[House Hearing, 106 Congress] [From the U.S. Government Publishing Office] HEARING ON FOREST SERVICE ROAD RECONSTRUCTION ISSUES ON THE SOUTH CANYON ROAD ======================================================================= FIELD HEARING before the SUBCOMMITTEE ON FORESTS AND FOREST HEALTH of the COMMITTEE ON RESOURCES HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTH CONGRESS FIRST SESSION __________ NOVEMBER 13, 1999, WASHINGTON, DC. __________ Serial No. 106-86 __________ Printed for the use of the Committee on Resources Available via the World Wide Web: http://www.access.gpo.gov/congress/ house or Committee address: http://www.house.gov/resources __________ U.S. GOVERNMENT PRINTING OFFICE 67-381 WASHINGTON : 1999 ______ HEARING ON FOREST SERVICE ROAD RECONSTRUCTION ISSUES ON THE SOUTH CANYON ROAD ======================================================================= FIELD HEARING before the SUBCOMMITTEE ON FORESTS AND FOREST HEALTH of the COMMITTEE ON RESOURCES HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTH CONGRESS FIRST SESSION ---------- NOVEMBER 13, 1999, WASHINGTON, DC. ---------- Serial No. 106-86 ---------- Printed for the use of the Committee on Resources Available via the World Wide Web: http://www.access.gpo.gov/congress/house or Committee address: http://www.house.gov/resources COMMITTEE ON RESOURCES DON YOUNG, Alaska, Chairman W.J. (BILLY) TAUZIN, Louisiana GEORGE MILLER, California JAMES V. HANSEN, Utah NICK J. RAHALL II, West Virginia JIM SAXTON, New Jersey BRUCE F. VENTO, Minnesota ELTON GALLEGLY, California DALE E. KILDEE, Michigan JOHN J. DUNCAN, Jr., Tennessee PETER A. DeFAZIO, Oregon JOEL HEFLEY, Colorado ENI F.H. FALEOMAVAEGA, American JOHN T. DOOLITTLE, California Samoa WAYNE T. GILCHREST, Maryland NEIL ABERCROMBIE, Hawaii KEN CALVERT, California SOLOMON P. ORTIZ, Texas RICHARD W. POMBO, California OWEN B. PICKETT, Virginia BARBARA CUBIN, Wyoming FRANK PALLONE, Jr., New Jersey HELEN CHENOWETH-HAGE, Idaho CALVIN M. DOOLEY, California GEORGE P. RADANOVICH, California CARLOS A. ROMERO-BARCELO, Puerto WALTER B. JONES, Jr., North Rico Carolina ROBERT A. UNDERWOOD, Guam WILLIAM M. (MAC) THORNBERRY, Texas PATRICK J. KENNEDY, Rhode Island CHRIS CANNON, Utah ADAM SMITH, Washington KEVIN BRADY, Texas CHRIS JOHN, Louisiana JOHN PETERSON, Pennsylvania DONNA MC CHRISTENSEN, Virgin RICK HILL, Montana Islands BOB SCHAFFER, Colorado RON KIND, Wisconsin JIM GIBBONS, Nevada JAY INSLEE, Washington MARK E. SOUDER, Indiana GRACE F. NAPOLITANO, California GREG WALDEN, Oregon TOM UDALL, New Mexico DON SHERWOOD, Pennsylvania MARK UDALL, Colorado ROBIN HAYES, North Carolina JOSEPH CROWLEY, New York MIKE SIMPSON, Idaho RUSH D. HOLT, New Jersey THOMAS G. TANCREDO, Colorado Lloyd A. Jones, Chief of Staff Elizabeth Megginson, Chief Counsel Christine Kennedy, Chief Clerk/Administrator John Lawrence, Democratic Staff Director ------ Subcommittee on Forests and Forest Health HELEN CHENOWETH-HAGE, Idaho, Chairman JOHN J. DUNCAN, Jr., Tennessee ADAM SMITH, Washington JOHN T. DOOLITTLE, California DALE E. KILDEE, Michigan WAYNE T. GILCHREST, Maryland OWEN B. PICKETT, Virginia JOHN PETERSON, Pennsylvania RON KIND, Wisconsin RICK HILL, Montana GRACE F. NAPOLITANO, California BOB SCHAFFER, Colorado TOM UDALL, New Mexico DON SHERWOOD, Pennsylvania MARK UDALL, Colorado ROBIN HAYES, North Carolina JOSEPH CROWLEY, New York Doug Crandall, Staff Director Anne Heissenbuttel, Legislative Staff Jeff Petrich, Minority Chief Counsel C O N T E N T S ---------- Page Hearing held November 13, 1999................................... 1 Statement of Members: Chenoweth-Hage, Hon. Helen, a Representative in Congress from the State of Idaho......................................... 1 Prepared statement of.................................... 3 Gibbons, Hon. Jim, a Representative in Congress from the State of Nevada............................................ 4 Prepared statement of.................................... 6 Statement of Witnesses: Bedford, Ladd, Attorney, San Francisco, California........... 61 Blackwell, Jack, Regional Forester, Intermountain Region, U.S. Forest Service........................................ 493 Prepared statement of.................................... 496 Carpenter, Mr. John, Assemblyman, District 33, Nevada Assembly................................................... 313 Prepared statement of.................................... 315 Carver, Dick, Nye County Commissioner........................ 388 Prepared statement of.................................... 444 Crawforth, Terry, Nevada Department of Wildlife.............. 381 Prepared statement of.................................... 384 Holford, Matthew, Nevada Chairman of Trout Unlimited......... 375 Prepared statement of.................................... 377 Lesperance, Mr. Anthony, Chairman, Elko County Commission.... 301 Prepared statement of.................................... 303 McQueary, Ms. Kristin, Deputy District Attorney, Elko County. 286 Prepared statement of.................................... 289 Mose, Elwood, Spring Creek, Nevada........................... 62 Prepared statement of.................................... 65 Nannini, Mr. Charles, Elko County Commissioner............... 319 Prepared statement of.................................... 322 Price, Bill, Elko, Nevada.................................... 71 Prepared statement of.................................... 73 Salicchi, Caesar, Treasurer of Elko County................... 372 Prepared statement of.................................... 374 Williams, Robert D., Field Supervisor, Nevada Fish and Wildlife Office, U.S. Fish and Wildlife Service, Department of Interior................................................ 500 Prepared statement of.................................... 502 Additional Material Supplied: Biological Evaluation For Bull Trout......................... 394 Chairman's Final Report...................................... 516 Memorandum from the Elko County Board of Commissioners....... 12 Price Addendum............................................... 155 Report on The Status of the Bull Trout in Nevada, September 1994....................................................... 335 Report on The Status of the Bull Trout in Nevada, March 1999. 