’ descent. In light of the difficult trail, “…most of the early arrivals came by way of Charleston or Three Creek” (Mathias and Berry, 1997). Perhaps the route followed by John Escallon when he first entered Jarbidge Canyon in June 1909 was the route some of the early miners followed from Charleston, as the Charleston - Jarbidge road was not yet built.

A vivid example of the difficulty of accessing the canyon from the south, without a road, in the snow, and of the tenacity of the people hoping to strike it rich, is given in Schrader (1912):

“It is reported that a large party entering the district from the south over the snowy divide, finding it impossible to descend the icy mountain slope with pack animals in the ordinary way, lashed the horses’ legs to their bodies and started them, packs and all, in bowlder style, down the rugged slope, in which fashion, it is said, they reached the foot of the mountain with only a few fatal accidents.”

The growing gold camp created competition between Elko and Twin Falls for the supply business. While other towns certainly wished to get in on the action, it was primarily the businesspeople of Elko and Twin Falls that did the most to earn the trade. Groups formed in both cities to construct better access into the camp; the Elko route would eventually take off from Deeth, head to Charleston, then on to Bear Creek Summit, Bear Creek Meadows, and on down into the canyon. The Twin Falls alternative was to improve the route out of Three Creek.

In October 1909, 50 men were in the fledgling camp, and they soon organized the Jarbidge Mining District (Schrader, 1912).

According to Mathias and Berry (1997), at least 300 men were in the new camp by mid-January 1910. That winter was severe, yet the prospectors continued to arrive. Many claims were staked that winter, with the claimants never seeing the rocks buried beneath the snow. Mathias and Berry (1997) cite references that indicate 400 people were in Jarbidge by early February 1910.

A tent city was quickly growing on the flats where the present town of Jarbidge stands. The townsite land was under control of the Forest Service, so lots could not be purchased, and no liquor could be sold. The Forest Service sold permits for town-lot rights for $10 to $800 each, depending on location (Schrader, 1912). By early 1910 the population had swelled to 1,500 residents. Land speculation and fraud were rampant. One of the favored tactics was to stake a placer claim along the river, and then sell lots by contract (Mathias and Berry, 1997).

The residents of the camp began petitioning the Forest Service and the federal government for a townsite in January 1910 (Mathias and Berry, 1997). On March 8, 1911, an executive order was signed withdrawing 102.5 acres from the Humboldt National Forest for the townsite (Wilson, 1974).

In February 1910, freighter Wallace Toombs left Gold Creek with a “four horse team of bobs followed by three sleighs all with full loads” (Mathias and Berry, 1997). Toombs pioneered a road starting at the head of Deer Creek, down the divide between Deer Creek and Jarbidge River, meeting the river across from the mouth of Moore Gulch. The final descent of this trip was truly treacherous, due to the steepness of the slope. Not long afterward, Will Flynn, Will Johnson, and Forest Service guards Butler and Garrison, followed Toombs’ route, but decided to drop to the river at Mahoney Ranger Station (Mathias and Berry, 1997).

The road from Deeth to Charleston was almost complete by December 1910. This road was extended to Jarbidge, via the settlement that would eventually be known as Pavlak, by July 1911 (Mathias and Berry, 1997). Jack Goodwin, father of the current senior resident of Jarbidge, Helen Wilson, was hired to engineer and complete the road from Pavlak to Jarbidge (Wilson, 1974). While this route provided the closest rail connection with the mining camp, the road was difficult in winter, especially along the high ridge country from Coon Creek Summit to Bear Creek Summit, and on the descent into Jarbidge. Snow drifts and avalanches often hampered or completely stopped travel for days at a time.

Whereas the snow proved a problem on the Charleston route, the Three Creek route suffered from mud and treacherous grades. The leg from Jack Hole into Jarbidge was particularly steep and difficult. In 1910, Twin Falls resident George Crippen hired Winthrop W. Fisk, a mining engineer, to design a new route into Jarbidge Canyon, leaving the trail along the top of Wilkins Island about one mile north of Jack Hole (Mathias and Berry, 1997). This new descent into the canyon was called Crippen Cut-Off (later called Crippen Grade), and soon after its completion in early 1912 resulted in the abandonment of the route through Jack Hole (Mathias and Berry, 1997). Even with the improved route, it took some 48 hours to travel the 70 miles from Rogerson, Idaho, to Jarbidge (Mathias and Berry, 1997).

Before the snows had completely melted in May 1910, many people left Jarbidge disappointed that the best ground had been staked in the fall of 1909, and realizing that the early reports regarding the grade of ore had been greatly exaggerated (Mathias and Berry, 1997). It appears that as many as 1,000 people had left by June 1910 (Mathias and Berry, 1997). However, it appears that many of the people who left were mostly speculators. True mining folk continued to arrive in the camp, and more discoveries were made as the weeks went by and the snow melted, revealing more mineralized ground (Schrader, 1912). May 1910 also saw the opening of the Jarbidge post office (Schrader, 1912).

A settlement, known as The Hub, sprang up at the mouth of Pine Creek, with a wagon road connecting that settlement with Jarbidge (Schrader, 1912). The road south from The Hub, along what is now called South Canyon, was completed in 1910. In fact, the first permanent bridge across the Jarbidge River was built on this road, just upstream from Snowslide Gulch (Mathias and Berry, 1997)

Mathias and Berry (1997) note that a telephone line connecting Jarbidge with Twin Falls was completed by September 1911. This telephone line did not derail the communication plans of a number of Elko county businesspeople, including Frank Winter, who had proposed building a line from Deeth. Winter formed the Nevada-Idaho Telephone Company of Jarbidge, and completed his line in the early fall of 1911 (Mathias and Berry, 1997).

As the initial rush of prospectors, speculators, vendors, and camp followers subsided, the camp began to become more organized. In 1911, mills in production included the Pavlak, North Star, Pick and Shovel, Clark and Fletcher, and Bluster. Mining claims were consolidated into workable groups, allowing for more efficient mining plans. August 1912 saw 500 residents in the district (Mathias and Berry, 1997).

A small settlement which had been established about a mile south of Jarbidge, at the mouth of Bonanza Gulch, was named Pavlak by 1915. The town was named after Michael Pavlak who, with his partner Peter Thuro, had discovered a good deposit of gold nearby. Interestingly, Pavlak was married to David Bourne’s sister (Wilson, 1974). In December 1915 the Pavlak post office opened.

On April 22, 1915 a Special Use Permit was issued by the Forest Service, setting aside one acre of land for the Jarbidge Cemetary.

By May of 1916, the population was still some 500 (Mathias and Berry, 1997). During 1916, Elkoro Mines Company commenced operations, and began constructing an electric power line into the camp, with the intent of powering a mill they planned to build (Schrader, 1923). The 44,000 volt line, covering the 72 miles from the hydroelectric plant at Thousand Springs, Idaho, was completed in 1917 (Schrader, 1923).

The winter of 1916 - 1917 was one of the worst the area had seen. The weather resulted in impassible the roads, and the camp was near starvation (Mathias and Berry, 1997).

In 1917, Winthrop Fisk secured a permit from the State Engineer for 1/2 second-foot of water from Bear Creek to be used as a town water supply (Mathias and Berry, 1997). On August 3, 1917, Fisk sold his permit to Elkoro Mines Company, which completed construction of the pipelines and other necessary facilities (Mathias and Berry, 1997). However, this water system did not serve any of the businesses or residences of the town north of Bear Creek, and all of the fire hydrants installed on the system were located on Elkoro property (Mathias and Berry, 1997). The north end of town was not served by the municipal water system until the 1950’s (Mathias and Berry, 1997).

The Elkoro Mines Company commissioned the largest mill in the camp to be constructed in March 1918 (Mathias and Berry, 1997). Through 1919, 1920, and 1921, Jarbidge was the leading gold producer in Nevada, with the Elkoro Mines Company being the biggest producer, largely from the Long Hike Mine (Schrader, 1923).

In May 1918, Elko County, in concert with Twin Falls and Owyhee Counties, completed the road along the Jarbidge River (known as the River Road), from Wilkins Hot Hole to Jarbidge (Mathias and Berry, 1997). The completion of this road spelled the end of the route over Wilkins Island and down Crippen Grade.

November 3, 1919, saw realization of the greatest fear of all old-time mining camps, when a fire broke out at the Success Bar, north of Bear Creek (Mathias and Berry, 1997). The bar was owned by Newton Crumley, Sr., who would later purchase the Commercial Hotel in Elko and be elected to the state senate (Mathias and Berry, 1997). Because Elkoro Mines had not installed fire hydrants north of Bear Creek, the fire was virtually impossible to fight. The fact that strong winds were blowing from the south only added to the futility of containing the fire, which ultimately destroyed half of the businesses in town (Mathias and Berry, 1997).

In the late 1910’s or early 1920’s, James and George Crisp (the Crisp twins) surveyed and built a road from Deer Creek Bridge, four miles north of Jarbidge (Mathias and Berry, 1997). After climbing out of Jarbidge Canyon, the road headed southwest for some three and one half miles, connecting with the network of roads on the plateau.

In July 1920 250 people were living in the camp (Schrader, 1923). The Pavlak post office was closed in January 1921, when the little community had become all but abandoned (Mathias and Berry, 1997).

By 1932, the Long Hike mine/mill was closed, and the Elkoro Mines Company was the only significant operator remaining in the camp (Mathias and Berry, 1997). Elkoro Mines had been the biggest producer over the life of the camp, having produced over seven million dollars worth of gold and silver, and netting almost four million dollars profit (Mathias and Berry, 1997). 1930 GOLD AND SILVER PRICES However, Elkoro also ended its operations later in 1932, having seen its vein widths and grade diminish to the point that they were no longer economic to mine.

After Elkoro Mines Company left Jarbidge in 1932, other mining companies purchased the mines, mill, and other properties held by Elkoro. One of the successors, Nevada Oil and Mining Company, claimed the water in Bear Creek and the water system (Mathias and Berry, 1997). The difficulty surrounding the town’s water supply finally came to an end when the State Engineer issued the Unincorporated Town of Jarbidge the right to the water in Bear Creek under permit 58511 (Mathias and Berry, 1997). According to Matt Dillon, Division of Water Resources, this permit was issued on September 15, 1994.

The closure of the Elkoro mill resulted in the curtailment of electrical power to Jarbidge; the power supply resumed when the Rio Tinto Company began operations near Mountain City in 1934 (Mathias and Berry, 1997). There were about 200 people in Jarbidge in the summer of 1936, when a newly-formed Elkoro Mines Operating Company resumed operations at the former Elkoro Mines Company mines and constructed a new flotation mill (Mathias and Berry, 1997). The new endeavor was short-lived, ceasing operations before the end of 1936.

In 1937, Newmont Mining Company, under the name of Gray Rock Mining Company, acquired the properties of the Elkoro Mines Operating Company, and commenced shaft sinking on the Gray Rock Fault (Mathias and Berry, 1997). The shaft was sunk to 1,100’ by 1941, but more than 13,000 gallons of water per minute proved technically impossible to handle, and the operation was abandoned (Mathias and Berry, 1997). This was the last major mining attempt in the district.

The Jarbidge school was closed in 1942, when enrollment fell below the threshold established by the State of Nevada (Mathias and Berry, 1997). Enough people returned to the town after World War II to warrant the reopening of the school in 1947. By 1955, the number of students again dropped too low to allow continuation of public schooling in Jarbidge (Mathias and Berry, 1997).

VII. Post-mining boom period (1955-present)

When all of the roads discussed in the previous section were built, they were constructed on lands managed by the Forest Service. The Forest Management Act of 1897 required permits to build roads on Forest System lands. However, to date, no permits have been found as part of the extensive research conducted by numerous people in conjunction with the litigation between Elko County and the United States (see below). Either the documents have not been preserved, or the roads were built without permit. This begs the question, what is the status of these roads, many of which are still maintained by Elko County?

In 1964, Congress established the Jarbidge Wilderness Area as the first Wilderness Area in Nevada (16 USC 1132(a), section 3(a)) . In conjunction with the Wilderness designation, the Forest Service began creating a buffer zone around the wilderness, substantially reducing maintenance of roads that approached the wilderness boundaries.

When the Jarbidge Wilderness was originally created by Congress, the boundary ran along the crest of the Jarbidge Mountains, and then along the divide between the Marys and Jarbidge River drainages (the head of the Jarbidge River).

In 1974, the Forest Service announced that, due to slope instability and resultant sloughing onto South Canyon Road, they considered the road no longer maintainable above Snowslide Gulch. They erected a barricade at Snowslide Gulch, essentially preventing normal vehicle travel beyond that point towards the wilderness boundary, which lay some three miles south of the barricade.

On August 27, 1986, Jarbidge residents removed the barricade, and held a celebratory picnic on August 31 at Perkins Cabin (about one mile northwest of the head of the canyon and wilderness boundary).GRANT’S DOCUMENTARY FILM

Norbert Smith, an engineer for the Forest Service, confirmed that on October 1, 1986, the Forest Service had constructed a substantial gate near the first barricade, and that the Forest Service now considered the road as a trail.

