[House Hearing, 106 Congress]
[From the U.S. Government Printing Office]




   HEARING ON FOREST SERVICE ROAD RECONSTRUCTION ISSUES ON THE SOUTH 
                              CANYON ROAD

=======================================================================

                             FIELD HEARING

                               before the

               SUBCOMMITTEE ON FORESTS AND FOREST HEALTH

                                 of the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                   NOVEMBER 13, 1999, WASHINGTON, DC.

                               __________

                           Serial No. 106-86

                               __________

           Printed for the use of the Committee on Resources


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house
                                   or
           Committee address: http://www.house.gov/resources


                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
67-381                     WASHINGTON : 1999


                                 ______
                                 
 
   HEARING ON FOREST SERVICE ROAD RECONSTRUCTION ISSUES ON THE SOUTH 
                              CANYON ROAD

=======================================================================

                             FIELD HEARING

                               before the

               SUBCOMMITTEE ON FORESTS AND FOREST HEALTH

                                 of the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               ----------                              

                   NOVEMBER 13, 1999, WASHINGTON, DC.

                               ----------                              

                           Serial No. 106-86

                               ----------                              

           Printed for the use of the Committee on Resources


Available via the World Wide Web: http://www.access.gpo.gov/congress/house
                                   or
                Committee address: http://www.house.gov/resources


                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                NICK J. RAHALL II, West Virginia
JIM SAXTON, New Jersey               BRUCE F. VENTO, Minnesota
ELTON GALLEGLY, California           DALE E. KILDEE, Michigan
JOHN J. DUNCAN, Jr., Tennessee       PETER A. DeFAZIO, Oregon
JOEL HEFLEY, Colorado                ENI F.H. FALEOMAVAEGA, American 
JOHN T. DOOLITTLE, California            Samoa
WAYNE T. GILCHREST, Maryland         NEIL ABERCROMBIE, Hawaii
KEN CALVERT, California              SOLOMON P. ORTIZ, Texas
RICHARD W. POMBO, California         OWEN B. PICKETT, Virginia
BARBARA CUBIN, Wyoming               FRANK PALLONE, Jr., New Jersey
HELEN CHENOWETH-HAGE, Idaho          CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto 
WALTER B. JONES, Jr., North              Rico
    Carolina                         ROBERT A. UNDERWOOD, Guam
WILLIAM M. (MAC) THORNBERRY, Texas   PATRICK J. KENNEDY, Rhode Island
CHRIS CANNON, Utah                   ADAM SMITH, Washington
KEVIN BRADY, Texas                   CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania          DONNA MC CHRISTENSEN, Virgin 
RICK HILL, Montana                       Islands
BOB SCHAFFER, Colorado               RON KIND, Wisconsin
JIM GIBBONS, Nevada                  JAY INSLEE, Washington
MARK E. SOUDER, Indiana              GRACE F. NAPOLITANO, California
GREG WALDEN, Oregon                  TOM UDALL, New Mexico
DON SHERWOOD, Pennsylvania           MARK UDALL, Colorado
ROBIN HAYES, North Carolina          JOSEPH CROWLEY, New York
MIKE SIMPSON, Idaho                  RUSH D. HOLT, New Jersey
THOMAS G. TANCREDO, Colorado

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director
                                 ------                                

               Subcommittee on Forests and Forest Health

                 HELEN CHENOWETH-HAGE, Idaho, Chairman
JOHN J. DUNCAN, Jr., Tennessee       ADAM SMITH, Washington
JOHN T. DOOLITTLE, California        DALE E. KILDEE, Michigan
WAYNE T. GILCHREST, Maryland         OWEN B. PICKETT, Virginia
JOHN PETERSON, Pennsylvania          RON KIND, Wisconsin
RICK HILL, Montana                   GRACE F. NAPOLITANO, California
BOB SCHAFFER, Colorado               TOM UDALL, New Mexico
DON SHERWOOD, Pennsylvania           MARK UDALL, Colorado
ROBIN HAYES, North Carolina          JOSEPH CROWLEY, New York
                     Doug Crandall, Staff Director
                 Anne Heissenbuttel, Legislative Staff
                  Jeff Petrich, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held November 13, 1999...................................     1

Statement of Members:
    Chenoweth-Hage, Hon. Helen, a Representative in Congress from 
      the State of Idaho.........................................     1
        Prepared statement of....................................     3
    Gibbons, Hon. Jim, a Representative in Congress from the 
      State of Nevada............................................     4
        Prepared statement of....................................     6

Statement of Witnesses:
    Bedford, Ladd, Attorney, San Francisco, California...........    61
    Blackwell, Jack, Regional Forester, Intermountain Region, 
      U.S. Forest Service........................................   493
        Prepared statement of....................................   496
    Carpenter, Mr. John, Assemblyman, District 33, Nevada 
      Assembly...................................................   313
        Prepared statement of....................................   315
    Carver, Dick, Nye County Commissioner........................   388
        Prepared statement of....................................   444
    Crawforth, Terry, Nevada Department of Wildlife..............   381
        Prepared statement of....................................   384
    Holford, Matthew, Nevada Chairman of Trout Unlimited.........   375
        Prepared statement of....................................   377
    Lesperance, Mr. Anthony, Chairman, Elko County Commission....   301
        Prepared statement of....................................   303
    McQueary, Ms. Kristin, Deputy District Attorney, Elko County.   286
        Prepared statement of....................................   289
    Mose, Elwood, Spring Creek, Nevada...........................    62
        Prepared statement of....................................    65
    Nannini, Mr. Charles, Elko County Commissioner...............   319
        Prepared statement of....................................   322
    Price, Bill, Elko, Nevada....................................    71
        Prepared statement of....................................    73
    Salicchi, Caesar, Treasurer of Elko County...................   372
        Prepared statement of....................................   374
    Williams, Robert D., Field Supervisor, Nevada Fish and 
      Wildlife Office, U.S. Fish and Wildlife Service, Department 
      of Interior................................................   500
        Prepared statement of....................................   502

Additional Material Supplied:
    Biological Evaluation For Bull Trout.........................   394
    Chairman's Final Report......................................   516
    Memorandum from the Elko County Board of Commissioners.......    12
    Price Addendum...............................................   155
    Report on The Status of the Bull Trout in Nevada, September 
      1994.......................................................   335
    Report on The Status of the Bull Trout in Nevada, March 1999.   354


   HEARING ON FOREST SERVICE ROAD RECONSTRUCTION ISSUES ON THE SOUTH 
                              CANYON ROAD

                              ----------                              


                      SATURDAY, NOVEMBER 13, 1999

                  House of Representatives,
         Subcommittee on Forests and Forest Health,
                                    Committee on Resources,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 1 p.m. at the 
Elko Convention Center, 700 Moren Way, Elko, Nevada, Hon. Helen 
Chenoweth-Hage (chairman of the subcommittee) presiding.

STATEMENT OF THE HON. HELEN CHENOWETH-HAGE, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF IDAHO

    Mrs. Chenoweth-Hage. The Subcommittee on Forests and Forest 
Health will come to order. The subcommittee is meeting today in 
Elko, Nevada, to hear testimony on Forest Service 
reconstruction in Jarbidge, Nevada. I want to thank my 
colleague, Congressman Jim Gibbons, as well as the Elko County 
Commissioners for inviting the Subcommittee on Forests and 
Forest Health out to hold this hearing.
    This is a very interesting set of circumstances out here. 
As you can well imagine, what may seem like just one 
afternoon's work does take an awful lot of work by a lot of 
staffers to put it together. At this time I would like to 
recognize those staffers who are so capable and who have done 
such a fine job for us.
    I would like to first introduce my chief of staff of the 
subcommittee back in Washington, DC. With us here today, Doug 
Crandall. And the clerk of the committee is here, Michael 
Correia. He's back here.
    And your own Karen Yates is here. And she's the recorder 
for today. And Jay Cranford from Congressman Gibbons' office 
and Gene Marchetti from Congressman Gibbons' office. So I want 
to thank all of them for the fine job that they have done.
    And so now we will be getting into the nuts and bolts of 
the hearing. I do want to just set down a few little ground 
rules before we start. Many times there are statements that are 
given in the hearings where you just feel like you want to 
stand up and applaud. I want to let you know that this is an 
official Congressional hearing. It is not a town hall meeting, 
It is an official congressional hearing, so we keep the decorum 
of the hearing room. So we ask that there not be any applause; 
that you hold your applause. I know how you feel. Sometimes I 
like to stand up and applaud, too, and I can't do it.
    Our witnesses will be limited to a 5-minute time period. I 
do want to instruct our witnesses that there are lights there 
on the table. They are kind of like stoplights. As long as the 
green light is on, you can go ahead and testify. When the 
yellow light is on, it means step on the gas. And when the red 
light comes on, it means time is up. So we will be questioning 
you again. Both Congressman Gibbons and I will have a round 
each, maybe two rounds if we decide to do that, of questioning. 
So please be prepared for that.
    So now with regard to the issue at hand, the thunderstorm 
that washed away parts of the South Canyon Road in the spring 
of 1995 must have also washed away common sense. This is 
evidenced by the recent notice of a potential United States 
governmental lawsuit against Elko County. It's hard to imagine 
that the attempt to reconstruct 1,700 feet of road can lead to 
4 years of failed negotiations, endless environmental analyses, 
the emergency listing of the bull trout as threatened, the 
ranting and resignation of a Forest Service supervisor, 
numerous appeals, lawsuits, polarization, and distrust.
    We are not here today to focus on personality disputes or 
to promote discord. Rather, we are here today to move this 
contentious and important issue and dispute toward rational 
resolution.
    Now, the only way to accomplish this is to focus on 
pertinent facts and information and on the law. So the primary 
questions to be asked and answered today are questions of 
ownership and jurisdiction. Who owns the South Canyon Road? And 
who owns the private property adversely affected by the Forest 
Service's closure of that road? And what government agency or 
agencies have lawful jurisdiction over the legal issues 
involving this road and the properties affected? And last, who 
is liable to pay compensation for the infringements of property 
rights resulting from the road closure action?
    Now, I would like to welcome my colleague, Mr. Jim Gibbons, 
for his opening statement and again express my sincere 
gratitude at being his guest in his district. Congressman?
    [The prepared statement of Mrs. Chenoweth-Hage follows:]

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STATEMENT OF THE HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Mr. Gibbons. Thank you very much, Madam Chairman. I too 
want to extend a great deal of thanks to all the people who 
have put on this event to hear this issue. I would like to make 
particular issue of thanks to the many people who are sitting 
in this audience today who have taken time out of a gorgeous 
weekend day to be present here to hear and get the information 
on this issue.
    I would also like to welcome you to Nevada. I want to thank 
you for holding this hearing, to make sure that voices and 
issues like this are heard not just in Washington, DC. But in 
our districts, in our States, where events like this have 
become paramount to become literally the focus of much of our 
communities' activities, not just in Nevada but in other States 
as well.
    This is an important hearing. It is important not just for 
the people of Elko. It's important for the people of Nevada, 
it's important for the people of Idaho and it's important for 
the people of America. At the beginning of this hearing I want 
to tell you that I want to keep my remarks as short as possible 
here.
    Madam Chairman, events surrounding the reconstruction 
efforts of this road have become fodder for rhetoric, tirades, 
and unfortunately resulted in an escalation of tension and 
distrust between the Forest Service and the citizens of Elko 
County.
    As we revisit this issue today in this congressional 
hearing, it's my hope that by the hearing's end we will have 
taken positive steps toward a resolution of this matter. Today 
let me say that the rhetoric will cease. Today the forum for 
speech will not be in the media on 15-second sound bites. But 
this congressional hearing as set forth by the Constitution of 
the United States will be the forum by which the information is 
put forward.
    It's my understanding, Madam Chairman, that each of our 
witnesses will be sworn in, sworn in under oath, under penalty 
of perjury, and they will be bound by the U.S. Constitution to 
speak only the truth.
    The importance of this open and public hearing should not 
be taken lightly. Today we are delving into a matter that 
represents a microcosm of a much broader issue and 
relationship. That is the relationship between Federal agencies 
and the citizens throughout the western United States. Our task 
today, our duty in fact today is to tell each side of this 
issue, and we will discuss for the public record a number of 
events and cover a wide array of legal matters involved. There 
are a number of questions that need to be asked and there are a 
number of questions that need to be answered. It's my hope that 
these questions will be answered today.
    For example, as you articulately stated, who actually owns 
the road in the South Canyon that leads up to the wilderness 
area? In fact, I hope we will be able to determine legal 
ownership of the very road in question. And given the human 
activity in the Jarbidge Canyon prior to the formation of even 
the United States Forest Service, what documents show that the 
road area in question, if it does belong to somebody other than 
the people or the County of Elko, who does it belong to and by 
what documentation do they claim that ownership?
    Additionally, this year, the State of Nevada experienced 
one of the worst fire seasons, Madam Chairman, in history. With 
this in mind and in light of the absence of all the access to 
this road, how can future forest fires be fought without a road 
leading to the edge of the wilderness area?
    It was just this year we saw evidence of firefighters 
carrying all the equipment, water, tools, mile after mile just 
to reach an access to fire which could have been put out a lot 
earlier. But because they were denied access, they were unable 
to stop the fire. It destroyed much greater areas than was 
planned. After the record number of acres burned this year in 
northern Nevada, how can the habitat for even the endangered 
bull trout be protected unless there is a road?
    Now, moving on, questions have arisen on the necessity of 
this congressional hearing. Since this issue is already in 
court, why would we proceed with this field hearing? Well, 
technically, several issues surrounding this matter fall under 
congressional jurisdiction. This hearing is the very best 
method for the legislative branch of our government to have a 
voice and a role in a situation where the executive and 
judiciary branches are already involved. But there is more than 
that. The citizens of the Second Congressional District of 
Nevada came to me with legitimate concerns about the road 
reconstruction issue. And I have the deep obligation to my 
constituents to make sure their concerns are addressed.
    Fortunately, Chairman Chenoweth-Hage has provided this 
opportunity today to address these concerns in an open and 
public forum. This is not, as the Chairman stated, an 
inquisition. Nor is it an Elko witch hunt as some might 
believe. This hearing is not about finding fault with our U.S. 
Government employees. These employees in fact are real people 
who are trying to carry out their duties as best they can under 
the directions of their of supervisors. Instead, our major 
responsibility, our duty to the citizens of Elko County is to 
use this public forum to determine the Federal agencies 
involved in this issue followed proper procedure.
    Congress did not enact laws with the intent of excluding or 
limiting the people's access to public land. Indeed, the intent 
is to have these lands for the people now and in the future.
    I welcome the opportunity to be here today. What we learn 
here can best be considered the opportunity to further address 
the system of Federal management of public lands and the right 
of people's access to those lands, not only in Elko County but 
everywhere in this country.
    Our time is limited, Madam Chairman. So in order to proceed 
in this hearing I would like to thank you once again for 
sharing your time with the citizens of Elko County. I would 
request that my full statement be submitted for the record.
    [The prepared statement of Mr. Gibbons follows:]

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    Mr. Gibbons. And without objection, I would also like to 
submit for the record a memorandum from the Elko County Board 
of Commissioners from Otis W. Tipton, Road Supervisor, 
regarding the Jarbidge South Canyon Road for the record, if I 
could.
    Mrs. Chenoweth-Hage. Without objection, so ordered.
    [The information referred to follows:]

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    Mrs. Chenoweth-Hage. And it is my pleasure to be your guest 
here and bring the committee to Elko. Without further ado, I do 
want to mention, though, that this hearing is being broadcast 
live on KLIX radio. We also have the NPR station down from 
Boise that will be broadcasting part of this hearing.
    So I would like to also remind those of you who did want to 
testify and we couldn't work you into the witness list, I do 
want you to know that your testimony is very, very important to 
us. We just had such a limited time, we weren't able to work 
all of you in.
    So if you would please send your testimony to me at the 
Subcommittee on Forests and Forest Health, Longworth Building, 
U.S. House of Representatives, Washington, DC., I will get it. 
If you will please put it in the mail within 10 working days, 
we will be reviewing all of your testimonies.
    So without further ado, I would like to introduce our first 
panel: Mr. Ladd Bedford, an attorney from San Francisco; Mr. 
Elwood Mose from Spring Creek, Nevada; and Mr. Bill Price from 
Elko, Nevada.
    Now, I think that it was explained to you, but just in 
case, I do want to reexplain it is the intention of the 
Chairman to place all of the witnesses under the oath. Now, 
this is a formality of the committee that is meant to assure 
honest and open discussion. It should not affect the testimony 
given by our witnesses. I wonder if you might please stand and 
raise your arm to the square.
    [Witnesses sworn.]
    Mrs. Chenoweth-Hage. Mr. Bedford, will you begin your 
testimony?

STATEMENT OF LADD BEDFORD, ATTORNEY, SAN FRANCISCO, CALIFORNIA; 
ELWOOD MOSE, SPRING CREEK, NEVADA; AND BILL PRICE, ELKO, NEVADA

                   STATEMENT OF LADD BEDFORD

    Mr. Bedford. Thank you, Congresswoman Chenoweth-Hage; and 
thank you, Congressman Gibbons.
    Mr. Gibbons. You may want to pull the mike closer to you.
    Mrs. Chenoweth-Hage. It may not be on, Mr. Bedford. You 
want to tap it? We just need to have you pull it forward.
    Mr. Bedford. Can you hear me now?
    Mrs. Chenoweth-Hage. Not very well.
    Mr. Bedford. How is that?
    Mrs. Chenoweth-Hage. That's good.
    Mr. Bedford. Thank you, Congresswoman Chenoweth-Hage; thank 
you, Congressman Gibbons. I'm here today to discuss the legal 
background and the issues involved.
    Section 8 of the Mining Act of 1866 provided as follows: 
``The right-of-way for the construction of highways over public 
lands not reserved for public uses is hereby granted.'' These 
rights-of-way are commonly known as RS 2477 rights-of-way. The 
legitimacy of these rights-of-way was confirmed by the U.S. 
Supreme Court in Central Pacific Railway Company versus Alameda 
County, a 1932 decision.
    In that decision the Supreme Court stated with respect to 
RS 2477 rights-of-way: ``Governmental concurrence in and assent 
to the establishment of these roads are so apparent and their 
maintenance so clearly in furtherance of the general policies 
of the United States, that the moral obligation to protect them 
against destruction or impairment follows as a rational 
consequence.''
    As confirmed by the Ninth Circuit Court of Appeals in 
Sierra Club versus Hodel, a 1988 decision, and numerous 
Interior Department decisions, the validity of an RS 2477 
right-of-way is to be determined under State law and is beyond 
the jurisdiction of the Federal Government.
    The critical determination of the validity of an RS 2477 
right-of-way, including what constitutes a highway, is decided 
through the application of State law. As pointed out by the 
Ninth Circuit Court of Appeals in Schultz versus Army, a 1993 
decision, the RS 2477 grant is self-executing. An RS 2477 
right-of-way comes into being automatically when a public 
highway is established across Federal lands in accordance with 
the law of the State. Whether a right-of-way has been 
established is a question of State law.
    Under Nevada law, the public can perfect an RS 2477 right-
of-way through mere use. It is true that the Federal Land 
Policy Management Act, finally known as FLPMA, enacted in 1976 
repeals RS 2477 and its open-ended grants of rights-of-way over 
Federal lands. However, part of FLPMA contains a very important 
savings clause which explicitly protects rights-of-way in 
existence on the date of FLPMA's passage, which was October 21, 
1976.
    This savings clause reads as follows: ``Nothing in this 
subchapter shall have the effect of terminating any right-of-
way heretofore issued, granted, or permitted.'' The very 
language of this statute makes it clear that the Forest Service 
is powerless to take any action that would have the effect of 
terminating an RS 2477 right-of-way. The legislative intent 
when FLPMA was passed was plain and simple. RS 2477s in 
existence as of October 21, 1976, were to be protected against 
any attempts to restrict or eliminate them.
    Clearly any action by the Forest Service to restrict or 
eliminate an RS 2477 right of way violates the existing law and 
contravenes the will of Congress.
    In enacting FLPMA, Congress was well aware that the law of 
the States was being used to define the validity and scope of 
those rights-of-way. Congress nevertheless chose to preserve 
the status quo without affording the Forest Service or any 
other governmental agency any new powers whatsoever to change 
those rights-of-way.
    And that is your basic legal background of the issues we're 
dealing with.
    Mrs. Chenoweth-Hage. And that concludes your oral 
testimony?
    Mr. Bedford. That concludes my oral testimony.
    Mrs. Chenoweth-Hage. All right, thank you.
    Mrs. Chenoweth-Hage. The Chair now recognizes Mr. Mose for 
his testimony.