354 HEARING ON FOREST SERVICE ROAD RECONSTRUCTION ISSUES ON THE SOUTH CANYON ROAD ---------- SATURDAY, NOVEMBER 13, 1999 House of Representatives, Subcommittee on Forests and Forest Health, Committee on Resources, Washington, DC. The subcommittee met, pursuant to notice, at 1 p.m. at the Elko Convention Center, 700 Moren Way, Elko, Nevada, Hon. Helen Chenoweth-Hage (chairman of the subcommittee) presiding. STATEMENT OF THE HON. HELEN CHENOWETH-HAGE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO Mrs. Chenoweth-Hage. The Subcommittee on Forests and Forest Health will come to order. The subcommittee is meeting today in Elko, Nevada, to hear testimony on Forest Service reconstruction in Jarbidge, Nevada. I want to thank my colleague, Congressman Jim Gibbons, as well as the Elko County Commissioners for inviting the Subcommittee on Forests and Forest Health out to hold this hearing. This is a very interesting set of circumstances out here. As you can well imagine, what may seem like just one afternoon's work does take an awful lot of work by a lot of staffers to put it together. At this time I would like to recognize those staffers who are so capable and who have done such a fine job for us. I would like to first introduce my chief of staff of the subcommittee back in Washington, DC. With us here today, Doug Crandall. And the clerk of the committee is here, Michael Correia. He's back here. And your own Karen Yates is here. And she's the recorder for today. And Jay Cranford from Congressman Gibbons' office and Gene Marchetti from Congressman Gibbons' office. So I want to thank all of them for the fine job that they have done. And so now we will be getting into the nuts and bolts of the hearing. I do want to just set down a few little ground rules before we start. Many times there are statements that are given in the hearings where you just feel like you want to stand up and applaud. I want to let you know that this is an official Congressional hearing. It is not a town hall meeting, It is an official congressional hearing, so we keep the decorum of the hearing room. So we ask that there not be any applause; that you hold your applause. I know how you feel. Sometimes I like to stand up and applaud, too, and I can't do it. Our witnesses will be limited to a 5-minute time period. I do want to instruct our witnesses that there are lights there on the table. They are kind of like stoplights. As long as the green light is on, you can go ahead and testify. When the yellow light is on, it means step on the gas. And when the red light comes on, it means time is up. So we will be questioning you again. Both Congressman Gibbons and I will have a round each, maybe two rounds if we decide to do that, of questioning. So please be prepared for that. So now with regard to the issue at hand, the thunderstorm that washed away parts of the South Canyon Road in the spring of 1995 must have also washed away common sense. This is evidenced by the recent notice of a potential United States governmental lawsuit against Elko County. It's hard to imagine that the attempt to reconstruct 1,700 feet of road can lead to 4 years of failed negotiations, endless environmental analyses, the emergency listing of the bull trout as threatened, the ranting and resignation of a Forest Service supervisor, numerous appeals, lawsuits, polarization, and distrust. We are not here today to focus on personality disputes or to promote discord. Rather, we are here today to move this contentious and important issue and dispute toward rational resolution. Now, the only way to accomplish this is to focus on pertinent facts and information and on the law. So the primary questions to be asked and answered today are questions of ownership and jurisdiction. Who owns the South Canyon Road? And who owns the private property adversely affected by the Forest Service's closure of that road? And what government agency or agencies have lawful jurisdiction over the legal issues involving this road and the properties affected? And last, who is liable to pay compensation for the infringements of property rights resulting from the road closure action? Now, I would like to welcome my colleague, Mr. Jim Gibbons, for his opening statement and again express my sincere gratitude at being his guest in his district. Congressman? [The prepared statement of Mrs. Chenoweth-Hage follows:] [GRAPHIC] [TIFF OMITTED] T7361.001 STATEMENT OF THE HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEVADA Mr. Gibbons. Thank you very much, Madam Chairman. I too want to extend a great deal of thanks to all the people who have put on this event to hear this issue. I would like to make particular issue of thanks to the many people who are sitting in this audience today who have taken time out of a gorgeous weekend day to be present here to hear and get the information on this issue. I would also like to welcome you to Nevada. I want to thank you for holding this hearing, to make sure that voices and issues like this are heard not just in Washington, DC. But in our districts, in our States, where events like this have become paramount to become literally the focus of much of our communities' activities, not just in Nevada but in other States as well. This is an important hearing. It is important not just for the people of Elko. It's important for the people of Nevada, it's important for the people of Idaho and it's important for the people of America. At the beginning of this hearing I want to tell you that I want to keep my remarks as short as possible here. Madam Chairman, events surrounding the reconstruction efforts of this road have become fodder for rhetoric, tirades, and unfortunately resulted in an escalation of tension and distrust between the Forest Service and the citizens of Elko County. As we revisit this issue today in this congressional hearing, it's my hope that by the hearing's end we will have taken positive steps toward a resolution of this matter. Today let me say that the rhetoric will cease. Today the forum for speech will not be in the media on 15-second sound bites. But this congressional hearing as set forth by the Constitution of the United States will be the forum by which the information is put forward. It's my understanding, Madam Chairman, that each of our witnesses will be sworn in, sworn in under oath, under penalty of perjury, and they will be bound by the U.S. Constitution to speak only the truth. The importance of this open and public hearing should