December 15, 1989, saw the culmination of what Elko county residents were convinced was the real motivation behind the closure of the upper section of South Canyon road, for on this date Congress passed the Nevada Wilderness Protection Act of 1989 (P. L. 101-195), which included a provision for expanding the Jarbidge Wilderness. Nevada Senator Harry Reid sponsored the bill that became the Act. In South Canyon, the expansion placed the wilderness boundary at Snowslide Gulch. The expanded wilderness boundary started at the rangecrest, where it had been since 1964, and then descended to the west along the ridge north of Snowslide Gulch, crossed the Jarbidge River at the mouth of Snowslide Gulch, and, offset about one eighth mile west of the river, paralleled the river northwesterly for some three miles, where it then turned southwesterly towards Bear Creek Summit. MAP

The Nevada Wilderness Protection Act of 1989 noted “the Department of Agriculture has completed the second roadless area review and evaluation program (RARE II)” as part of the Findings in the Act. Congressional review of RARE II documentation lead to the Determination that:

“without passing on the question of the legal and factual sufficiency of the RARE II final environmental statement (dated January 1979) with respect to National Forest System lands in the State of Nevada, such statement shall not be subject to judicial review with respect to National Forest System lands in the State of Nevada;”

So, despite the fact that the new wilderness boundary encompassed the South Canyon Road beyond Snowslide Gulch, the road along Fox Creek, and a road that headed southeast from Bear Creek Meadows, the evaluation of the area as “roadless” could not be tested in the courts.

In June 1995 warm temperatures, combined with heavy rain on a substantial snowpack, led to a 500 year flood in the Jarbidge River. As the torrent rushed down the canyon, the river shifted its channel in a number of places. These shifts resulted in sections of the southernmost mile and a half of South Canyon road either being washed out, and in some instances becoming the new streambed. Along the River Road, north from Jarbidge to the Idaho border, washouts resulted in the town being cut off from the north.

Bull Trout, and the Beginning of the Controversy

After the floodwaters receded, Elko County and the Forest Service began planning to repair the road from the Idaho border to Snowslide Gulch. In March of 1997, the Forest Service, through District Ranger David Aicher, released an environmental assessment for public comment, favoring an alternative that 1,700 feet of South Canyon road would be repaired by the Forest Service. Elko County, which had enjoyed full cooperation with the Forest Service to this point, accepted the Forest Service promise to repair the road. The Forest Service then began an extensive engineering and design project with the aim of repairing the road.

In July of 1997 Trout Unlimited, through Matt Holford, then president of the Northern Nevada Chapter, protested Aicher’s decision to repair the road. Holford cited the presence of bull trout in the river, and asserted that the road, if rebuilt, would be detrimental to the trout. Trout Unlimited maintained that the road could lead to a reduction in numbers of bull trout. Trout Unlimited also argued that since the bull trout in South Canyon are the southernmost population of the fish in the United States, the fish are worthy of protection. Holford’s assertion was remarkable, given the preceding one hundred-odd years of history in the canyon during which these fish had survived a great wave of human activity, including sheepherding, mining, the establishment of the town of Jarbidge, and traffic on South Canyon Road. The road up South Canyon from Pine Creek which had existed as a trail, and then at least a wagon road, since the 1890s.

During the heyday of mining, tailings and other wastes were indiscriminately disposed in the river. Included in these wastes was mercury from amalgamation plants, and cyanide from gold leaching. And, it is reasonable to conclude that the river had its share of floods during the prior century.

As if the foregoing weren’t enough to test the bull trout, the town of Jarbidge was almost starved out in April and May of 1917, when the roads accessing the town were totally impassible. Residents aggressively fished in the canyon during the weeks they were unable to obtain supplies from “outside.” The bull trout would have been taken in great number by any manner possible. Yet through all of this, the trout maintained what the Nevada Division of Wildlife (NDOW) claims is the maximum sustainable population for the river.

PARAGRAPH TO MAKE A POINT ABOUT NDOW REPORT

The section of the road in dispute extends from an elevation of about 6,600’ at the mouth of Pine Creek to an elevation of 6,925’ at Snowslide Gulch. Bull trout will not live in water warmer than 65° F; the Jarbidge River waters that sustain the optimum temperature range for the fish are generally found above 7,200’. A report by Humboldt and Toiyabe National Forests Fishery Biologist Katherin Ramsey noted that the fish were typically absent in the river below Gorge Gulch (Ramsey, 1997). In addition, the Ramsey (1997) report noted that rearing habitat exists only above Dry Gulch, due to temperature considerations, and therefore, juvenile bull trout are typically confined to the uppermost waters of Jarbidge River. Furthermore, the report stated that adult fish confined themselves to stretches above Snowslide Gulch in summer.

Ramsey (1997) went on to note that the bull trout habitat in Jarbidge River is “resource-limited and highly stochastic,” referring to environments where the survival rate for young fish is low due to random events, including mass wasting and flooding. Ramsey noted a major detriment to fish populations is the relative infertility of the stream; it simply does not produce an abundance of food for the fish, largely due to the cold water temperatures and the naturally mildly acidic waters. Below Pine Creek, Ramsey notes that water quality has been a problem, with the potential to adversely impact the fish, if the fish lived there, which it apparently does not.

Ramsey (1997) posited that a dam constructed in 1895 on the Lower Bruneau River caused a significant impact to the bull trout, as the dam prevented steelhead and salmon from entering the Jarbidge River to spawn. This in turn resulted in a decrease in the food available for the bull trout, which are piscivorous (fish eating). Bull trout will eat other bull trout, especially juveniles and Young-of-Year (Ramsey, 1997).

Ramsey (1997) concluded by stating:

“Population numbers for this species may at one time have been higher, prior to mining and subsequent human activities in the drainage, but managed to maintain a viable population in the face of everything that happened prior to the [19]60’s, and it seems to be maintaining itself in the face of human activities still present in the drainage. Human activities still on-going in the drainage probably are keeping the rate of habitat recovery below natural levels, and therefore are preventing the population from building its numbers to a higher level supportable by this drainage.”

Thus, although NDOW and Ramsey indicated that the bull trout were not in trouble, surviving man and nature, ant that the fish maximally occupied its habitat, Ramsey reported that the fish habitat could be better. This conclusion about habitat was not based on any objective evidence. Furthermore, Ramsey’s comment that human activities are keeping the recovery below natural levels is self-contradictory.

Because of the threat by Trout Unlimited to demand listing of the fish, in May 1998 Ben Siminoe, Assistant Forest Supervisor, said that the Forest Service wished to establish a plan “…that will aid in preventing the listing of the bull trout as a threatened or endangered species.” This statement marked the beginning of the latest South Canyon dispute, since in effect it informed Elko County that the Forest Service would not repair the road as promised.

Elko County responded by demanding that the Forest Service immediately relinquish maintenance of the road to the County. Subsequently, the Forest Service released a revised environmental assessment (on June 29, 1998) stating that the road would be replaced with a trail, in deference to the bull trout. Release of the revised environmental assessment was followed on July 2 by the Forest Service holding a town hall meeting with Jarbidge residents to inform them that the road would not be reopened.

Elko County had felt that South Canyon Road was a right of way granted to the County under RS 2477. The RS 2477 statute was originally codified as Section 8 of the Mining Law of 1866, which states:

“And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public purposes, is hereby granted.”

The Mining Act of 1872, which repealed some sections of the Mining Law of 1866, specifically retained the RS 2477 provision. In fact, RS 2477 remained in full effect until the enactment of the Federal Land and Policy Management Act (FLPMA) in October 1976, when the statute was repealed.

Essentially, RS 2477 provides for a granted right of way for thoroughfares established prior to and during the period that the statute was in effect. The term “highways” has to be taken in the context of the period in which the statute was written. Foot trails that evolved into wagon roads have been considered as highways under RS 2477.

Elko County asserted that the South Canyon Road had been used as a trail, and later was improved into a road, prior to the withdrawal of the South Canyon into the National Forest (November, 1905), and therefore, the road belonged to Elko County under RS 2477. The same claim should have been made by the County when the section of the road above Snowslide Gulch was closed in 1974, but the County Commissioners failed to press their ownership at that time.

The Elko County Commission, believing that their RS 2477 right of way, combined with imminent threat of high fire danger in the South Canyon, precluded the Forest Service decision, and passed a resolution to rebuild the road on July 15, 1998 (Elko County Ordinance 74-98). This resolution noted that South Canyon Road:

“…is in immediate need of repair and/or some reconstruction due to flood damages, for the purpose of securing the health, general welfare and safety for the public in the event there may be the need to prevent and/or fight the occurrence of life threatening fire to the community of Jarbidge…” and “…that the action taken herein today by this Board is consistent with the test of ’Reasonableness’ to trigger the police powers of the county necessary to secure the general welfare and safety for the public good.”

The Commission resolved:

“That, this Board herein directs its County Road Department to immediately implement action to fully repair the South Canyon Road to a standard that will facilitate and assure the safety of the public in that area as set forth above herein…”

Five days later Holford announced that Trout Unlimited would sue the federal government in order to block the County’s repair efforts.

On July 21, 1998, two pivotal events occurred. The United States Fish and Wildlife Service (USFWS) held a public hearing in Jackpot concerning the agency’s proposed listing of the bull trout as threatened. Meanwhile, county crews began repair of the road.

On July 22, Matt Holford wrote Elko County, expressing his and Trout Unlimited’s objections to the county actions. Some of his words were quite prophetic, when he wrote “TU intends to take all legal steps necessary to stop the ongoing work and require the county to pay to remediate any damage that has already been done.” The following day the U.S. Army Corps of Engineers issued a cease and desist order, alleging violations of the Clean Water Act. On the same day (July 23) the Nevada Division of Environmental Protection issued its own cease and desist order, due to the county failing to obtain a rolling stock permit. This order apparently resulted from complaints made by Siminoe and Jay Frederick, a wildlife biologist, who alleged that the county crews were working in the streambed. County road supervisor Otis Tipton flatly denied any equipment was in the river.

On August 1, 1998, partly at Trout Unlimited’s urging, the USFWS issued an emergency listing of the Jarbidge River bull trout under the Endangered Species Act. On October 5, 1998, Terry Crawforth (NDOW) objected to the bull trout listing. The listing was predicated on the rarity of the trout, which Crawforth maintained was not a suitable reason for listing, especially in light of the habitat considerations.

Trout Unlimited “recommended” that the USFWS change the bull trout status from threatened to endangered on October 7. The TU argument was based on the premise that local sentiment clearly supported the repair of the road; if the County moved ahead with repairs, TU alleged that the trout would be endangered by the activity, and therefore merited endangered status.

The Environmental Protection Agency, on October 23, 1998, gave the USFS permission to “stabilize” the section of the road where the county work had been stopped by the Corps of Engineers cease and desist orders. In mid-November the Forest Service began the work, which was completed in mid-December at a cost of over $400,000. The “stabilization” comprised substantial vegetative cover removal, habitat construction in the streambed, and barricading the road with thousands of yards of sloped gravel embankment, in what was referred to as an “engineered berm,” and three large boulders. The work was conducted over less than 1,000’ of road, at a cost exceeding $400 per lineal foot. A typical paved two lane highway costs some one million dollars per mile, or $200 per lineal foot. The Forest Service managed to spend twice the cost of paving in their “restoration” activity!

Harry Reid, U. S. Senator for Nevada, intervened in an attempt to arrive at a negotiated resolution to the dispute on November 23, 1998. On December 18 he met in Elko with representatives from both sides, hoping to find a compromise solution. Reid’s motivation is unclear, as this is the same senator that had pushed for the expansion of the Jarbidge Wilderness in 1989.

On March 30, 1999, U. S. Representative Jim Gibbons (Nevada) and U. S. Representative Helen Chenoweth-Hage (Idaho) urged the USFWS to delay the bull trout listing, so that additional information could be gathered. A week later, NDOW released a report that clearly stated that “the Jarbidge bull trout population is neither threatened nor endangered.” A day after the NDOW report was released, the USFWS reduced the bull trout’s status from endangered to threatened. This action provided a two year window for the determination of a program to enhance the bull trout population in the Jarbidge River. Senator Reid took this news as a clear sign that a resolution of the road issue could be reached, including the possibility of rebuilding a portion of the road. Within two weeks (on April 19, 1999), Reid’s committee recommended that a trail, rather than a road, be the preferred alternative. Humboldt - Toiyabe National Forest Supervisor Gloria Flora proclaimed the meeting as “closed door,” and barred the press from attending.

The U.S. Justice Department, on August 30, 1999, notified Elko County that it had until September 10 to repay the United States for the costs incurred in the “restoration” activity undertaken by the Forest Service. A week later the deadline was extended, after pressure from Nevada Senators Harry Reid and Richard Bryan, to September 27. On September 28, the deadline was extended indefinitely, as the County district attorney’s office entered into negotiations with the United States on the matter.

The Citizens Work Party Takes the Lead

On September 8, Assemblyman John Carpenter notified the Elko County Board of Commissioners that he, Grant Gerber, and O.Q. Chris Johnson were forming a work party to reopen the road over the period October 8 through 10. The work party, comprising citizens of the county, intended to utilize human and equine power to perform the work. Matt Holford, in a letter to Carpenter, refered to the work party as “nothing more than vigilantism.”

Nevada Attorney General Frankie Sue Del Papa sent a letter to Elko County District Attorney Gary Woodbury, urging him to prevent the work party from undertaking its planned repairs. Del Papa threatened significant legal actions against those involved.

On October 6 commissioner Tony Lesperance addressed the County Commission, arguing that the “attempts by the federal government to chill the willpower of the Commission in this matter by the continued threats of massive fines and other legal recourse will not dampen their resolve” to legally repair South Canyon Road. One day later Congressman Gibbons requested an oversight hearing on the South Canyon Road situation from Congressman Chenoweth-Hage, who was Chairman of the Subcommittee on Forests and Forest Health. The same day U.S. District Court Judge David Hagen issued a restraining order against the citizens’ work party, organized by the so-called “road rebels” John Carpenter, Grant Gerber, and O. Q. Chris Johnson, and ordered the three organizers to appear before him in Reno.