                    STATEMENT OF ELWOOD MOSE

    Mr. Mose. Thank you, Congressman Chenoweth-Hage, and thank 
you, Mr. Gibbons. My name is Elwood Mose. I'm a descendant of 
the third signatory of the Ruby Valley Treaty, one of the 
principal chiefs and head men of the Western Shoshone in 1863.
    Earlier this year, in September, I went with Assemblyman 
John Carpenter and Grant Gerber and Chris Johnson to look at 
the closed Jarbidge Road, and I had a little trouble believing 
how the Forest Service had gone to the extent of ripping up the 
road in order to close it.
    So subsequently we determined to go and open up the road to 
effect repairs and make it available to public use again. But 
the Federal Government had gone and obtained a restraining 
order preventing anyone, including me as a Shoshone, a 
descendent of the treaty signer, to go and undertake any repair 
and reconstruction of the road.
    This comes as a surprise to me because the Forest Service 
is obliged under various Federal statutes, under its own 
regulations, NEPA, ARPA, NCRA, so forth, to consult with 
Indians. We have two types of Indians here, one group which 
traces its ancestry, political ancestry, to the group of 
Shoshone who preexisted the creation of the United States, 
including having existed in this part of the country since time 
immemorial. We have modern-day tribal organizations organized 
under the laws of the United States and form sort of a 
corporate government for the tribes.
    In no case did the Forest Service consult either group. And 
the dealings of the United States is through the Congress with 
the Indians under Article I, Section 8 of the Federal 
Constitution. That didn't occur. The President's Executive 
Order having to do with government-to-government relations with 
the organized tribes wasn't followed either.
    Briefly, I want to speak to the Shoshone history in the 
Jarbidge area. We have occupied and controlled from time 
immemorial a swath of land approximately 1,000 miles long, 
reaching from Death Valley down in the southwest to the 
headwaters of the North Platte in Colorado.
    We followed a tradition of life having to do with the 
seasons, following the changing of the seasons. There was a 
time to hunt, there was a time to gather, there was a time to 
take winter shelter. Although things have been altered by 
western civilization, our world view is pretty much the same. 
We respect the Earth and all around it and our role within it.
    We can't do things like replant, but we sure can by our 
rituals and by our customs and by the maintenance of our 
traditions encourage the regrowth of next year's plants and 
regeneration of the Earth. That's what we have done for 
thousands of years. This is underpinned by what we call pu-ha. 
You might call it a unique medicine which comes to people by 
which we have stable--by which we have maintained a stable 
balance of ourselves in relation to the world. And those places 
where you acquire this is in the high places, in the mountains, 
on mountain peaks or valleys and caves, and so forth. This is 
all part of the Jarbidge area.
    The Three Sister Peaks of Jarbidge, the streams and the 
lake there, we have our tales about the terrible spirit called 
the jobij which lives in the area. He's a terrible rock man 
who's got a big stone basket and collects wayward Indians to 
feed his kids. I guess he's got to make a living, too. We 
occupied this country. Our ancestors are buried there. And we 
use it continually.
    As water follows the easiest course, the Jarbidge River 
made its way from the mountains, down the valleys, down the 
canyon, down to what is now Idaho. And animals followed that 
valley. And we followed the animals, and we created paths and 
so forth.
    Behind us came the trappers, the miners, the cowboys, and 
sheepmen. And the settlers came with their wagons. And 
eventually came the recreation seekers with their motor 
vehicles.
    We are no different from these people now. We do the same 
thing. We use 4-wheelers; we use pickup trucks to get around. 
We can't do that with the road closed to us. We can't practice 
our ancient customs and traditions.
    One thing I want to point out, part of the United States, 
the United States has a bad habit of violating its word, not 
only to the Indians in past cases, but to its citizens 
generally. That's where part of my concern with this business 
comes in.
    For example, on the 19th of November, in 1863, President 
Lincoln delivered an address at the dedication of the cemetery 
at Gettysburg. A month-and-a-half before that time, they had 
made the Ruby Valley Treaty and promised the Indians some 
things, which were never lived up to.
    We took the case to court. The upshot of that was that the 
government said: Well, we think you have been damaged to the 
tune of $26 million. We are going to appropriate the money from 
the Treasury into a trust account in the Bureau of Indian 
Affairs.
    That was done and in essence the government moved the money 
from the left pocket to the right pocket and claimed to have 
paid us for our land at the value of 15 cents per acre. We have 
not seen a penny of that money.
    If you're interested in the title and ownership of that, we 
have a treaty that says the land is used, it's open for mines, 
for roads, for ranches, for towns. I think the true ownership 
resides in the people, in the citizens of Nevada, northeastern 
Nevada. And as far as the part which the government has said 
it's paid for, we don't have any legal proof of that.
    I submit to you, Congressmen, that the Indians are the 
owners, and that the other owners are the citizens of northeast 
Nevada.
    Mrs. Chenoweth-Hage. Thank you, Mr. Mose.
    [The prepared statement of Mr. Mose follows:]

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    Mrs. Chenoweth-Hage. The Chair recognizes Mr. Price for his 
testimony.

                    STATEMENT OF BILL PRICE

    Mr. Price. Thank you both for coming. My name is Bill 
Price. I'm a professional land surveyor and a registered 
professional landman specializing in historical research. I've 
worked on four cases similar to this.
    In 1998, Elko County asked me whether the South Canyon 
Route was used regularly by Elko County residents before the 
Forest Reserves beginning 1905. They believed this would 
establish the route as a nineteenth century highway, in 
quotation marks.
    We reviewed books and publications, Forest Service reports, 
USGS data, and Elko County records, as indicated on the 
exhibits in the package I gave you. We constructed maps and 3-D 
models. We examined the area by helicopter together with Dr. 
Wayne Burkhardt, a noted expert on western history and 
agriculture.
    We made several observations. The Jarbidge Mountains host 
plant, animal, and mineral resources that have been used 
seasonally by humans for millennia. Modern European activity 
began about 1825 and intensified over time. This activity 
included trapping, hunting, fishing, prospecting, and grazing. 
By the late 1890's, sheep numbers had reached tremendous 
levels, according to a 1906 Forest Service report by R.B. 
Wilson. Wilson reported 392,350 sheep amongst 43 owners 
competing for forage in his study area. The Jarbidge Mountains 
would have been a veritable beehive of activity.
    In fact, it was the desire to preserve the mountains that 
was the impetus behind the Forest Reserve movement. Wilson made 
several observations about available trails and roads, and ease 
of access to timber in the Jarbidge Mountains. Much of that 
timber was and still is accessible only through the South 
Canyon.
    The Jarbidge South Canyon is a natural corridor, as 
illustrated on the plates in the material I've given you, some 
3-D views, some plan views. The canyon provides access not only 
to resources in the South Canyon, but it's the most logical 
route for individuals with pack animals to communicate or 
commute between the Jarbidge area and the Marys river basin.
    We found evidence of just this activity in the Elko County 
records, as illustrated in plates 3 and 4 of the material 
package. William Mahoney and his wife, Pearl, for example, in 
concert with prominent Nevada pioneer Warren W. Williams of 
Fallon, established facilities in the Mary's River Basin, 
Jarbidge, and at Wilkins Island. Mahoney was reported to be in 
the Jarbidge area as early as 1892--that's Forest Service 
information--as was another entrant, William Perkins.
    The first detailed survey of the South Canyon was by the 
USGS in 1910. F.C. Schrader mapped an upper trail and lower 
trail, two cabins near Snowslide Gulch, and spent the night at 
the Perkins cabin at the head of the Jarbidge River.
    Remember, Perkins had been in the area since at least 1902, 
if not 1892, according to some literary records.
    Between 1910 and 1923, the 19th century highway evolved 
into a 20th century road complete with bridges, capable of 
hauling industrial forest products from the mill at Sawmill 
Creek. Recall Wilson's observations about the access to timber 
in the Jarbidge Mountains earlier in the 1906 report.
    This road has been in regular use and is depicted on the 
myriad of modern maps from that time to the present. In fact, 
when you objectively consider the preponderance of all this 
evidence, it's hard not to acknowledge that the county has a 
very compelling claim. RS 2477 is an act of Congress, too.
    Much of this information and nearly all the leads came 
directly from Forest Service reports. The agency's 
recalcitrance begs the simple question: Is it oversight or is 
it obfuscation? I can't tell you that. I can tell you, though, 
the impact on your citizens is just as serious either way.
    I can tell you what the agency sent Elko County as their 
ostensible proof that this road did not exist. They sent this 
copy of Schrader's 1912 report based on his 1910 survey. I've 
already indicated to you that plate 2 shows a portion of the 
South Canyon route. It shows the portion that the Forest 
Service buried recently. Schrader's survey field notes show 
most of the rest of the route. Interestingly, plate 2 is 
missing from this report.
    I've worked on four similar cases as listed in appendix one 
of the materials I've given you. I have encountered similar 
things. As one example, in the interest of housekeeping, 
government agencies have destroyed a great number of historical 
documents over the past 10 or 15 years. In another instance, 
this agency failed to retract a report even after it learned it 
was based on a map of a different road. That report also 
included this affidavit. It was apparently written in 1995. The 
man who ostensibly wrote it died in 1988.
    I'm just as concerned as everyone about the acrimony and 
mistrust described in recent public statements. I hope this 
committee can foster an atmosphere of openness that will 
assuage some of the misunderstandings. Thank you again for 
coming.
    [The prepared statement of Mr. Price follows:]

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    Mrs. Chenoweth-Hage. I want to thank the witnesses for your 
very, very interesting testimony. And at this time I recognize 
Congressman Gibbons for his questions.
    Mr. Gibbons. Thank you very much, Madam Chairman. I 
appreciate that. What I would like to do, first of all, is turn 
to Mr. Bedford and have him distill for us, for those of us who 
aren't as eloquent in our legalese as you have presented with 
the fundamental findings of your analysis, who actually--let's 
back up and start with are these RS 2477 roadways rights-of-way 
that fall under property rights as determined by courts in 
jurisdiction in common law?
    Mr. Bedford. I think the courts on many, many occasions 
have recognized a right-of-way as a property right. I don't 
think there's any question about that.
    Mr. Gibbons. These would be easements that were granted by 
the Federal Government for commerce, so to speak, between 
cities as a developing area of the west took place? These would 
be corridors of commerce? And even before that, as Mr. Mose had 
talked about, for tribal communication as well and transport? 
They would be considered then a highway or roadway that would 
fall under the purview of an easement of a 2477 right-of-way?
    Mr. Bedford. That's correct.
    Mr. Gibbons. This South Canyon Road, who owns it?
    Mr. Bedford. Well, from my understanding--you know, I was 
asked to comment primarily on the law in general. But based 
upon my understanding, it's owned by the county.
    Mr. Gibbons. Elko County would be the owner of the right-
of-way and the easement of the South Canyon Road?
    Mr. Bedford. Under RS 2477, that's correct.
    Mr. Gibbons. Now, if you're the owner of an easement and 
someone comes in and blocks your access, what recourses are 
available to you?
    Mr. Bedford. Well, your recourse would normally be with the 
court system. You would go in, you would get a decree ordering 
the person to remove whatever was blocking the access and 
perhaps also assess damages for your loss of use for the 
interim period.
    Mr. Gibbons. OK. Mr. Mose, if I could just briefly, you 
presented a very eloquent statement about the heritage of the 
Shoshone Indians in the area, their use of the land as well. I 
would presume, is it not your interpretation that this roadway 
or some avenue similar--it would not have been called the South 
Canyon Road roadway--would have been used by the Shoshones also 
as a means of communication or commerce traversing the area?
    Mr. Mose. Yes, in prehistoric times and historic times 
there are various places, Indian roads that ran all up and down 
northeast Nevada. For example, to get from here to Camas 
Prairies in Idaho, the easiest way is up the water course such 
as Mary's River, up over the pass and down the Jarbidge Canyon. 
We are not going to go and hike out in the desert. Following 
water was the easiest course.
    Mr. Gibbons. These were normal courses that any person 
would have followed, whether you be Native American or a 
European who has immigrated here seeking commerce, either 
exploring the country, communicating back and forth as well? It 
is a long-established history of use, is what we're getting at 
here, in this area?
    Mr. Mose. Absolutely.
    Mr. Gibbons. Mr. Price, you've done a great deal of 
research, as you said, into the history of this area. I will 
stipulate that I will ask some similar questions to the Forest 
Service along this area. Does your record or any research that 
you have done indicate that no one was in the Jarbidge area 
before the Forest Service was established?
    Mr. Price. Well, it's just the opposite. The reason the 
Forest Service was established is because the Jarbidge area was 
overrun.
    Mr. Gibbons. Were any of these individuals or any of your 
records reveal that people that were in the Jarbidge area were 
precluded at any point in time from using this South Canyon 
area?
    Mr. Price. Again, it's just the opposite. They would have 
had a compelling need to access the resources, the grazing 
resources that are available in the South Canyon. That would 
not have been their first choice. They are not ideal grazing 
resources, but with that number of sheep in there, you have to 
look for every green blade of grass you can find.
    In addition, the county records shows that there was a 
relationship between the people in the Jarbidge area and the 
entries in the Mary's River Basin. The only way you can get 
between Mary's River and Jarbidge without going quite a ways 
around, adds as many as 5 miles to the trip, is to go up over 
the saddle between Mary's River and Jarbidge into the South 
Canyon and on into Jarbidge, or vice versa.
    Mr. Gibbons. So people did enter the South Canyon area as a 
means of being able to communicate or converse between the 
Mary's River area and the Jarbidge area?
    Mr. Price. It's extremely logical. We don't have a document 
that says they did, but it's illogical to assume otherwise.
    Mr. Gibbons. You are a land surveyor and understand 
topography and the nature of terrain. Is the South Canyon 
particularly difficult or easy to traverse? What is the 
surrounding area like? Would there have been alternatives 
immediately available to use of the South Canyon area?
    Mr. Price. It is particularly easy to traverse when 
compared to the surrounding area. In fact, in 1896, the U.S. 
Government survey party crossed the Jarbidge Mountains 
perpendicular to the South Canyon. And the travails of that 
party are written in their notes. It's quite amusing reading, 
actually. They just about didn't make it.
    Mr. Gibbons. Historically, are there any signs of commerce? 
Are there cabins, mines, sawmills, whatever, preexisting 
structures, that may have been in the area which would have led 
one to believe that this may have been used as a route either 
for some sort of commerce or access to the areas?
    Mr. Price. The one cabin that there's documentation on as a 
preexisting cabin is the Mahoney cabin. That's situated where 
the forest headquarters is. It's just north of Jarbidge now. 
There are facilities that were constructed by Mr. Mahoney in 
the Mary's River Basin. He constructed shearing corrals and 
that kind of thing. Those are still there today.
    The Perkins cabin at the head of the Jarbidge River is 
really interesting because Mr. Perkins had been in the area for 
years. Frank Winters, a former Nevada State Assemblyman, I 
believe, wrote in a letter that he had met William Perkins in 
the Jarbidge Canyon in 1892. In 1902, William Perkins filed a 
document in the courthouse claiming a chunk of land just in the 
vicinity of present day Jarbidge. William Perkins was a 
prospector. Some of the prospective gravels in the Jarbidge 
Canyon are located approximately at the head of Snowslide 
Gulch.
    Schrader found them, and found the people working them when 
he went there in 1910. The idea or the notion, for example, 
that William Perkins would not have prospected up and down the 
Jarbidge River when he came to be living there with the first 
ever survey in the district, that would take quite a leap, I 
think, to make that, that he would have somehow precluded 
himself from ever entering there before the Forest Service was 
established.
    Mr. Gibbons. I take it it would be your conclusion, based 
on what Mr. Mose has said and what your research has done, what 
you presented here today, that there was indeed a great deal of 
activity in the area along the South Canyon Road, with 
significant commerce and access requirements before the Forest 
Service and the National Jarbidge Area was established under 
the Forest Service? Is that correct?
    Mr. Price. Well, the word would be ``tremendous.'' That 
comes out of the Forest Service's report, 1906, R.B. Wilson. 
The activity that he described was sheep activity, which 
requires a very systematic and organized means of ingress and 
egress. There's one sheepherder with each flock. Those 
sheepherders are serviced by camp tenders who have to have 
improved trails and they are all overseen by owners. So, 
absolutely, that would be the case.
    Mr. Gibbons. So, the word is ``tremendous''?
    Mr. Price. Tremendous activity, from R.B. Wilson himself.
    Mr. Gibbons. Did you research Elko County documents as well 
as other documents that you've done in this regard on this 
activity?
    Mr. Price. Yes, sir. We found extensive evidence in Elko 
County records. In your Exhibit 1 of the, it's the binder, the 
white binder that is sitting in front of you there, We've 
mapped a selective number of the entries that were found in 
Elko County records. And the relationship between entries and 
the modern routes is very compelling. It essentially 
illustrates what we have just been discussing.
    The easiest one to see is this light-colored one. You have 
4 there all together; one on the back of each other. So it's 
easy to find it. The very back would be this. I have removed 
the shaded relief so you can see the entries and the trails 
easier in this particular exhibit.
    And if you'll notice up north in the Jarbidge area, we have 
the Jarbidge Placer claim established by Warren Williams in 
1901. You have the Mahoney cabin. You have William Perkins 
laying claim in 1904. You have a lot of activity here that's 
associated not just with Mahoney and Williams, but there were 
43 other owners recorded by R.B. Wilson in this vicinity at the 
same time.
    Now, if you go to the south end of the map, you'll notice 
there are several entries in the Mary's River Basin. Each of 
those were surveyed by Elko County surveyor E.C. McClelland 
around 1904. And you'll notice the entrant there in red in the 
Mary's River Basin, William Mahoney, 1903. There is a very 
large structure there, sheep shearing corrals and this kind of 
thing. We have Mahoney reported by the Forest Service to be 
living in the Mahoney cabin.
    The most interesting thing of all, if you look at again the 
north end of the top of your map and a little bit to the east 
to the right, over toward the Wilkins Island area, you'll 
notice that Pearl Mahoney, who is William Mahoney's wife, had 
an entry in the Wilkins Island area.
    Every one of the entries, whether it's this particular 
group or some of the other groups listed on the left-hand side 
of your map such as the Dunns, the Bradleys, the Clemons, all 
have established themselves on the modern network of trails. 
Well, the modern network of trails follows the most logical 
corridors through the Jarbidge mountains.
    Now, it would be quite a stretch for anyone to say that 
those trails didn't--weren't developed at this time. And in 
fact, we believe they were developed between 1897 and 1902 or 3 
when the sheep activity became tremendous, as Wilson described.
    Mr. Gibbons. Thank you very much. Madam Chairman, I have a 
number of serious questions and I would like to ask if it's the 
will of the Chairman to allow us to submit written questions 
for the witnesses to answer so that we can save time and move 
forward? I would be happy to yield.
    Mrs. Chenoweth-Hage. Mr. Gibbons, I would be happy to 
extend your time if you wish to ask them now. If not, we would 
be, of course, willing to take them in written form.
    Mr. Gibbons. I wanted to give you an opportunity to also 
develop a line of questioning that may be helpful to your 
understanding as well. Certainly if you're going to--.
    Mrs. Chenoweth-Hage. Why don't we do a second round?
    Mr. Gibbons. Happy to.
    Mrs. Chenoweth-Hage. Is that OK? I have some questions for 
Mr. Bedford that I would like to ask. Mr. Bedford, can the 
closure of RS 2477 right of way subject the United States to 
liability for the taking of private property?
    Mr. Bedford. That certainly is a possibility. The fifth 
amendment to the Constitution of the United States of America 
states that the United States cannot take private property 
without just compensation. For those private lands where access 
is only by an RS 2477 right-of-way, the loss of right of access 
to that property is a taking of the economic value of that 
property.
    Mrs. Chenoweth-Hage. Of the entire holding? The entire 
property?
    Mr. Bedford. That's right. If you can't get to it, you 
can't make any use of it.
    Mrs. Chenoweth-Hage. The value of the property would 
include its future yield, right?
    Mr. Bedford. That would certainly be one of the factors 
that a court would look at in determining the value of the 
taking.
    Mrs. Chenoweth-Hage. How large does a road have to be to 
qualify as an RS 2477 right-of-way?
    Mr. Bedford. It can be as small as a trail or a foot path. 
The understanding of the term highway in 1866 embraced all 
manner of public and private roads, provided they were open to 
all persons that wanted to use them without discrimination. 
This included all modes of transport from horse-drawn carriage 
to someone on foot.
    Any beaten path open to the public between two locations 
constitutes a highway within the meaning of RS 2477. This 
includes basically roads built for any purpose, including 
miner-built roads and those that led not only to cities, towns, 
and buildings, but also those that led to other roads, to 
mines, to water holes, to springs, to streams; and roads that 
led to hunting, prospecting, livestock grazing, and woodcutting 
areas.
    Mrs. Chenoweth-Hage. And it's my understanding that concept 
has been recently upheld in the Ninth Circuit Court of Appeals, 
in a decision I think issued in 1996 or 1997?
    Mr. Bedford. That's correct.
    Mrs. Chenoweth-Hage. And so what you're telling us for the 
record is that a road doesn't have to have two tracks in it? 
Two wheel tracks? It doesn't have to have a certain width and 
be maintained up to a certain standard to be considered an RS 
2477 roadway?
    Mr. Bedford. That's correct.
    Mrs. Chenoweth-Hage. OK. Are you familiar with the Forest 
Service handbook? With regard to how they advised their 
employees in dealing with RS 2477 roadways?
    Mr. Bedford. I think what you may be referring to is the 
Forest Service Manual which relates to special use permits.
    Mrs. Chenoweth-Hage. Yes.
    Mr. Bedford. It's been awhile since I read that. Please, I 
would like leave to lodge that within 10 days so that--or the 
applicable portions. My recollection last time I read it is 
that historical rights-of-way such as we're talking about are 
more or less grandfathered in and are exempt from the automatic 
requirement of the special use permit.
    Mrs. Chenoweth-Hage. Now, in this case, if the Forest 
Service were asking the county for a special use permit of the 
Jarbidge Road, and I don't know whether they were or not--but, 
Mr. Bedford, according to your testimony, a special use permit 
issued by the Forest Service is not required, not needed for 
them to maintain and use the road?
    Mr. Bedford. Assuming it qualifies as an RS 2477 right-of-
way, that's correct.
    Mrs. Chenoweth-Hage. When an assertion is made by a county, 
where must the evidence lie? In other words, who must they 
prove to and how must they prove that the assertion is viable 
and that the ownership is truly theirs?
    Mr. Bedford. Well, I think there has to be the presentation 
of adequate historic evidence. In many cases I've found that 
this evidence is often in the Forest Service's own files.
    Mrs. Chenoweth-Hage. Can you tell me, Mr. Bedford, what is 
the difference between the concept of jurisdiction and the 
concept of ownership? What is the difference between those two?
    Mr. Bedford. Well, certainly ownership obviously is who has 
title to, you know, a particular property right, whether it's 
fee simple, whether it's a right-of-way, whether it's an 
easement, whether it's some other property interest.
    The concept of jurisdiction is who has the power, and the 
power to regulate and exercise both civil and criminal 
jurisdiction over a particular piece of property.
    Mrs. Chenoweth-Hage. So if one party owns, holds title to a 
piece of property, but others assert that they have the 
jurisdiction over that property, what happens then? What 
happens to the ownership rights? What happens to the property 
rights?
    Mr. Bedford. It depends on what the circumstance is. I 
mean, for example, if someone commits a murder or a crime on a 
piece of BLM land, the BLM does not have jurisdiction to 
prosecute that person. The jurisdiction is clearly within the 
State and local authorities.
    Mrs. Chenoweth-Hage. Now, the Federal Government has 
exclusive, joint, and concurrent jurisdiction. Would you please 
explain for the record what is the difference? And for this 
Member, what is the difference?
    Mr. Bedford. You know, that's actually a pretty complicated 
question. I mean, even, for instance, military reservations 
such as military posts and military bases, there is often 
concurrent jurisdiction there with both the Federal Government 
and the local governments exercising jurisdiction together over 
certain issues.
    On the other hand, there are certain Federal enclaves where 
because of the way they were established, the Federal 
Government has exclusive jurisdiction there. So it just depends 
on the circumstance.
    Mrs. Chenoweth-Hage. Well, does the United States have a 
general grant of jurisdiction over National Forest Service 
lands?
    Mr. Bedford. No, that's not true at all. They don't have a 
general grant of jurisdiction. They have jurisdiction over some 
issues, but certainly it is not a general blanket grant of 
jurisdiction. In fact, as I pointed out in my example, much of 
the jurisdiction is concurrent with the State and the local 
authorities.
    Mrs. Chenoweth-Hage. Interesting. Well, Mr. Bedford, you've 
piqued my curiosity. I have many more questions I would like to 
submit to you in writing, if you wouldn't mind.
    Mr. Bedford. I would be glad to.
    Mrs. Chenoweth-Hage. We will be sending those questions to 
you within 10 working days.
    Mr. Bedford. That's fine.
    Mrs. Chenoweth-Hage. Mr. Mose, I want to thank you very 
much for your testimony. It was fascinating. And your comments 
remind me of a statement that was made by Sitting Bull, the 
great--well, I guess he was a medicine man and certainly was so 
highly regarded in the Sioux Nation. And when Sitting Bull 
addressed a joint session of the House and the Senate, he made 
the statement in concluding his remarks before that joint body, 
he said to the Congress, ``You, the Federal Government, have 
made us many promises and you never kept but one. You promised 
to take our land and you took it.''
    And I want to say, Mr. Mose, I surely understand what 
you're saying. I think everyone in this audience understands 
it. And so it is an honor and a privilege to have you here and 
having you share with us about your people and your concerns 
about the future of the Jarbidge Road.
    And you stated that the Federal Government hasn't kept its 
promises. Concerning the South Canyon Road, what does the 
Federal Government need to do to keep its promises to you?
    Mr. Mose. The promises the Federal Government made to my 
people in 1863 is that they would, first of all, establish a 
reservation within the territory of the Shoshone country. They 
have never done that.
    The second promise that they made was to pay us $100,000 in 
compensation for the driving away of game. That was at $5,000 a 
year. The General Accounting Office did a study in the 1960's 
and determined that an Indian agent had to account for $79,000 
of Indian money with which he was entrusted, including some 
$13,000 of money from the Shoshone. They could never account 
for that and the Indian people have never--as I said, we never 
received a penny of money for anything other than the 
government saying well, we own the land; you have to take our 
word for it.
    And we say, well, if we can go down here to the county 
recorder's office and find that title that transferred 
ownership of the land from us to you, or if we can go to your 
title plant in Albuquerque, New Mexico, and find it there in 
your records, the title where we transferred the land to you, 
we will shut up. We'll go away. We'll move to Mexico or Canada 
or somewhere. You know, we've never found that.
    And the government makes all kinds of representations, but 
the government for the most part just says it. It sort of takes 
it that it's got unlimited power to do what it wants to do 
whenever it wants to do it and regardless of any due process.
    It reminds me of the old saw about what is due process? Due 
process, I think according to the government, is a process 
that's due. That's not due process.
    Mrs. Chenoweth-Hage. Thank you, Mr. Mose.
    Mr. Price, your historical analysis of the South Canyon 
Road was priceless, exceptional. Has the Forest Service 
disputed any of your analyses?
    Mr. Price. Well, I don't know the answer to that because 
they haven't really communicated with us very much. We have 
several information requests. Some have been outstanding for 
well more than a year. We have no response on them.
    I have heard their public statements and if I can construe 
those correctly, I think they dispute all my findings. In other 
words, to make the public statements that they have been 
making, it seems to me they have to believe that no one was 
ever in there before the Forest Service was established.
    Mrs. Chenoweth-Hage. Well, you mentioned that plate number 
2 was missing from the report. Can you tell me, why is plate 
number 2 significant?
    Mr. Price. Plate number 2 is significant. I have a copy of 
the bound report we got from the University of Nevada. It shows 
a portion of the South Canyon route.
    Now, this document is significant because the Forest 
Service sent it to Elko County as ostensible proof that the 
road, the route did not exist.
    Not only does it show the portion of the route that they 
buried recently, but when you go and do the research that we 
all do in this profession, you go to the USGS archives in 
Denver, Colorado, and you get the field notes of F.C. Schrader, 
he mentions not only two trails in the South Canyon, maps 
several cabins in the vicinity of Snowslide Gulch, which is the 
portion of the road in contention, and he stated, he 
acknowledged Mr. William Perkins, that's even farther up the 
canyon. That's at the very head of the Jarbidge River.
    So the significance has to do with whether the road was 
there the first time a scientist actually looked and recorded 
what was there, and absolutely it was there. And it shows on 
plate 2. That's my favorite part because that's the part they 
buried.
    Mrs. Chenoweth-Hage. Well, I want to thank the witnesses 
for their testimony. I do want to say before we end this series 
that the addendum Mr. Price has presented I don't think was 
presented as part of his testimony. So we will add that to the 
record, without objection.
    [The information referred to follows:]