not be taken lightly. Today we are delving into a matter that represents a microcosm of a much broader issue and relationship. That is the relationship between Federal agencies and the citizens throughout the western United States. Our task today, our duty in fact today is to tell each side of this issue, and we will discuss for the public record a number of events and cover a wide array of legal matters involved. There are a number of questions that need to be asked and there are a number of questions that need to be answered. It's my hope that these questions will be answered today. For example, as you articulately stated, who actually owns the road in the South Canyon that leads up to the wilderness area? In fact, I hope we will be able to determine legal ownership of the very road in question. And given the human activity in the Jarbidge Canyon prior to the formation of even the United States Forest Service, what documents show that the road area in question, if it does belong to somebody other than the people or the County of Elko, who does it belong to and by what documentation do they claim that ownership? Additionally, this year, the State of Nevada experienced one of the worst fire seasons, Madam Chairman, in history. With this in mind and in light of the absence of all the access to this road, how can future forest fires be fought without a road leading to the edge of the wilderness area? It was just this year we saw evidence of firefighters carrying all the equipment, water, tools, mile after mile just to reach an access to fire which could have been put out a lot earlier. But because they were denied access, they were unable to stop the fire. It destroyed much greater areas than was planned. After the record number of acres burned this year in northern Nevada, how can the habitat for even the endangered bull trout be protected unless there is a road? Now, moving on, questions have arisen on the necessity of this congressional hearing. Since this issue is already in court, why would we proceed with this field hearing? Well, technically, several issues surrounding this matter fall under congressional jurisdiction. This hearing is the very best method for the legislative branch of our government to have a voice and a role in a situation where the executive and judiciary branches are already involved. But there is more than that. The citizens of the Second Congressional District of Nevada came to me with legitimate concerns about the road reconstruction issue. And I have the deep obligation to my constituents to make sure their concerns are addressed. Fortunately, Chairman Chenoweth-Hage has provided this opportunity today to address these concerns in an open and public forum. This is not, as the Chairman stated, an inquisition. Nor is it an Elko witch hunt as some might believe. This hearing is not about finding fault with our U.S. Government employees. These employees in fact are real people who are trying to carry out their duties as best they can under the directions of their of supervisors. Instead, our major responsibility, our duty to the citizens of Elko County is to use this public forum to determine the Federal agencies involved in this issue followed proper procedure. Congress did not enact laws with the intent of excluding or limiting the people's access to public land. Indeed, the intent is to have these lands for the people now and in the future. I welcome the opportunity to be here today. What we learn here can best be considered the opportunity to further address the system of Federal management of public lands and the right of people's access to those lands, not only in Elko County but everywhere in this country. Our time is limited, Madam Chairman. So in order to proceed in this hearing I would like to thank you once again for sharing your time with the citizens of Elko County. I would request that my full statement be submitted for the record. [The prepared statement of Mr. Gibbons follows:] [GRAPHIC] [TIFF OMITTED] T7361.002 [GRAPHIC] [TIFF OMITTED] T7361.003 [GRAPHIC] [TIFF OMITTED] T7361.004 [GRAPHIC] [TIFF OMITTED] T7361.005 [GRAPHIC] [TIFF OMITTED] T7361.006 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. 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And it is my pleasure to be your guest here and bring the committee to Elko. Without further ado, I do want to mention, though, that this hearing is being broadcast live on KLIX radio. We also have the NPR station down from Boise that will be broadcasting part of this hearing. So I would like to also remind those of you who did want to testify and we couldn't work you into the witness list, I do want you to know that your testimony is very, very important to us. We just had such a limited time, we weren't able to work all of you in. So if you would please send your testimony to me at the Subcommittee on Forests and Forest Health, Longworth Building, U.S. House of Representatives, Washington, DC., I will get it. If you will please put it in the mail within 10 working days, we will be reviewing all of your testimonies. So without further ado, I would like to introduce our first panel: Mr. Ladd Bedford, an attorney from San Francisco; Mr. Elwood Mose from Spring Creek, Nevada; and Mr. Bill Price from Elko, Nevada. Now, I think that it was explained to you, but just in case, I do want to reexplain it is the intention of the Chairman to place all of the witnesses under the oath. Now, this is a formality of the committee that is meant to assure honest and open discussion. It should not affect the testimony given by our witnesses. I wonder if you might please stand and raise your arm to the square. [Witnesses sworn.] Mrs. Chenoweth-Hage. Mr. Bedford, will you begin your testimony? STATEMENT OF LADD BEDFORD, ATTORNEY, SAN FRANCISCO, CALIFORNIA; ELWOOD MOSE, SPRING CREEK, NEVADA; AND BILL PRICE, ELKO, NEVADA STATEMENT OF LADD BEDFORD Mr. Bedford. Thank you, Congresswoman Chenoweth-Hage; and thank you, Congressman Gibbons. Mr. Gibbons. You may want to pull the mike closer to you. Mrs. Chenoweth-Hage. It may not be on, Mr. Bedford. You want to tap it? We just need to have you pull it forward. Mr. Bedford. Can you hear me now? Mrs. Chenoweth-Hage. Not very well. Mr. Bedford. How is that? Mrs. Chenoweth-Hage. That's good. Mr. Bedford. Thank you, Congresswoman Chenoweth-Hage; thank you, Congressman Gibbons. I'm