In spite of the restraining order, hundreds of citizens gathered in Jarbidge on October 9 in a show of support. Four days later the so-called road rebels began a petition drive to have the hearings before Judge Hagen held in Elko, rather than Reno, so that more of the local citizens could have an opportunity to participate.

An evidentiary hearing regarding the ownership of South Canyon Road was called by the Elko County Commission on October 21, after a petition was delivered to the Commission from Jarbidge residents. Five days later Judge Hagen enjoined Elko County as a defendant in the case, along with the three “road rebels.” Hagen also ordered all parties into mediation to hopefully resolve the issue.

Humboldt-Toiyabe National Forest Supervisor Gloria Flora amply displayed her disdain for Congress when, on October 27, 1999, she publicly declared her doubts about the “fairness” of the upcoming congressional probe into the South Canyon Road matter.

On November 8 Flora announced her resignation as Forest Supervisor, effective the first of the year. In her resignation, she noted that “Fed-bashing is a sport here [in Nevada].” In “An open letter to employees of the Humboldt-Toiyabe National Forest,” (Flora, 1999) Flora said:

“I have become increasingly troubled by the difficult conditions that so many of us face in the state of Nevada. We now accept as commonplace unwarranted criticisms of and verbal attacks on federal employees. Officials at all levels of government in Nevada participate in this irresponsible fed-bashing. The public is largely silent, watching as if this were a spectator sport. This level of anti-federal fervor is simply not acceptable.”

Later in her open letter, she said:

“When I speak against the diatribes and half-truths of the Sagebrush Rebellion, I am labeled a liar and personally vilified in an attempt to silence me. When I express concerns for Forest Service employees’ safety, I am accused of inciting violence.”

A day later she made allegations that Forest Service personnel had been threatened in Nevada, and noted that the planned Congressional hearing would be tantamount to a witch hunt against federal officials. On November 10, Carpenter called for Flora to support her allegations regarding discrimination and threats against Forest Service employees, and asked her for documentation or other evidence to support her claims.

Congressman George Miller (California) spoke on the House Floor on November 17, 1999, regarding Flora’s resignation. Miller’s comments reflected the rage felt by left-leaning members of Congress (Miller, 1999):

“Since becoming Supervisor of the largest national forest in the lower 48 just over a year ago, Ms. Flora has become embroiled in disputes over grazing, endangered species protection, and road closures. One of these disputes recently culminated in Elko County residents, including public officials, illegally rebuilding a forest road without federal permits, an act which in turn triggered a U.S. Fish and Wildlife Service emergency listing of the bull trout. At the forefront of these disputes are extremists whose radical anti-government stance has translated into several instances of intimidation and harassment of federal land managers and acts of violence against public servants and property.

It is deeply distressing that public servants who are administering and enforcing the law are subjected to such hostile circumstances that they are forced to leave their jobs and homes. We should keep in mind that federal land managers like Ms. Flora are charged with enforcing laws passed by the Congress and entrusted with public lands and natural resources that belong to all the people of this country.

For twenty years, the wise use movement in its various forms-the Sagebrush rebellion, states’ rights, county supremacy-has fomented hostility and hatred toward officials enforcing the laws of Congress.”

Congressman Miller apparently had not bothered to check his facts. Elko County residents had not illegally rebuilt a forest road; Elko County road crews had repaired what had historically been considered a County road, under authority of Nevada statutes. The “hostility and hatred toward [federal] officials” was merely an echo of Flora’s accusations. If these conditions had truly existed for twenty years, as alleged by Miller, why hadn’t the U.S. Department of Justice launched an investigation, and prosecuted the law-breakers?

Barry Clausen had spent considerable time researching the Gloria Flora story. He basically concluded that the extreme environmental left, which was highly supportive of Flora, had, in conjunction with left-leaning journalists such as Scott Sonner of the Associated Press, were creating the tense situation (Clausen, 2000). These extremists were fabricating the issue, in the interests of furthering their own agenda. Repeated attempts by Clausen to find a single law enforcement agency, from Lassen National Forest, to Reno, to Elko County, whether federal or local, who could document one incident corroborating Flora’s accusations.

The Congressional hearing was held in Elko on November 13, 1999. Forest Service personnel refused to cooperate with congressmen Chenoweth-Hage and Gibbons, who were conducting the hearing. On November 19 Assistant U.S. Attorney Steven Myrhe indicated that testimony presented during the November 13 hearing by Bill Price, a licensed land surveyor who had been hired by Elko County to research the ownership status of the road, did not establish the county’s claims to road ownership.

The recalcitrance exhibited by the Forest Service in this hearing was indicative of how the federal agencies, and not the people of Elko County, held the law, and the will of Congress, in disdain. One wonders if people such as California Congressman Miller were paying attention.

On November 17 the Elko County Commission denied that they had agreed to the replacement of the road by a trail, as was announced after the April 19, 1999 meeting in Reno.

On November 23, Judge David Hagen, U.S. District Judge in Reno, ordered all parties involved to join in mediation. This order provided a deadline of January 5, 2000 for the parties to name a mediator. On the same day, U.S. Attorney for Nevada, Kathryn Landreth, announced that no evidence had been found supporting Gloria Flora’s accusations regarding harassment of Forest Service employees in Elko County.

Meanwhile, in Washington, D.C., Congressman Don Young (Alaska), chairman of the U.S. House Resources Committee demanded that the Forest Service provide documents requested during the Subcommittee on Forests and Forest Health hearing in Elko, under threat of subpoena. The Forest Service failed to meet the November 30 deadline, and requested an additional week’s extension.

The Forest Service enter evidence in support of their claim to ownership to South Canyon road on November 30th during a special county commission meeting held to decide who had jurisdiction over the road. Interestingly, certain key figures, including maps from Schrader’s (1912) report, were missing from the documentation provided by the Forest Service. The following day, in response to a citizens’ petition, Elko County Commissioners declared South Canyon Road to be a public road.

On December 3 the House Resources Committee subpoenaed Forest Service Chief Mike Dombeck demanding the requested documents by December 9. This same day Bob Williams, Nevada head of the USFWS, announced to the Elko County commission that because of the bull trout, the assistance of Williams’ office would be required in order for Elko County to obtain the permits necessary to repair the road.

One day prior to the December 9 deadline, the Forest Service provided the documentation requested by the House Resources Committee. In all, it comprised some 2,000 pages.

The Jarbidge Shovel Brigade Enters the Fray

Elko County began applying for permits to repair the road on December 15. Two weeks later, a group of Elko county citizens, including Demar Dahl, Elwood Mose, James Muth, and Mel Steninger petitioned the court to join the three original defendants (Carpenter, Gerber, and Johnson). This request was denied by Judge Hagen on January 11, 2000. This decision prompted Dahl to announce that he would lead a work party to open the road on July 4, 2000. Dahl later became president of the Jarbidge Shovel Brigade, Mose, Vice President, and Muth adirector.

The region of influence surrounding the South Canyon Road controversy expanded rapidly; on January 3 Eureka, Montana sawmill owner Jim Hurst began organizing the “shovels of solidarity.” The goal was to ship 10,000 shovels to Elko in support of the so-called rebellion. Hurst’s involvement stemmed largely from the effects of Forest Service policies in Montana, which had resulted in the closure of numerous sawmills, and were adversely affecting Hurst’s business. On January 7 the first shovel from Montana arrived in Elko.

On January 20, 2000, citizens erected a 30 foot tall steel shovel on the lawn of the Elko County courthouse. The shovel was built by Elko Blacksmith shop, and was largely financed by John Carpenter. Carpenter announced that for a one dollar donation, a supporter’s name would be placed on the shovel. In less than a week, over 2,000 people had signed on. Within a year, the shovel, together with a sideboard, would hold over 8,000 names, and would be vandalized several times. Although the perpetrator(s) were never caught, most Brigade supporters were convinced that these acts of vandalism were carried out by supporters of the extreme environmental movement.

The largest parade in Elko history heralded the arrival of some 10,000 shovels from Montana on January 29, 2000. Many of the shovels bore the names and hometowns of the people that had donated them. States named on the shovels included Montana, Idaho, Oregon, Washington, Wyoming, and Utah. The parade actually began in Montana, and gathered entrants as it proceeded through Idaho and Nevada. By the time the parade began moving down Elko’s Idaho Street, an estimated 5,000 people participated. The parade coincided with Elko’s Cowboy Poetry Gathering. Western singer/songwriter Michael Martin Murphey led the crowd assembled in front of the courthouse in singing “America, the Beautiful.” OR MY COUNTRY TIS OF THEE?

Mediation: Round One, and the Shovel Brigade Goes to Jarbidge

On February 1, Nevada Sixth Judicial District Judge Richard Wagner overturned the earlier ruling against Elko county, finding that the county was within its rights to enter the Jarbidge River to effect road repairs. “It is arrogance to believe that the county commission is no more concerned over the water than the agency [Nevada Division of Environmental Protection] and that they are an enemy of the state is nonsense,” Wagner said. He added that the county did not violate water pollution laws because its actions fell under the “diffuse source” criterion. Wagner went on to say “Specific diffuse laws take precedence over the general point source law and therefore the petitioner [Elko County] does not need a permit to repair the road.” In his decision, Wagner directed county Deputy District Attorney Kristin McQueary to write the decision. She delivered her decision to Judge Wagner on June 7.

Also in February, Bob Vaught, a 20-year veteran with the Forest Service, assumed the post vacated by Gloria Flora. Flora had left the agency and returned to Montana, where she had previously held the position of Supervisor of the Lewis and Clark National Forest. During her tenure in Montana, she had managed to substantially reduce logging activity, and all but shut down oil and gas exploration drilling along the Front Range of the Rockies. After leaving the Forest Service, she became an outspoken advocate for her views on conservation, and began a speaking tour.

During a Lincoln Day dinner held in Elko on February 12, U.S. Senate candidate John Ensign presented Carpenter and Johnson two shovels, and announced “If we don’t stand up out here in Elko, across Nevada and across America, they [the U.S. government] are going to continue to get more and more power and give less and less liberty.” The following November, Ensign was overwhelming elected to the U.S. Senate by Nevada voters.

A certain amount of vindication of Gloria Flora’s accusations against Elko county residents was provided on March 8, when Commissioners released a letter from Elko County District Attorney Gary Woodbury, dated December 30, 1998, which suggested that county businesses refuse service to Forest Service personnel. The letter was originally addressed to Gene Gustin, who was at the time chairman of the Elko County Public Land Use Advisory Commission. The timing of this release was ironic, for mediation between the conflicting parties began the same day. After lengthy discussions, on April 13 the County Commissioners decided to allow Woodbury to continue to participate in the mediation proceedings. The mediation talks were closed to the public, and the participants were barred from revealing details of the discussions.

The Jarbidge Shovel Brigade was officially formed on March 13, 2000, with the intent of raising the funds necessary to reopen the road on July 4. Demar Dahl was president, Elwood Mose vice president, Marla Griswold secretary with a board of directors comprising Max Christiansen, Mike Martsolf, Alan Cuthbertson, and Jim Muth. Cuthbertson and Griswold later resigned from the board. Christiansen too left the board after the July 4 event for personal reasons, but rejoined in November, when Bob St. Louis was added to the board. Grant Gerber was retained as legal counsel for the Shovel Brigade, and was presented with one Sacajawea dollar coin as a ceremonial retainer.

On April 13, the Elko County Commissioners donated the 10,000 shovels from Montana to the Brigade. Demar Dahl held an organizational meeting on April 17, to enlist volunteers for a large fundraising event, scheduled for June 10. Local Rocky Mountain Elk Foundation supporter Tim Pruitt took on the task of spearheading the fundraising event, which he admitted was a monumental task, given the time available. “We normally take six months to pull something of this magnitude off,” Pruitt remarked, referring to the Elk Foundation and their extremely successful banquets. “We have two months to do this one.”

A bill (H.R. 1231) was introduced in Congress by Representative Jim Gibbons of Nevada on March 23, 2000. The bill was intended to address the Jarbidge cemetery, which had been operated under a permit from the Forest Service since 1915. The residents wanted two acres withdrawn from the National Forest, so that the operation and maintenance of the cemetery could continue without the uncertainty that resulted from the permit status. Gibbons’ bill would convey title to the two acres to Elko County. Apparently, the Forest Service was not in favor of this, and wanted the land sold at fair market value. Gibbons argued on moral grounds, noting that the purpose of the conveyance was for a cemetery, not a profit-making venture. Public Law 106-187 was enacted on April 28, 2000.

In May, two large picnic tables arrived in Elko, gifts from people in New Mexico and Idaho who were also weary of federal land policies. Picnic tables became symbolic of the “family values” of access to federally-managed lands. Shovels, picnic tables, and cash donations began to pour into Elko from all over the west. The issue also attracted sympathetic attention on the east coast, and as far away as Tasmania.

The dark side of the Brigade’s opponents again came to light when several of the donated picnic tables were vandalized. The tables had been stacked in a location off of Idaho Street in Elko, in preparation for their transport to Jarbidge. Apparently, the symbolic “family values” were lost on the vandals.

Elko County Sheriff Neil Harris informed the county commission in a letter on May 12 that County Code [County Code Title 6, Chapter 8, Assemblies] indicates that a group proposing a large gathering [1,000 or more people] must inform the county clerk, in writing, at least 60 days prior to the event, of the planned activity. Included with the application, a $500 fee was required. Harris noted that “the failure of any group to obtain the proper license is an ‘unlawful act’.” Demar Dahl replied that the Brigade was taking steps to ensure that the event was peaceful, and would not be a hinderance to the county. The Brigade was hiring security forces of its own; in addition, the group requested assistance from the Twin Falls and Owyhee County (Idaho) sheriff’s offices. Dahl also noted that a set of rules would be given to all attendees, and “no rude behavior would be allowed.“ Furthermore, Dahl had been advised by legal counsel that the county code did not apply to the planned fourth of July event.