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    Mrs. Chenoweth-Hage. And is there anything else that you 
used in your testimony that you would like to see entered into 
the record? Everything you had there at the witness table, is 
it in your addendum?
    Mr. Price. Yes. And this report that you have is basically 
a copy of my testimony with the exhibits that substantiate the 
observations; plus the appendix which I hope you will have time 
to visit some day that talks about the experiences I have had 
in these other cases.
    Mrs. Chenoweth-Hage. Very interesting.
    Mr. Gibbons, do you have any further questions?
    Mr. Gibbons. Madam Chairman, I have just one for Mr. 
Bedford, if I could.
    Mr. Bedford, we hear a lot of reliance on the October 21, 
1976 enactment of FLPMA, Federal Land Policy Management Act. 
What effect did that act have on RS 2477 roads?
    Mr. Bedford. It had no effect in that the act specifically 
protected the RS 2477 roads as they existed as of October 21, 
1976. Specifically, the congressional intent is very clear. The 
intent is with respect to those roads or rights-of-way that had 
already gained recognition under 2477, that those would be 
protected and are not subject to FLPMA.
    Mr. Gibbons. Has there been any other congressional or 
legislative act passed by Congress which would have superseded 
RS 2477 rights-of-way?
    Mr. Bedford. Well, FLPMA itself abolished 2477, but 
everything that had already been established before that was 
protected.
    Mr. Gibbons. But since that time there has been no Federal 
act, no Federal legislation that has superseded these rights-
of-way that were in existence prior to October 21, 1976?
    Mr. Bedford. They are still protected.
    Mr. Gibbons. Still protected. That's all I have, Madam 
Chairman.
    Mrs. Chenoweth-Hage. Now you prompted a question from me. 
Mr. Bedford, FLPMA is generally considered to be a law that 
applies to the Interior. Therefore, you were referencing FLPMA. 
Does that apply to roads on Forest Service land also?
    Mr. Bedford. Yes, it applies to both.
    Mrs. Chenoweth-Hage. So the 1976 date then, the date that 
FLPMA was enacted, is a date that roads that were constructed 
up to 1976 should be recognized under RS 2477?
    Mr. Bedford. Roads constructed prior to that date, assuming 
that they were constructed across unreserved Federal lands.
    Mrs. Chenoweth-Hage. And had--OK, and had been asserted by 
the county under their ownership?
    Mr. Bedford. By the county, by the State. I mean, the state 
has plenty of highways, too, across Federal lands.
    Mrs. Chenoweth-Hage. Mr. Bedford, I just have to tell you, 
there is another law that we enacted in the 105th Congress 
where I was a cosponsor of it and where we reasserted our 
rights under RS 2477. That was one of the first things we did 
for the 104th Congress. So I was real happy with that.
    I do want to thank these witnesses for your fine testimony. 
It was interesting, colorful, informative, and I thank you very 
much.
    Now I would like to introduce our second panel. Our next 
panel will consist of Ms. Kristin McQueary, Deputy District 
Attorney of Elko County; Mr. Anthony Lesperance, Chairman of 
the Elko County Commission; Mr. John Carpenter, Assemblyman, 
District 33, Nevada Assembly; and Mr. Charles Nannini, Elko 
County Commissioner.

 STATEMENT OF MS. KRISTIN MCQUEARY, DEPUTY DISTRICT ATTORNEY, 
  ELKO COUNTY; MR. ANTHONY LESPERANCE, CHAIRMAN, ELKO COUNTY 
   COMMISSION; MR. JOHN CARPENTER, ASSEMBLYMAN, DISTRICT 33, 
     NEVADA ASSEMBLY; AND MR. CHARLES NANNINI, ELKO COUNTY 
                          COMMISSIONER

    Mrs. Chenoweth-Hage. I want to welcome our witnesses and 
explain, as with the first panel, it is the intention of the 
Chair to place all witnesses under the oath. I believe that you 
received a copy of our committee rules involving this 
procedure. So if you would please stand and raise your hand to 
the square.
    [witnesses sworn.]
    Mrs. Chenoweth-Hage. Thank you. The Chair recognizes Ms. 
McQueary for her testimony.

                 STATEMENT OF KRISTIN MCQUEARY

    Ms. McQueary. Thank you, Madam Chairman and Congressman 
Gibbons. I'm an Elko County deputy district attorney.
    Mrs. Chenoweth-Hage. She's my kind of girl. Just go ahead 
and take that mike off. It's giving everybody a bad time. Take 
it off the stand.
    Ms. McQueary. Can you hear me now?
    Mrs. Chenoweth-Hage. Yes.
    Ms. McQueary. I'm an Elko County district attorney. I have 
represented Elko County on the Jarbidge South Canyon issue for 
more than a year. Elko County is deeply appreciative of this 
opportunity to talk to you about what is going on out here.
    From my perspective, the Forest Service has lost the trust 
of the people of Elko County. If the real issue were the bull 
trout, the county and the Forest Service could work out an 
agreement protecting all interests. It seems that the real 
interest is reducing access to public land.
    There are three reasons why I feel this way: one, the 
Federal Government has not kept its promise to fix the road; 
two, the bull trout, if you look at the issue, are red herrings 
used to divert attention away from reducing public access; and, 
three, the Forest Service administrative process is simply 
unfair.
    What is so frustrating is that the Forest Service promised 
Elko County that it would repair the road after the devastating 
1995 flood. The county and the Forest Service had worked 
together on the Jack Creek Road project for the benefit of the 
bull trout. The county and the Forest Service had worked 
together on the Lamoille Campground restoration after its 1995 
flood. The county, based upon that history, had no reason to 
doubt the Forest Service promises in 1995, 1996, and 1997 that 
it was going to fix the road.
    The county believed the Forest Service because the Forest 
Service documents right here showed what the county already 
knows, that the road and the bull trout can peacefully coexist. 
A Forest Service study indicates that economically the 
preferred alternative for the tiny town of Jarbidge is to fix 
the road. The Forest Service applied for and received ERFO 
funds to fix the road.
    The Forest Service has estimated that to fix the whole 1.5 
mile section of the road would cost $462,000. The Forest 
Service spent an estimated $420,000 in its so-called repair of 
the road on the area that the county was never allowed to 
finish. That stretch of the road was only 900 to 1,000 feet 
long.
    The Forest Service spent not only the $420,000; it has 
spent the money for the original engineering and survey, the 
Environmental Assessments, the economic surveys, the biological 
surveys. The Federal Government has spent money on listing the 
bull trout as threatened, spent money on the litigation 
proposed against Elko County. It has spent money on the 
Carpenter lawsuit, to which a Federal judge has joined Elko 
County.
    The Federal Government has spent money on salaries of the 
assistant U.S. Attorneys that have been assigned the task of 
punishing Elko County for daring to assert its right to its 
road. Now Congress has to spend the money to hold this hearing, 
which could have been avoided if the Forest Service had kept 
its promises in the first place.
    Elko County has spent money for experts and expenses for 
field trips to Jarbidge to explain the situation to everyone 
who would care to listen. We spent money for trips to Reno to 
talk to the U.S. Attorney's office. And we have spent much 
money and staff salaries with attorney time, engineer time, 
surveyor time, road supervisor time, county manager time, 
clerical time, and of course the time of our county 
commissioners.
    For all the money spent arguing over this road, the road 
could have been fixed to a standard to protect even the most 
sensitive bull trout. Ironically enough, the county originally 
agreed to the Forest Service fixing the road to save county 
taxpayers money.
    The bull trout are really red herrings. If they were the 
real issue, the Forest Service would fix the sections of the 
road where the river has captured the roadway and is now 
eroding the hillside. If the Forest Service report says that 
water temperatures would be better if the river were put back 
in its pre-1995 channel, if the bull trout has survived the 
sheep, the mining boom, the damming of the Snake River, if the 
bull trout survived the 1995 flood, the road's impact is truly 
negligible.
    The real issue is cutting off public access to public 
property. About 1987 when the Jarbidge Wilderness Area was 
created, the South Canyon Road went even farther up the canyon 
at least to Perkins Cabin. The Forest Service closed the road 
down to the Snowslide Trailhead. Now the road is closed from 
the Snowslide Trailhead down to the Pine Creek Campground. We 
wonder, what is next? The road into downtown Jarbidge?
    The third point is that the Forest Service administrative 
process is simply unfair. The problem is striking a rational 
balance between environmental concerns for the forest and the 
economic and social impact of those resulting decisions. 
Traditionally, those disputes have been addressed within the 
administrative process of the public land management agencies.
    Unfortunately, as you can see by the statements from Gloria 
Flora and others, the agency is staffed by people with their 
own radical environmental agendas. The process of resolving 
disputes between administrative hearings presupposes 
impartiality by the agencies. As you can see, there has been no 
impartiality by Ms. Flora's statements. The cards are unfairly 
stacked against anyone who finds himself fighting an agency 
decision. The decision is almost final before the fight begins.
    Somehow the process to challenge an agency decision has to 
be removed from being decided by the very people who make the 
decision in the first place. Somehow the standard of review in 
a judicial review has to be changed from showing that the 
agency has been arbitrary and capricious, which means totally 
unreasonable, to simply showing that the agency is probably 
wrong.
    And that is the heart of the problem. There is no place to 
go for fair resolutions of disputes of these sorts, and 
certainly not any agency whose stated position is in opposition 
to Elko County's. In this dispute, the Federal Government 
lawyers have not reciprocated in giving this county evidence 
supporting the Forest Service's view that the South Canyon Road 
is not a public road. The government's proper role is to be an 
advocate for open and fair discussions of issues, not by 
playing its cards close to the vest.
    The Forest Service has lost the trust of Elko County by not 
keeping its promises, by using red herrings, and by 
demonstrating that the administrative process is unfair to us. 
Thank you.
    Mrs. Chenoweth-Hage. Thank you, Ms. McQueary.
    [The prepared statement of Ms. McQueary follows:]

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                STATEMENT OF ANTHONY LESPERANCE

    Mrs. Chenoweth-Hage. Chairman recognizes Commissioner 
Lesperance.
    Mr. Lesperance. Thank you, Madam Chairman, my good friend 
Congressman Gibbons. Welcome to Elko County.
    Elko County has long since established its position of 
control over rural roads by a number of legal processes. More 
recently the Elko County Board passed Resolution 14-98, which 
further established law and policy on road access and that said 
right-of-road access shall not be interfered with or impeded by 
any agency acting beyond its authority. The resolution further 
established that all roads in question are duly recorded, all 
roads in question are defined under a certain set of maps which 
are duly recorded and held for public agency scrutiny by the 
office of the Elko County recorder. For the record, the South 
Canyon Road is clearly part of those maps.
    I will not go into a great deal of detail about the 
information about which you've already heard concerning the 
history of the road. You will hear more about the biology of 
the bull trout. I would like instead to go and review some 
basic facts which occurred.
    On June 2, 1995, environmental conditions in Elko County 
were such that a warm rain on a near record-breaking snowpack 
caused a deluge of near biblical proportions to cascade down 
South Canyon, destroying four segments of the South Canyon 
Road. Due to the fact this was a county-wide disaster, the road 
crews were unable to immediately repair the road.
    Shortly thereafter, the Forest Service requested that the 
county wait so they might obtain funding to help the county, as 
Ms. McQueary just recently recounted. Due to the extent of 
flood damage throughout the county, the Board of Commissioners 
agreed to allow the Forest Service to participate by obtaining 
emergency funding.
    Although a number of bureaucratic actions occurred over the 
next few years, to make a long story short, no road 
reconstruction occurred. During 1997, Trout Unlimited appealed 
the Forest Service decision, which was to rebuild the road; the 
reconstruction would not harm the bull trout population. And 
after considerable rhetoric, the Forest Service determined that 
more analysis would be required before any reconstruction could 
occur.
    On June 28, 1998, the Forest Service issued an updated 
environmental analysis which incorporated new information, 
quote unquote, basically stating that any road work 
reconstruction would seriously degrade the situation with the 
bull trout. In an informal visit to Jarbidge, a Forest Service 
representative indicated that the responding action would be to 
replace the road with a narrow walking trail. No other public 
hearing or comment concerning this matter ever occurred.
    On July 15, 1998, in reaction to this, the Board of County 
Commissioners passed Resolution 74-98 which more thoroughly 
established the county's legal standing on the issue. Briefly, 
that resolution clearly established that the South Canyon Road 
was of immense safety, economic, and environmental importance 
to the citizens of Elko County and, in particular, the citizens 
of Jarbidge.
    Further, Resolution 74-98 also established that South 
Canyon Road was a fully recognized part of the county road 
network. The resolution ordered the county road department to 
immediately implement action to fully restore the South Canyon 
Road.
    Board of County Commissioners is charged with public trust 
and thus obligated to protect the right-of-way and access of 
county roads and to protect the economic and environmental 
health and general welfare of the county for its citizens. 
Consequently, when the county determines through legislative 
findings that an emergency exists, which it certainly did, it 
is indeed questionable that there is any higher authority in 
this land that can overrule that action at a county level.
    The county took the correct legal position and began the 
reconstruction of the road. The rest is obviously now history.
    One can legitimately ask: Is the condition of the bull 
trout really the issue? I offer a picture of the Jarbidge River 
taken 3 days after the peak flood, showing the extent of the 
volume of water, mud, and debris that flowed down that canyon. 
In this photograph, you are witnessing an event that produced a 
flow greatly in excess of any normal spring peak flow. In 
addition, boulders, trees, and other debris, countless tons of 
sediment washed down the channel for many days thereafter.
    But strangely enough, by every piece of evidence available, 
the bull trout not only survived this cataclysmic event, but 
have since prospered. It is indeed strange to me that the 
minute amount of silt introduced by the county could have ever 
been conceived to be so detrimental.
    No, the fight in South Canyon Road is not over bull trout 
or anything remotely associated with it. It's a fight between 
Elko County and the Forest Service as to who really controls 
the land and water and all the wealth associated with those 
resources.
    I'm sure you as Congressmen bear a significant burden of 
public trust at certain times. That burden rests on my 
shoulders as chairman of this commission. And it is with great 
difficulty that I conclude my comments.
    As far as Elko County is concerned, the South Canyon Road 
will be rebuilt. This county has the legal authority to do just 
that. And further, we have clearly stated our intention by 
resolution and action. Not being allowed to carry out that 
fiduciary responsibility of county government by any branch of 
the Federal Government will place in jeopardy every rural road 
in the West, and ultimately every blade of grass, every tree, 
every deposit of mineral wealth, every drop of water, and 
essentially every other property right as we know them today.
    The potential economic impact to the community of Jarbidge 
and, ultimately, the County of Elko, the State of Nevada, and 
the West in general, is beyond my wildest comprehension. No, 
this fight is not over the bull trout. In fact, it's over the 
very future of this great Nation. Thank you.
    Mrs. Chenoweth-Hage. Thank you very much, Commissioner.
    [The prepared statement of Mr. Lesperance follows:]

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                  STATEMENT OF JOHN CARPENTER

    Mrs. Chenoweth-Hage. Now the Chair recognizes Assemblyman 
John Carpenter.
    Mr. Carpenter. Madam Chairman, my good friend Jim Gibbons, 
my name is John Carpenter. I represent Assembly District 33 of 
the Nevada Legislature. District 33 is basically Elko County.
    I would like to go away from my prepared remarks and read 
to you what I think was a very blatant statement against the 
citizens of Nevada and especially Elko County. That was a 
statement--it was an open letter to the employees of the 
Humboldt-Toiyabe National Forest by Gloria Flora. I will read 
this to you to refresh your memory.
     ``This is the United States of America. All people have a 
right to speak and all people have the right to be protected 
from discrimination. However, I learned that in Nevada as a 
Federal employee you have no right to speak, no right to do 
your job, and certainly no right to be treated with respect.
    ``I could go on and on with examples of those of you who 
have been castigated in public, shunned in your communities, 
refused service in restaurants, kicked out of motels, just 
because of who you work for. And we cannot forget those who 
have been harassed, called before kangaroo courts, or had their 
very lives threatened.''
    Now, I submit to you that we need to find out the truth 
here. We need to find out if any of these accusations are true. 
And I think it rests with you people that have the right to 
find out whether anyone was threatened, their lives were 
threatened, whether they have been kicked out of any motels, or 
have not been able to be served in a restaurant.
    Now, you know we can talk; we have the constitutional right 
to disagree. Jim and I know that on many times people did not 
agree with us and they gave us the devil. But that's what we 
accept when we get into political office.
    And so our right to speak against what we think is wrong is 
an inherent value of the United States of America. But we do 
not have the right to discriminate against anybody or to 
threaten them. And if these things are happening in our town, I 
want to know so that we can correct it. I did a little 
investigation on myself, by myself through myself, to these 
people and found very little. But I think that if any of these 
things are true, we need to find out about it.
    I am here to represent all of those who will not be able to 
testify today. It would be much better if the people in the 
audience were to testify, not just the bureaucrats and the 
politicians. It is the ordinary citizen and the legitimate 
users of the forest who have the horror stories to tell. I will 
do my best to cover for them.
    We are here today because of the frustration and distrust 
in the Federal Government. This frustration and distrust runs 
deep, all the way from the district judge in Las Vegas who 
wrote, ``The Federal Government through its various 
bureaucracies have unrelentingly and systematically sought to 
close out the residents of the State of Nevada from Federal 
lands. This is sought to be accomplished through a myriad of 
excuses, mostly environmental, few if any being valid in my 
opinion.''
    All the way to my neighbor who asked, ``What is going on 
with the Forest Service? What is wrong with them, destroying 
roads and denying access?''
    This level of mistrust and frustration is reaching the 
boiling point. Ranchers have been subject to one more reduction 
in grazing permits. Snowmobilers can no longer use their 
favorite canyon.
    Another case in point: the Forest Service was actually 
going to stop the flow of one of our springs and cover it with 
black dirt. The Kelly Springs Work Party was organized to 
prevent this from happening. Today, the water is running cold 
and clear for wildlife and livestock.
    The goshawk was a species that was going to shut down one 
of our great mines. Never mind that a few hundred people would 
be thrown out of work. It took a congressional hearing, 
undisputed scientific evidence, and people power to derail this 
debacle.
    Now we have the South Canyon Road. What is behind the 
closing of this road? The Forest Service cannot stand for 
someone to disagree with them. I ask you what is the use to 
have public input when they are going to do what they want to 
anyway? Another roadless area puts a feather in their cap with 
the Clinton administration. The Clintonites say the public 
wants more roadless areas. Scientific polls completed since 
Clinton announced his roadless public lands indicate just the 
opposite.
    The Paragon Foundation, a public nonprofit organization in 
New Mexico, released the results of a nationwide poll which 
indicates 67 percent of the people believe that we have enough 
protected wilderness and 68 percent thought protecting jobs, 
communities, and industries was more important than wilderness 
areas.
    When they close roads, they create more wilderness; one 
more way to deny access to the elderly, the disabled, and young 
families. The Federal Fish & Wildlife Service gets a chance to 
flex their people-control muscles. The NDOW report proves the 
bull trout are not threatened. The Endangered Species Act is 
not about helping species. It's about property and people 
control. The bull trout listing is as flagrant a violation of 
the Endangered Species Act as has ever been fabricated.
    I'm out of time. I hope you will ask me some questions 
about what went on in regard to the listing of the bull trout. 
I thank you for being here.
    Mrs. Chenoweth-Hage. Thank you.
    Mr. Carpenter. Good to see you, Jim.
    Mrs. Chenoweth-Hage. I thank you, Assemblyman Carpenter. I 
want to let you know without objection your entire testimony 
will be entered into the Record. If you have further comments, 
the record will remain open for 10 working days for you to 
submit them for the Record. Thank you very much.
    [The prepared statement of Mr. Carpenter follows:]