here today to discuss the legal background and the issues involved. Section 8 of the Mining Act of 1866 provided as follows: ``The right-of-way for the construction of highways over public lands not reserved for public uses is hereby granted.'' These rights-of-way are commonly known as RS 2477 rights-of-way. The legitimacy of these rights-of-way was confirmed by the U.S. Supreme Court in Central Pacific Railway Company versus Alameda County, a 1932 decision. In that decision the Supreme Court stated with respect to RS 2477 rights-of-way: ``Governmental concurrence in and assent to the establishment of these roads are so apparent and their maintenance so clearly in furtherance of the general policies of the United States, that the moral obligation to protect them against destruction or impairment follows as a rational consequence.'' As confirmed by the Ninth Circuit Court of Appeals in Sierra Club versus Hodel, a 1988 decision, and numerous Interior Department decisions, the validity of an RS 2477 right-of-way is to be determined under State law and is beyond the jurisdiction of the Federal Government. The critical determination of the validity of an RS 2477 right-of-way, including what constitutes a highway, is decided through the application of State law. As pointed out by the Ninth Circuit Court of Appeals in Schultz versus Army, a 1993 decision, the RS 2477 grant is self-executing. An RS 2477 right-of-way comes into being automatically when a public highway is established across Federal lands in accordance with the law of the State. Whether a right-of-way has been established is a question of State law. Under Nevada law, the public can perfect an RS 2477 right- of-way through mere use. It is true that the Federal Land Policy Management Act, finally known as FLPMA, enacted in 1976 repeals RS 2477 and its open-ended grants of rights-of-way over Federal lands. However, part of FLPMA contains a very important savings clause which explicitly protects rights-of-way in existence on the date of FLPMA's passage, which was October 21, 1976. This savings clause reads as follows: ``Nothing in this subchapter shall have the effect of terminating any right-of- way heretofore issued, granted, or permitted.'' The very language of this statute makes it clear that the Forest Service is powerless to take any action that would have the effect of terminating an RS 2477 right-of-way. The legislative intent when FLPMA was passed was plain and simple. RS 2477s in existence as of October 21, 1976, were to be protected against any attempts to restrict or eliminate them. Clearly any action by the Forest Service to restrict or eliminate an RS 2477 right of way violates the existing law and contravenes the will of Congress. In enacting FLPMA, Congress was well aware that the law of the States was being used to define the validity and scope of those rights-of-way. Congress nevertheless chose to preserve the status quo without affording the Forest Service or any other governmental agency any new powers whatsoever to change those rights-of-way. And that is your basic legal background of the issues we're dealing with. Mrs. Chenoweth-Hage. And that concludes your oral testimony? Mr. Bedford. That concludes my oral testimony. Mrs. Chenoweth-Hage. All right, thank you. Mrs. Chenoweth-Hage. The Chair now recognizes Mr. Mose for his testimony. STATEMENT OF ELWOOD MOSE Mr. Mose. Thank you, Congressman Chenoweth-Hage, and thank you, Mr. Gibbons. My name is Elwood Mose. I'm a descendant of the third signatory of the Ruby Valley Treaty, one of the principal chiefs and head men of the Western Shoshone in 1863. Earlier this year, in September, I went with Assemblyman John Carpenter and Grant Gerber and Chris Johnson to look at the closed Jarbidge Road, and I had a little trouble believing how the Forest Service had gone to the extent of ripping up the road in order to close it. So subsequently we determined to go and open up the road to effect repairs and make it available to public use again. But the Federal Government had gone and obtained a restraining order preventing anyone, including me as a Shoshone, a descendent of the treaty signer, to go and undertake any repair and reconstruction of the road. This comes as a surprise to me because the Forest Service is obliged under various Federal statutes, under its own regulations, NEPA, ARPA, NCRA, so forth, to consult with Indians. We have two types of Indians here, one group which traces its ancestry, political ancestry, to the group of Shoshone who preexisted the creation of the United States, including having existed in this part of the country since time immemorial. We have modern-day tribal organizations organized under the laws of the United States and form sort of a corporate government for the tribes. In no case did the Forest Service consult either group. And the dealings of the United States is through the Congress with the Indians under Article I, Section 8 of the Federal Constitution. That didn't occur. The President's Executive Order having to do with government-to-government relations with the organized tribes wasn't followed either. Briefly, I want to speak to the Shoshone history in the Jarbidge area. We have occupied and controlled from time immemorial a swath of land approximately 1,000 miles long, reaching from Death Valley down in the southwest to the headwaters of the North Platte in Colorado. We followed a tradition of life having to do with the seasons, following the changing of the seasons. There was a time to hunt, there was a time to gather, there was a time to take winter shelter. Although things have been altered by western civilization, our world view is pretty much the same. We respect the Earth and all around it and our role within it. We can't do things like replant, but we sure can by our rituals and by our customs and by the maintenance of our traditions encourage the regrowth of next year's plants and regeneration of the Earth. That's what we have done for thousands of years. This is underpinned by what we call pu-ha. You might call it a unique medicine which comes to people by which we have stable--by which we have maintained a stable balance of ourselves in relation to the world. And those places where you acquire this is in the high places, in the mountains, on mountain peaks or valleys and caves, and so forth. This is all part of the