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