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                STATEMENT OF CHARLES M. NANNINI

    Mrs. Chenoweth-Hage. The Chair recognizes Commissioner 
Nannini.
    Mr. Nannini. Thank you, Madam Chairman, Congressman 
Gibbons. For the record, my name is Mike Nannini. For the past 
7 years I have represented District One in Elko County as a 
County commissioner, in which the community of Jarbidge is 
located.
    Since 1993 I have been the liaison member for the 
commissioners to the local U.S. Forest Service, along with 
Commissioner Skelton and County Manager George Boucher. Our 
affiliation with the Forest Service has been one of 
professionalism of which we have had a great working 
relationship, taking on several projects together. We 
accomplished many assignments during this timeframe, some that 
we are still working on, although the relationship between us 
has been severed.
    About a year and a half ago, the Forest Service closed the 
South Canyon Road, which is approximately one mile and a half 
before the start of the wilderness area. They did so without 
any notification to myself or any other officials at the county 
level. I will mention at this time that under no circumstances 
has the Forest Service ever indicated during our liaison 
meetings that the South Canyon Road did not belong to Elko 
County.
    In 1995 the South Canyon Road was devastated by one of the 
worst floods in its history, which also caused extreme damage 
to roads leading into the Jarbidge community. The county 
immediately traveled to Jarbidge to open the roads so that 
community members could have access to their property and 
community lands. While we were there with the men and 
equipment, we also began making plans to repair the South 
Canyon Road. During one of our planning meetings, the Forest 
Service approached us with an offer to help fix and restore the 
road. They added that they had the means to qualify for a 
$462,000 grant and, furthermore, could obtain additional 
funding throughout the road building process.
    Due to the fact that commissioners felt we had an excellent 
working relationship with the Forest Service, we agreed we 
would cooperate to repair the road and get it back to a normal 
state. Needless to say, we appreciated their concern and their 
willingness to help during these trying times.
    The people of Jarbidge have relied on the South Canyon Road 
for access to recreational areas, in addition to depending on 
it for safety reasons. They have used the road to keep in 
contact with fire crews and to help stage a fire line when a 
huge fire in 1992 crested the ridge and threatened the small 
community.
    Moreover, the South Canyon Road had been a very popular 
fishing spot with its serene and picturesque beauty, as well as 
providing the closest access to wilderness areas for seniors, 
special needs individuals, and others that are unable to do a 
lot of hiking. It also provides an entry to the wilderness 
trailhead, which is economically beneficial to the Jarbidge 
community.
    After the Forest Service closed the road, the Elko County 
Commissioners attempted to reopen it. Under no circumstances 
did we ever feel that we were operating under an emergency--
that we were not operating under an emergency situation. The 
Forest Service had proceeded with renovation of a road up to 
the first 900-foot wash-out. At each of the meetings they had 
indicated they had filled out all the necessary paperwork to 
obtain a rolling stock permit and had entered essential permits 
with the U.S. Army Corps of Engineers to enter the waters of 
the U.S. During the time we were under construction on the 
South Canyon Road, a Federal judge in Reno issued a restraining 
order and insisted that construction be terminated.
    As law abiding citizens, we followed his orders. I felt 
that we tried to discuss the situation in an honorable manner. 
And my personal perception on the matter was that it could be 
resolved diplomatically. With this sensibility, I was able to 
convince Senator Harry Reid into sitting with us as a mediator 
while all parties concerned could air their differences, 
express their viewpoints, and attempt to come to compromise.
    We seemed to be in agreement and to have a good 
understanding. It was perceived that we were able to make some 
progress. However, at our third and final meeting on April 19, 
1999, it became apparent that the Forest Service and Trout 
Unlimited were unwilling to reopen the South Canyon Road. At 
one point during the heated conversation, there was a glimmer 
of hope that ATV travel would be allowed up the old road to the 
Snowslide Gulch with river crossings and a mountainside trail 
to the wilderness trailhead.
    Hope faded when the Forest Service insisted on a 40-inch 
mountainside trail. Additional alternatives laid out on the 
table actually had nothing to do with the South Canyon Road. 
Nevertheless, we took the proposal back to the full Board of 
Commissioners and it was denied. As far as we were concerned, 
there is no alternative to road replacement.
    We feel that the South Canyon Road, also called an RS 2477 
road, is a county road. It was in place during the early 
1900's, which was before the Forest Service was in place. The 
county has used men and equipment to maintain the South Canyon 
Road on a yearly or an as-needed basis since the early 1950's.
    I will mention once again that there has never been a time 
when the Forest Service has ever indicated that the South 
Canyon Road did not belong to Elko County. Furthermore, they 
have never discouraged us from maintaining our road. I feel 
that the South Canyon Road debate has been a pawn in a much 
bigger issue of who has the power to control.
    The day after the Forest Service closed the South Canyon 
Road, the sign that marked the start of the wilderness area was 
placed in front of a dirt barricade that closed the road, which 
is evidence to us that the Forest Service wanted to extend the 
wilderness area. This action by the Forest Service implied that 
they had no concern for the citizens of Jarbidge, the people of 
Elko County, and certainly no interest in the hundreds of 
individuals that have visited this area during the past several 
years.
    On a year-round average basis, Jarbidge is a community of 
about 30 people, although in the summer months its inhabitants 
number approximately 100 people. Seniors and retired persons 
make up the majority of the population of this small town. The 
South Canyon Road provides an access for individuals that may 
have limited recreational abilities. Furthermore, the ability 
to forewarn citizens of a pending fire is nonexistent due to 
the road closure, in addition to placing a damper on the 
economic future of Jarbidge.
    At the time of the flood, Elko County was in position to 
restore the South Canyon Road. However, we put our trust in the 
Forest Service to honor their word and; with our willingness to 
cooperate, we thought the process would go smoothly. Had the 
Forest Service done what they said they were going to do, we 
would not be here today discussing this issue.
    Obviously, it is impossible to enlighten you with firsthand 
information in its entirety. However, I'm willing to field any 
questions you may have regarding this situation. I appreciate 
your willingness to come to our county to listen to our 
concerns, and I hope you can relate to our travesty that we 
have endured. I thank you for your time and cooperation.
    Mrs. Chenoweth-Hage. Thank you, Commissioner, for your 
testimony.
    [The prepared statement of Mr. Nannini follows:]

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    Mrs. Chenoweth-Hage. I want to thank all the witnesses for 
their testimony. Now I recognize Congressman Gibbons for his 
questions.
    Mr. Gibbons. Thank you very much, Madam Chairman. I would 
first like to turn to Ms. McQueary. In your testimony earlier, 
you mentioned that there was a closure along the South Canyon 
Road from Snowslide Gulch to Perkins Cabin, I think sometime in 
the 1980's?
    Ms. McQueary. Yes.
    Mr. Gibbons. Could you tell us what the reasons were for 
that closure? What regulatory authorities or citations were 
given for the closure of that portion of the road then?
    Ms. McQueary. The wilderness area in the Jarbidge was 
enlarged at that point in time. When they closed the road, they 
ripped it and reseeded it. It was under a wilderness, it was 
under an act of Congress, not an administrative decision by the 
Forest Service.
    Mr. Gibbons. OK. You indicated also that the cost of repair 
of the 900-foot to 1,000-foot section of this road was 
approximately $426,000?
    Ms. McQueary. $420,000. That figure was provided to us when 
we met with the U.S. Attorney's office for mediation in the 
proposed litigation against Elko County. The copy of that 
spread sheet was attached as one of the exhibits to my 
testimony that was provided to you.
    Mr. Gibbons. With that in mind, if the Forest Service were 
to repair the full 17--the full mile and a half, I believe you 
said, of road that needs to be repaired in that area, is it 
your belief that would be about $3.6 million for a mile and a 
half of dirt road?
    Ms. McQueary. Actually, it wouldn't be quite that bad. 
There are significant portions of the road that are still 
impacted. There are four bad spots, I would say. You have over 
a million, I guess. 1.2 million, approximately, if you use 
Forest Service construction techniques.
    Mr. Nannini. Let's hope they don't.
    Mr. Gibbons. A million here, a million there. We've 
forgotten how to build a dirt road.
    Commissioner Lesperance, let me ask you a question as well. 
During the 1995 flood of this river in the South Canyon area, 
there was also one in Lamoille.
    Mr. Lesperance. Correct. It was a county-wide situation, 
but the two hardest hits were the South Canyon and Lamoille.
    Mr. Gibbons. The road was washed out in Lamoille, was it 
not?
    Mr. Lesperance. Pretty severely damaged. A lot of boulders 
came off the mountain. It was closed in several places. Several 
cabins destroyed. Fair amount of damage.
    Mr. Gibbons. Was that road on public land?
    Mr. Lesperance. Yes. Well, it was Forest Service land, but 
that road was fixed very quickly.
    Mr. Gibbons. It would be under the same situation? In other 
words, it was a county road on Forest Service-managed property?
    Mr. Lesperance. I believe it is not. I think the Forest 
Service has control of that road at this point in time.
    Mr. Gibbons. But they did repair it?
    Mr. Lesperance. It was repaired as rapidly as it could be.
    Mr. Gibbons. After the county had made an effort to 
stabilize the South Canyon Road, are you aware of any efforts 
by the Forest Service to go back in there and undo what the 
county had attempted to do?
    Mr. Lesperance. Very definitely. It is probably remiss on 
my part; there is an excellent video the county has obtained. I 
think under your 10-day rule I can still submit that.
    Mr. Gibbons. I ask you for the record to submit that to our 
committee.
    Mr. Lesperance. That video clearly shows what the Forest 
Service did to, in their minds, restore the canyon to a 
condition somewhat similar to what they must have viewed it to 
be before the county decimated the situation.
    I will remind you the only thing the county did was to move 
a piece of heavy equipment in there to divert the channel from 
the road back to the original channel. The only piece of 
equipment that ever touched the water under any circumstance 
was the end teeth on a backhoe. And that simply breached the 
side where the stream washed out, placed it back into the 
original channel.
    Furthermore, we have documentation that despite the 
tremendous amount of silt the county placed in the river at 
that point in time, which we hear swept clear to Idaho, that in 
fact a camper was fishing at the termination of the 
construction of approximately a thousand feet and readily 
caught fish that afternoon in rather clear water.
    The amount of sediment the county put in the road as 
compared to what actually happened or what is clearly visible 
on our video of the Forest Service activity is inconsequential. 
The amount of sediment even that the Forest Service put into 
the river in their construction activity, which was very, very 
significant, was many, many times whatever the county did.
    As far as construction of the road, it is my opinion that 
the county could easily go back there and fix the road clear to 
the trailhead, and we are prepared to do so. And it would not 
cost a great deal of money. We would not use, as my good friend 
Kristin McQueary said, we will not use Forest Service 
techniques, however.
    Mr. Gibbons. The issue becomes one of whether or not the 
remedial efforts of the Forest Service were in fact of greater 
damage to the habitat at the time than the efforts of the 
county.
    Mr. Lesperance. The county, to my knowledge, did not knock 
down a single tree. The county simply removed the stream from 
the road bed and put the stream back into the channel and then 
reconstructed the road bed where the stream had removed the top 
soil.
    The Forest Service came in and, much like a mine 
reclamation project, completely reclaimed the road, placed it 
back. The side of the mountain was now contoured down over the 
road. And I cannot tell you how many trees were knocked down in 
the process. The area is scattered with downed trees at this 
point in time. It's difficult to walk in a straight line 
because you have to walk under the downed trees or step over 
them or whatever.
    What is of significance and what is totally amazing to me--
and you may or may not have testimony today--but again I 
believe our video will document this. One of the concerns about 
the bull trout is the shading effect of the canopy being very 
critical on water temperature. The area that the Forest Service 
restored no longer has a canopy. All the trees were removed.
    Mr. Gibbons. Assemblyman Carpenter, John, it's always good 
to see you, and I appreciate your testimony. Did you in your 
investigation ever hear of anyone disparaging the Forest 
Service? In other words, kicking them out of a hotel, or a 
restaurant, et cetera, that's been set forth by Ms. Flora?
    Mr. Carpenter. I went and talked to Ben Siminoe, who is 
here today, and asked him directly if he knew of any such 
events. He said that he had never heard of anyone being 
physically threatened with harm. He said that he had heard that 
some people were asked to leave, some government employees--I 
suppose they were Forest Service employees--asked to leave the 
Shiloh Inn.
    I went to the Shiloh Inn, and I talked to the lady who is 
now the manager. She said that she had been the manager since 
April. Before that she had worked on the desk for about 3 
years. She did not absolutely remember of any incident like 
this happening. But she said if the time and the name could be 
given, they would investigate it.
    Mr. Siminoe also said that maybe there was an event 
happened at one of our pizza places. We got a few pizza places 
in Elko, and I didn't have time to go around and ask them if 
there was somebody who was not served at one of our pizza 
places.
    I think there was a couple of situations in our schools, 
but I think that they were handled quite effectively. I don't 
know what it entailed, you know. But that's the only thing that 
I could find out.
    But as far as anybody being threatened with physical harm, 
Mr. Siminoe did not know of any. This is a small community, and 
you usually hear of those kinds of incidents. I have never 
heard of any in my time here in Elko.
    Mr. Gibbons. Well, let me say that I agree with you 
wholeheartedly that if these incidents occur, we need to find 
out about them and we need to put an end to that type of thing. 
I will ask then for specific documentation. Because if anybody 
is threatened with bodily harm or injury, there should be a 
police report; there should have been a filing of some sort, 
some documentation around that we will have access to.
    It is our interest to make sure that the laws of this 
state, the laws of this county and the community of Elko are 
indeed followed and all people are treated equally under the 
law. No one is either above or beneath the law in Elko or 
anywhere else in this country, as I've said.
    Mr. Nannini, thank you very much for being here as well. 
Let me reaffirm your comments that you indicated where 
apparently Elko has contributed resources to the repair and the 
maintenance of the South Canyon Road for at least the last 40 
or 50 years. Is that what you indicated?
    Mr. Nannini. For several years, yeah. You know, I have been 
involved for the last 7 years. I just would like to mention 
just a few because we did have a good working relationship up 
to this situation with the South Canyon. We worked on the 
Powder House Campground, and it was at the bottom of the 
Lamoille Canyon. And the commissioners threw in $100,000. 
During heavy budget times, that's--I think that's significant, 
you know.
    We had a partnership where we developed a campground and 
put in restroom areas, stuff like that. We worked with the 
Forest Service on the Lamoille Grove restrooms, which is county 
property; and they worked with us. We worked with the Forest 
Service on the Harrison Pass. It's an ongoing project. They 
paved part of it, and then we're going over the top of the hill 
and paving all the way into the Ruby Valley area.
    We are working with them on the Blue Jacket Road, and we 
worked with them on the Jarbidge Road project, Jack Creek 
Bridge project, the North Fork Jack Creek Road. And we, of 
course, worked with them for title to try to give us a 
graveyard in the Jarbidge area, which we are all aware of.
    We worked with them consistently with the legal access to 
the private grounds, the Bald Mountain Road, Mountain City 
grant to upgrade the water system up there. We were working 
with them in the helipad for the Jarbidge area. We worked with 
them on the law enforcement agreement where it's a cooperative 
deal with the sheriff.
    And we have actually moved Forest Service equipment with 
Elko County equipment; Worked with Forest Ranger Dave Aicher on 
the Three Creek and the Bull Creek upgrade on the road 
situation over there.
    So you know, when I hear all these statements, you know, I 
have to laugh because that kind of atmosphere in Elko County is 
not happening. It's wild statements, and I think if you talk to 
the local forest people that they will tell you the same thing 
if they were allowed to speak.
    Mr. Gibbons. Madam Chairman, I have been asked by the 
Cattlemen's Association, not to have a stampede in the room 
here, but your 3 o'clock policy meeting is about to begin. They 
would appreciate any of you who are involved in that attending 
the Cattlemen's Association 3 o'clock policy meeting which will 
take place right now.
    Mrs. Chenoweth-Hage. I guess that's become part of the 
Record, too.
    Mr. Gibbons. When you're a public servant, you have to do 
what you have to do.
    The followup to all of that is that you have had a working 
relationship, cordial working relationship where there has been 
a great deal of support both from the Forest Service and the 
county over the years. So can I take it from your comments that 
you're surprised at some of the comments of the Forest Service 
about the intransigence of Elko County in this regard?
    Mr. Nannini. I'm just appalled at those kind of statements. 
I don't think that she even knows what has been going on. I 
don't think she has a handle on it. I don't think she cares and 
hasn't taken the time to find out.
    Mr. Gibbons. The fact that they moved the sign regarding 
the Jarbidge Wilderness Area to the end of the road, or to the 
end of the existing road now, does that indicate to you that 
the boundary of the wilderness area begins there?
    Mr. Nannini. That's correct. We felt that was the whole 
purpose, you know, is to extend the wilderness area. And when 
they put those two signs up and moved them in front of the berm 
that closed the Jarbidge Canyon Road, it was a definite 
significant situation there that we felt that was a statement 
saying that this is where we are going to start the wilderness 
area from now on.
    Mr. Gibbons. Is that a different area than has been 
identified as the boundary of the wilderness area?
    Mr. Nannini. Oh, yes, it is. It's the start of the South 
Canyon Road, which is a mile and a half from where the 
wilderness trailhead begins.
    Mr. Gibbons. Now, let me ask Commissioner Lesperance one 
final question. With the fires that have taken place in Elko 
County over the last year, there's been a great deal of concern 
about the safety of the people. I think you mentioned that 
earlier. Does that concern you, the ability to access these 
areas? To stop or put fires out or to ensure the safety of 
people who may be in the area to be able to egress certain 
areas?
    Mr. Lesperance. Absolutely. As part of my testimony--you 
have two different testimonies, I believe. With the original 
one I do make reference to the fire. I make reference to the 
fires that have occurred not only in Elko County but in 
Northern Nevada.
    And what probably none of us have really come to grips with 
yet is that the greatest ecological disaster that has ever 
occurred in this State occurred this last year. We destroyed by 
fire nearly two million acres of land. Those fires were going 
as late as this week. We lost nearly 10,000 more acres of what 
I call one of the Nation's great jewels, and that's the range 
lands of the Great Basin. We lost nearly 10,000 more acres just 
this last week in Elko County.
    We have agency mismanagement occurring at a level that has 
created a fire state throughout northern Nevada that is 
unacceptable for the safety and the welfare of the people. 
Nowhere in my knowledge--nowhere is a community more trapped by 
a potential fire than the community of Jarbidge, Nevada.
    I shudder to think what would really happen if a fire storm 
occurred there. I suspect lives would be lost. Without proper 
access to get to those fires, we are placing those individuals 
or certainly those up in the mountains in the summertime, 
campers, fisherman, or whatever, in great peril. I can't stress 
that point enough.
    In that situation, as long as the mismanagement that we are 
dealing with at this point in time continues, this situation 
will only get worse. It will not get better at this point in 
time.
    Mr. Gibbons. Madam Chairman, I see my time has lapsed. 
Thank you for the opportunity.
    Mrs. Chenoweth-Hage. Thank you, Mr. Gibbons.
    Ms. McQueary, I wanted to ask you, or Commissioner 
Lesperance or Commissioner Nannini, either one of you. First, 
Ms. McQueary, when you negotiated with the Forest Service a 
couple years ago, or 3 years ago to maintain that road, did you 
have any idea or was there any indication you may be abrogating 
any rights the county may have under your 2477 right-of-way?
    Ms. McQueary. As I was not counsel for the county at that 
time, I would turn that question over to Commissioner Nannini, 
who was there.
    Mr. Nannini. Well, I think--I don't know that we were aware 
we were giving up any rights. It was a situation where we felt 
it was our road. We--since the early 1950's, we were 
maintaining that road. We were--we had our blades on there. We 
had our equipment on there. We--there was never a mention that 
it wasn't our road, you know? All they did is, they came in and 
offered help to rebuild the road so that we could get it back 
to where the citizens of the area and the outside citizens 
could use that camp, those campsites and travel to the 
trailhead so they can get into the wilderness area.
    You know, one thing that has never been mentioned and I 
would like to bring out is there's a restroom facility at this 
trailhead at the top of the trailhead that is plumb full. And 
nobody has figured out yet how they are going to empty that. It 
doesn't sound like much, but when it overflows and gets into 
the Jarbidge River, I'm a little bit nervous about that whole 
situation.
    Mrs. Chenoweth-Hage. That would endanger the bull trout 
habitat.
    Mr. Nannini. Yes, they might not be very good eating.
    Mrs. Chenoweth-Hage. Ms. McQueary, in today's Elko Daily 
Free Press, Chris Fotheringham wrote about $1.3 million in 
unspent ERFO funds received by the Forest Service. What do you 
know of these funds and the Forest Service use and/or plans for 
these funds?
    Ms. McQueary. The Forest Service as part of the road 
reconstruction project applied for and received ERFO funds. The 
road construction got put off, and they received an extension 
from--I have a copy of their extension letter in here. I do not 
know what money that they used when they went and allegedly 
tried to stabilize the 1,000 feet last winter. I don't know 
where they found that money.
    Mrs. Chenoweth-Hage. Do you know if this money was used for 
the contract that they let to do the earth work that has been 
referred to?
    Ms. McQueary. I don't know the answer to that one either.
    Mrs. Chenoweth-Hage. Have you seen the contract?
    Ms. McQueary. I have not seen the contract.
    Mrs. Chenoweth-Hage. OK. I want to ask you, at any time has 
the Forest Service denied the early heavy use of the South 
Canyon Road as testified by Bill Price?
    Ms. McQueary. Madam Chairman, I didn't catch the first part 
of your question.
    Mrs. Chenoweth-Hage. At any time has the Forest Service 
denied to you or the commissioners the early heavy use of the 
South Canyon Road as testified to by Mr. Price?
    Ms. McQueary. The only response we have received from the 
Government on whether--their evidence that it was not an RS 
2477 road is the Schrader Report which Mr. Price told you 
about. When we went into the mediation in September with the 
U.S. Attorney's office, we made an agreement that we would 
share our evidence showing that it was an RS 2477 road so they 
could reevaluate their position. We asked that they also 
provide us their evidence that it was not an RS 2477 road. They 
sent us the incomplete copy of the Schrader Report.
    We have repeatedly asked them for any additional 
information that they may have. And they have not been in 
contact with us at all.
    Mrs. Chenoweth-Hage. That's unfortunate. If Mr. Price's 
analysis is correct, what would keep the county from just going 
ahead and asserting your rights to maintain the road?
    Ms. McQueary. That's what Elko County did on July 21, 1998, 
when they sent the road crew up there to reopen the road.
    Mrs. Chenoweth-Hage. OK. Commissioner Lesperance, that's a 
very impressive picture that you show, the point that you made 
about the amount of sedimentation in the stream as compared to 
the minor maintenance work that the county was doing.
    Mr. Lesperance. I might add that picture is taken very 
close to the present termination of the road. That gives you an 
idea of the significance of the road as it was. And that bridge 
did not wash out. It looks like it's perilously close to 
washing out, but the damage occurred above there.
    I might add when you look at that road we hear how 
difficult roads are to build in canyons by the Forest Service 
and everything else. That road is quite passable and always was 
quite passable.
    I will remind the committee that I have enjoyed Elko County 
in one form or another nearly all my life. As a young man 
having a young family in the 1960's, I routinely camped in the 
Jarbidge area. We climbed all the mountains. I was successful 
in getting all of my family to the top of the Matterhorn.
    To make a long story short, I routinely drove a two-wheel 
drive Falcon station wagon with my entire family in it to 
Perkins Cabin, where I always camped.
    Mrs. Chenoweth-Hage. Interesting. I want to get back to you 
with some questions regarding economic impact, but I want to 
ask Mr. Carpenter first, what was the scientific proof used by 
the Federal Government to permanently list the bull trout?
    Mr. Carpenter. Thank you, Madam Chairman. By profession I'm 
a cowboy and sheepherder. And I suddenly became embroiled in 
this bull trout issue. And when the Fish and Wildlife people 
had a hearing in Jackpot, I went up there just to see what was 
going on because I have been very disturbed about what I read 
about what is happening under the Endangered Species Act.
    So I tried to do some research on this subject. And in 1994 
the bull trout were recognized as a candidate for listing under 
the Endangered Species Act. Further review by the U.S. Fish and 
Wildlife Service has resulted in the finding that the Jarbidge 
River population segment of the bull trout is not warranted for 
listing. This finding was made on March 13, 1977.
    Why was it subsequently listed? In my research, the best 
thing that I could find is that there was a series of court 
cases filed by environmental groups that when the judge would 
come back and say use your best science, which they must under 
the Endangered Species Act, they finally got to the point that 
they thought: we need to list this to get the court off our 
back.
    On March 28 of 1997 or May 1997, the first Environmental 
Assessment was released for the completed, for the 
reconstruction of the road. And on June 2, the Forest Ranger, 
he made his decision which was to reconstruct the four sections 
of the Jarbidge Canyon Road. And there are about six or eight 
things listed here, why they felt that road needed to be 
reconstructed. And this is in their Environmental Assessment 
that they spent thousands of dollars upon. If you go up there 
today, you'll find pins in the ground where the road was to go. 
You'll find ribbons on the trees. They've done a great deal of 
work.
    That work was done by the Forest Service people here in 
Elko in cooperation with the county, with no outside influence 
from Trout Unlimited or the higher-ups in the Forest Service. 
They concluded we must rebuild this road. This was appealed by 
Trout Unlimited.
    So on June 10, 1998, there was a proposal by the Fish and 
Wildlife Service to list the bull trout as threatened. And on 
June 29, 1998, the preferred alternative at that time under the 
new Environmental Assessment was to construct a trail.
    Now, this decision sounds a little fishy to me, especially 
when these fish have been around for centuries. How in 1 year 
can things change if it is not political? The only scientific 
evidence which has been presented is the March 30, 1999, report 
by our own Nevada Department of Wildlife which maintains the 
fish are not threatened.
    And the first Environmental Assessment contains the 
statement, ``The probability is very low that the river between 
Snowslide and Pine Creek are used for spawning, rearing, or 
adult resident trout. The primary reason for this are a lack of 
spawning gravels and excessively high temperatures in the late 
summer. Recent surveys indicate that most if not all spawning 
by bull trout occurs in the headwaters of the Jarbidge River 
above the Snowslide Gulch.''
    So in reality, the fish are up there in the wilderness area 
where it's cool enough for them to live. This fact is 
substantiated in the NDOW report. I thought that Terry 
Crawforth was going to be here, but I haven't seen him, to 
present his findings. Their findings say that the bull trout 
are occupying all the habitat suited to them.
    I think that the chief problem with the fish is because 
they are eating each other. And this is substantiated in the 
Fish and Wildlife, in their final rulemaking to list the fish. 
And it says, ``Bull trout are opportunistic feeders with food 
habitats primarily a function of size and life history 
strategy. Resident and juvenile bull trout prey on terrestrial 
and aquatic insects,'' another word I never heard of; a few 
other things, but something I do understand, ``and small 
fish.''
    So, the adult migratory bull trout, which is some bull 
trout that would go down from the areas high in the wilderness, 
they are known to feed on various trout and salmon species. So 
I think they are eating each other.
    Mrs. Chenoweth-Hage. I think you're right. I want to say 
that is very interesting testimony. And if you have a report 
there, I wonder if we can enter the entire report into the 
record?
    Mr. Carpenter. Yes, I will be glad to.
    [The information referred to follows:]