Jarbidge area. The Three Sister Peaks of Jarbidge, the streams and the lake there, we have our tales about the terrible spirit called the jobij which lives in the area. He's a terrible rock man who's got a big stone basket and collects wayward Indians to feed his kids. I guess he's got to make a living, too. We occupied this country. Our ancestors are buried there. And we use it continually. As water follows the easiest course, the Jarbidge River made its way from the mountains, down the valleys, down the canyon, down to what is now Idaho. And animals followed that valley. And we followed the animals, and we created paths and so forth. Behind us came the trappers, the miners, the cowboys, and sheepmen. And the settlers came with their wagons. And eventually came the recreation seekers with their motor vehicles. We are no different from these people now. We do the same thing. We use 4-wheelers; we use pickup trucks to get around. We can't do that with the road closed to us. We can't practice our ancient customs and traditions. One thing I want to point out, part of the United States, the United States has a bad habit of violating its word, not only to the Indians in past cases, but to its citizens generally. That's where part of my concern with this business comes in. For example, on the 19th of November, in 1863, President Lincoln delivered an address at the dedication of the cemetery at Gettysburg. A month-and-a-half before that time, they had made the Ruby Valley Treaty and promised the Indians some things, which were never lived up to. We took the case to court. The upshot of that was that the government said: Well, we think you have been damaged to the tune of $26 million. We are going to appropriate the money from the Treasury into a trust account in the Bureau of Indian Affairs. That was done and in essence the government moved the money from the left pocket to the right pocket and claimed to have paid us for our land at the value of 15 cents per acre. We have not seen a penny of that money. If you're interested in the title and ownership of that, we have a treaty that says the land is used, it's open for mines, for roads, for ranches, for towns. I think the true ownership resides in the people, in the citizens of Nevada, northeastern Nevada. And as far as the part which the government has said it's paid for, we don't have any legal proof of that. I submit to you, Congressmen, that the Indians are the owners, and that the other owners are the citizens of northeast Nevada. Mrs. Chenoweth-Hage. Thank you, Mr. Mose. [The prepared statement of Mr. Mose follows:] [GRAPHIC] [TIFF OMITTED] T7361.056 [GRAPHIC] [TIFF OMITTED] T7361.057 [GRAPHIC] [TIFF OMITTED] T7361.058 [GRAPHIC] [TIFF OMITTED] T7361.059 [GRAPHIC] [TIFF OMITTED] T7361.060 [GRAPHIC] [TIFF OMITTED] T7361.061 Mrs. Chenoweth-Hage. The Chair recognizes Mr. Price for his testimony. STATEMENT OF BILL PRICE Mr. Price. Thank you both for coming. My name is Bill Price. I'm a professional land surveyor and a registered professional landman specializing in historical research. I've worked on four cases similar to this. In 1998, Elko County asked me whether the South Canyon Route was used regularly by Elko County residents before the Forest Reserves beginning 1905. They believed this would establish the route as a nineteenth century highway, in quotation marks. We reviewed books and publications, Forest Service reports, USGS data, and Elko County records, as indicated on the exhibits in the package I gave you. We constructed maps and 3-D models. We examined the area by helicopter together with Dr. Wayne Burkhardt, a noted expert on western history and agriculture. We made several observations. The Jarbidge Mountains host plant, animal, and mineral resources that have been used seasonally by humans for millennia. Modern European activity began about 1825 and intensified over time. This activity included trapping, hunting, fishing, prospecting, and grazing. By the late 1890's, sheep numbers had reached tremendous levels, according to a 1906 Forest Service report by R.B. Wilson. Wilson reported 392,350 sheep amongst 43 owners competing for forage in his study area. The Jarbidge Mountains would have been a veritable beehive of activity. In fact, it was the desire to preserve the mountains that was the impetus behind the Forest Reserve movement. Wilson made several observations about available trails and roads, and ease of access to timber in the Jarbidge Mountains. Much of that timber was and still is accessible only through the South Canyon. The Jarbidge South Canyon is a natural corridor, as illustrated on the plates in the material I've given you, some 3-D views, some plan views. The canyon provides access not only to resources in the South Canyon, but it's the most logical route for individuals with pack animals to communicate or commute between the Jarbidge area and the Marys river basin. We found evidence of just this activity in the Elko County records, as illustrated in plates 3 and 4 of the material package. William Mahoney and his wife, Pearl, for example, in concert with prominent Nevada pioneer Warren W. Williams of Fallon, established facilities in the Mary's River Basin, Jarbidge, and at Wilkins Island. Mahoney was reported to be in the Jarbidge area as early as 1892--that's Forest Service information--as was another entrant, William Perkins. The first detailed survey of the South Canyon was by the USGS in 1910. F.C. Schrader mapped an upper trail and lower trail, two cabins near Snowslide Gulch, and spent the night at the Perkins cabin at the head of the Jarbidge River. Remember, Perkins had been in the area since at least 1902, if not 1892, according to some literary records. Between 1910 and 1923, the 19th century highway evolved into a 20th century road complete with bridges, capable of hauling industrial forest products from the mill at Sawmill Creek. Recall Wilson's observations about the access to timber in the Jarbidge Mountains earlier in the 1906 report. This road has been in regular use and is depicted on the myriad of modern maps from that time to the present. In fact, when you objectively consider the preponderance of all this evidence, it's hard not to acknowledge that the county has a very compelling claim. RS 2477 is an act of Congress, too. Much of this information and nearly all the leads came directly from