U.S. GOVERNMENT PRINTING OFFICE

67–361 u 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

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

(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH-HAGE, Idaho

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MARK E. SOUDER, Indiana

GREG WALDEN, Oregon

DON SHERWOOD, Pennsylvania

ROBIN HAYES, North Carolina

MIKE SIMPSON, Idaho

THOMAS G. TANCREDO, Colorado

GEORGE MILLER, California

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́, Puerto

Rico

ROBERT A. UNDERWOOD, Guam

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

CHRIS JOHN, Louisiana

DONNA MC CHRISTENSEN, Virgin Islands

RON KIND, Wisconsin

JAY INSLEE, Washington

GRACE F. NAPOLITANO, California

TOM UDALL, New Mexico

MARK UDALL, Colorado

JOSEPH CROWLEY, New York

RUSH D. HOLT, New Jersey

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

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

DON SHERWOOD, Pennsylvania

ROBIN HAYES, North Carolina

ADAM SMITH, Washington

DALE E. KILDEE, Michigan

OWEN B. PICKETT, Virginia

RON KIND, Wisconsin

GRACE F. NAPOLITANO, California

TOM UDALL, New Mexico

MARK UDALL, Colorado

JOSEPH CROWLEY, New York

DOUG CRANDALL, Staff Director

ANNE HEISSENBUTTEL, Legislative Staff

JEFF PETRICH, Minority Chief Counsel

(III)

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

(1)

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

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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?

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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 mainteVerDate 11-MAY-2000 11:13 Nov 27, 2000 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6633 J:\67361.TXT HRESOUR2 PsN: HRESOUR2
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nance 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-ofway, 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-ofway has been established is a question of State law.

Under Nevada law, the public can perfect an RS 2477 right-ofway 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 rightof-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

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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

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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 inVerDate 11-MAY-2000 11:13 Nov 27, 2000 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6633 J:\67361.TXT HRESOUR2 PsN: HRESOUR2
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dustrial 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-ofway 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 counVerDate 11-MAY-2000 11:13 Nov 27, 2000 Jkt 000000 PO 00000 Frm 00153 Fmt 6633 Sfmt 6633 J:\67361.TXT HRESOUR2 PsN: HRESOUR2
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try, 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.

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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.

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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?

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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 rightsof-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 simVerDate 11-MAY-2000 11:13 Nov 27, 2000 Jkt 000000 PO 00000 Frm 00157 Fmt 6633 Sfmt 6633 J:\67361.TXT HRESOUR2 PsN: HRESOUR2
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ple, 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

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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.

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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.

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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

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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.

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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.

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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.’’

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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

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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

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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?

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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

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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

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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?

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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.

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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.

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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

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Road. And there are about six or eight things listed here, why they

felt that road needed to be reconstructed. And this is in their Environmental Assessment that they spent thousands of dollars upon.

If you go up there today, you’ll find pins in the ground where the

road was to go. You’ll find ribbons on the trees. They’ve done a

great deal of work.

That work was done by the Forest Service people here in Elko

in cooperation with the county, with no outside influence from

Trout Unlimited or the higher-ups in the Forest Service. They concluded we must rebuild this road. This was appealed by Trout Unlimited.

So on June 10, 1998, there was a proposal by the Fish and Wildlife Service to list the bull trout as threatened. And on June 29,

1998, the preferred alternative at that time under the new Environmental Assessment was to construct a trail.

Now, this decision sounds a little fishy to me, especially when

these fish have been around for centuries. How in 1 year can

things change if it is not political? The only scientific evidence

which has been presented is the March 30, 1999, report by our own

Nevada Department of Wildlife which maintains the fish are not

threatened.

And the first Environmental Assessment contains the statement,

‘‘The probability is very low that the river between Snowslide and

Pine Creek are used for spawning, rearing, or adult resident trout.

The primary reason for this are a lack of spawning gravels and excessively high temperatures in the late summer. Recent surveys indicate that most if not all spawning by bull trout occurs in the

headwaters of the Jarbidge River above the Snowslide Gulch.’’

So in reality, the fish are up there in the wilderness area where

it’s cool enough for them to live. This fact is substantiated in the

NDOW report. I thought that Terry Crawforth was going to be

here, but I haven’t seen him, to present his findings. Their findings

say that the bull trout are occupying all the habitat suited to them.

I think that the chief problem with the fish is because they are

eating each other. And this is substantiated in the Fish and Wildlife, in their final rulemaking to list the fish. And it says, ‘‘Bull

trout are opportunistic feeders with food habitats primarily a function of size and life history strategy. Resident and juvenile bull

trout prey on terrestrial and aquatic insects,’’ another word I never

heard of; a few other things, but something I do understand, ‘‘and

small fish.’’