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    Mrs. Chenoweth-Hage. You know, it's very interesting. In 
Idaho they listed the bull trout in certain areas, too, that 
are streams where salmon return to spawn. So that's a raging 
debate. I thank you for bringing it to our attention.
    I do want to ask Mr. Nannini, Commissioner Nannini, 
apparently during the flood in 1995, the nearby Lamoille Canyon 
suffered the same kind of damage as did Canyon Springs. And the 
Lamoille Road was repaired so quickly. Why wasn't the road in 
question, South Canyon Road, repaired?
    Mr. Nannini. Lamoille Canyon probably averages 2,000 people 
a day during the summertime for usage. Somewhere around there; 
a thousand. They have heavy traffic in that area and a lot of 
people, and it's well-known. And had it not been repaired, it 
would have really had a lot of people here in this room today. 
South Canyon probably numbers in the hundreds during the summer 
season.
    So I think just notoriety of the area, accessibility to the 
area, and that's probably the reason.
    Mrs. Chenoweth-Hage. What you're telling us is it was 
public pressure from recreation and tourism?
    Mr. Nannini. That's correct.
    Mrs. Chenoweth-Hage. Let me ask Commissioner Lesperance, 
the South Canyon Road doesn't have the same demand for tourism, 
obviously. But are there property rights up there?
    Mr. Lesperance. There certainly are. I think we ought to 
back up a little bit and talk about property rights in general 
that are being infringed upon by the current philosophy of the 
Forest Service, which undoubtedly will be followed by a similar 
philosophy in the Bureau of Land Management in a matter of 
time. That philosophy is--it was clearly described a number of 
years ago when I was a young professor at the university 
attending many of these meetings and trying to draw attention 
to the fact that the government of the United States was 
insisting that they have full control over the public lands.
    And I have attended many, many seminars where the technique 
of obtaining title to all property within the boundaries of the 
Federal property was discussed. The No. 1 item is always to 
obtain the water. No. 2 item is to close the roads.
    Mrs. Chenoweth-Hage. Very interesting.
    Mr. Lesperance. When that happens, we must remember that 
the ability to take those resources and produce them into 
wealth becomes extremely limited and perhaps totally stopped. 
You must never forget, all wealth ultimately only comes from 
the land and the waters associated with it.
    Mrs. Chenoweth-Hage. No, we can't be reminded of that too 
often. And ultimately the focus of this whole issue really 
isn't the bull trout, is it?
    Mr. Lesperance. Absolutely not.
    Mrs. Chenoweth-Hage. The focus is the road.
    Mr. Lesperance. The focus of this issue is: Who will 
control the future of this country, the Federal Government or 
the people that made it what it is?
    Mrs. Chenoweth-Hage. Well, I wanted to ask you, what impact 
will not rebuilding the road have on the local economy in 
Jarbidge?
    Mr. Lesperance. It will definitely hurt the local economy. 
It's a great tourist-focused community. Many of us like to go 
up there. It will have an impact on me. It will have an impact 
on my grandchildren and every person in this room in one form 
or another. But it won't stop there, that's the problem, 
because the impact will grow and grow and grow.
    This is a battle line. This is a line in the sand. Do we 
allow this to happen and lose one more freedom? Or do we 
finally say enough is enough? And this County Commission is 
saying enough is enough and we will rebuild that road and we 
will put it back to where it was, come hell or high water.
    Mrs. Chenoweth-Hage. The hearing will come to order, 
please. I want to ask Commissioner Nannini, what do you believe 
the cost of rebuilding that road will be? And the future 
maintenance, if you were to do the rebuilding?
    Mr. Nannini. You know, the maintenance on the road is 
insignificant. I think the numbers that we have is around a 
million-and-a-half to two million dollars to rebuild the road. 
That's if we go all the way up to the trailhead.
    You've got to understand, and it doesn't seem like 
everybody does, this road wasn't wiped out. There's only, there 
was a 900-foot stretch that we built, and the Forest Service 
unbuilt. It was wiped out. And then the rest of the areas, the 
other two areas there was about an 80-foot stretch; and there 
was about a 90-foot stretch. At the very top where the 
trailhead is, a whole mountain of rocks came down on top of the 
road, you know. That's the area that will require lots of funds 
and lots of equipment to redo.
    But it wasn't totally devastated, the road. It was just in 
areas where the water was bunched up and crossed over.
    Mrs. Chenoweth-Hage. Were the Commissioners consulted 
before the reconstruction of the road was done under contract 
by the Forest Service?
    Mr. Nannini. Absolutely not. That decision was given to the 
people in Jarbidge. It was actually delivered to them on a 
Commissioner day. None of us were notified. Dave Aicher, who is 
the Forest Ranger for that area, took a trip up into the area, 
met with the people of Jarbidge in their community hall, and 
told them at that time that that road would not be rebuilt.
    Nothing like that was ever mentioned in all these meetings 
that we were having with them. There was never any indication 
of that up to this point. It was all: We were working together; 
things were great; we were getting the funds; we were going 
forward.
    There was never an indication of a change. Not one of us 
were notified beforehand of the final decision until it was 
announced.
    Mrs. Chenoweth-Hage. Ms. McQueary, was there NEPA 
compliance by the Forest Service in this? Was there an 
Environmental Impact Statement?
    Ms. McQueary. I have not seen one. Certainly in the time 
that they took, they didn't have time to go through all the 
process. We haven't gotten any documentation of NEPA 
compliance. We haven't had a comment period to my knowledge.
    Commissioner Lesperance, you want to make a comment on 
that?
    Mr. Lesperance. No, I would be happy to.
    Mrs. Chenoweth-Hage. Commissioner?
    Mr. Lesperance. There has been no compliance. And I might 
add, NEPA calls for the best method. And I can assure you, what 
the Forest Service did in Jarbidge and South Canyon was not the 
best method. It was the most devastating kind of action they 
could have possibly have taken. It was as if it was to us as 
County Commissioners: This is in your face. And that is 
precisely what my feeling as chairman of the Elko County 
Commission has been and is and will continue to be until the 
Forest Service officially apologizes for the actions they took.
    Mrs. Chenoweth-Hage. That's very interesting. In your 
opinion, was that--.
    Mr. Lesperance. Madam Chairman, yes, that is my opinion, in 
case you doubted it.
    Mrs. Chenoweth-Hage. Was there an environmental impact that 
occurred as a result of their actions?
    Mr. Lesperance. I've already indicated that the canopy of 
trees was removed. There is downed timber everywhere in this 
900-foot section. And realize I'm in the reclamation business, 
and I evaluate reclamation projects all the time. I might add 
that their reclamation project is a total failure.
    Mrs. Chenoweth-Hage. Was increased sedimentation there?
    Mr. Lesperance. Again I'm totally remiss for not having 
documented that with the video we have, but that video clearly 
shows the amount of sedimentation that Forest Service project 
placed in the river.
    Mrs. Chenoweth-Hage. Would you be willing to, would you 
please send a copy of the video to the committee?
    Mr. Lesperance. I'll even bring myself with it if you wish.
    Mrs. Chenoweth-Hage. I wanted to ask two final questions of 
Mr. Nannini, and we will excuse this panel.
    Mr. Nannini, are there mining claims up above the South 
Canyon Road? And are they active? Or what is the state of the 
mining claims? And do you have any evaluation on them or 
numbers?
    Mr. Nannini. I don't know if we have the numbers. It was my 
understanding through the people of Jarbidge, the old-timers 
that have been there a long time that there were two mining 
claims, known mining claims up in that area; but I don't have 
that information.
    Mrs. Chenoweth-Hage. What about the impact on real estate 
values in Jarbidge with this road being closed?
    Mr. Nannini. Well, the real estate value would be hindered. 
The amount of traffic that flows up there during the 
summertime, of course, now that they've taken the South Canyon 
Road. You've got to understand that's where a lot of the people 
that visited that area went up there and did their camping. You 
know, you can picture a family spending the night or the 
weekend and cooking out and then going down to the river and 
fishing and doing some hiking, stuff like that. I think there 
was like four, five campground areas.
    Then for the folks that like to hike, it was a trail. There 
was a road up to the trailhead, and they parked their cars 
there. There was a nice parking area. As I mentioned, there was 
a restroom facility. All of those folks that like to do that 
kind of thing, are in shape to do that kind of thing, parked 
their vehicles and walked the mountains in the wilderness area. 
That was the easiest and best way to go.
    Mrs. Chenoweth-Hage. I want to ask one final question. This 
really is my final question. Do any of you on the panel 
remember the exact words on the sign that said this is the 
beginning of the wilderness area? Or do you have a copy of that 
sign? Or a picture of it?
    Mr. Nannini. I think we have a picture of that.
    Mrs. Chenoweth-Hage. Would you be willing to submit it for 
the record, please?
    Mr. Lesperance. I will make sure that you get all 
documentation of that nature. And we will go back and review 
all of our files and prepare a copy of this video as well and 
have that formally submitted to the committee as rapidly as we 
possibly can.
    Mrs. Chenoweth-Hage. Thank you.
    Ms. McQueary. Madam Chairwoman, for the committee's reading 
pleasure I have compiled a number of Forest Service documents 
regarding the South Canyon Road issue. In this it has 
biological assessments regarding the benefit of having the road 
replaced to not only the bull trout but to the administration 
of the Forest Service. It also has the economic specialist 
report indicating that road reconstruction would help the 
economy of Jarbidge.
    It talks about that only 1.2 percent of the watershed would 
be disturbed with road reconstruction. It talks about--these 
are all Forest Service documents. It talks about the whole road 
issue in perspective. I think it is important that you, as a 
committee, review these documents and see that this road can be 
put back in place with Elko County's interests and the bull 
trout interests both taken into consideration.
    Mrs. Chenoweth-Hage. Without objection, the full notebook 
will be entered into the record.
    Mrs. Chenoweth-Hage. I want to ask Mr. Gibbons if he has 
any further questions.
    Mr. Gibbons. No, I don't, Madam Chairman. Thank you very 
much.
    Mrs. Chenoweth-Hage. I want to thank this panel for your 
very, very interesting testimony. We may be asking you further 
questions.
    Mr. Gibbons. Mr. Carpenter?
    Mr. Carpenter. Madam Chairman, I don't believe that our 
head of the Division of Wildlife is here today. I would like to 
submit this for the record and--.
    Mrs. Chenoweth-Hage. Would you read the title of it?
    Mr. Carpenter. It's the Status of the Bull Trout in Nevada.
    Mrs. Chenoweth-Hage. And it's produced by?
    Mr. Carpenter. The Nevada Department of Conservation and 
Natural Resources, Division of Wildlife.
    Mrs. Chenoweth-Hage. And the date is?
    Mr. Carpenter. March 30, 1999.
    Mrs. Chenoweth-Hage. Thank you. And without objection, it 
will be entered into the record.
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    Mr. Carpenter. I would also like to say it won't cost very 
much to rebuild that road. I think we can organize a work party 
to do most of it.
    Mrs. Chenoweth-Hage. Next on the panel we have Mr. Caesar 
Salicchi, the Treasurer of Elko County; Mr. Matthew Holford, 
Nevada Chairman of Trout Unlimited; Mr. Terry Crawforth, Nevada 
Department of Wildlife; and Mr. Dick Carver, Nye County 
Commissioner.
    The hearing will come to order. I want to welcome our new 
panel of witnesses. And as has been explained to previous 
panels, it is the intention of the Chair to place all witnesses 
under the oath. If you would stand and raise your hand to the 
square.
    [witnesses sworn.]

STATEMENT OF CAESAR SALICCHI, TREASURER OF ELKO COUNTY; MATTHEW 
 HOLFORD, NEVADA CHAIRMAN OF TROUT UNLIMITED; TERRY CRAWFORTH, 
  NEVADA DEPARTMENT OF WILDLIFE; AND DICK CARVER, NYE COUNTY 
                          COMMISSIONER

    Mrs. Chenoweth-Hage. The Chair recognizes Mr. Ceasar 
Salicchi for his testimony.

                  STATEMENT OF CEASAR SALICCHI

    Mr. Salicchi. Thank you, Madam Chairman. I am Ceasar E. 
Salicchi. I reside at 91 Skyline Drive, Elko, Nevada. I am a 
life-long resident of Elko County for 72 years. I was raised on 
the family ranch in Lamoille, Nevada. As a young fellow, I had 
the pleasure to ride and hunt horseback in many mountains in 
Elko County.
    I have ridden or walked to most of the lakes in the Ruby 
Mountains. I also have ridden and hunted in the Jack Creek 
area, including Copper Basin. I have also ridden the Pequop 
Range. To me that was a joyous adventure to be in the beautiful 
mountains.
    In 1952, I contracted polio. This left me unable to walk 
without crutches and braces. Since then I have not been able to 
ride horseback or walk in the mountains. I have driven over 
many roads and jeep trails in my vehicle. I have always and 
will always enjoy the mountains in Elko County. I have taken 
many trips to Lamoille Canyon, Angel Lake, and the Jarbidge 
area.
    As time passes, I find it more difficult to go into many 
areas because of the management of the Forest Service. Many of 
the areas are shut off without regard for the physically 
challenged. And many of the roads in the Ruby Mountains have 
been shut off.
    The South Fork Canyon Road to Jarbidge has been shut off 
because of a washout. This road could be repaired and opened 
without any damage to the bull trout. A little common sense 
would go a long way to repair the road. There would not be near 
as much damage repairing the road now than in the spring 
runoffs. The spring runoffs cause rivers to jam, with rocks and 
sand running down the rivers. This would not be the case with 
repairing the road.
    I have also, all the parks I have visited provide for the 
physically challenged and are a pleasure to visit. There is no 
reason the roads going into the wilderness area and the camping 
areas of Elko County should be closed without regard to the 
physically challenged. I see no reason why the South Canyon 
Road cannot be opened to the benefit of the physically 
challenged.
    I thank you for the opportunity to present my testimony.
    Mrs. Chenoweth-Hage. Thank you very much, Mr. Salicchi, for 
your testimony.
    [The prepared statement of Mr. Salicchi follows:]
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                  STATEMENT OF MATTHEW HOLFORD