Forest Service reports. The agency's recalcitrance begs the simple question: Is it oversight or is it obfuscation? I can't tell you that. I can tell you, though, the impact on your citizens is just as serious either way. I can tell you what the agency sent Elko County as their ostensible proof that this road did not exist. They sent this copy of Schrader's 1912 report based on his 1910 survey. I've already indicated to you that plate 2 shows a portion of the South Canyon route. It shows the portion that the Forest Service buried recently. Schrader's survey field notes show most of the rest of the route. Interestingly, plate 2 is missing from this report. I've worked on four similar cases as listed in appendix one of the materials I've given you. I have encountered similar things. As one example, in the interest of housekeeping, government agencies have destroyed a great number of historical documents over the past 10 or 15 years. In another instance, this agency failed to retract a report even after it learned it was based on a map of a different road. That report also included this affidavit. It was apparently written in 1995. The man who ostensibly wrote it died in 1988. I'm just as concerned as everyone about the acrimony and mistrust described in recent public statements. I hope this committee can foster an atmosphere of openness that will assuage some of the misunderstandings. Thank you again for coming. 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I want to thank the witnesses for your very, very interesting testimony. And at this time I recognize Congressman Gibbons for his questions. Mr. Gibbons. Thank you very much, Madam Chairman. I appreciate that. What I would like to do, first of all, is turn to Mr. Bedford and have him distill for us, for those of us who aren't as eloquent in our legalese as you have presented with the fundamental findings of your analysis, who actually--let's back up and start with are these RS 2477 roadways rights-of-way that fall under property rights as determined by courts in jurisdiction in common law? Mr. Bedford. I think the courts on many, many occasions have recognized a right-of-way as a property right. I don't think there's any question about that. Mr. Gibbons. These would be easements that were granted by the Federal Government for commerce, so to speak, between cities as a developing area of the west took place? These would be corridors of commerce? And even before that, as Mr. Mose had talked about, for tribal communication as well and transport? They would be considered then a highway or roadway that would fall under the purview of an easement of a 2477 right-of-way? Mr. Bedford. That's correct. Mr. Gibbons. This South Canyon Road, who owns it? Mr. Bedford. Well, from my understanding--you know, I was asked to comment primarily on the law in general. But based upon my understanding, it's owned by the county. Mr. Gibbons. Elko County would be the owner of the right- of-way and the easement of the South Canyon Road? Mr. Bedford. Under RS 2477, that's correct. Mr. Gibbons. Now, if you're the owner of an easement and someone comes in and blocks your access, what recourses are available to you? Mr. Bedford. Well, your recourse would normally be with the court system. You would go in, you would get a decree ordering the person to remove whatever was blocking the access and perhaps also assess damages for your loss of use for the interim period. Mr. Gibbons. OK. Mr. Mose, if I could just briefly, you presented a very eloquent statement about the heritage of the Shoshone Indians in the area, their use of the land as well. I would presume, is it not your interpretation that this roadway or some avenue similar--it would not have been called the South Canyon Road roadway--would have been used by the Shoshones also as a means of communication or commerce traversing the area? Mr. Mose. Yes, in prehistoric times and historic times there are various places, Indian roads that ran all up and down northeast Nevada. For example, to get from here to Camas Prairies in Idaho, the easiest way is up the water course such as Mary's River, up over the pass and down the Jarbidge Canyon. We are not going to go and hike out in the desert. Following water was the easiest course. Mr. Gibbons. These were normal courses that any person would have followed, whether you be Native American or a European who has immigrated here seeking commerce, either exploring the country, communicating back and forth as well? It is a long-established history of use, is what we're getting at here, in this area? Mr. Mose. Absolutely. Mr. Gibbons. Mr. Price, you've done a great deal of research, as you said, into the history of this area. I will stipulate that I will ask some similar questions to the Forest Service along this area. Does your record or any research that you have done indicate that no one was in the Jarbidge area before the Forest Service was established? Mr. Price. Well, it's just the opposite. The reason the Forest Service was established is because the Jarbidge area was overrun. Mr. Gibbons. Were any of these individuals or any of your records reveal that people that were in the Jarbidge area were precluded at any point in time from using this South Canyon area? Mr. Price. Again, it's just the opposite. They would have had a compelling need to access the resources, the grazing resources that are available in the South Canyon. That would not have been their first choice. They are not ideal grazing resources, but with that number of sheep in there, you have to look for every green blade of grass you can find. In addition, the county records shows that there was a relationship between the people in the Jarbidge area and the entries in the Mary's River Basin. The only way you can get between Mary's River and Jarbidge without going quite a ways around, adds as many as 5 miles to the trip, is to go up over the saddle between Mary's River and Jarbidge into the South Canyon and on into Jarbidge, or vice versa. Mr. Gibbons. So people did enter the South Canyon area as a means of being able to communicate or converse between the Mary's River area and the Jarbidge area? Mr. Price. It's extremely logical. We don't have a document that says they did, but it's illogical to assume otherwise. Mr. Gibbons. You are a land surveyor and understand topography and the nature of terrain. Is the