Ninth circuit throws wrench into Elko Bull Trout settlement
August 15, 2002
The Ninth Circuit Court of Appeals may have thrown a monkey wrench into the settlement ending the battle over the Elko County Bull Trout wilderness road.
The case stems from the battle between the U.S. Forest Service and residents in Elko County who made a national cause out of their quest to rebuild the South Canyon Road.
The residents argued the road was important to the community of Jarbidge in northern Elko County and that the federal government was usurping local rights to use public lands.
Forest Service officials said the washed-out road could not be rebuilt because it was adjacent to the west fork of the Jarbidge River — home of the endangered bull trout.
The court sent the parties off to work out a settlement and ordered they do so behind closed doors. It took six months before the parties returned with a deal, under which Elko would ask for a Forest Service permit before rebuilding the road and the Forest Service would concede Elko County’s right of way to the road.
At that point, the Wilderness Society and Great Old Broads for Wilderness asked to intervene, saying the federal government improperly ceded a public property interest in the road to Elko, reducing the environmental protections for the adjacent wilderness. They sought to block the settlement.
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They were denied by U.S. District Judge David Hagen in Reno on the grounds it was too late in the process. Hagen pointed out they didn’t ask to intervene until 18 months after the lawsuit was filed and until after six months of negotiations to reach a deal.
The environmental groups appealed, saying they assumed the government would protect their rights and they asked to intervene as soon as they found out the government had compromised their interests.
Elko County and the citizen activists demanding the right to reconstruct the roadway also argued allowing environmentalists to intervene would probably endanger the settlement.
The Ninth Circuit Court of Appeals, in an opinion by Judges Mary Schroeder, Dorothy Nelson and Stephen Reinhardt, rejected those arguments and ordered that the environmental groups represented by the Earthjustice Legal Defense Fund be allowed to intervene in the case.
The opinion says that, until the settlement deal was announced, “the appellants were entitled to rely on the government to adequately protect their interests.”
“It was only when the interveners learned the settlement constituted a substantial departure from the position that the government had maintained throughout the litigation that they sought to intervene,” the opinion states.
Forest Service officials said they are reviewing the ruling but don’t know what effect it will have on the settlement deal that ended the battle over the road. The battle drew national attention when protesters turned out to defy the Forest Service and started rebuilding the road with pick and shovel.