    Mrs. Chenoweth-Hage. Now the Chair recognizes Mr. Holford.
    Mr. Holford. Madam Chairman, Members of the Committee, I 
appreciate the opportunity to testify before this committee on 
this important matter.
    Trout Unlimited is a national organization dedicated to the 
protection and restoration of trout and salmon and their 
habitat. In Nevada alone, over 650 members volunteer their time 
and resources to protect and enhance the State's streams, 
rivers, and watersheds. We have a long track record of working 
with local communities, State, and Federal agencies to seek 
sound solutions to environmental challenges.
    The Jarbidge River is of particular concern to T.U. Members 
in Elko County and the rest of Nevada. The river is home to the 
southernmost population of bull trout in North America, and 
T.U. Has worked hard on the ground to improve the conditions 
for the fish.
    Two years ago, the Northeastern Nevada T.U. Chapter raised 
$10,000 to help build a bridge that replaced an ill-placed 
culvert on Jack Creek, a tributary of the Jarbidge. The old 
culvert had been a barrier to fish passage, and the project has 
reopened spawning habitat for the bull trout. Bull trout have 
since begun to repopulate Jack Creek.
    T.U. Has also sponsored a spring fencing project to protect 
Jack Creek and devoted hundreds of volunteer hours improving 
the habitat and management of Jarbidge watershed. As you can 
see, T.U. Members have dedicated a tremendous amount of time, 
energy, and resources to protect and improve the river for 
everyone's enjoyment.
    On a personal level, I'm a long-term resident of Nevada and 
of this area. I have been going to Jarbidge to fish and hunt 
since I was a teenager. Some of my first fishing experiences 
were on the East and West Forks of the Jarbidge River.
    T.U. Has long opposed the rebuilding the 1.5 miles of road 
from the Pine Creek campground to the trailhead. We have taken 
this position for two reasons. First, every scientist who 
looked at the issue has concluded that the road is bad for bull 
trout, bull and redband trout that live in the river. Second, 
the road has washed out repeatedly over the years, and the 
costs of repairing and maintaining the road probably outweigh 
the economic benefits.
    T.U. Has consistently played by the rules and effectively 
voiced its opposition by using the well-established appeal 
process to challenge the Forest Service's initial decision to 
rebuild the road. Unfortunately, the County Commissioners and 
their supporters choose not to pursue administrative or legal 
actions, or indeed negotiations, to resolve this issue.
    Instead, they sent road crews up the South Canyon to 
rebuild the road. They did this despite being warned that 
working on the road and in the river would violate State and 
Federal law. The road crews channelized a 900-foot stretch of 
the Jarbidge River, damaging the aquatic habitat while 
stabilizing the site.
    The refusal of the proponents of the road to participate in 
the administrative and legal processes available to them, but 
rather to take or threaten actions outside the established 
legal framework has imposed significant costs on the county. 
The county's roadwork, which achieved nothing once it was 
abandoned in the face of the cease and desist order from the 
Nevada Division of Environmental Protection, almost certainly 
cost county taxpayers hundreds of thousands of dollars.
    The county has always claimed that the road belongs to the 
U.S. Forest Service. Excuse me, the county has always claimed 
that the road belongs to it and not the U.S. Forest Service. 
T.U. Repeatedly reminded road-building proponents that there is 
a simple well-accepted method of asserting that claim. The 
county could simply file a lawsuit arguing the road belongs to 
it. If the county proves its claim was correct, it would win 
the lawsuit and its rights to the road would be established. To 
do so would short-circuit all the current controversy and 
resolve this issue at far less cost than the path that the 
County Commissioners have apparently chosen.
    One of the claims that has been made by the proponents of 
the road is that the bull trout is not really in trouble. They 
cite the recent work of the Nevada Division of Wildlife in this 
regard. Fisheries biologists on T.U. Staff have reviewed the 
work of the NDOW biologist. And our biologists, based on their 
review, our biologists disagree with the primary conclusions of 
the NDOW study. Our biologists assert, as I believe, the 
Jarbidge bull trout does warrant listing under the Federal 
Endangered Species Act. While you may reject this analysis, we 
would also like to point out that there has been no peer review 
of the NDOW study. We suggest that it may, we suggest that it 
be subjected to scientific peer review.
    In conclusion, the insistence of some of Elko County's 
elected officials to ignore the rules of law with respect to 
South Canyon Road has accomplished nothing but a waste of time, 
effort, and taxpayer dollars. Unfortunately, the rebellion 
represents one of the serious inflammatory actions by Elko 
County politicians, preventing any meaningful discussion on a 
very difficult issue. Lost in all of the posturing is the 
opportunity to pursue alternatives that could bring much 
greater benefits to Jarbidge than 1.5 miles of dead-end road 
and recognition of the value of a healthy bull trout fishery.
    Thank you for this opportunity to testify today.
    Mrs. Chenoweth-Hage. Thank you, Mr. Holford.
    [The prepared statement of Mr. Holford follows:]

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                  STATEMENT OF TERRY CRAWFORTH

    Mrs. Chenoweth-Hage. The Chair recognizes Mr. Crawforth.
    Mr. Crawforth. Thank you, Madam Chair. My name is Terry 
Crawforth. I'm the administrator of the Nevada Division of 
Wildlife. I am hopeful that during the next legislative session 
when our budget is being reviewed, Assemblyman Carpenter can't 
spot me then either.
    By Nevada statute, fish and wildlife in its natural state 
is part of the natural resource belonging to the people of the 
State of Nevada. The Division of Wildlife is charged with the 
preservation and protection, management, and restoration of 
that wildlife and its habitat. In accordance with this 
legislative mandate, the Division is responsible for fish 
populations in the Jarbidge River system, which is under 
consideration here today.
    As early as 1954, the then Nevada Fish and Game Commission 
was monitoring and actively managing fish populations in the 
Jarbidge River system. In 1992, in direct response to growing 
concern about the range-wide status of the bull trout, the 
Department of Wildlife embarked upon an exhaustive inventory of 
the trout in the Jarbidge system, with specific emphasis on 
bull trout. This study was completed in 1994, and the results 
of that study are in the support material in the package I 
submitted to you today.
    Beginning in 1998, another exhaustive survey of the 
Jarbidge River fish population was undertaken by the Nevada 
Division of Wildlife. Those results are also in your packet 
that you have received today. My additional comments, 
especially technical information, comes from those reports.
    As was previously mentioned, there has been a number of 
listing actions regarding the bull trout in its entire range in 
recent years. Initially the United States Fish and Wildlife 
Service felt that that listing was not warranted for the 
Jarbidge population.
    On August 11, 1998, as a direct result of work by Elko 
County to reconstruct the South Canyon Road on the West Fork of 
the Jarbidge River, the bull trout was listed as emergency 
endangered under the authority of the Endangered Species Act. 
The emergency endangered classification is a temporary one, 
normally used only when a species is in immediate peril of 
extinction.
    The Division of Wildlife disagreed with the emergency 
listing because the area of the Jarbidge River immediately 
affected by Elko County's actions on the South Canyon Road is 
not critical to survival of the Jarbidge River population of 
the bull trout. In April 1999, when the emergency endangered 
listing expired, the bull trout was listed by the Fish and 
Wildlife Service as threatened. The Division of Wildlife has 
disagreed with that listing also.
    There are five criteria for listing of endangered species. 
I won't read those to you. They are in my statement. We don't 
feel that any of the five criteria nor the specific threats 
enumerated in the ruling support the ruling.
    Virtually all of the essential bull trout habitat in Nevada 
is located deep within the Jarbidge Wilderness Area where 
impacts by man are virtually nonexistent. There are currently 
no existing impacts from grazing, mining, recreation, or any 
other land use on bull trout populations or their habitats 
within the wilderness area.
    Some adult Jarbidge bull trout are migratory and seasonally 
may inhabit lower reaches of the Jarbidge River, such as the 
South Canyon Road site. However, naturally higher water 
temperatures in these areas discourage year-round bull trout 
habitat.
    Bull trout are a glacial relic and are dependent upon cold 
clear water between 40 degrees and 51 degrees Fahrenheit, 
moderate stream gradients of less than 12 percent, and stream 
flows of more than one cubic foot per second for spawning and 
rearing. These exacting habitat conditions are naturally 
limited in the Jarbidge River. However, the Division study 
shows that where these habitat conditions prevail, bull trout 
exist in reasonable and viable numbers.
    Bull trout are classified as a game fish in the State of 
Nevada. However, to maintain consistency with neighboring 
States such as Idaho, a regulation prohibits the angler harvest 
of bull trout. Fish disease testing in the drainage has 
revealed no harmful or threatening pathogens.
    The Division no longer stocks hatchery trout in the 
Jarbidge River. There are no competitive or hybridizing species 
in the river. Evidence collected by the Division suggests there 
are a minimum of three genetic subpopulations in the Jarbidge 
system. This mitigates threats to the population from natural 
disasters and ensures genetic diversity.
    I am very proud of the efforts of our fisheries personnel 
to document the biology of the bull trout. I believe that the 
reports that you have on the status of the bull trout in Nevada 
are the very best science concerning this species. The Division 
has further argued that even if the threats defined in the 
listing rule were real, there are virtually no practical 
management actions which could be applied to remedy them. This 
is due to the protected nature of the existing populations and 
the near pristine condition of their primary habitats.
    There are no significant threats to the Jarbidge River 
population of bull trout. Forest health is good. We currently 
have a listed species in the Jarbidge River with no conceivable 
means to delist it. Yet the Division is now obligated to divert 
significant resources from sport fish management to the 
recovery efforts of the bull trout.
    The Division has determined through extensive biological 
investigations of the Jarbidge River system that bull trout are 
well distributed through the system. It has been mentioned that 
from historical data, this canyon was well used in the early 
part of this century.
    There is a picture in your support material from Stanley 
Pahers' ``Ghost Towns of Nevada.'' I think if you look at that 
picture, you'll see that 70 years ago it was not a nice place 
to live. In fact, if we had an Endangered Species Act in 1917, 
we probably would have requested a listing of the bull trout 
and our recovery plan would have been made, designed to make 
that canyon look like it looks today.
    I'm not criticizing anybody here for past actions on the 
river. But I believe that at this point in time the use of the 
Endangered Species Act at this point in time was an unfortunate 
action. The river, the bull trout and the river, the road on 
the South Canyon are separate issues; should have been 
maintained that way. And the Nevada Division of Wildlife stands 
ready to continue to do its part for Nevada citizens and their 
resources. And however we can help to resolve this issue, it 
would be our pleasure.
    Thank you, Madam Chairman.
    Mrs. Chenoweth-Hage. Thank you, Mr. Crawforth.
    [The prepared statement of Mr. Crawforth follows:]

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                    STATEMENT OF DICK CARVER

    Mrs. Chenoweth-Hage. The Chairman recognizes Mr. Carver.
    Mr. Carver. Thank you. Before you start the green light, I 
think I've got a little possible conflict I would like to 
resolve with you. First I would like to congratulate you on 
your marriage to Wayne. If you realize, he's a neighbor of 
mine. But maybe the conflict rests more with Wayne than it does 
with you.
    The first time I met you, I think we were in Boise. I was 
just about to make a presentation. You were just about to run 
for Congress. And you walked up to give me a big hug. I 
wondered if you hugged me first or Wayne first.
    The second thing I would like to say is that I'm really 
looking forward to trying to get you to move to Nye County. 
Wayne has a big ranch in Nye County. I'm going to run for 
Commissioner one more time. When I go out of office, maybe we 
can get you to run for Commissioner and take my place so we can 
keep this battle up.
    Mrs. Chenoweth-Hage. I want to remind the Commissioner this 
is all on the record.
    Mr. Carver. With that--.
    Mrs. Chenoweth-Hage. We look forward to your testimony, 
sir.
    Mr. Carver. With that, my name is Dick Carver. I'm chairman 
of the Nye County Commissioners. I'm here today representing 
Nye County because what happens here in Elko County will spill 
over to Nye County. The problem we have, we have a double 
standard with the Forest Service. They treat Nye County one way 
and are treating Elko County another.
    As you know, we opened Jefferson Canyon Road, a very 
similar issue, in 1994. It's gone to court. What's the 
difference between what happened in Jefferson and what happened 
here? It's already been settled.
    We've got the road issue in Broad Canyon, which is in Smoky 
Valley, that was brought to my attention. The Forest Service 
sent me a letter in August. They were going to close about 150 
feet of that road. I went up to the district ranger's office 
during the Commissioner meeting. I said, Tony, I'm here to 
remind you that's a county road. You have to have an 
encroachment permit.
    He said, Dick, we don't need an encroachment permit.
    I said, Tony, I'm reminding you, you have to have the 
encroachment permit to work on the county road.
    He said, What happens if we don't?
    I said, I'll notify the Sheriff's Office to arrest your 
people and impound your equipment, just like you did Bob Wilson 
up in South Twin a few years ago.
    A month went by and he called me up on a Saturday night and 
he said, Dick, we're going to drop closure of Broad Canyon Road 
because there's too many issues.
    I think the real issue here that we need to look at is, and 
this has been brought to my attention by the Forest Service 
employees, that the Forest Reserve Act of 1906 repealed RS 
2477. Before I get to the bottom line, I would like to say that 
Nye County in 1993 passed Resolution 93-49 that claimed 
virtually every road on public lands in Nye County, whether in 
the past, present, or the future.
    On July 4, 1994, we reopened the road up Jefferson Canyon 
without the Forest Service permit, permission. Again on October 
15, 1994, along with fellow Commissioner Ray Williams, who is 
in the audience, him and I reopened the San Juan Canyon Road, 
again without the Forest Service permission. The reason was 
because we did our homework and we knew we had a valid existing 
right of both of those roads.
    That led to the U.S. Versus Nye County court case, where 
the Attorney General of the State of Nevada agreed in a 
stipulation with the Justice Department, and the judge had no 
recourse to go except to rule that the Federal Government owned 
and had the right to manage those lands. But he did not 
invalidate Nye County's resolution or say that that Jefferson 
Canyon Road belonged to the Forest Service. He said he 
invalidated our resolution to the effect and to the extent only 
it has no valid existing rights.
    I want you to know that I believe that every road out there 
on these public lands, whether it's a trail, whatever, leads to 
a valid existing right.
    That Nye County lawsuit led to the tri-party framework. I 
handed that to you a little bit earlier. In the resolution it's 
got the, it's right in the middle as an amendment to that, or 
appendage to that. You can read it.
    What that tri-party framework is is a contract with the 
Forest Service and the BLM that we'll sit down and resolve 
issues at the table rather than going through the Court. That 
also led to the Resolution 99-01 where we agreed with the 
Justice Department we would rewrite resolution 93-49. And we 
did rewrite it.
    Before we rewrote it, we took it to the Forest Service and 
the BLM and got them to concur that they could live with it. We 
did not ask them to sign it, because they have no jurisdiction 
in signing county resolutions. And I'll get to, hopefully in 
answering questions, about how we define a county road in Nye 
County. But on the 18th of October, I had five staff people 
with me and we went to the Forest Supervisor's office in 
Sparks. On a conference call with legal counsel in Ogden, Utah, 
we asked them to provide us the law that shows that the Forest 
Reserve Act of 1906 repealed RS 2477. A week ago yesterday, we 
had staff in Ogden, Utah; and again we did not get that law.
    So what I would like to do now, and just the day before 
yesterday I was in Reno testifying in a Forest Service hearing. 
I would like to read to you--I'll wait and do it during the 
questions.
    I want to present a solution. Courts are not going to 
resolve this issue. The only people that can resolve this issue 
is you. So what I'm going to ask is that you require the 
Secretary of Agriculture and the Secretary of Interior to 
develop a pilot project with Nye County and Elko County, and 
come back in 1 year with a program to resolve which roads are 
county roads, which roads are Forest Service roads, and which 
roads are BLM roads. And you people pass the legislature that 
resolves this issue forever.
    The second thing I would like to present to you right now, 
too, before the red light comes on. I would like to invite you 
representatives, Elko County Commissioners, Regional Forester, 
the Assistant Forest Supervisor, and Nye County to sit down and 
resolve this tomorrow. Because the cost of fixing that road is 
not that great.
    I am a professional blade dozer operator. The Chairman of 
the Elko County Board can run a dozer. I will bring my dozer up 
here, and it will not cost you anything. We will pass the hat 
among the audience right out here to cover the cost. That's all 
it will cost.
    With that, I'll wait and answer some questions. But I want 
to get into the FLPMA law; that lays it out.
    Mrs. Chenoweth-Hage. Thank you, Commissioner.
    And the Chair turns to Congressman Gibbons for his 
questions.
    Mr. Gibbons. Thank you very much, Madam Chairman. Mr. 
Salicchi, today with the status of the South Canyon Road in its 
current condition, are you able or is it possible for you to 
access this area in a vehicle?
    Mr. Salicchi. No, I can't. I can go to--I can just go part 
of the way, but I cannot go all the way up there. Because of 
the reconstruction that has been done, it's nothing but rocks 
and no way you can drive over it with a vehicle.
    Mr. Gibbons. You, with your physical condition, are denied 
access to this area under the current condition?
    Mr. Salicchi. Yes, I am.
    Mr. Gibbons. Mr. Holford, thank you for being here today. 
Let me say right off, no one here in this committee or I'm sure 
in the audience or the area denies that the conservation of our 
wildlife is the benefit of all Americans. What I would ask you 
basically is: Do you feel, is there absolutely no way to have 
this road and have good habitat for the bull trout?
    Mr. Holford. I'm not quite sure. We have never been able to 
get through any of the processes that have been put in place. 
Every time we get an environmental analysis, there's some other 
action that leads us into some stoppage through processes from 
other factions. We've never been able to take the E.A. To a 
final conclusion.
    Mr. Gibbons. If I ask you the question then, Trout 
Unlimited biologists according to your testimony disagree 
apparently with the Nevada Department of Wildlife. Have you 
worked with the or have they worked with the U.S. Forest 
Service on this issue?
    Mr. Holford. Has the State worked--.
    Mr. Gibbons. No, Trout Unlimited biologists worked with the 
Forest Service or the Fish and Wildlife on this bull trout 
issue?
    Mr. Holford. No, our biologists have not worked together on 
this issue.
    Mr. Gibbons. Even though your biologists disagree with the 
State's conclusion, what is the basis of their disagreement?
    Mr. Holford. From my understanding, the basis of the 
disagreement was the requirements for the fish to be 
threatened. We feel that the, or from what I have been told, we 
feel that the information that was provided by the State leads 
to listing. The information that they had is two snapshots in 
time, one in 1998 and one in 1994.
    Mr. Gibbons. And your biologists have had a more extensive 
experience with the bull trout than the State of Nevada?
    Mr. Holford. I'm not saying that they have. What we're 
asking for is peer review, scientific peer review just like 
3809. We came out with a scientific peer review, and I think 
it's very fair.
    Mr. Gibbons. The road you indicated, South Canyon Road, 
belongs to the Forest Service. Is that your testimony?
    Mr. Holford. It is, and I base that on--I've never seen on 
the county road map, even during the time this issue was going 
on, that the county had detailed that road as a county road. 
They detailed the other roads around it as county roads, and 
they didn't write the E.A. To repair the road. It appears to me 
the road belongs to the Forest Service.
    Mr. Gibbons. Your interpretation of the ownership of the 
road is based on its location on Forest Service land and not on 
legal precedent?
    Mr. Holford. I think the legal precedent is a great 
question. I think it needs to be decided in court. I don't know 
the legal precedents. I'm not a lawyer. This situation keeps on 
going around and keeps on following it back and forth in this 
county. It's time to take it to the court and find out who owns 
this road and get together and come to a resolution and go 
forward.
    Mr. Gibbons. Would it be your interpretation also that any 
highway, any roadway crossing Federal BLM land, Forest Service 
land if it were washed out would be an issue of ownership of 
the road or a question of maintenance of that road across that 
Federal land?
    Mr. Holford. The issue that Trout Unlimited is interested 
in is: How does that road affect aquatic habitat and the 
fisheries that are associated with that road? So to say a road 
that crossed all Federal land is unfair, I think.
    Mr. Gibbons. That goes back to my original question that I 
asked. In your opinion, can this road co-exist with the habitat 
for the bull trout?
    Mr. Holford. Not under the analysis that has been done. 
When Senator Harry Reid was here, they sat down and went 
through that whole process and the analysis said that the road 
couldn't be built.
    Mr. Gibbons. Mr. Crawforth, what information has the, 
either the Fish and Wildlife Service or the Forest Service, for 
that matter, shared with you regarding, over the past year 
regarding the bull trout?
    Mr. Crawforth. Congressman Gibbons, my knowledge, I think 
most of the information on the bull trout back to our work 
clear back to 1954, is the chapter and verse on bull trout in 
the Jarbidge River. And we have been in the mode of sharing our 
information with them. We have been the people on the scene.
    We have regularly consulted with the Forest Service on 
their various land management practices. And more recently the 
Fish and Wildlife Service, I think, has reviewed our 
information extensively.
    Mr. Gibbons. The Fish and Wildlife have relied on the 
Department of Wildlife from the State of Nevada to make any 
decisions based on bull trout and the habitat?
    Mr. Crawforth. That's correct.
    Mr. Gibbons. Have the biologists for Trout Unlimited shared 
any information with you regarding their assessment or their 
work on the bull trout with you?
    Mr. Crawforth. Other than a statement similar to Mr. 
Holford's, not to my knowledge.
    Mr. Gibbons. Mr. Carver, welcome. You are the first person 
that we have had testify here who has actually suggested a 
solution. While we all debate the facts and debate what has 
gone on and whether or not this person or that entity was right 
or wrong in all this, may I say you're the first one who has 
suggested a solution, getting together to find what would work 
for the interests of the people of Elko County, the management 
of our forest, the habitat for the wildlife in the area as 
well. I laud you for coming forward with that solution.
    You indicated you had something you wanted to read to us 
prior to the 5-minute light expiring. If there is a short 
statement you want to read to us, I permit you to do that now.
    Mr. Carver. Thank you. Jim, I want to thank you for 
inviting me here today. As you see, you had one cancel out, and 
you let me fill in. I feel very honored. In fact, I feel more 
honored than I did on July 4 of 1944. You ought to feel my 
little heart pounding.
    I want to tell you, Nye County has got a definition that we 
think is very strong. It's been held up in court. It's based on 
law and court decisions. The basic law it was based on was 
Public Law 94-579, passed on October 21 of 1976. I will read 
it.
     ``Repeal of laws relating to right-of-ways.'' I'm going to 
answer the question, did the Forest Service Reserve Act of 1906 
repeal RS 2477?
     ``Section 706A. Effective on and after the date of 
approval of this act, RS 2477, 43 USC 932, is repealed in its 
entirety and the following statutes or part of statutes are 
repealed insofar as they apply to the issuance of right-of-ways 
over, upon, under, and through the public lands and lands in 
the National Forest Systems.''
    And it's got a big long list of other repeals. You've got 
it. It's the third page from the last that I handed you in my 
handout. I'm going to go on and read to you Section 509. It 
says ``Existing Right-of-Ways.''
    A, ``Nothing in this title shall have the effect of 
terminating any right-of-way or right-of-use heretofore issued, 
granted, or permitted. However, with the consent of the holder 
thereof, the Secretary concerned,'' Secretary of Agriculture or 
Secretary of Interior, ``may cancel such a right-of-way or 
right-of-use and instead issue a right-of-way pursuant to the 
provisions of this title.''
    And I'm going on to Section 701 of Public Law 94-597, 
effective on existing--``Effect on Existing Rights.''
    Section 701A, ``Nothing 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 the date or approval of this act.''
    And on Section 701H, it says, ``All actions by the 
Secretary concerned''--again, Secretary of Agriculture or 
Secretary of the Interior, ``under this act shall be subject to 
valid existing rights.''
    Mr. Gibbons. Thank you very much.
    Mr. Crawforth, let me ask you a question. With your 
experience in wildlife habitat, the East Fork of the Jarbidge 
River is similar in nature, gradient, topography, morphology, 
et cetera, to the West Fork of the Jarbidge River. They both 
support a bull trout population.
    The East Fork of the Jarbidge River does not, however, have 
a road next to it. Is the bull trout population recovering 
faster in the East Fork of the Jarbidge River as compared to 
the bull trout population in the West Fork which has a road 
next to it?
    Mr. Crawforth. No. Our surveys indicate that where bull 
trout habitat is appropriate, whether for temperature, stream 
gradient, et cetera, bull trout populations are equal. They are 
reestablishing in some areas. But the natural factors are the 
limiting. And most of the critical habitat for bull trout in 
the West Fork are above the South Canyon roadsite.
    Mr. Gibbons. Mr. Holford, would you be willing to submit 
your biologist, Trout Unlimited biologist research to this 
committee on the bull trout so that we may also have the 
privilege and the benefit of their analysis and their study to 
make our determination in this?
    Mr. Holford. Yes.
    [The information referred to follows:]