South Canyon particularly difficult or easy to traverse? What is the surrounding area like? Would there have been alternatives immediately available to use of the South Canyon area? Mr. Price. It is particularly easy to traverse when compared to the surrounding area. In fact, in 1896, the U.S. Government survey party crossed the Jarbidge Mountains perpendicular to the South Canyon. And the travails of that party are written in their notes. It's quite amusing reading, actually. They just about didn't make it. Mr. Gibbons. Historically, are there any signs of commerce? Are there cabins, mines, sawmills, whatever, preexisting structures, that may have been in the area which would have led one to believe that this may have been used as a route either for some sort of commerce or access to the areas? Mr. Price. The one cabin that there's documentation on as a preexisting cabin is the Mahoney cabin. That's situated where the forest headquarters is. It's just north of Jarbidge now. There are facilities that were constructed by Mr. Mahoney in the Mary's River Basin. He constructed shearing corrals and that kind of thing. Those are still there today. The Perkins cabin at the head of the Jarbidge River is really interesting because Mr. Perkins had been in the area for years. Frank Winters, a former Nevada State Assemblyman, I believe, wrote in a letter that he had met William Perkins in the Jarbidge Canyon in 1892. In 1902, William Perkins filed a document in the courthouse claiming a chunk of land just in the vicinity of present day Jarbidge. William Perkins was a prospector. Some of the prospective gravels in the Jarbidge Canyon are located approximately at the head of Snowslide Gulch. Schrader found them, and found the people working them when he went there in 1910. The idea or the notion, for example, that William Perkins would not have prospected up and down the Jarbidge River when he came to be living there with the first ever survey in the district, that would take quite a leap, I think, to make that, that he would have somehow precluded himself from ever entering there before the Forest Service was established. Mr. Gibbons. I take it it would be your conclusion, based on what Mr. Mose has said and what your research has done, what you presented here today, that there was indeed a great deal of activity in the area along the South Canyon Road, with significant commerce and access requirements before the Forest Service and the National Jarbidge Area was established under the Forest Service? Is that correct? Mr. Price. Well, the word would be ``tremendous.'' That comes out of the Forest Service's report, 1906, R.B. Wilson. The activity that he described was sheep activity, which requires a very systematic and organized means of ingress and egress. There's one sheepherder with each flock. Those sheepherders are serviced by camp tenders who have to have improved trails and they are all overseen by owners. So, absolutely, that would be the case. Mr. Gibbons. So, the word is ``tremendous''? Mr. Price. Tremendous activity, from R.B. Wilson himself. Mr. Gibbons. Did you research Elko County documents as well as other documents that you've done in this regard on this activity? Mr. Price. Yes, sir. We found extensive evidence in Elko County records. In your Exhibit 1 of the, it's the binder, the white binder that is sitting in front of you there, We've mapped a selective number of the entries that were found in Elko County records. And the relationship between entries and the modern routes is very compelling. It essentially illustrates what we have just been discussing. The easiest one to see is this light-colored one. You have 4 there all together; one on the back of each other. So it's easy to find it. The very back would be this. I have removed the shaded relief so you can see the entries and the trails easier in this particular exhibit. And if you'll notice up north in the Jarbidge area, we have the Jarbidge Placer claim established by Warren Williams in 1901. You have the Mahoney cabin. You have William Perkins laying claim in 1904. You have a lot of activity here that's associated not just with Mahoney and Williams, but there were 43 other owners recorded by R.B. Wilson in this vicinity at the same time. Now, if you go to the south end of the map, you'll notice there are several entries in the Mary's River Basin. Each of those were surveyed by Elko County surveyor E.C. McClelland around 1904. And you'll notice the entrant there in red in the Mary's River Basin, William Mahoney, 1903. There is a very large structure there, sheep shearing corrals and this kind of thing. We have Mahoney reported by the Forest Service to be living in the Mahoney cabin. The most interesting thing of all, if you look at again the north end of the top of your map and a little bit to the east to the right, over toward the Wilkins Island area, you'll notice that Pearl Mahoney, who is William Mahoney's wife, had an entry in the Wilkins Island area. Every one of the entries, whether it's this particular group or some of the other groups listed on the left-hand side of your map such as the Dunns, the Bradleys, the Clemons, all have established themselves on the modern network of trails. Well, the modern network of trails follows the most logical corridors through the Jarbidge mountains. Now, it would be quite a stretch for anyone to say that those trails didn't--weren't developed at this time. And in fact, we believe they were developed between 1897 and 1902 or 3 when the sheep activity became tremendous, as Wilson described. Mr. Gibbons. Thank you very much. Madam Chairman, I have a number of serious questions and I would like to ask if it's the will of the Chairman to allow us to submit written questions for the witnesses to answer so that we can save time and move forward? I would be happy to yield. Mrs. Chenoweth-Hage. Mr. Gibbons, I would be happy to extend your time if you wish to ask them now. If not, we would be, of course, willing to take them in written form. Mr. Gibbons. I wanted to give you an opportunity to also develop a line of questioning that may be helpful to your understanding as well. Certainly if you're going to--. Mrs. Chenoweth-Hage. Why don't we do a second round? Mr. Gibbons. Happy to. Mrs. Chenoweth-Hage. Is that OK? I have some questions for Mr. Bedford that I would like to ask. Mr. Bedford, can