DATE OF THE U.S. LAWSUIT AGAINST ELKO COUNTY? AUGUST 1999?

Kristin McQueary, Deputy District Attorney for Elko County, delivered her draft decision on Judge Wagner’s February 1 finding to the judge on June 7. The following day, Commissioners Tony Lesperance and Brad Roberts chastised McQueary for not placing the draft before the commissioners prior to sending it to Wagner.

On June 8 Elko County Sheriff Harris informed federal officials (the FBI especially) that the Jarbidge event, planned for July 4, would be less likely to result in trouble if federal law enforcement was not present. Harris also warned the federal officials that he would enforce no federal laws during the event.

On June 15, Demar Dahl stated the Brigade’s intent to defy Kathryn Landreth’s letter of June 9 warning of “criminal and civil sanctions” should the Brigade follow through on its plans to reopen the road without first obtaining federal permits. Landreth noted that “… the Shovel Brigade, its officers, directors, trustees, and members” would face “significant criminal and civil sanctions” should they proceed without the necessary permits. Dahl’s answer to Landreth was written in a letter addressed to President Clinton. In that letter, Dahl said “It is our intention to remove the Forest Service’s roadblock on the South Canyon Road. It will be done on July 4, 2000…” Landreth’s letter to Dahl was blasted by Congressman Helen Chenoweth-Hage (Idaho), who said it “… didn’t help to relieve tensions, it helped create more tension. The timing was all wrong.”

The Shovel Brigade held its fund raising banquet at the Stockmens Hotel on June 24. The event was attended by over 300 people, and raised more than $50,000 for the road repair effort.

The final mediation meeting was held on June 20, 2000, after some 100 hours of discussion. Looming over the decision regarding the county’s acceptance or rejection of the mediation agreement was the threatened lawsuit that the U.S. had announced. The possible lawsuit charged the county with violations of the Endangered Species Act, the Clean Water Act, and alleged a taking of the bull trout. Daily fines had been accumulating since the county performed its work in 1998, assuming that the lawsuit went forward.

On June 22, the Elko Daily Free Press carried a story on the “Jarbidge Accord.” The article made evident the dispute that surely had been on-going since mediation began. Grant Gerber said “Although this so-called agreement is being pressed upon me by the largest law firm in the world and the controller of 88 percent of Nevada land, I refuse to submit to the federal government’s terms.” Gerber flatly refused to sign the agreement, and his name was omitted from the signature page of the document. O.Q. “Chris” Johnson said “It just makes me ill. If they can come in and dictate county policy, even through mediation, where are we heading?” Supervisor for Humboldt-Toiyabe National Forests, Bob Vaught, said he thought the agreement was a win/win. “This agreement is good for the fish, good for the people, good for the community of Jarbidge, settles ongoing legal disputes and sets the stage for improved relationships.” Vaught added that, assuming the agreement was accepted by both parties, “…our initial goal is one year” to have the road rebuilt.

Comments from well outside Elko county, largely by persons suspiciously quiet during the dispute, were supportive of the agreement. Nevada’s Attorney General, Frankie Sue Del Papa, said “The agreement sets the stage for a better working relationship between all levels of government in Elko County.” Allen Biaggi, administrator of the Nevada Division of Environmental Protection, said “We believe the proposed settlement agreement will enhance public access and the environment.”

Elko County Commissioner Nolan Lloyd said “In the first place it’s a no-win situation. There are so many ‘ifs’ in there. Everything’s an if. If the road moves, if this happens, if that happens. Another thing I’m concerned about is that everything in that agreement centers around the bull trout. The road is secondary.” Commissioner Mike Nannini said he “Wanted to get the proposal out on the street,” indicating that the commissioners would probably vote “pretty much how public comment goes.” Demar Dahl noted that “If we [the county] get the easement from the Forest Service, it’s because they own it.” Dahl added “I don’t see anything that’s good coming out of this for the county.”

Demar Dahl, in a press release issued June 27, 2000, stated “The South Canyon Road has become the focal point of opposition to road closures throughout the West proposed by the administration’s Roadless Initiative. The road opening at Jarbidge is a rebellion against the Washington policy that says, ‘We know what’s best for you. Just do as we say.’ This event is planned as a peaceful demonstration and we intend that there will be no lawlessness or rude behavior.”

On June 28, State Senator Dean Rhoads and Assemblyman John Marvel reported that they had met with Jim Furnish, deputy chief of the Forest Service, in Washington, D.C., and that Furnish had told them “…he fully expected that a road would be built in the canyon.”

A special public meeting of the Elko County Commission was held in the Elko Convention Center on June 28 to discuss the proposed mediation agreement. In addition to the board of commissioners, Bob Williams (USFWS), Bob Vaught (Gloria Flora’s successor as Supervisor of the Humboldt-Toiyabe National Forest), Jack Blackwell (Regional Forester), Steven Myrhe (attorney with the U.S. Department of Justice), the three individual defendants (Carpenter, Gerber, and Johnson), and representatives from the county’s insurance pool shared the rostrum. Public comments were invited, and more than 30 residents spoke. The agreement terms included:

1. The U.S. would grant Elko County an administrative right of way to South Canyon Road. In exchange for the right of way, Elko County would forsake all claims to ownership of the road.
2. No work would be performed on the road without first performing analysis under the National Environmental Protection Act (NEPA). Provided that NEPA allowed for the road repairs, the United States would pay the costs, and Elko County would maintain the road. The road, if built, would be moved in places, raised, and hardened.
3. Elko County would agree to contribute to the road reconstruction, or other projects stipulated in the agreement, to the tune of $150,000 (or in-kind services).
4. Elko County would contribute $50,000 in cash or in-kind services toward “additional projects,” including bull trout habitat improvements along the Jarbidge River and Jack Creek, and watershed improvements.

The public comments were, with the one exception, strongly opposed to the agreement. The perception was that the agreement conveyed everything to the United States, and left Elko County with a portion of the bill. That bill included things that had, apparently, nothing to do with the South Canyon Road. Furthermore, many of the public speakers questioned what kind of precedent was being established by the agreement; would this require NEPA on other county roads? Had the county given up its sovereignty over the road by accepting the new right of way? And what guarantee was there that the United States would honor the granted right of way?

In the final analysis, county residents, and most of the commissioners (Tony Lesperance, Brad Roberts, and Nolan Lloyd), scorned the agreement, largely as a matter of principle. The argument centered on the fact that the Forest Service had unilaterally closed a county road. If they got away with it this time, they would do it again. Commissioner Mike Nannini, who had sat on the mediation panel, felt that the agreement was fair. Nannini went on to state that he felt that the county was in no financial condition to enter a trial to address the United States’ lawsuit. He would repeat this mantra through the upcoming elections, and beyond. Commission Chairman Roberta Skelton, who also sat on the mediation panel, leaned toward not accepting the agreement, although without the fervor of Lesperance, Roberts, and Lloyd.

During the commission meeting, Demar Dahl notified all in attendance that he had been served with papers from the U.S. that afternoon. Steven Myrhe had requested an emergency restraining order against the Brigade, so that the planned fourth of July road activity could not proceed. A hearing was scheduled for June 29, before U.S. District Judge Philip Pro (based in Las Vegas; Pro was convening the hearing, as Judge Hagen was not available at the time) .

Judge Pro’s hearing was held on June 29, via telephone. The United States contended that the planned event presented an imminent danger to the bull trout, that the activities would violate the Clean Water Act, and that the participants would be trespassing. Judge Pro decided that the United States had not presented sufficient evidence to support the assertion that the Brigade’s activities would harm the bull trout, or cause a violation of the Clean Water Act. He also denied the trespass assertion, stating that the participants had a First Amendment right to peaceably assemble. As long as the Brigade did not violate the Endangered Species Act, Clean Water Act, or trespass laws, the event could proceed as planned. An extremely telling point in the hearing occurred when the judge asked Dahl “Is that the intent, to reopen the road?” Dahl replied “It is your honor.”

Demar Dahl announced Pro’s decision as a victory, stating “I think this is a great day for local government and it is a step in the right direction of us in the West who are tired of the government telling us what is best for us.” And, in anticipation of the upcoming event, the Brigade had hired a consulting engineer to provide guidance regarding where the activity could be performed without violating the Clean Water or Endangered Species Acts.

Grant Gerber later observed that U.S. Attorney Steven Myrhe “blew it” when he waited until just a few days prior to the event to file his motion. “They knew since January that the Brigade intended to go up there on July 4. The longer he waited, the more certain it was that his motion would be denied. The Judge [Pro] stated several times during the hearing that he was ‘flummoxed’ by the United States’ actions, and delay.”

July 3, 2000, saw Joe Dahl, Demar’s brother, leading a group of Shovel Brigade “road supervisors” to the worksite at dawn. The group discussed how the work was to proceed, and how the workers were to be directed. Joe Dahl repeatedly stated “We don’t want to tell people what to do. The government has done enough of that. We just want people to have fun, be safe, and not violate the law.” Certified weed-free straw bales were on hand to provide down-slope sediment catchment. Steel fence posts were driven into the ground at the line of demarcation specified by the consulting engineer, and flagging erected between the posts. Overseers, mounted on horseback, were in place to ensure that no one deviated from the proscribed area. “Road bosses” were instructed to assist the workers, and guide them in their efforts so that no one was injured, and the road work was kept within the designated limits.

A staging camp had been set up in the meadow at Three Creek, Idaho. Portable toilets, trash cans, a tanker of water, and vending areas were set up. A stage povided a dais for speakers, and for performers. School buses were set up to transport road workers to and from the narrow canyon work area. At the work area, more portable toilets, and traffic control, had been set up. Emergency personnel, including ambulances, were at the ready. A short wave radio position was established on the canyon wall, allowing communication between the work site and the Three Creek base. Large quantities of bottled water were available in the canyon.

The first busload of workers arrived around noon on the third. They were greeted by a virtual army of media people. The main street of Jarbidge was lined with satellite communication vans from Fox, ABC, CBS, NBC, CNN, and other networks. Newspaper and radio reporters milled amongst the workers and onlookers.

Somewhat overshadowing all the news media people and road activists was the law enforcement personnel. Representatives of the Owyhee and Twin Falls (Idaho) sheriff’s departments, Elko County sheriff’s office, Nevada Highway Patrol, and Elko City Police bike patrol officers were evident everywhere. Perhaps it was due to the law enforcement presence, or maybe the law-abiding nature of the attendees, but no significant “rude behavior” was exhibited.

Dignitaries on hand included Nevada Assemblyman John Carpenter, Elko County Commissioner Nolan Lloyd (against the advice of County District Attorney Gary Woodbury), and Nye County Commissioner Dick Carver. Elko County Commissioner Roberta Skelton did not visit the South Canyon Road area, but greeted visitors from her home in Jarbidge.

By mid-morning on July 4, the 900 odd feet of the “engineered berm” had been shoveled into a useable, one lane passageway. While the road work had been going on, Jim Muth, director of the Shovel Brigade, had been working on the excavation around one of the three large boulders blocking the northern end of the South Canyon Road. This rock was dubbed “Liberty Rock.” Around noon on the fourth, the “bucket brigade,” headed by Grant Gerber and Elwood Mose, returned from the outhouse at Snowslide Gulch. This group had taken five gallon buckets and shovels to the outhouse, and had cleaned out the vault beneath it. The material removed from the vault was placed in the buckets, and with lids in place, carried down the mile and half to Liberty Rock. In all, over 30 buckets were transported from the outhouse.

When the bucket brigade had all returned, the group, now numbering somewhere near 1,000 (estimates varied widely, from as many as 1,500 to as few as 300, depending on who was counting), spoke the Pledge of Allegiance, and then sang the Star Spangled Banner. Several speeches were made, and then Demar Dahl instructed the 100 or so people on three ropes to pull the Liberty Rock. The very first pull moved the rock about one yard, prompting Demar to caution everyone to make only one pull at a time, to prevent anyone from being injured. Chanting “Freedom! Freedom! Freedom!” the throng pulled the rock out of the way of the road. With the rock fully removed, the first vehicle drove over the newly opened road. The “passenger of honor” was Helen Wilson, who at 90 years old, was the eldest resident of Jarbidge, having moved to the town at the age of six weeks when her father Jack Goodwin had moved his family to the mining camp in July 1910.

Nevada Congressman Jim Gibbons said “They had every right to celebrate. I’m glad the celebration was peaceful and efforts were made not to damage the waterway. Ensuring the safety of the waterway while opening the road and giving people access is something the Forest Service and the people can work out together.” Gibbons’ spokesman, Robert Uithoven, said “As far as the Congressman is concerned, it was a patriotic celebration.” Senator Harry Reid said “I’m happy there were no clashes, arrests, or injuries.” Reid also complimented Kathryn Landreth for not having federal law enforcement present. He added “I hope now the people will do the right thing and approve the mediation proposal. It’s been going on long enough and it’s time to move on.”

However, the euphoria of the victory was only to last one month. On August 4, 2000, the United States Justice Department filed a complaint against the Shovel Brigade, alleging that the Brigade had trespassed during the July 3 and 4 protest. Demar Dahl, as well as Brigade officers and directors, were defendants in the complaint, which requested “restoration expenses” for the earthmoving activities performed by the Brigade. One of the claims made in the complaint asserted that the Brigade worked in the Jarbidge River, moving rocks and redirecting the stream. Demar Dahl flatly denied this claim, noting that Brigade members worked only on the road, as per the advice of their consulting engineer. Dahl said “No one in the Brigade worked in the river.”