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    Mr. Gibbons. OK. Madam Chairman, I see that the stop light 
is on. Like you, when I see the green light, I go. Yellow light 
comes on, I slow down, not speed up. Red light comes on, I 
stop.
    Mrs. Chenoweth-Hage. Thank you, Congressman.
    Mr. Salicchi, I wanted to ask you, has the Forest Service 
ever really acknowledged that access for the handicapped was 
abridged when the reconstruction occurred on the road?
    Mr. Salicchi. No. It wasn't an issue that I think was even 
thought of at the time. There's so many other issues going on, 
handicapped people were just kind of ignored, and nobody has 
ever presented it to the Forest Service to see just what could 
be done about it.
    Mrs. Chenoweth-Hage. I would be interested in the county's 
followup on that. There are definite Federal laws involved 
there in access for the handicapped.
    Mr. Salicchi. Yes.
    Mrs. Chenoweth-Hage. Mr. Crawforth, did the Fish and 
Wildlife Service provide input into your March 1999 report on 
the bull trout, or did they make comments to you after the 
report was issued?
    Mr. Crawforth. The conversations that I am personally aware 
of, the Fish and Wildlife Service supports our data and has 
never questioned the quantity or quality of that data.
    Mrs. Chenoweth-Hage. Have they submitted to you any reports 
that they have generated on the bull trout?
    Mr. Crawforth. Only in relation to the listing itself.
    Mrs. Chenoweth-Hage. I see. Mr. Holford, you're 
representing Trout Unlimited here. Do you work full-time for 
Trout Unlimited?
    Mr. Holford. No, I don't.
    Mrs. Chenoweth-Hage. What do you do in your other life?
    Mr. Holford. I worked for Newmont Gold for 7 years. I broke 
my back 2 years ago and right now I'm returning to the work 
force, not with Newmont. I'm looking for a job.
    Mrs. Chenoweth-Hage. The work that you do with Trout 
Unlimited is voluntary?
    Mr. Holford. Voluntary.
    Mrs. Chenoweth-Hage. Let me ask you, from your point of 
view does it matter really who owns the road, since the 
Endangered Species Act applies regardless? In your opinion?
    Mr. Holford. I'm hearing a radio in the background. It's 
repeating what you're saying. Could you ask the question again, 
please?
    Mrs. Chenoweth-Hage. Yes. From your point of view, does it 
really matter who owns the road with regard to the application 
of the Endangered Species Act?
    Mr. Holford. I think our point has always been that we were 
concerned with the fish and it wouldn't matter who owned the 
road as long as they worked in an ethical manner that didn't 
push this situation to where it is today. We have never been 
able to get that far.
    Mrs. Chenoweth-Hage. Commissioner Lesperance has entered 
this picture into the record. That's pretty dramatic. There's 
an awful lot of sedimentation there. It defies common sense to 
understand why the entry of the county into a very small 
portion of that river in repairing the road would justify this 
kind of activity on the part of your organization as compared 
to what mother nature actually did. Would you care to comment 
on that?
    Mr. Holford. Yes. Our, Trout Unlimited from the very 
beginning has been in all the public process comments. We've 
made the comments. We were there in Jackpot when there was a 
public hearing on bull trout. And the next day we find that the 
county enters the road and bulldozes, bulldozes the river.
    That was out of the process. That was out of the box. If 
we're supposed to work together and we're supposed to work 
together in the processes that were set up by Congress with the 
Forest Service and with the BLM and other officials in the 
State, and we are all working together and someone jumps out of 
the box and does something, you know, it just is detrimental to 
the process.
    We never have been able to sit down and talk. When Harry 
Reid came out and we were going to talk about this situation 
and mediate it, Elko County made sure that Trout Unlimited 
members and myself were excluded. They asked for a national 
representative to come in to represent Trout Unlimited.
    We have been trying to get through this situation, but we 
never have been able to keep it in a mediation or in a 
negotiation or any, you know, anything that would end up with 
the resolution at the end.
    Mrs. Chenoweth-Hage. Well, it may have been that Trout 
Unlimited didn't oppose the restoration of the Lamoille Canyon 
Road, and so it would just logically follow that you wouldn't 
oppose the restoration of the South Canyon Road. In fact, why 
didn't Trout Unlimited oppose the restoration and repair of the 
Lamoille Canyon Road?
    Mr. Holford. The Lamoille Canyon Road above where they were 
working on the campground and the areas that were damaged do 
not have a native trout population. They are planted by NDOW. 
There's a fish barrier or fishfall. There's a waterfall down 
below that blocks fish from going up. That is a planted 
fishery. It's not a native fishery.
    Mrs. Chenoweth-Hage. Mr. Crawforth, do you agree with that 
statement?
    Mr. Carver. What's that? I'm hard of hearing. I couldn't 
hear you.
    Mrs. Chenoweth-Hage. I was asking Mr. Crawforth if he 
agreed with the statement by Mr. Holford.
    Mr. Crawforth. Regarding Lamoille Canyon?
    Mrs. Chenoweth-Hage. Yes, with the impact on--would the 
impact be similar on the Lamoille Canyon restoration and repair 
of that road as it would the South Canyon Road on any alleged 
bull trout habitat?
    Mr. Crawforth. I don't think they are similar situations.
    Mrs. Chenoweth-Hage. What do you see is the difference?
    Mr. Crawforth. The width of the canyon. Mr. Holford is 
correct, the type of fish that are in that canyon. We do not 
have a native fish population in the Lamoille Canyon. There is 
fish movement there, but we do stock rainbow trout in there. 
There are brook trout.
    Mrs. Chenoweth-Hage. All right. Thank you.
    Mr. Carver, I want to thank you very much for your 
testimony and for coming to our hearing today. Without 
objection, I would like to enter your exhibit into the record. 
We are going to move along now. I do want to wish you the very 
best in your negotiations with the county. But since we are 
from the Congress, we are trying to stay out of that except 
oversight on the issue. So, I want to thank you very much. It's 
always enjoyable to hear from you.
    [The prepared statement of Mr. Carver follows:]

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    Mrs. Chenoweth-Hage. I want to thank all the witnesses for 
their testimony. At this time we will excuse this panel.
    Committee will come to order. I will now introduce our 
final panel. Final panel consists of Mr. Jack Blackwell, 
Regional Forester, Intermountain Region, U.S. Forest Service in 
Ogden, Utah. Mr. Blackwell is accompanied by Mr. Ben Siminoe, 
Assistant Forest Supervisor, Humboldt-Toiyabe National Forest; 
and Mr. Robert Williams, Field Supervisor for the U.S. Fish and 
Wildlife Service.
    Gentlemen, as explained to the previous panels, we will be 
placing you under the oath. If you would stand and raise your 
arm to the square.
    [Witnesses sworn.]
    Mrs. Chenoweth-Hage. Thank you. The Chair recognizes Mr. 
Blackwell for his testimony.

 STATEMENT OF JACK BLACKWELL, REGIONAL FORESTER, INTERMOUNTAIN 
   REGION, U.S. FOREST SERVICE, ACCOMPANIED BY BEN SIMINOE, 
ASSISTANT FOREST SUPERVISOR, HUMBOLDT-TOIYABE NATIONAL FOREST; 
   AND ROBERT D. WILLIAMS, FIELD SUPERVISOR, NEVADA FISH AND 
WILDLIFE OFFICE, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF 
                            INTERIOR

                  STATEMENT OF JACK BLACKWELL

    Mr. Blackwell. Madam Chairman and Congressman Gibbons, 
thank you for the opportunity to be with you today and 
discussing management of the South Jarbidge Canyon on the 
Humboldt-Toiyabe National Forest. I'm accompanied by the 
Assistant Forest Supervisor, Ben Siminoe.
    The Forest Service faced a dilemma in providing public 
access in South Jarbidge Canyon while maintaining fisheries 
habitat and properly functioning condition of the watershed. 
The alternative of rebuilding the Forest Road Number 64, known 
as the South Canyon Road, has been analyzed extensively and the 
Forest Service does not believe this is a feasible option. In 
my testimony, I will summarize the analysis of South Jarbidge 
Canyon and the events that have affected the management of this 
canyon and its aquatic resources.
    South Canyon Road is a narrow canyon with steep slopes 
prone to periodic and brief flows. Forest Road Number 64 is 
located adjacent to the West Fork of the Jarbidge River in the 
bottom of the canyon. Records since the 1950's indicate that 
floods have washed out portions of this road about once every 
10 years.
    Prior to 1995, the Forest Road Number 64 was roughly two 
miles long and terminated at a parking area at the Snowslide 
Trailhead that includes an outhouse and a horse loading ramp. 
Along the road about one-half mile from the parking area is 
another outhouse and four primitive campsites. In 1995, the 
flood washed out portions of the upper 1.5 miles of the road.
    In 1997, the Humboldt-Toiyabe National Forest prepared an 
environmental assessment and the District Ranger issued the 
decision to rebuild the forest road. I reviewed that 1997 
decision as part of an administrative appeal, and I remanded it 
to the Humboldt-Toiyabe National Forest for further analysis on 
the effects to the bull trout and other aquatic species from 
road construction and from possible future road failure.
    The West Fork of the Jarbidge River is home to a unique 
population of bull trout through its isolation and its location 
on the southern boundary of bull trout habitat. On June 13, 
1998, the Fish and Wildlife Service proposed listing the 
Jarbidge River bull trout under the ESA. In April 1999 the bull 
trout were formally listed as a threatened species. The listing 
requires the Forest Service to consult with the U.S. Fish and 
Wildlife Service on agency actions such as construction to 
ensure the trout survival is not jeopardized.
    In late June 1998, the Humboldt-Toiyabe National Forest 
released the second EA for public comment. Although this 
environmental assessment included alternatives for rebuilding 
the road, the preferred alternative was a 1.5 mile lofted trail 
to access the Snowslide Trailhead. The Forest Service has not 
made a final decision regarding reconstruction of the road or 
trail and when it does, it also will be subject to 
administrative appeal and possible judicial review.
    While the Forest Service continued to evaluate the 
environmental effects of the various alternatives for the 
forest road, the Elko County Commission directed its county 
road department to reconstruct the road. This reconstruction 
work began on July 21 but was halted on July 22, 1998 when the 
Nevada Department of Environmental Protection and U.S. Army 
Corps of Engineers issued cease and desist orders.
    The section of the South Jarbidge Canyon altered by the 
construction activity was extremely unstable and at risk for 
failure. To prevent further damage to the aquatic habitat of 
the Jarbidge River, stabilization work on the river channel and 
surrounding floodplain was necessary before the onset of 
winter.
    In November and December 1998, the Forest Service and 
contracted crews rehabilitated the damaged area, stabilized the 
site before spring. Had the site been left in an unstable 
condition there could have been severe damage during the spring 
snowmelt and runoff. As we've heard, the rehabilitation cost 
was about $400,000.
    On August 27, 1999, the U.S. Attorney's Office, District of 
Nevada, notified Elko County that it intended to file suit 
against the county to recover the cost of the 1998 
stabilization work and to address violations of the Clean Water 
Act unless some resolution of this dispute could be negotiated. 
Negotiations are ongoing.
    Two months ago, three individuals announced they were 
organizing a work party to reopen Forest Road Number 64. If 
this event had gone forward as planned, damage could have 
occurred to the bull trout and its habitat.
    On October 7, 1999, the United States filed suit against 
the three individuals and the work party. In connection with 
the lawsuit, a U.S. District Court judge issued a temporary 
restraining order enjoining the work party, due to likely 
violations of the Endangered Species Act. Subsequently on 
October 21, 1999, the same district judge joined Elko County in 
the lawsuit against the work party and directed all parties to 
participate in settlement negotiations to be mediated by the 
U.S. Institute for Environmental Conflict Resolution. We hope 
that a settlement at this time can be reached to resolve the 
matter once and for all.
    In conclusion, the Forest Service and the other involved 
State and Federal agencies look forward to bringing this issue 
to closure. NEPA analysis of Forest Road Number 64 is ongoing. 
The District Ranger will issue another decision for public 
review and comment in the near future. We sincerely hope that 
Elko County will actively participate in this established 
planning process.
    Madam Chairman, this concludes my statement and I would be 
happy to answer any questions you may have.
    Mrs. Chenoweth-Hage. Thank you, Mr. Blackwell.
    [The prepared statement of Mr. Blackwell follows:]

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    Mrs. Chenoweth-Hage. The Chair recognizes Mr. Williams.

                STATEMENT OF ROBERT D. WILLIAMS

    Mr. Williams. Thank you, Madam Chairman and Congressman 
Gibbons, for the opportunity to meet with you today to discuss 
the bull trout and the South Canyon Road. My name is Bob 
Williams. I'm the Field Supervisor for the U.S. Fish and 
Wildlife Service, Nevada Field Office.
    The Fish and Wildlife Service's mission is working with 
others to conserve, protect, and enhance fish and wildlife and 
plants and their habitats for the continuing benefit of the 
American people. The actions taken by the Fish and Wildlife 
Service for the bull trout and the Jarbidge River system of 
Nevada and Idaho are consistent with that mission.
    Since 1995 the Fish and Wildlife Service has at the request 
of the U.S. Forest Service provided comments and professional 
opinions with respect to the reconstruction of the South Canyon 
Road and its effects on bull trout. From the spring of 1995 
when flooding washed out the one and a half miles of dirt road 
until today, the Service has provided consistent input with 
respect to the effects of road reconstruction on the Jarbidge 
River bull trout population.
    However, because of the range-wide listing of bull trout 
during this same period, the Service's biological opinion has 
been elevated in importance and the Forest Service is now 
required to consult on any alternatives selected. For the 
record, the Fish and Wildlife Service considered listing bull 
trout long before the 1995 flood event. The Service in 1994 
found the Jarbidge River population warranted for listing as a 
result of a 1992 petition, but precluded the listing of that 
population as well as the other populations in the coterminous 
United States due to other workload.
    In 1996, the Service was ordered or directed by the Oregon 
Federal court to reconsider the warranted but precluded 
finding. The Service in March 1997 found the Jarbidge 
population not warranted based solely on the information that 
was in the 1994 administrative record. In December 1997, the 
same court ordered us to reconsider our March 1997 finding. But 
the court allowed us to use all available information rather 
than limiting it to the administrative record in 1994. All of 
the information was available in our decision to list. Our 
analysis, which included information from the Nevada Division 
of Wildlife as well as other sources, led us to propose the 
species as threatened in June 1998.
    As I stated earlier, since 1995 Service staff, Fish and 
Wildlife Service staff have participated in numerous reviews 
with the Forest Service and State and local agencies with 
regard to the South Canyon Road. Through the NEPA process in 
1997, the Service recommended the Forest Service close this 
section of road in order to minimize the impacts to bull trout 
and the aquatic environment. This is before we were ordered to 
reconsider our listing decision in December 1997 and long 
before we proposed the species as threatened.
    In the spring of 1998 the bull trout was proposed for 
listing. We conferenced with the Forest Service on their 
alternatives, once again providing comments supporting closure 
of the road. Again this was before the bull trout was actually 
listed.
    However, as we know, the bull trout was emergency listed as 
endangered in August 1998 as a result of unauthorized 
reconstruction of the South Canyon Road that occurred in July 
1998. The Service concluded that continued reconstruction of 
the South Canyon Road would impact bull trout in the West Fork 
of the Jarbidge River and the aquatic environment.
    In the fall of 1998, at the request of Senator Reid, the 
Fish and Wildlife Service in partnership with the Forest 
Service and others met to evaluate alternatives to the South 
Canyon Road reconstruction that would not affect or impact bull 
trout. This effort in our opinion failed to identify an 
alternative that was acceptable to everyone.
    In October 1999, the Service requested the U.S. Attorney to 
issue a temporary restraining order against a group of local 
citizens who intended to reopen the South Canyon Road because 
proposed activities would likely result in harm and harassment 
of bull trout and would constitute a violation of Section 9 
under the Endangered Species Act. It is the Service's position 
that any unpermitted action which has not undergone Section 7 
consultation wherein the Service can identify means to minimize 
the adverse effects to a listed species such as bull trout 
would constitute a taking under the Endangered Species Act.
    The Service will continue to participate in the NEPA 
process with the Forest Service and their decision to provide 
access to the Jarbidge Wilderness. We are prepared to complete 
a biological opinion as required under Section 7 of the 
Endangered Species Act once a preferred alternative is 
identified.
    The Service is presently forming a recovery team to prepare 
a recovery plan for the Jarbidge River bull trout population 
along with the other distinct population segments. We hope that 
representatives from the State, local, and Federal agencies, 
environmental and recreational organizations and concerned 
citizens will actively participate. We recognize that the bull 
trout cannot be recovered without the participation and support 
of local governments and citizens.
    The Service will also be working with the Nevada Division 
of Wildlife and Idaho Department of Fish and Game to develop 
the bull trout conservation and management plan for the 
Jarbidge River under the authority of the special rule that was 
identified in the final rule.
    Thank you, Madam Chairman, for the opportunity to comment.
    [The prepared statement of Mr. Williams follows:]