So, the adult migratory bull trout, which is some bull trout that

would go down from the areas high in the wilderness, they are

known to feed on various trout and salmon species. So I think they

are eating each other.

Mrs. CHENOWETH-HAGE. I think you’re right. I want to say that

is very interesting testimony. And if you have a report there, I

wonder if we can enter the entire report into the record?

Mr. CARPENTER. Yes, I will be glad to.

[The information referred to follows:]

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Mrs. CHENOWETH-HAGE. You know, it’s very interesting. In Idaho

they listed the bull trout in certain areas, too, that are streams

where salmon return to spawn. So that’s a raging debate. I thank

you for bringing it to our attention.

I do want to ask Mr. Nannini, Commissioner Nannini, apparently during the flood in 1995, the nearby Lamoille Canyon suffered the same kind of damage as did Canyon Springs. And the

Lamoille Road was repaired so quickly. Why wasn’t the road in

question, South Canyon Road, repaired?

Mr. NANNINI. Lamoille Canyon probably averages 2,000 people a

day during the summertime for usage. Somewhere around there; a

thousand. They have heavy traffic in that area and a lot of people,

and it’s well-known. And had it not been repaired, it would have

really had a lot of people here in this room today. South Canyon

probably numbers in the hundreds during the summer season.

So I think just notoriety of the area, accessibility to the area, and

that’s probably the reason.

Mrs. CHENOWETH-HAGE. What you’re telling us is it was public

pressure from recreation and tourism?

Mr. NANNINI. That’s correct.

Mrs. CHENOWETH-HAGE. Let me ask Commissioner Lesperance,

the South Canyon Road doesn’t have the same demand for tourism,

obviously. But are there property rights up there?

Mr. LESPERANCE. There certainly are. I think we ought to back

up a little bit and talk about property rights in general that are

being infringed upon by the current philosophy of the Forest Service, which undoubtedly will be followed by a similar philosophy in

the Bureau of Land Management in a matter of time. That philosophy is—it was clearly described a number of years ago when I was

a young professor at the university attending many of these meetings and trying to draw attention to the fact that the government

of the United States was insisting that they have full control over

the public lands.

And I have attended many, many seminars where the technique

of obtaining title to all property within the boundaries of the Federal property was discussed. The No. 1 item is always to obtain the

water. No. 2 item is to close the roads.

Mrs. CHENOWETH-HAGE. Very interesting.

Mr. LESPERANCE. When that happens, we must remember that

the ability to take those resources and produce them into wealth

becomes extremely limited and perhaps totally stopped. You must

never forget, all wealth ultimately only comes from the land and

the waters associated with it.

Mrs. CHENOWETH-HAGE. No, we can’t be reminded of that too

often. And ultimately the focus of this whole issue really isn’t the

bull trout, is it?

Mr. LESPERANCE. Absolutely not.

Mrs. CHENOWETH-HAGE. The focus is the road.

Mr. LESPERANCE. The focus of this issue is: Who will control the

future of this country, the Federal Government or the people that

made it what it is?

Mrs. CHENOWETH-HAGE. Well, I wanted to ask you, what impact

will not rebuilding the road have on the local economy in Jarbidge?

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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-anda-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?

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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

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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.

[The information referred to follows:]

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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 lifelong 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

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lenged. 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

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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.

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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,

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arate 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.

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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.

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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?

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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.

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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 Rightof-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

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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

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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.

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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 HumboldtToiyabe 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

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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 ResoluVerDate 11-MAY-2000 11:13 Nov 27, 2000 Jkt 000000 PO 00000 Frm 00500 Fmt 6633 Sfmt 6633 J:\67361.TXT HRESOUR2 PsN: HRESOUR2
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tion. 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.

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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?

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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.

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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

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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?

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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 11⁄2 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?

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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 conVerDate 11-MAY-2000 11:13 Nov 27, 2000 Jkt 000000 PO 00000 Frm 00516 Fmt 6633 Sfmt 6633 J:\67361.TXT HRESOUR2 PsN: HRESOUR2
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tract 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 reVerDate 11-MAY-2000 11:13 Nov 27, 2000 Jkt 000000 PO 00000 Frm 00517 Fmt 6633 Sfmt 6633 J:\67361.TXT HRESOUR2 PsN: HRESOUR2
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layed 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.

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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.

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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 someVerDate 11-MAY-2000 11:13 Nov 27, 2000 Jkt 000000 PO 00000 Frm 00520 Fmt 6633 Sfmt 6633 J:\67361.TXT HRESOUR2 PsN: HRESOUR2
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thing 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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