A Flurry of Legal Opinions

The Elko County Commission voted, on August 16, 2000, to hire San Diego attorney John Howard for an opinion on the proposed mediation agreement. The Shovel Brigade donated $5,000 to Elko County to pay Howard’s fees.

On August 17, 2000, the Elko Daily Free Press carried a front page story indicating that the United States was lifting the stay on the Carpenter et al. lawsuit. The stay had been in effect since the previous November, when Judge Hagen ordered all parties into mediation. Gary Begin, Free Press reporter, noted that John Carpenter commented, “It’s pretty amazing they [the federal government] want to get out of mediation. It’s chicken manure. All this stuff is baloney. What a bunch of jerks. They’re afraid Janet Reno [United States Attorney General] is going to be out of office pretty quick and then they won’t get their way. I never threw a rock in the river and I never caught a bull trout.”

What is most interesting about this particular turn of events is the fact that the United States had not yet endorsed the mediation agreement. Many observers felt that the U.S. was waiting for the County to sign first. Since the County appeared unwilling to do this, rather than take the lead in accepting the mediation agreement, the U.S. decided to resume litigation. In fact, the motion to lift the stay noted “While the government has not withdrawn from the proposed agreement, it also has not agreed to wait indefinitely for Elko County to decide what to do. The effect of no decision by Elko County is to leave the status of the resource [bull trout] unresolved and at risk of further endangerment.” In addition, “The United States hereby informs the court it intends to restrict access to the South Canyon Road area and take such other actions as are necessary to restore, rehabilitate and stabilize the damage done to the area by the Shovel Brigade.”

Evidence in support of the United States’ assertion that the bull trout faced danger from the road being opened was contained in a report written by USFWS biologist Selena Werdon. Werdon examined the area in late June, just prior to the Brigade activity, and then again immediately following the July 4th protest. Her report noted that vehicles in the river (presumably meaning at fords) could possibly kill or injure bull trout. She went on to say that the USFWS was also deeply concerned that a vehicle might overturn, resulting in a toxic spill. This comment is truly ironic, for a fuel spill occurred during the Forest Service’s November-December 1999 activity, when a fuel tank on a piece of equipment was apparently penetrated by a rock. According to the As-built Report submitted by Confluence Consulting, Inc., after completing the “resotoration” work in late 1998: NEED COMPLETE REFERENCE

“On December 13, 1998 at about 10:30 AM, the drain plug for the diesel fuel tank drain
on the Samsung excavator was broken off by a rock stuck between the tracks and the body of the excavator as the excavator rotated. The spill location was on Abutment #3. The operator noticed the spill immediately on the tracks of the excavator and turned off the machine. He plugged the drain temporarily with his finger until help arrived. The drain was temporarily plugged, and kitty litter was spread on the tracks and on the ground to contain the spill. The operator estimated the total spill volume to be less than approximately 5 gallons of diesel fuel. A five-gallon bucket was placed under the drain to contain fuel in case the plug was accidentally dislodged during replacement of the plug the following morning. The machine was not used or moved from the spill site until the following morning when the drain plug was repaired. The excavator was fixed the following morning by pumping the tank dry and welding the tank shut. The kitty litter was collected and removed to an off-site disposal area in sealed five-gallon buckets.”

No reference is made in the report to indicate the location of the “off-site disposal area.” Also, the report contains no information regarding the soil that undoubtedly was contaminated by the spilled diesel fuel. Nevada law (NAC 445A.347) stipulates that Nevada Division of Environmental Protection (NDEP) must be notified within 24 hours of any release of petroleum hydrocarbons to the soil exceeding 25 gallons. NDEP must be notified of any release to surface or groundwater. Nevada also requires reporting of any spill that results in three or more cubic yards of contaminated material. The Confluence Consulting, Inc., estimate of five gallons released in the spill would not trigger reporting to the state. One has to wonder whether the spill was truly limited to five gallons, for anyone that has operated heavy equipment would attest to the difficulty of observing, and containing, a fuel spill resulting from a punctured fuel tank while operating the machine.

On August 23, 2000, Elko County Commissioners voted to oppose the federal government’s motion to lift the stay against its suit. During this meeting, the pent-up frustration felt by the commissioners was made evident, when commissioners Tony Lesperance and Mike Nannini became involved in a shouting match, and had to be restrained by others present at the meeting. In spite of the high feelings, commissioners also voted to join the Shovel Brigade in its trespass lawsuit with the federal government. In fact, District Attorney Gary Woodbury advocated this move, as it would be important in supporting the county’s RS 2477 assertion. The logical conclusion would be that the Brigade could not trespass on a county road.

Another decision made by the Commission during the August 23 meeting was that Gary Woodbury would be retained to represent the county in the on-going legal maneuverings. The question as to whether or not Woodbury should continue to represent the County arose from several situations. The December 1998 letter to Gene Gustin had created a significant amount of pressure for the commissioners. In addition, the relationship between Commissioner Tony Lesperance and Woodbury had deteriorated due to several unrelated disagreements, and Lesperance had been pushing to have outside counsel represent the county. The fact that the county had hired John Howard for another opinion on the mediation proposal had not helped the matter.

Assemblyman John Carpenter had asked the State of Nevada Legislative Counsel Bureau (LCB) to render an opinion on whether or not the county had to comply with NEPA to rebuild the road. On September 14, the opinion was sent to Carpenter (Stephenson and Guinasso, 2000). The opinion was predicated on the assumption that the road was a RS 2477 right-of-way. Citing numerous cases involving RS 2477 roads, the LCB noted that such rights-of -way are subject to “reasonable regulation” by whatever federal agency has jurisdiction over the land on which the right-of-way is located. The LCB noted the significance of the October 21, 1976 passage of the Federal Land Policy and Management Act (FLPMA), which curtailed future RS 2477 rights-of-way. The LCB wrote:

“However, section 701 of FLPMA also included a savings provision concerning RS 2477 roads, which provided that ‘[n]othing in this Act, …or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on … [October 21, 1976].’”

The opinion stated that the county:

“…had the right to make reasonable and necessary improvements within the boundaries of its right-of-way, and the county could impair … adjacent areas in the exercise of its right to make improvements to the right-of-way to the extent that those improvements did not unnecessarily or unduly degrade those areas.”

Based on several cited cases, the LCB went on to state:

“…if it is determined that Elko County has a right-of-way under R.S. 2477 over the South Canyon Road, the right-of-way would be an interest in property that is protected under the Fifth Amendment to the U.S. Constitution. Furthermore, the county would have a right to make reasonable and necessary improvements to its right-of-way, and any use to which the right-of-way had been put by the county before October 21, 1976, would automatically vest in the county as an incident of the right-of-way. Also, if the width of the right-of-way had not been established by the county before the enactment of FLPMA, the width of the right-of-way would be determined by the law of this state [Nevada] as that law existed on October 21, 1976. However, the right-of-way would be subject to reasonable regulation by the agency of the Federal Government having jurisdiction to regulate the land over which the right-of-way traverses, and any doubt as to the scope of the right-of-way would be resolved in favor of the Federal Government. Moreover, the county could be required to obtain a permit to deviate from the right-of-way to make reasonable and necessary improvements to the right-of-way.

…the provisions of NEPA therefore would not apply to any action taken by the county concerning the rebuilding of the South Canyon Road. However, it has been held that the provisions of NEPA do apply to a nonfederal entity to the extent that the nonfederal entity is found to be acting in partnership with the Federal Government or where federal money is used for a proposed project or an agency of the Federal Government may exercise control over the proposed project.”

The discussion went on to say that NEPA could be invoked if the county was required to obtain licensing or approval from a federal agency. The opinion specifically addressed the probable requirement that the USFS would have to follow NEPA, regardless of whether the county did or did not.

On October 19, 2000, Idaho Congressman Helen Chenoweth-Hage publicly released her final report on the road, prior to the report being entered into the record on the House of Representatives floor on October 23, 2000 (Chenoweth-Hage, 2000). The report summarized the historical data, case law, Congressional actions, and federal law pertaining to the Subcommittee on Forests and Forest Health hearing into the South Canyon Road (following the hearing held in Elko on November 13, 1999). Chenoweth-Hage’s conclusions were direct:

“As laid out in this report and in the hearing record, un-rebutted evidence presented in the Road dispute clearly demonstrates that the UNITED STATES and its agent, the US Forest Service, have no claim to ownership of the Road. Control of property rights to the road clearly vests in the state of Nevada and Elko County on behalf of the public who created the road under the general right-of-way provisions of the Act of 1866. Even if Elko County disclaimed any interest in the road, the individual owners whose mines, ranches and other property are accessed by the road may have a compensable property right in the road.

Further, the state of Nevada and its subdivision (Elko County) have lawfully exercised jurisdiction over the Road. This jurisdiction would appear to include the right to maintain the road under the laws of the state of Nevada.

Federal rules and regulations cannot extinguish property which derives from state law. For the USFS to implement regulations under the Endangered Species Act, Clean Water Act or any other federal authority, which would divest citizens of their property is to trigger claims for compensation by the affected citizens. For the USFS to institute criminal action against Elko County for exercising its lawful jurisdiction over the road and the land adjacent to the Road is a usurpation of power upon which the US Supreme Court has long since conclusively ruled.”

Less than two weeks later, on October 27, 2000, Carla Boucher, counsel for United Four Wheel Drive Associations of U.S. and Canada, headquartered in Chesapeake, Virginia, issued her opinion on the proposed mediation agreement. The opinion was addressed to K. “Mike” Martsolf, president of the Bangin Bones Four Wheelers, and a director of the Jarbidge Shovel Brigade. Earlier in October, Martsolf had requested Boucher to examine the mediation proposal, and render an opinion.

Boucher’s opinion was every bit as scathing as the final report written by Chenoweth-Hage. She asserted that the agreement, in effect, transfered all authority over the road to the United States. This included requiring the county to obtain permits from the USFS prior to engaging in any work on the road, effectively transferring control over the road to the agency until NEPA was completed, and forcing the county to rely on a “hollow grant” in accepting the replacement right-of-way (ROW), stating:

“…the permanency of this ROW is questionable, both as a matter of law, and as a matter of intent on the part of the United States. If it is the intent of the United States to grant a permanent and unconditional grant of ROW to Elko County, such can be accomplished by acknowledging the correctness of the County’s RS 2477 assertion. If the County fails to realign or elevate South Canyon Road (as the United States alleges is required by either the Clean Water Act [CWA] or the Endangered Species Act [ESA]) the government can avail itself of the remedies available under either of those federal statutes. The United States need not rely upon this Agreement to correct any deficiencies the United States may find with the current location of South Canyon Road as it relates to the CWA or ESA.”

Boucher (2000) noted that the “replacement ROW” was not described in the document, and states that “…it would be foolish to agree to the terms of the agreement” until this description is disclosed. She also noted that the Secretary of Agriculture could use his/her discretion to revoke the ROW.

Regarding NEPA, Boucher (2000) noted:

“…it is blatantly untrue that road restoration performed by the county on a county road must comply with NEPA. NEPA only requires its environmental analysis procedures to be followed for ‘major Federal actions significantly affecting the quality of the human environment’.

…I am shocked to see this in the agreement and so must ponder whether this in any way reflects insincere intent on the part of the United States in trying to reach a workable solution to this court ordered mediation. I can not overstate to you the gravity of misstating the law in an Agreement such as this with such serious and long-reaching consequences.”

Boucher (2000) continued: “Therefore, the county would be giving up the right to pursue its RS 2477 claims if the Final Agency Decision is that the Elevated Road will be reconstructed upon the de-listing of the Bull Trout as threatened under the ESA.” The argument continued, noting that the probability of de-listing the trout could be remote, thus preventing the road from being re-built.

In addition to other considerations that rendered the mediation proposal unacceptable, Boucher (2000) noted the one-sided nature of the terms of the agreement. She cited one specific example, wherein Elko County would be required to assign “a County Commissioner, the County Manager, a member of the County Public Land Use Advisory Commission, and member of the County Planning Commission” to the proposed Elko County - USFS Working Group, while the United States did not even note which agency or positions will fulfill its part of the Group.

Boucher (2000) concluded by stating:

“I don’t believe that any good can come from this Settlement Agreement. The County has an extremely strong case to support its RS 2477 assertions and in defense of the claim of common law trespass brought by the United States. Furthermore, the County has compelling evidence to refute the allegations made by the United States of violations of the Clean Water Act.”

San Diego, California attorney John Howard’s decision regarding the mediation proposal was written on November 1, 2000, and was received by the county commission on November 7. As with the Legislative Council Bureau’s opinion (Stephenson and Guinasso, 2000), Howard (2000) began with the assumption that the road fell under RS 2477, noting:

“The right of way granted by RS 2477 is neither a mere easement nor a fee simple but is a limited fee that carries with it the responsibility to maintain it for the purposes for which it exists. RS 2477 makes an in praesenti grant not merely a contingent, revocable or regulable permission to use.

…In fact, the presence of RS 2477 protection not only allows but requires that Elko maintain the road to protect its interest in it. The right may be lost if abandoned.”

Howard (2000) went on to discuss the scope of the right:

“…the road will be defined not only by its historical scope but also by what is ‘necessary and proper’ to meet the use for which the road is to be put. This would include consideration of what I understand to be an important use for the road, which is its use for fire fighting and prevention. I also understand the road was used for recreation, including access to campgrounds. This assumes, of course, that those are purposes for which the road was used prior to the enactment of FLPMA. In any event, whatever purposes the road served prior to FLPMA continues to be preserved and Elko [county] has the right to continue using and maintaining the road for those purposes. This takes on greater significance in our discussion of the possibility of Elko’s [county] expanding or enhancing the road. The question will be is it necessary to do so so the road can be used for its intended purpose.”