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    Mrs. Chenoweth-Hage. I want to thank the witnesses for 
their testimony. I recognize Mr. Gibbons for his questions.
    Mr. Gibbons. Thank you very much, Madam Chairman.
    Mr. Blackwell, it's awfully encouraging to sit here and 
listen to your remarks and know that, contrary to recent news 
reports, that the United States Forest Service is looking 
forward to working with the citizens of Elko County to put this 
issue behind us in what the chairman of the committee says, in 
a rationally responsible manner. So I thank you for your 
comments along with that.
    Mr. Blackwell, are you familiar with the repair efforts 
that the Forest Service undertook with regard to the road in 
question?
    Mr. Blackwell. Yes, I am, Congressman.
    Mr. Gibbons. Were you there present when they undertook 
those efforts?
    Mr. Blackwell. No, I was not. Subsequent to them I've 
personally walked every inch of that washed out mile-and-a-half 
section.
    Mr. Gibbons. Did you see any reports as to how they 
accomplished their repair work?
    Mr. Blackwell. Well, the reports I had were verbal. I 
haven't seen any of the film that has been referred to today. I 
have seen some pictures. I stand corrected, I have seen 
pictures as well.
    Mr. Gibbons. Did the Forest Service put any equipment into 
the stream?
    Mr. Blackwell. I believe so. Mr. Siminoe can answer more 
accurately, but I believe we did, yes.
    Mr. Gibbons. Now, let me ask another question. Did the 
Forest Service do a full Section 7 consultation before they 
went in and entered into the repair work?
    Mr. Blackwell. It is my understanding we did, yes.
    Mr. Gibbons. Let me ask another question. How do you plan 
to handle the full outhouse?
    Mr. Blackwell. Congressman, I used the outhouse and I can 
testify it's full. It looks like it's surface runoff that is 
getting into that outhouse and supposedly the sealed vault is 
full of what appears to be rainwater and surface runoff mostly. 
We haven't finalized what we are going to do about that. We 
will have to consult over it.
    What we talked about when I was up there, and I asked the 
same question you did, we will try to get permission to pump 
most of the liquid, which appears to be mostly water, out on 
the hillside and then we will have to remove that more solid 
stuff to a treatment facility.
    Mr. Gibbons. Mr. Blackwell, what is the Forest Service 
position regarding access to the forest for the disabled?
    Mr. Blackwell. The Forest Service always tries to work with 
access so that we make it as easy as possible for the 
physically disabled.
    Mr. Gibbons. Now, you have personally walked this area that 
you have repaired?
    Mr. Blackwell. Correct.
    Mr. Gibbons. Can a person access that area, like Mr. 
Salicchi, who just testified, and access the forest using that 
same trail that you've now walked?
    Mr. Blackwell. No. And I would like to expand, though, and 
point out it's my understanding that there are approximately 12 
to 14 other motorized access points to the Jarbidge Wilderness.
    Mr. Gibbons. To that area?
    Mr. Blackwell. To that area, I would say no.
    Mr. Gibbons. Who did you contract with to do the repair on 
the South Canyon Road?
    Mr. Blackwell. I would have to refer that question to Mr. 
Siminoe.
    Mr. Gibbons. Mr. Siminoe?
    Mr. Siminoe. Congressman Gibbons, we contracted with a firm 
in Bozeman, Montana; Confluence, Inc. They provided project 
oversight. It was a mixture of their crews and forest camp 
crews that did the work.
    Mr. Gibbons. You were obviously there during the work?
    Mr. Siminoe. Yes.
    Mr. Gibbons. Did they put equipment into the stream?
    Mr. Siminoe. Yes, they did.
    Mr. Gibbons. Their equipment in the stream, was that of any 
more egregious nature than what the county did?
    Mr. Siminoe. They spent a period of time in the stream that 
was permitted, I might say, by Army Corps of Engineers, Nevada 
Department of Environmental Protection.
    Mr. Gibbons. Did you note any sediment or sedimentation of 
the river caused by their activity?
    Mr. Siminoe. There was sediment produced during the 
rehabilitation activities.
    Mr. Gibbons. What impact did that have to the bull trout?
    Mr. Siminoe. We don't know. We had our fish management 
practices in place. But again there was sediment produced.
    Mr. Gibbons. Mr. Blackwell, why did it cost $420,000 to 
repair 900 feet of dirt road?
    Mr. Blackwell. I, Congressman, do not have all the answers. 
I can tell you that the design of that involved, the design of 
that and repair involved one of the best firms that we could 
find in the country, and I think that because of that it didn't 
come cheap.
    Mr. Gibbons. You couldn't find somebody here in Elko County 
to do the work?
    Mr. Blackwell. Not that design work, no, sir.
    Mr. Gibbons. Did you cut down trees?
    Mr. Blackwell. Did we cut down trees?
    Mr. Gibbons. In your repair work?
    Mr. Blackwell. I don't know that trees were cut down.
    Mr. Gibbons. Were they knocked down? Were they felled by 
some manner?
    Mr. Blackwell. I believe they were. Again, I refer that 
answer to Mr. Siminoe.
    Mr. Gibbons. Mr. Siminoe?
    Mr. Siminoe. During reconstruction activities there were 
some trees that were removed. However, there was every effort 
made to maintain the tree cover there. The fact is, we had hand 
crews go in and rake the dirt and gravel from around existing 
trees that had been damaged during the county's activities.
    Mr. Gibbons. I guess the issue gets down to the ownership 
of the road, Mr. Blackwell. Do you maintain that the Forest 
Service owns the road?
    Mr. Blackwell. The Forest Service as an agency doesn't own 
any roads. The Federal Government where applicable owns roads. 
We manage the land and the improvements like roads within the 
National Forests.
    Our position is that the Federal Government does indeed own 
that road.
    Mr. Gibbons. Did the Forest Service or the Federal 
Government pay for its construction?
    Mr. Blackwell. It's my understanding that that road was 
constructed around 1910 or 1911. I don't know who paid for the 
construction of that road. I do know that based on my walk of 
it, I was told about several major bridges where the Forest 
Service has contributed greatly to the expense of constructing 
that road.
    Mr. Gibbons. Mr. Blackwell, you moved the sign on the 
wilderness area to the end of the now existing road. Does that 
literally move the boundary of the wilderness area?
    Mr. Blackwell. The boundary of the wilderness area has not 
been moved and we have no intention to move it. When I heard 
the testimony today, that was new news to me. I have no 
knowledge of that sign being moved. I would like to look into 
that and get an answer back to you.
    Mr. Gibbons. Maybe Mr. Siminoe can tell us if he moved the 
sign.
    Mr. Siminoe. I would like to address that. The wilderness 
boundary sign is still at the Snowslide Trailhead. There is a 
road closure sign at the Pine Creek Campground when the road 
washed out, just from a public safety standpoint. We have no 
intention to move the wilderness boundary sign down to Pine 
Creek.
    Mr. Gibbons. Mr. Blackwell, over the last several months 
the State of Nevada in particular and many other States have 
endured a great number of fires, wild land fires. There is a 
problem in our community with these fires and the number of 
acres that have burned. What is the Forest Service policy now 
with accessing these fires without roads, the problems that 
that is going to cause in terms of fire suppression, management 
of fires in these Forest Service areas?
    Mr. Blackwell. Congressman, I refer you to, which I would 
be glad to supply for the record, to a Nevada Division of 
Forestry assessment of Forest Road Number 64 at South Canyon, 
and I would like to read just a couple of passages from that, 
if I could, from this state assessment.
     ``In the event of a fire start in the area of Forest Road 
64, local initial attack personnel and equipment could access 
the area, size up the situation, and make initial attack 
provided personnel arrive while the fire was still small, close 
to the road, and fire conditions were not too high. With the 
topography of the area it is unlikely that there would be a 
fire start from natural causes''; that is, lightning, ``close 
to the road or at the bottom of the canyon.''
     ``A fire above the canyon's bottom would require fire 
personnel to walk into the scene, provided the fire behavior 
was light. As the fuels in the area become dry and the fire 
danger increases, the fire has the potential to become large 
and uncontrolled. In the event of a catastrophic fire in the 
area, it would be extremely unsafe to place any fire personnel 
or equipment in the vicinity of the Forest Road Number 64. In 
my opinion, the closure of Forest Road 64 is not an immediate 
threat to the community of Jarbidge in the event of a large 
fire.''
    This is signed by the local fire official for the Division 
of Forestry, and is accompanied by a cover letter from the 
regional manager saying he concurs with this report.
    Mr. Gibbons. So you feel that the closure of this road 
would have no impact on the ability of the Forest Service or 
the State of Nevada to fight a fire in the area provided that 
it was close to the road and it's small in size when it was in 
its early stages?
    Mr. Blackwell. Yes, I wouldn't say no impact. To paraphrase 
what I just read, if there was a start in the bottom and you 
got there quickly, the road would help. Of course, the road 
would also provide access to humans that cause the human-
started fires. If it's a lightning start, it's going to be high 
on the ridge. Lightning rarely strikes in the bottom of a 
canyon.
    If the fire behavior is light, the road could still 
contribute some toward the initial attack. If it's catastrophic 
fire conditions, firefighters don't belong anywhere near that 
road because of the danger of entrapment.
    Mr. Gibbons. I would say that would be true in any fire. 
Unfortunately, we can't predict or preempt the actions of 
Mother Nature. Nor can we accurately project where we are going 
to be at any one given time with regard to where she may have 
an effect.
    This road had been washed out in the past and it was 
repaired.
    Mr. Blackwell. Correct.
    Mr. Gibbons. What impact did it have then on the bull 
trout?
    Mr. Blackwell. Well, it undoubtedly had some effect on the 
bull trout, both negative and positive, I would say.
    Mr. Gibbons. What information do you base that on?
    Mr. Blackwell. I base that strictly on my own field 
reconnaissance of that area.
    Mr. Gibbons. In between all these periods when it was 
washed out over a period of 10 years at a time or once each 
decade, basing your opinion on that?
    Mr. Blackwell. Yes, Congressman. I can look at the 
topography of that canyon and visualize these periodic storm 
events that contribute enormous amounts of runoff and sediment 
into the canyon bottom. And to repair that, I believe, would 
have been both beneficial and have some short-term negative 
effects to the bull trout.
    Mr. Gibbons. Have you studied the bull trout in the East 
Fork of the Jarbidge River?
    Mr. Blackwell. No, sir, I have not.
    Mr. Gibbons. Have you looked at that canyon?
    Mr. Blackwell. Only from the confluence of where the two 
rivers come together along the road. I have looked at that, 
that's all.
    Mr. Gibbons. Perhaps Mr. Williams has looked at the 
population of bull trout in the East Fork of the Jarbidge and 
compared that to the bull trout in the West Fork. Would you 
tell us what your findings are?
    Mr. Williams. The Fish and Wildlife Service doesn't have 
specific findings. We would rely on the Division of Wildlife 
information for those findings.
    Mr. Gibbons. As we heard from Mr. Crawforth, that the Fish 
and Wildlife Service gets its information from the State of 
Nevada with regard to the bull trout population, which he 
indicated through his studies did not indicate a need or basis 
by which it should have been listed; or that the road, or the 
repair of the road would have had an impact on the bull trout?
    Mr. Williams. Well, I guess--.
    Mr. Gibbons. You were here sitting in the audience for his 
testimony?
    Mr. Williams. I was.
    Mr. Gibbons. Did you hear him?
    Mr. Williams. I did.
    Mr. Gibbons. Do you disagree with him?
    Mr. Williams. With respect to the Division of Wildlife 
data, we have used other information in terms of our listing 
actions. I don't disagree, you know, with the information that 
has been presented by the Division of Wildlife in 1994 or, you 
know, the report that we received in 1999. The use of 
conclusions of the data is what we do not agree with.
    Mr. Gibbons. OK. Madam Chairwoman, my time has elapsed. I 
certainly thank you for this opportunity and turn it back to 
you.
    Mrs. Chenoweth-Hage. Thank you, Mr. Gibbons.
    Mr. Blackwell, I wanted to ask you, why did it take the 
Forest Service 6 weeks to fix the damage that was supposedly 
done by the county in 1\1/2\ days?
    Mr. Blackwell. I can repeat some of the information Mr. 
Siminoe gave you, but it might be better if you allow him to 
answer that.
    Mrs. Chenoweth-Hage. All right. Mr. Siminoe?
    Mr. Siminoe. Madam Chairman, thank you. Our approach to the 
situation was entirely different. The county's desire was to go 
in and reestablish the road through the washed out section. 
When we went in to rehabilitate it, we went in with a desire to 
rehabilitate the watershed, not just the road. So our 
objectives were different.
    We totally rebuilt the stream channel, adding the 
complexity necessary to support healthy aquatic life in that 
section of the stream. It was a much larger job than if we had 
just gone in and put the road to bed, so to speak.
    Mrs. Chenoweth-Hage. I've got to say with all due respect 
that last September I sent my staff out to meet with you, Mr. 
Siminoe, Mr. Gibbons sent his staff in for an on-the-ground 
meeting at the site, and you refused to meet with the 
Congressional staff. Could you tell me why?
    Mr. Siminoe. Yes, definitely. That was on advice of the 
U.S. Attorney's Office. Because we are in litigation, they felt 
it would not be proper for me to meet. As I expressed to your 
staffer on the telephone, had I been able to I would have 
enjoyed meeting with them, being out on the ground. That 
invitation holds to deal with any issue that is not tied up in 
litigation.
    Mrs. Chenoweth-Hage. Who was the attorney that worked, gave 
you this advice?
    Mr. Siminoe. Which U.S. Attorney?
    Mrs. Chenoweth-Hage. Yes.
    Mr. Siminoe. Steve Meyrey, Chief of Civil in the Las Vegas 
office.
    Mrs. Chenoweth-Hage. Did he give you a written opinion?
    Mr. Siminoe. He did not.
    Mrs. Chenoweth-Hage. He didn't give you a written opinion?
    Mr. Siminoe. He did not. That was verbal.
    Mrs. Chenoweth-Hage. That's unfortunate.
    I want to get back to this issue about the sign. You heard 
it testified to by an attorney, member of the bar, and county 
commissioners under oath there was a sign placed at the point 
of reconstruction that indicated this was the beginning of the 
wilderness area. You indicate there was no sign.
    I want to give you a chance again to rethink that. Are you 
sure there was no sign placed there? It's been testified 
there's pictures of the sign that has been placed at that 
point.
    Mr. Siminoe. The way I understood the question was whether 
or not the wilderness boundary sign had been moved to Pine 
Creek. My reply was it had not been. I also replied that there 
was a road closed sign at the end of Pine Creek Campground 
where the road washed out.
    Mrs. Chenoweth-Hage. That road closed sign indicated this 
was the beginning of the wilderness?
    Mr. Siminoe. It did not.
    Mrs. Chenoweth-Hage. All right. I will look forward to 
seeing your pictures and maybe we can communicate further on 
that.
    Mr. Siminoe. I would look forward to that.
    Mrs. Chenoweth-Hage. Your contractor out of Bozeman, 
Montana, how was he awarded the contract? Was it a unit price 
contract or was it hourly? Or what?
    Mr. Siminoe. You know, I don't recall exactly how that 
contract was handled. We have a contracting office in Boise, 
Idaho, that handled it for us.
    Mrs. Chenoweth-Hage. In Boise?
    Mr. Siminoe. Yes, uh-huh.
    Mrs. Chenoweth-Hage. So you don't know, was it let out with 
competitive bid? Public notice?
    Mr. Siminoe. I think it was a primary source contract. We 
had gone out and looked at a number of firms that had that 
skill and experience in doing those type of jobs. But I would 
have to defer. And if you would put your question in writing, I 
would be glad to find you an answer and provide it to the 
committee.
    Mrs. Chenoweth-Hage. If it will help you, I will put it in 
writing. I will also ask you how much was the contract for?
    Mr. Siminoe. Again, this is a matter of litigation and I 
can't go into that kind of specifics. Plus I honestly do not 
remember.
    Mrs. Chenoweth-Hage. Mr. Siminoe, in working with the 
Forest Service in Washington, DC., they assured me you would be 
very open to my questions.
    Mr. Siminoe. That would be my preference.
    Mrs. Chenoweth-Hage. I would not issue subpoenas in 
believing that they told me you would be open to the questions 
and answer the questions. It should be a simple matter of 
record about the contract and what the price of the contract 
was. That is something that should never be withheld from the 
public, whether I'm asking or any citizen is.
    Let me ask you again: What was the cost of the contract?
    Mr. Siminoe. And my reply is the same. I really don't 
recall. I will be glad to provide that information to you 
through the U.S. Attorney's Office.
    Mrs. Chenoweth-Hage. Would you please provide us a copy of 
the contract?
    Mr. Siminoe. Yes.
    Mrs. Chenoweth-Hage. Mr. Blackwell, in your testimony you 
state that the South Canyon Road was built around 1910 or 1911. 
Do you dispute Bill Price's testimony which states that the 
route has been in use by Native Americans since prehistoric 
times and by trappers and miners and grazers since as early as 
1825?
    Mr. Blackwell. Madam Chairman, there is nothing I would 
like to do better than to talk about the merits of this case. 
But once again, under direct orders from the U.S. Attorney, 
because this matter is in litigation, I am prohibited from 
discussing the merits of the case.
    Now, I can tell you generally if that case, if that 
information that we heard holds up in the legal dispute, then I 
think there's a strong case for the county. The Forest Service 
believes that the U.S. Government has made an equally strong 
case and the courts will resolve this.
    The reason I can talk about direct orders from the U.S. 
Attorney is because I tried to bring that material here with me 
today, the material provided by the Forest Service to the U.S. 
Attorney and the courts, and I was prohibited from doing that. 
I am told that that will be provided sometime next week.
    As fast as that's provided, we will get it to you for 
inclusion in the record. Through the U.S. Attorney, I might 
add.
    Mr. Gibbons. Would the Chairman yield for 1 second?
    Mrs. Chenoweth-Hage. Yes, I may.
    Mr. Gibbons. Madam Chairman, let me indicate that the U.S. 
Congress is not a party to any litigation the Forest Service is 
involved in. I would find it unusual and highly improper for 
the U.S. Attorney's Office to deny Congress access to 
information based on any litigation that it's involved with 
that is not bringing the U.S. Congress in as a party. Congress 
has an oversight role to play.
    Whether or not that information is part of evidence that is 
used in behalf of one party or the other is immaterial to an 
oversight hearing at the behest of Congress. It is improper for 
the United States Attorney's Office, and unless you can show us 
the legal authority to deny Congress access to information 
based on a judicial proceeding that does not involve the U.S. 
Congress as a party, I would be surprised to find it upheld 
that you could deny Congress that kind of information at this 
point in time.
    Madam Chairman, I'll yield it back to you.
    Mrs. Chenoweth-Hage. Thank you. I would like the name of 
the attorney who gave you that advice.
    Mr. Blackwell. This advice was provided on a telephone 
conference to our office's General Counsel and Mr. Siminoe, who 
relayed it to me, and I think Mr. Siminoe may know the name of 
the individual. Is it the same Steve Meyrey?
    Mr. Siminoe. Yes.
    Mr. Blackwell. Chief of the Civil Division for the U.S. 
Attorney's Office in Nevada.
    Mrs. Chenoweth-Hage. As indicated by my colleague, that is 
not a small matter, especially since your chief has personally 
assured us that you would answer our questions.
    Mr. Blackwell. Madam Chairman, if I could, this is not the 
first time that this has come up before this subcommittee, as 
you may remember, and the position of the U.S. Government, as 
far as I know, has been consistent, that matters in current 
litigation cannot be discussed in an open public forum and the 
merits of these civil suits discussed. There may be 
alternatives where we can go into closed session with the U.S. 
Attorney, I don't know. But I do know that the policy of the 
Federal Government is to prohibit its employees from discussing 
the merits of these cases.
    Mrs. Chenoweth-Hage. Well, the fact is that the Forest 
Service policy is different than the law, and if you don't 
answer the questions of Congress, that's a serious matter.
    Mr. Blackwell, we will have to subpoena the information if 
you're unwilling to abide by what your chief has personally 
told us, and I'm very sorry about that.
    To date $930,000 of a $2.3 million ERFO fund was received 
by the Forest Service and has been spent. But approximately 
another $1.3 million hasn't been spent for road repair.
    Now, No. 1, can all of the $930,000 already spent be 
accounted for?
    Mr. Blackwell. Well, I believe it can.
    Mrs. Chenoweth-Hage. What is the status of the remaining 
$1.3 million and where are the funds now?
    Mr. Blackwell. The ERFO dollars--let me back up. We 
requested ERFO dollars for every major flooding event. So the 
sum that you have just referred to I am not sure if it applies 
to the 1995 storm event in the State of Nevada only or if it's 
some others.
    For example, in Idaho we applied for and received numerous 
amounts of ERFO money, authority to spend ERFO money. In many 
of these cases where we have not spent all of the money that 
was authorized, it's returned to the Federal Government and 
available for other projects in other parts of the Nation.
    That's my understanding of where this Nevada money has 
gone. As I understand it, it was extended at least once and 
then the unexpended funds were returned to the U.S. Treasury.
    Mrs. Chenoweth-Hage. Were ERFO funds used to pay the 
contractor from Bozeman, Montana?
    Mr. Blackwell. I don't think so, but I want to hear Mr. 
Siminoe's answer.
    Mrs. Chenoweth-Hage. Mr. Siminoe?
    Mr. Siminoe. Yes. They were not. We used watershed 
rehabilitation funds to do the rehabilitation work in the South 
Canyon. If you, with your permission I'll address the ERFO 
question a little bit further.
    Mrs. Chenoweth-Hage. Yes, please do.
    Mr. Siminoe. In 1995 after the flood events which caused 
substantial damage, as we heard earlier, in other places in 
Elko County, and also in White Pine County, the Ely area, we 
applied to the Federal Highway Administration for emergency 
funds to rehabilitate those.
    I may say that what we actually get is the authorization. 
We do not get the funds. We set up an account that we spend 
against. Once the work is done, then we are reimbursed. 
Sometimes there is a lag of several years before we are 
reimbursed.
    In the case of South Canyon, we did apply for that 
authorization. We received it. Because the road was not 
constructed in the first construction period, we carried it 
over. We lost that authorization at the end of the last fiscal 
year.
    Mrs. Chenoweth-Hage. I have many more questions that I was 
prepared to ask you. But I think you probably are prepared not 
to answer them, based on the advice from Justice, and that is 
unfortunate. So I am going to turn to Mr. Gibbons for any final 
questions or any final comments.
    Mr. Gibbons. Madam Chairman, I want to thank you. I have no 
further questions of this panel. I just want to thank you for 
your leadership on this issue, for bringing the committee here 
to Elko County to open this forum up so that we can get the 
information out on this very, very important, very sensitive 
issue.
    You can tell by the tenor of the audience, you can tell by 
the tenor of the witnesses who have been before us that we have 
actually brought the process out into the open. We have 
discussed it in an open, humane, and I think civilized fashion.
    I think the record is clear there is the legal precedent 
that was established on the ownership of the road. The record 
is somewhat less clear about the effort of the Forest Service 
in their work after the county has gone in. We will expect to 
hear more and see more about that issue later on.
    I think from this point we certainly have our work cut out 
for us, because there are some solutions and some issues that 
we have to address, and it is clear to say that without your 
leadership, without your willingness to be here, to have this 
forum, to have the information brought out, that we would still 
be dealing with serious unknown issues.
    And I want to thank you. I'm sure that the people from 
Nevada want to thank you for this effort. And with that, Madam 
Chairman, I look forward to the rest of our work in resolving 
this issue.
    Mrs. Chenoweth-Hage. Thank you, Congressman Gibbons. And 
thank you for your invitation to join you in your district. 
When I first came to Congress in the 104th Congress, I made the 
statement several times--I think Mr. Blackwell heard me--that I 
was afraid the Forest Service was too broken to fix. And then I 
became chairman of the very committee of the agency that I 
thought was too broken to fix, and I put my shoulder to the 
wheel and worked with this agency and tried to see if we still 
couldn't make it work.
    I want to say that this is one of the most discouraging 
issues that I have been faced with. It's a little road. The 
whole universe of problems we deal with in the forest 
jurisdiction that we have from the East Coast to the West 
Coast, it would seem like a tiny problem, but it indicates so 
much more than a tiny problem.
    It indicates that maybe I was right, and I know that in the 
State of Idaho our legislature has put together a resolution 
and a bill to study the ability of the States to manage the 
National Forests that are in distress. And most of our forests 
are either in distress or near a state of near collapse or 
quickly becoming that way.
    You know, going beyond what people are asked to do under 
certain administrations, I guess common sense solutions could 
be reached on the ground; that congressional staff would not be 
ignored when they come into someone's area; that questions 
would be answered.
    I look forward to the day when we have that openness again. 
It is not here now, and I will have to ask the chairman to 
issue subpoenas for the rest of the information. I regret that.
    This is a situation that shows some of the most high-
handed, arbitrary, and capricious actions I have seen in a long 
time. I guess the tank traps in southern Idaho come kind of 
close to it. But this is not the way to treat a small 
community. The Forest Service was established to enhance 
communities, to enhance human activity, and developing the 
rest.
    And more than just bridges on the South Canyon Road need to 
be repaired and mended. The bridges between local communities 
and the Federal Government need to be mended. The bridges 
between you and the local county commissioners need to be 
mended.
    I'm sure it comes as a surprise to the Forest Service that 
the communities are upset. I would ask you, Mr. Blackwell, to 
ask your people to turn the volume down on the rhetoric. The 
rhetoric has been quite subdued, I think, from the local county 
people who have been absolutely insulted, and I think they have 
been quite restrained.
    Mr. Blackwell, I would ask you again to ask your people to 
keep the volume turned down on this kind of rhetoric because 
that only serves to inflame the situation.
    I know that both you and Mr. Siminoe have come to the 
Forest Service when it was a different agency. Although you 
can't say much now, I think that there are common sense 
solutions that you still can bring to the table, to this 
community, in spite of the fact that we do have a different 
boss in Washington. I would expect to see very quickly, within 
the next weeks or days, some real resolution to this problem 
and that the flames of the conflict have been turned down.
    We are going to go ahead with our investigation. We are 
going to go ahead and subpoena information. We may need to 
subpoena you again to come back to Washington, DC. I do hope 
that this serves to open doors instead of causing more 
problems. I do hope that this hearing will bring resolution to 
the people of Elko County on this road. They have a right to 
rely on a road that has provided access for them, for their 
parents, for their grandparents, and we as Americans have a 
right to rely on the fact that those who have been entrusted to 
take care of our culture and our history will take that trust 
to heart. Because by closing the roads and submitting our 
forest to one use only, we are literally destroying the very 
culture of this great West.
    So I want to, I would like to be able to thank you for your 
time and I think probably, gentlemen, all three of you learned 
something by listening to all of the witnesses, as I did, and I 
look forward to working with you on this and looking for a very 
quick resolution.
    With that, I would like to say again that the hearing 
record will remain open for 10 working days. If you wish to 
make any changes, additions to your testimony, you are welcome 
to do so.
    I do want to remind you and anyone in the audience who 
wants to submit testimony that our address is 1337 Longworth 
Building, H.O.B., Washington, DC. 20515.
    With that, this hearing is adjourned.
    [Whereupon, at 5:10 p.m., the subcommittee was adjourned.]
    [Chairman's Final Report follows:]

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