The opinion (Howard, 2000) questioned the merit of accepting the “replacement” right of way, in exchange for the RS 2477. He noted that if County District Attorney Gary Woodbury had sufficient evidence to support the RS 2477 claim, as Woodbury had maintained, “…I would advise against any agreement that required Elko [county] to surrender its RS 2477 claims in lieu of a grant of a ‘permanent’ right of way.” The discussion went on to note that the “replacement” right of way would fall under the gamut of federal regulations, so that “Anything at all you would want to do with that road would be subject to federal approval.” This section of the opinion concluded with a straightforward comment: “So, you are being asked to trade as absolute an interest as exists when dealing with the federal government for one that is significantly less so. I would not advise your doing so.”

Regarding maintenance of the road, Howard (2000) stated that the county was well within its rights to maintain the road in keeping with its historical uses. In fact, some expansion, as deemed necessary, could also be done; as an example, Howard (2000) referred to additional space required by new fire equipment. No federal permission was necessary as long as the repairs or expansion were “reasonable and necessary.” Furthermore, normal maintenance did not invoke NEPA. The opinion went on to state:

“The proposed agreement gives Elko [county] no assurance that it will ever be able to use the road or even that the road will be opened. It gives the federal government a prolonged period in which to make a decision as to whether the road will be maintained. It requires Elko [county], in the meantime, to expend hundreds of thousands of dollars doing things for which it has no responsibility and the responsibility for which rests exclusively with the federal government. At the end of the process, if the government decides it does not think it wants the road maintained, Elko [county] will be left where it is today: with the right to sue to establish its RS 2477 rights, but with itself several hundred thousand dollars poorer and government correspondingly richer with several hundred thousand dollars worth of free work.”

Howard’s (2000) final note discussed a point not made in the other opinions rendered on the county’s behalf:

“If there is a fire which Elko [county] is unable to assist in fighting because of this [the road not being rebuilt], there are other species of animal [besides bull trout] that could be impacted. We are currently developing information regarding other species in the area which are land based and endangered. If there is a catastrophic fire, the fixing of the road will pale in comparison to the degradation the environment will suffer, including the river and trout habitat, by reason of debris, ash and runoff, that will inevitably result from such an event. Not allowing you to fix the road is a much greater danger to the trout, I submit, than the modest repairs Elko County contemplates.

We cannot recommend that Elko [county] enter into this agreement. It is a bad deal in almost every possible way.”

In a November 2, 2000 decision, Judge Hagen ruled against the Department of Justice’s motion to re-close the road, which was allegedly intended to protect the bull trout. Instead, the judge ordered the parties back into mediation, issuing a November 22 deadline. He went on to advise the parties that he would put the litigation on the fast track, if mediation failed. This meant that a very short discovery period would be provided, and the court might hire its own expert witnesses, the costs of which would be passed on to the litigants. In the meantime, the decision ordered both sides to respect the other as far as the road was concerned; this meant that no additional work, for repair or closure, would be allowed until the case was settled via mediation or litigation.

Many of the people involved in the dispute, and interested observers, had long thought that the federal agencies had been conducting a disinformation campaign to support their claims, especially in the context of the bull trout. The USFWS Nevada Field Office website noted, in a chronology of events in the dispute, that in September 2000 the USFS and USFWS had closed the road to vehicular use, allowing “hunters, anglers, hikers, mountain bikers and equestrians” to continue using the “travel way.” As of February 17, 2001, this untruth was still posted on the website (www.rl.fws.gov/nevada/public/jarbidge.htm). Apparently, the chronology was written assuming that Judge Hagen would allow the agencies to close the road, as part of their August motion to resume litigation and to re-close the road. The November 2 decision by Hagen denied the request to re-close the road, but the USFWS clearly chose not to include this information in their website.

The Citizens Road Committee Takes Form

By the fall of 2000, Elko County, the Citizens Work Party, led by Carpenter, Gerber and Johnson, and the Shovel Brigade had all been enveloped in the various legal webs spun by the United States. Progress seemed to be at a standstill. In early October, 2000, in an attempt to keep things moving on the road issue, John Carpenter and Grant Gerber approached Elko businessman Mike Lattin about the prospect of forming a Citizens Road Committee. This committee would comprise professionals, mainly engineers and scientists, with the intent of formulating environmentally-friendly plans for the repair of South Canyon Road. The group would look at the history of the road, bull trout, and other environmental concerns, and draft plans that would rely on manual labor as much as possible. The group hoped to present preliminary plans to the Elko County Commission by the end of the first quarter of 2001.

The Road Committee comprised several areas of study: engineering, environmental, fire, and history. A comprehensive assessment of needs was produced, as well as numerous Freedom of Information Act (FOIA) requests made in efforts to obtain the engineering work produced by the Forest Service. Many of these FOIA requests were met with stonewalling; in a number of instances, replies from the Forest Service mentioned that the pending litigation against the county precluded release of information. Other requests were handled very slowly, and often required additional requests in order for the information to be released.

As an example of the lack of cooperation exhibited by the Forest Service with respect to the Road Committee’s FOIA requests, on February 27, 2001, Mike Lattin requested “copies of survey field data and mapping prepared for the Jarbidge South Canyon Road that was compiled by your Sparks, Nevada office. We believe that this work was done in 1998 after the Elko County Road Department did their work on the Jarbidge River.” Lattin’s request was addressed to Ben Siminoe, Assistant Supervisor Humboldt National Forest. Jack Blackwell, Regional Forester for the Intermountain Region, replied to Lattin on March 28, 2001. Blackwell’s reply stated:

“After discussions with the Humboldt-Toiyabe NF, it was determined that both the Sparks and Elko offices accomplished a review of their files and produced no data or documents in response to your request. The data that was collected in August 1998 was in electronic format and provided directly to Confluence Inc. No copy was retained on the Forest. Therefore, we must provide you with a no records response and your appeal rights.”

Blackwell’s response leads to a number of questions, not the least of which is why didn’t the Forest Service retain a digital/electronic copy of the data they acquired, prior to sending those data to Confluence Inc.? Furthermore, why didn’t the Forest Service approach their consultant (Confluence Inc.) with a request for a copy of those data, so that Lattin’s FOIA request could be fulfilled?

The survey data request is just one example of numerous attempts to gain information from the Forest Service by the Road Committee, only to be met with a “no records response.”

Undeterred by the lack of cooperation on the part of the Forest Service, Road Committee members met every other week for the next four months, gradually putting together the information required to produce quality plans. With the other groups (Elko County, etc.) hamstrung by preparations for court/negotiation, Mike Lattin rose to the fore as the latest leader in the ongoing struggle.

The 2000 General Election

The November 7, 2000, general election in Elko County saw Tony Lesperance retire from the commission. His seat was won by Warren Russell, who ran against fellow republican Todd Schwandt. Commission Chairman Roberta Skelton, one of the two democrats on the commission, was defeated by Elko City Councilman John Ellison. The third commission seat to be decided was that of democrat Mike Nannini, who defeated Wells City councilman Tim Van Duzer.

Russell had campaigned as a supporter of the Shovel Brigade and the county’s sovereignty, and won the closest of the three races, at 51.8 percent vs. Schwandt‘s 48.2 percent. Schwandt’s campaign downplayed the Jarbidge Road controversy, and urged more tourism. The closeness of the race was largely due to the fact that both candidates were Republicans. The Russell campaign spent some $4,284, whereas Schwandt spent $23,355.

Ellison had appeared somewhat more ambivalent towards the Jarbidge Road issue, but assured voters that he had been behind the Brigade all along; his win was the most commanding of the three races, having gained 69.7 percent of the vote, vs. Skelton’s 30.3 percent. Ellison’s campaign was also the costliest of the six commission candidates at $38,926. Roberta Skelton spent $4,624.

Nannini had campaigned largely on the cost of litigation to the county, maintaining that the budget could not afford a lengthy court challenge to the United States. Van Duzer supported the Shovel Brigade, and made it clear during the campaign. Although Nannini defeated Van Duzer, his margin was remarkably slim (55.3 percent vs. 44.7 percent) considering that Van Duzer was virtually unknown in county politics. Nannini spent some $14,390 on his re-election; Van Duzer spent $2,260 in his election bid.

When the 2000 presidential election was settled, by decision of the United States Supreme Court in January 2001, George W. Bush was the victor. In Elko county, Bush overwhelmed rival Albert Gore, Jr., winning 82 percent of the vote. GET WASHINGTON POST REFERENCE

The Mediation Agreement is Rejected

November 8, 2000, the Elko County Commission heard, via speaker telephone, John Howard’s comments regarding his opinion (Howard, 2000). After hearing Howard’s comments, which included a discussion of the time and money that could be consumed in pressing the issue in court, the commission voted 4-1 against signing the proposed mediation agreement (Mike Nannini was the sole dissenter). Interestingly, none of the federal agencies involved in the matter had signed the agreement at this date.

After rejecting the mediation proposal, commissioners unanimously voted to resume mediation. Commissioner Brad Roberts initially wanted to qualify this decision, by forcing the federal government to accept a prerequisite of either acknowledging the county’s RS 2477 claim, or proving that the federal government unequivocally owned the road. Assemblyman John Carpenter intervened, noting that Judge Hagen was serious about wanting both parties to resume discussion on the matter. Finally, Roberts moved that the county resume mediation, with the condition that the county would not accept any terms without first gaining recognition of the RS 2477 status of the road. The motion passed unanimously.

On November 15, 2000, the Forest Service announced that its roadless plan, covering some 58 million acres, was essentially complete. Reaction to this announcement was mixed; environmental groups felt it didn’t go far enough, and multiple-use advocates felt it was a huge step towards locking up more Forest Service lands. In a November 17, 2000 front page article in the Elko Daily Free Press, Demar Dahl noted, “They [Forest Service] say nothing is going to change, but it always does. The preservationists want to make the forests like it was before the white man got here.” John Carpenter was quoted in the same article as saying, “He [Humboldt - Toiyabe National Forest Supervisor Bob Vaught] told me the roadless agreement will allow for maintenance of the roads currently in use.”

In the same edition of the Elko Daily Free Press, also appearing on the front page, comments from Nevada Senator Harry Reid were printed. Reid issued a warning to all the participants in the South Canyon Road controversy: should George W. Bush become president (which had still not been decided at the time, due to the ballot counting problems in Florida), U.S. Attorney for Nevada Kathryn Landreth could be replaced, and noted, “she’s been extremely patient with everyone. It would behoove …everyone to work this out.”

Elko County Deputy District Attorney Kristin McQueary announced on November 20, 2000, that the parties in the dispute had agreed to resume mediation. The initial discussion was scheduled for a teleconference on December 13. During the same week of McQueary’s announcement, the Nevada Association of Counties was holding its annual meeting in Fallon. Commission Chairman Roberta Skelton, completing her lame duck duties, called for a show of support from the Association. The Association resolved to support all Nevada counties in their efforts to retain control over rights-of-way established under RS 2477.

On November 30, Elko Daily Free Press editor Jeffry Mullins wrote an editorial regarding how the South Canyon controversy had been covered by Fly Rod and Reel magazine. The article appeared in the magazine’s January/February 2001 edition. The article, written by Ted Williams, was entitled, “Road to the Outhouse,” and continued the liberal media slant and spin on the story. As noted by Mullins (2000), Williams managed to attack “…local residents, county officials, the mining industry, the Elko Daily Free Press, and assorted other targets,” and caused Mullins to ask, “Do all nature writers walk around with their head in the clouds?”

Fly Rod and Reel is published in Maine. The far-reaching effects of the South Canyon Road issue were once again being brought home to the Elko County populace. Williams’ (2001) article is worth reading, as yet another example of how the truth was not allowed to get in the way of a good eco-friendly story. As with Gloria Flora, Trout Unlimited, and others, the key facts in the case were once again overlooked, so that the spin could be properly placed on the issues:

“In due course, the Forest Service agreed [to Trout Unlimited’s claims regarding the bull trout] and in June 1998 announced that it would be replacing the road with a hillside trail. It was a huge gain for the fish and no loss to any rational human resident of Elko County. After all, the road was but 1-1/2 miles long and led only to a dilapidated outhouse that wasn’t even stocked with toilet paper.”

This paragraph ignores several facts: the Forest Service built, and supposedly maintained, that “dilapidated” outhouse that had no toilet paper. Claiming that the loss of the road would be “no loss to any rational human resident” smacks of environmental demagoguery, completely ignoring the principle of road ownership and the illegality of the actions taken by the Forest Service. Regarding ownership, the ill-informed Williams wrote:

“But, fantasizing that it had ‘sovereignty’ over roads on federal land-in this case, the Humboldt-Toiyabe National Forest-and in defiance of the law and the United States government, Elko County attempted to rebuild the road itself with heavy earthmoving equipment. In its inept and illegal attempt it destroyed trees and other vegetation, filled wetlands and dumped tons of spoil into the river, thereby changing its course and seriously damaging bull trout habitat.”

Williams apparently slept through his Journalism 101 class when he attended college, for he failed to learn the facts prior to writing his story. As a rather trite, yet telling, example, Jarbidge is in the Humboldt National Forest. When County road crews tried to repair the road, they did not remove living trees; the Forest Service did that when they “restored” the area. The “wetlands” that the County crews filled in were actually the original road, which had been captured by the river. And regarding the “damage” to the bull trout, one must again be reminded of the restricted range of the bull trout in the Jarbidge River. They live upstream of the end of South Canyon Road.

Numerous other examples of fantasizing on the part of Williams are evident in his article. The interested reader would do well to read the piece, for it does a fantastic job of illustrating the lies and half-truths that are the modus operandi of the environmental extremists, and many in the popular media.

Negotiated Settlement: Round Two

The United States, the three individuals, and Elko County were ordered by Judge Hagen to appear before Magistrate Judge Robert McQuaid in U.S. District Court in Reno on November 29. The session proved to be nothing more than a procedural session, and set a date of January 17, 2001 for a settlement conference before McQuaid.

On December 22, 2000, Bob St. Louis, director of the Shovel Brigade and historian of the Citizens Road Committee, was continuing research for the road repair effort. After examining microfiche copies of government land surveyor Dennis Scully’s field notes from the 1896 survey of the ninth standard parallel, St. Louis went to the Elko County Recorder’s office. His goal was to find evidence of mining claims staked prior to November 1905 (the date of the forest withdrawal) that overlapped the disputed section of South Canyon Road. Others had also looked, but the task was not straightforward. Mining claims are recorded by claimant’s name, claim name, and the mining district in which the claim is located. The Jarbidge Mining District was not organized until 1909, so the mining district name would be of little help. Also, none of the researchers, St. Louis included, knew the names of either the claimants or the claims being searched for.

After several hours of searching the records, St. Louis hit paydirt. The Avalanche Placer Mine claim, discussed in an earlier section of the present work, was found. The importance of the find lay in the location: the claim completely covered the disputed road. Upon revealing the find to Grant Gerber, plans were made for St. Louis to testify at the January settlement hearing as an expert witness. The discovery was announced on the front page of the January 8, 2001 edition of the Elko Daily Free Press, and was simultaneously passed along to the Forest Service. Grant Gerber noted that the discovery was “as close to a smoking gun as we can get, with respect to the RS 2477 assertion.”

Bill Price, a registered Public Land Surveyor specializing in land research, on retainer from Elko County, had amassed a vast quantity of material supporting the RS 2477 claim. In fact, Price, and his daughter Wendy, had accumulated thousands of pages of evidence, enough to fill four or five “bankers boxes.” The discovery of the Avalanche claim provided Price with a key link for his argument, which he would present at the January settlement hearing. Price noted that he had actually seen the name Avalanche in the Index of Mining Locations, but time did not allow him to look at every potential claim.

Price had been working for the county for over a year at this point. He had prepared a substantial presentation for the Gibbons - Chenoweth-Hage hearing, conducted in November 1999. He had also presented evidence at the county hearing on October 21, 1999. Of considerable importance was Price’s testimony regarding the Williams Estate Company, which had used Mahoney Cabin (in Jarbidge Canyon) as a base, and had shearing and dipping facilities some ten miles south, on the Mary’s River. Price asked the obvious question: how did the Williams people get from their base in Jarbidge Canyon to their shearing and dipping corrals in the Mary’s River, without using South Canyon? To travel any other way than via the South Canyon route, they would have had to travel upwards of 25 miles. Price argued that no rational person would do such a thing, especially given the relatively easy topographic route that South Canyon affords.

Elko County had also hired Wayne Burkhardt, Ph. D., emeritus professor in range science from the University of Nevada - Reno, to provide insight into the sheep industry in the Jarbidge area around the end of the nineteenth century. He too was scheduled to testify at the January hearing.

On January 17, 2001, the three individual defendants (Carpenter, Gerber, Johnson), Elko County (represented by commissioners Mike Nannini, and Brad Roberts, who took the place of Roberta Skelton, District Attorney Gary Woodbury, and Deputy District Attorney Kristin McQueary), appeared in U.S. District Court, District of Nevada, in Reno. The United States was represented by Blaine Welsh, and his assistant, Anne Traum. In addition, Jack Blackwell, Regional Forester, Bob Vaught, Supervisor of the Humboldt - Toiyabe National Forest, Bob Williams, Nevada State Supervisor for the USFWS, Erin O’Connor, USFS Public Affairs Officer, and Ken Paur, attorney for the United States Environmental Protection Agency, were present.

Magistrate Judge Robert McQuaid presided over the proceedings. He reminded all in attendance that the purpose of the hearing was settlement, which meant that both sides would be required to give something up in order to achieve a satisfactory agreement. He added that if the case were to go to trial, one side would win, and the other would lose, in a winner take all setting.

The first day of the settlement conference comprised testimony from the attorneys and expert witnesses, representing both sides. For the United States, Richa Wilson, a “built environment” specialist with the USFS, and James Muhn, a historical consultant for the Department of Justice, testified. On behalf of Elko County, Wayne Burkhardt, Bob St. Louis, and Bill Price provided testimony.

Judge McQuaid broke the group into caucus groups for the following two days of negotiations, with the judge serving as mediator. The county/three individuals gathered in one room, and the United States in another. As the negotiated deal was brokered, the judge went between the two groups.

Over the course of the next two days the proposed agreement bounced back and forth between the two groups, eventually taking shape as a tentative agreement that both sides felt they could live with. As everyone left the court on January 19, a feeling of pending closure to the matter pervaded.

On February 16, all the parties reassembled in U.S. District Court. This time, everyone remained in the courtroom, with Judge McQuaid again working as the mediator. This session basically served to work out final details of language in the document. Grant Gerber tried, unsuccessfully, to have the United States drop its case against the Shovel Brigade, arguing that the deal worked out between the United States and Elko County essentially negated the trespass claim against the Brigade. When this effort failed, Gerber informed the judge that he would not sign the agreement. O.Q. Chris Johnson also stated that he would not sign.

When the session ended, an agreement had been reached. It was now up to the numerous federal agency personnel, and the Elko County Commissioners, to ratify the settlement.

The entire negotiation process had been conducted in secrecy, per the judge’s orders. This caused a great deal of frustration on the part of many Elko county residents, and in the days following the final mediation session a number of scathing letters to the editor appeared in the Elko Daily Free Press. Citizens demanded to have the opportunity to examine the proposed agreement, before the Board of Commissioners voted on it.

The February 16, 2001 edition of the Wall Street Journal gave the impression the Journal had scooped everyone by somehow gaining access to the proposed settlement agreement. The article, written by Jim Carlton, noted:

“If the deal comes to pass as expected, it will serve as a major victory for the West’s so-called Sagebrush rebellion, the long-running effort by state and local officials to wrest control of the region’s vast public lands from the federal government.

…In the weeks since [George Bush was elected president], both sides have been huddling to craft an out-of-court settlement that gives Elko County full ownership of the road in return for the county agreeing to make some environmental improvements to the Jarbidge River.”

A teleconference was held with all parties on March 2, 2000. This teleconference, conducted by Judge McQuaid, was intended to establish the approval of the agreement by the parties. Everyone except Gerber and Johnson agreed to sign the document. With that, the judge approved the release of the text of the agreement to the public.

The Elko Daily Free Press published the entire text of the agreement in its March 3-4 edition. The major difference between this agreement and the one forged a year previous was the United States’ recognition of the county’s RS 2477 right of way, as opposed to the administrative right of way proposed in the first agreement. If a NEPA analysis had to be done, and showed that the road had to be moved to protect the environment, the RS 2477 right of way would accompany the new location. Elko County was still obligated to spend $150,000 or provide in-kind services, but now it would be limited to the River Road, north of Jarbidge. Commissioner Brad Roberts noted that the county would spend that much on the River Road anyway, so this clause was “no big deal.” Also, similar to the first agreement, the county would be required to spend $50,000, or provide in-kind services, for projects to protect the watershed in the Jarbidge area. This clause ended up being almost identical with that proposed in the earlier mediation agreement.

Elko County and USFS agreed to “use their best efforts to prevent any third party from doing any work on any portion of the South Canyon Road unless that third party has received authorization from both Elko County and the United States.” This was apparently a direct response to the Shovel Brigade, and like groups.

The agreement also looked towards means of restoring the working relationship between the County and Forest Service. The Forest Service agreed to consult with Elko County before closing or decommissioning any road or trail on National Forest System lands within Elko County, to determine if Elko County asserted or claimed a right of way to the road or trail. Elko County would have its Road Supervisor attend monthly meetings between Elko County and the Forest Service, so that any planned activity on roads or trails on National Forest System lands could be discussed. No work would proceed without each party notifying the other, unless an emergency situation existed; in this case, the parties would “…notify each other about the emergency as soon as possible.”

A priority was assigned to the first washout on the road, approximately 1,000’ upstream of where the Brigade had repaired the road. This washout greatly concerned the federal agencies, as this area was contributing silt to the stream. The agreement suggested that this area would require work immediately; any work performed by the county would count against the $150,000 obligation.

On March 5, 2000, Judge McQuaid held a settlement conference in the case against Demar Dahl and the Jarbidge Shovel Brigade. Demar Dahl, Brigade president, Elwood Mose, vice president, and directors Jim Muth and Bob St. Louis attended, as well as Brigade attorney Grant Gerber. Gerber also arranged for Mike Lattin, chairman of the Jarbidge Citizens Road Committee, to attend as an expert witness. The United States was represented by Blaine Welsh, Anne Traum, Bob Vaught, Ken Paur, and Erin O’Connor.

At about 8:00 p.m., it appeared that a deal had finally been struck. Dahl asked the judge what could be released to the public. The judge said that he thought a release stating that a tentative settlement had been reached, and was waiting approval by various people on the United States side. Dahl said that was not acceptable; if he had known that these proceedings would be conducted in secret in the same way that the county case had been, he would have left in the morning. After almost one half hour of tense negotiations with the United States, Dahl and Gerber announced that the agreement could be published the following day, but only after noon, to give the United States people time to get the agreement in front of their people.

The agreement required the Brigade and Dahl to abide by Nevada State law and Elko County ordinances, and that County authorization was required prior to doing any work on a county road. Also, the Brigade would undertake no work in South Canyon, on or off the road, without Elko County approval; this approval could only come after Elko County reviewed any request to perform work in accordance with the terms of the settlement agreement between Elko County and the United States. In return, the United States would dismiss its claim against Dahl and the Brigade. No fines or damages were mentioned at any point in the negotiations after Welsh’s opening remarks. And, this settlement was contingent on acceptance of the Elko County - United States agreement.

County and Shovel Brigade representatives claimed victory after the terms of both agreements were made public. Commissioners Nolan Lloyd and Brad Roberts considered the victory as somewhat bittersweet; the County had won the biggest point, the RS 2477 designation, but both Commissioners conceded that the specter of NEPA loomed large over the deal. Commissioners Mike Nannini and John Ellison called the agreement a major victory for the County, and suggested that the County would actually save money by accepting the new settlement. Warren Russell also felt that the deal was a victory for the County.

Former Commissioners Roberta Skelton, Tony Lesperance, and Royce Hackworth voiced disapproval of the agreement, noting that the Forest Service had made gains in a situation where it had nothing to begin with. The three also suggested that the Forest Service and USFWS were now in a position to effectively tie the County up with respect to the road. While the comments made by Lesperance and Skelton were not surprising, given the stance they had taken regarding the road issue while both were still on the County Commission, Hackworth’s public comments were unexpected. Hackworth had been suspiciously quiet during the time that the controversy was at its most heated level. Why had he now decided to speak out?

Others also spoke out against the County agreement, most notably O.Q. Chris Johnson, who maintained that the County was capitulating to the federal agencies.

The Shovel Brigade claimed clear victory in both settlement agreements. The Brigade, through Demar Dahl, noted, “We set out to accomplish two things in this matter. We wanted to open the road, and we wanted to help the County get the RS 2477. We achieved both goals. And our [the Brigade] agreement is a total victory for us. We have no fines, no damages, and only agreed to obey the law.”

With anticipation that the formal resolution to the conflict was in hand, the County Commission, at their regular meeting on March 8, 2000, heard a presentation by Mike Lattin, chairman of the Citizens Road Committee. Lattin proposed that the County enlist the Citizens Road Committee efforts to repair the road, and presented preliminary plans for the repair of the first 1,500 feet of the road.

The evening of March 8, 2001, the Shovel Brigade held a public meeting to discuss its settlement agreement. Demar Dahl was emphatic in his desire that the Brigade’s supporters have an opportunity to voice their opinions regarding the proposed agreement. Bob Vaught, Supervisor of the Humboldt-Toiyabe National Forest, unexpectedly attended the meeting. Dahl asked Vaught whether or not he would work to help get the road repaired, and if the repairs could be started by July 4. Vaught replied that there were numerous federal regulations that his agency had to follow, and he really doubted that everything could be in place by July 4. However, Vaught promised to do all that he could to speed the process along.

During the March 8 meeting, Mike Lattin discussed the priority given the first washout of the road in the County’s agreement, and told the crowd how the Citizens Road Committee intended to repair the washout. Bob St. Louis spoke regarding activities that the Brigade could help with, including providing manpower and logistical support for the Road Committee. St. Louis also held out an olive branch to Vaught, saying that the Brigade would welcome the chance to perform clean-up activities along the road. St. Louis said, “We have to work on restoring the relationship between county residents and the federal agencies. It used to be like two adjacent landowners, leaning over a fence and discussing a mutual problem. The Brigade can help with the healing that needs to begin.”

It is worth noting that Vaught was received without insult, heckling, or any other form of undignified behavior by the very group that had so ardently battled his agency. In fact, after the meeting, Vaught met personally with a number of people, and was treated with respect. Once again, Gloria Flora (and others that accused the Shovel Brigade of being anti-federal) was proven wrong. The Shovel Brigade continued to outclass its detractors.

A Deal Possibly Broken

An Associated Press article was published in the March 12, 2001 edition of the Elko Daily Free Press, in which Trout Unlimited “blasted” the Forest Service over the deal struck with Elko County. Trout Unlimited claimed that, “…the U.S. Forest Service is negotiating away federally mandated protection of the threatened bull trout…,” and said that they would file a lawsuit, if necessary, to protect the trout.

Scott Yates, Trout Unlimited’s Western Native Trout Director, said, “All law-abiding citizens in the United States should be alarmed that the Forest Service chose to negotiate with lawbreakers rather than enforce the federal laws that protect the land that belongs to all of us.” He added that he really doubted that the road would be repaired, because the USFS and USFWS both had concluded that to do so would endanger the fish.

It was beginning to appear that Matt Holford was going to be true to his word when he had earlier warned the County that Trout Unlimited would sue, and would do all that it could to ensure that the road was not repaired.

In another Associated Press article, published in the March 22, 2001 edition of the Elko Daily Free Press, Bob Williams, Field Supervisor for the Nevada USFWS, was quoted as saying that it was unlikely the road would ever be repaired. He added that the only acceptable way in which the road could be repaired would be to build it high on the hillside above the river. The costs associated with this would be prohibitive, and the County would not be able to afford the expense.

“Our position will basically be that if it …would put the road at the bottom of the river, or next to the river, or that requires moving the river - that kind of alternative would not be acceptable to us,” Williams said.

The one-two punch of Trout Unlimited and Bob Williams irritated a number of Elko County residents, and none more so than the Shovel Brigade. Demar Dahl noted that Williams was “pre-decisional” in his comments, and suggested that perhaps Bob Williams, who had been part of the United States’ negotiating team that worked on the settlement agreement with Elko County, had negotiated in bad faith.

On April 2, 2001, Judge McQuaid held two teleconferences. The first involved the United States, Elko County, and the three individuals (Carpenter, Gerber and Johnson). McQuaid asked if all parties had agreed to sign the settlement agreement. The United States, Elko County, and John Carpenter all replied that they were ready to sign the agreement. Gerber and Johnson refused to; Gerber’s reasons were largely predicated on the outcome of the settlement proposed for Demar Dahl and the Shovel Brigade. Johnson refused to sign on principle, claiming that the agreement was not favorable to the county, and that the United States was gaining a position it did not have legal right to.

One half hour after the Elko County/three individuals settlement was teleconferenced, the second teleconference took place. This teleconference was between the United States, Demar Dahl, and the Shovel Brigade. The United States stated, through Assistant U.S. Attorney Blaine Welsh, that all the agency approvals were in hand, and the United States was ready to sign. When Judge McQuaid asked Demar Dahl if he and the Brigade were ready to sign, Dahl said that in light of comments made in the press by Bob Williams (referring to the March 22 Associated Press article), additional language would be required in the settlement agreement before Dahl and the Brigade would sign.

Judge McQuaid asked what language Dahl wanted. Dahl responded that a statement saying that “as long as South Canyon Road remains open” be inserted prior to the clause wherein the Brigade would not work on South Canyon Road without Elko County (and by the County agreement, USFS approval) permission. Judge McQuaid asked Dahl why this was necessary; Dahl replied that Williams’ remarks made the Brigade suspicious of Williams’ good faith in the negotiations.

Judge McQuaid said that Williams’ remarks were of a type that the judge had specifically admonished all parties involved in the negotiations not to make. He added that Williams’ comments were not “…worth the paper it’s written on, quite frankly,” and doubted that Williams spoke in an official capacity, stating, “I don’t think somebody like Mr. Williams will have any final say in what’s going to happen.” Blaine Welsh also indicated that Williams was not speaking for the agencies when he made his remarks.

Dahl was still intent on inserting the additional language. Judge McQuaid became impatient, and immediately set a discovery schedule leading to trial. It appeared that the deal was broken.

After the teleconference, the Brigade board of directors, along with Dahl and attorney Grant Gerber, discussed the situation. Welsh had agreed to enter into discussions with Gerber during the teleconference, to see what could be done about the language. However, when all was considered, Gerber and several board members felt that Welsh had made strong statements regarding Williams’authority, and that perhaps the Brigade should sign the agreement.

On April 4, 2001, Grant Gerber informed Blaine Welsh that Demar Dahl and the Shovel Brigade would sign the agreement as it stood. During the discussion Welsh assured Dahl and Gerber that he had negotiated in good faith, and that he regretted Williams’ comments.

While the apparent willingness to sign on the part of all parties in both disputes seemed to indicate that the dispute was over, another storm cloud appeared on the horizon. On March 30, 2001, The Wilderness Society and the Great Old Broads for Wilderness filed a motion seeking to intervene in the dispute. The motion argued that the County’s settlement agreement gave too much control to the County, and was setting a dangerous precedent with respect to other public lands disputes.

Clausen (2000) noted that The Wilderness Society had chosen Gloria Flora for a national award, and stated, “The Wilderness Society will use Flora’s deliberate misinformation to further their goals, and the lazy sensationalist-seeking faction of the popular media will capitalize on it.” Clausen is unabashed in his criticism of Flora, as he wrote:

“If Flora’s ideas of an armed insurrection are the ten thousand shovels sent to Elko by supporters (as a sign of solidarity) from across the West, then Flora should be reconsidering her views on an armed insurrection.

If Flora’s idea of a viable solution includes the shutting down of 350 small and middle-sized timber mills in the West and leaving the communities to suffer, then her viable solutions need to be revised.

If her idea of a viable solution includes kicking American ranchers and farmers off of the public lands they so desperately need in order to be able to supply their products to the American people, then her viable solutions need to be reconsidered.

If her idea of viable solutions includes shutting down public lands for recreational use, logging, mining and ranching as so many of her supporters advocate, then Americans should be made aware of her plans.

If her idea of respectability includes working with the MHRN [Montana Human Rights Network], then America needs to be aware of Gloria Flora as a representative of the USFS.”

Clausen wrote the statements above after reading an article that quoted comments Flora made in the January 26, 2000 edition of the Missoulian. The connection between Flora, The Wilderness Society, and the potential lawsuit was clear, and Clausen succinctly pointed out the real issues.

A Delegation to Montana

Late in March 2001, Commissioners Mike Nannini and John Ellison announced that they would head a caravan of vehicles to Eureka, Montana, in a show of support for the Jim Hurst and the other Montanans that had been so supportive of Elko County and the Shovel Brigade. Their intent was to pick up loads of logs along the route to Eureka, and deliver them to Hurst’s sawmill. Nannini noted that he hoped the group could gather 10,000 logs to deliver, and added that he fully expected Nevada’s congressional delegation to support the endeavor.

Many supporters of the Shovel Brigade looked upon this action as an attempt by Nannini to take the credit for the recent South Canyon Road victory. Brigade supporters wondered why Nannini had not approached the Brigade about his planned trip prior to announcing it to the public, and why he suddenly had found the will to carry on a new fight, when he had clearly indicated his reluctance to pursue the South Canyon battle. On top of that, Nannini had stated his group intended to take the giant shovel from the Elko County Courthouse lawn, and “loan” it to Hurst. Apparently neither the Shovel Brigade or the County Commission were approached prior to this announcement.

To further complicate this matter, the question of who owned the giant shovel on the Elko County Courthouse lawn was raised. Could Nannini and Ellison simply remove the shovel, even at their own expense, and take it to Montana? County Manager George Boucher said that the shovel was never officially given to the County, while Commissioner Brad Roberts felt that the shovel had, in fact, been given to the County by the Brigade. If Roberts was correct, the entire Board of County Commissioners would have to approve Nannini’s proposal. John Carpenter, who along with Jess Lopategui of the Elko Blacksmith shop had paid for and built the shovel, agreed that the shovel should go to Montana.

On April 4, 2001, Commissioner Warren Russell said that he would join Nannini and Ellison on their Montana convoy. Nannini apologized to the Board of County Commissioners for his apparent unilateral decision to remove the giant shovel from the Courthouse lawn, and said that the item would be placed on the agenda for the Commission to vote on. He also said that he hoped that the shovel could be placed in Jarbidge in August, when the Commissioners were scheduled to meet in the remote town.

One day later Demar Dahl told Mike Nannini that the Shovel Brigade would like to help move the shovel to Montana. According to an article in the April 5, 2001 Elko Daily Free Press, Nannini said, “I’m thrilled Demar called me and I really think the Brigade and the semi-truck they’ll use to carry the shovel will attract plenty of supporters to Jim’s [Hurst] cause.”

Also on April 5, Mike Lattin and several members of the Citizens Road Committee appeared before the Elko County Commission to request that the County appoint the Committee as the official agent in dealings with the Forest Service on South Canyon Road. The Commissioners welcomed the volunteer effort, but told Lattin that he and his group would have to wait until the settlement agreement was signed by all parties before the County would be willing to take such a step.

Lattin’s group also requested that the County allow Randy Knight, a Jarbidge resident contracted by the County to monitor Jarbidge’s drinking water quality, to take baseline water quality measurements in the Jarbidge River in the South Canyon. These data were necessary to help the Road Committee ensure the integrity of the river’s water quality during repair operations.

The Commissioners also told Lattin that he would need to liason with County Road Supervisor Otis Tipton in all facets of the planning. Lattin requested that Tipton begin attending Road Committee meetings, in anticipation of approaching the Forest Service with initial plans.

The Deals are Done, or are They?

On April 9, 2001, County Commission Chairman Nolan Lloyd signed the settlement agreement with the United States. The only things standing in the way of the execution of the deal were the signatures of the United States officials, and the looming lawsuit filed by The Wilderness Society and the Great Old Broads for Wilderness.

Also on April 9, Commissioners Brad Roberts and Nolan Lloyd agreed to accompany the Montana convoy, along with the three other Commissioners.

More Personnel Changes

Forest Service Chief Mike Dombeck announced that effective March 31, 2001, he was resigning his position. In his parting comments, Dombeck blasted the mining industry and the Mining Law of 1872, raising the ire of a number of politicians, including Nevada Congressman Jim Gibbons.

On April 2, 2001, the Elko Daily Free Press announced that Dale Andreasen was replacing Stan Woody as publisher of the newspaper. Woody, who resigned from the Free Press to “pursue personal interests,” had succeeded Chris Fotheringham as publisher DATE. Andreason had been publisher of the Siskiyou Daily News in Yreka, California, for 11 years, and had witnessed the Northern Spotted Owl crises, and its disastrous effects on the Northern California - Southern Oregon logging industry, during his tenure there. Andreasen was qoted in the April 2, 2001 edition of the Elko Daily Free Press as saying, “I believe a newspaper must be fair and as unbiased as possible in its news coverage. And I also strongly believe that a newspaper has to be supportive of its community.”

On April 13, 2001, Demar Dahl stepped down as president of the Shovel Brigade, stating that his business interests were requiring his full attention. Dahl, in addition to operating a ranch in Starr Valley, east of Elko, was developing a subdivision in the western Nevada town of Fallon. A suspected leukemia cluster had been identified in Fallon, causing the real estate market to be seriously depressed. Senator Harry Reid held a hearing in Fallon on April 12, and had invited New York Senator Hillary Clinton to take part in the hearing. The leukemia cluster’s validity was questioned by many, including the Centers for Disease Control in Atlanta, Georgia. Many observers felt that Reid was using the alleged leukemia cluster as a means of “getting back” at the people of Fallon and Churchill County, who had been fiercely opposed to the Senator for years.

The Shovel Brigade Board of Directors elected Bob St. Louis to president of the organization. St. Louis was surprised by the action, and noted that he had “very big boots to fill.” Subsequent to St. Louis’ election, Board member Max Christiansen resigned, noting that he had been involved in substantial labor negotiations, and did not have the time to contribute to the Brigade.

VIII. Summary

This story will continue to evolve for an indeterminate amount of time. At the time of this writing, many people seriously doubted if the road would ever be repaired. Grant Gerber said, “The important thing is the road is open.” Thus, it seemed unlikely that the progress made to date on the County’s part could be undone. As to whether or not the federal agencies would allow for the complete repair of the road remains to be seen.

A number of Elko County residents had misgivings about the whole affair, noting that Elko County may have given up a lot more politically than it gained by taking the federal government to task. Rumors abounded of officials (federal and state) in Reno and Carson City refusing to come to Elko for fear of intimidation, and of companies unwilling to locate their businesses in Elko County because of the anti-federal sentiment. Interestingly, when people saying these things about businesses were asked for names of companies, none were forthcoming.

Much of the resentment probably stems from the human tendency to avoid “rocking the boat,” and to maintain the status quo. Brigade supporters felt that they had done their patriotic duty by preventing the federal agencies from violating the law, and had shown the courage to stand by their principles.

Regardless of viewpoint, the facts cannot be denied. The Forest Service had metamorphosed from an agency that worked hand in hand with Elko County to one heavily influenced by outside third party interests. In making this transformation, the agency was willing to violate county, state, and federal laws when it unilaterally closed what had always been considered a County road. The Fish and Wildlife Service had long succumbed to the outside environmental forces, and was more than willing to use questionable science to list the bull trout as endangered. Again, a state agency, Nevada Division of Wildlife, was ignored in the process.

National politics undoubtedly played a role in the resolution of the crisis. Had Al Gore been elected president, it seems logical that the policies of heavy-handed federal land management would have intensified, as Gore embraced his environmental friends and their agenda. With the election of George W. Bush, the environmental lobby found diminished support in the federal government. The federal government, at least for the moment, seemed willing to halt the erosion of local government’s rights, and to back off from the strong approach taken under the Bill Clinton administration.

The list of agency casualties that resulted, directly or indirectly, from the South Canyon Road controversy include Gloria Flora, Steven Myrhe, David Aicher, and Mike Dombeck. Clearly, the most direct link is drawn to Flora, who left when the county refused to let her call the shots and implement her far-flung environmental agenda. The people of Elko County were able to do what all of Montana could not: Gloria Flora would not impose substantial resource burdens on the people of Nevada.

References Cited

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