the closure of RS 2477 right of way subject the United States to liability for the taking of private property? Mr. Bedford. That certainly is a possibility. The fifth amendment to the Constitution of the United States of America states that the United States cannot take private property without just compensation. For those private lands where access is only by an RS 2477 right-of-way, the loss of right of access to that property is a taking of the economic value of that property. Mrs. Chenoweth-Hage. Of the entire holding? The entire property? Mr. Bedford. That's right. If you can't get to it, you can't make any use of it. Mrs. Chenoweth-Hage. The value of the property would include its future yield, right? Mr. Bedford. That would certainly be one of the factors that a court would look at in determining the value of the taking. Mrs. Chenoweth-Hage. How large does a road have to be to qualify as an RS 2477 right-of-way? Mr. Bedford. It can be as small as a trail or a foot path. The understanding of the term highway in 1866 embraced all manner of public and private roads, provided they were open to all persons that wanted to use them without discrimination. This included all modes of transport from horse-drawn carriage to someone on foot. Any beaten path open to the public between two locations constitutes a highway within the meaning of RS 2477. This includes basically roads built for any purpose, including miner-built roads and those that led not only to cities, towns, and buildings, but also those that led to other roads, to mines, to water holes, to springs, to streams; and roads that led to hunting, prospecting, livestock grazing, and woodcutting areas. Mrs. Chenoweth-Hage. And it's my understanding that concept has been recently upheld in the Ninth Circuit Court of Appeals, in a decision I think issued in 1996 or 1997? Mr. Bedford. That's correct. Mrs. Chenoweth-Hage. And so what you're telling us for the record is that a road doesn't have to have two tracks in it? Two wheel tracks? It doesn't have to have a certain width and be maintained up to a certain standard to be considered an RS 2477 roadway? Mr. Bedford. That's correct. Mrs. Chenoweth-Hage. OK. Are you familiar with the Forest Service handbook? With regard to how they advised their employees in dealing with RS 2477 roadways? Mr. Bedford. I think what you may be referring to is the Forest Service Manual which relates to special use permits. Mrs. Chenoweth-Hage. Yes. Mr. Bedford. It's been awhile since I read that. Please, I would like leave to lodge that within 10 days so that--or the applicable portions. My recollection last time I read it is that historical rights-of-way such as we're talking about are more or less grandfathered in and are exempt from the automatic requirement of the special use permit. Mrs. Chenoweth-Hage. Now, in this case, if the Forest Service were asking the county for a special use permit of the Jarbidge Road, and I don't know whether they were or not--but, Mr. Bedford, according to your testimony, a special use permit issued by the Forest Service is not required, not needed for them to maintain and use the road? Mr. Bedford. Assuming it qualifies as an RS 2477 right-of- way, that's correct. Mrs. Chenoweth-Hage. When an assertion is made by a county, where must the evidence lie? In other words, who must they prove to and how must they prove that the assertion is viable and that the ownership is truly theirs? Mr. Bedford. Well, I think there has to be the presentation of adequate historic evidence. In many cases I've found that this evidence is often in the Forest Service's own files. Mrs. Chenoweth-Hage. Can you tell me, Mr. Bedford, what is the difference between the concept of jurisdiction and the concept of ownership? What is the difference between those two? Mr. Bedford. Well, certainly ownership obviously is who has title to, you know, a particular property right, whether it's fee simple, whether it's a right-of-way, whether it's an easement, whether it's some other property interest. The concept of jurisdiction is who has the power, and the power to regulate and exercise both civil and criminal jurisdiction over a particular piece of property. Mrs. Chenoweth-Hage. So if one party owns, holds title to a piece of property, but others assert that they have the jurisdiction over that property, what happens then? What happens to the ownership rights? What happens to the property rights? Mr. Bedford. It depends on what the circumstance is. I mean, for example, if someone commits a murder or a crime on a piece of BLM land, the BLM does not have jurisdiction to prosecute that person. The jurisdiction is clearly within the State and local authorities. Mrs. Chenoweth-Hage. Now, the Federal Government has exclusive, joint, and concurrent jurisdiction. Would you please explain for the record what is the difference? And for this Member, what is the difference? Mr. Bedford. You know, that's actually a pretty complicated question. I mean, even, for instance, military reservations such as military posts and military bases, there is often concurrent jurisdiction there with both the Federal Government and the local governments exercising jurisdiction together over certain issues. On the other hand, there are certain Federal enclaves where because of the way they were established, the Federal Government has exclusive jurisdiction there. So it just depends on the circumstance. Mrs. Chenoweth-Hage. Well, does the United States have a general grant of jurisdiction over National Forest Service lands? Mr. Bedford. No, that's not true at all. They don't have a general grant of jurisdiction. They have jurisdiction over some issues, but certainly it is not a general blanket grant of jurisdiction. In fact, as I pointed out in my example, much of the jurisdiction is concurrent with the State and the local authorities. Mrs. Chenoweth-Hage. Interesting. Well, Mr. Bedford, you've piqued my curiosity. I have many more questions I would like to submit to you in writing, if you wouldn't mind. Mr. Bedford. I would be glad to. Mrs. Chenoweth-Hage. We will be sending those questions to you within 10 working days. Mr. Bedford. That's fine. Mrs. Chenoweth-Hage. Mr. Mose, I want to thank you very much for your testimony. It was fascinating. And your comments remind me of a statement that was made by Sitting Bull, the great--well, I guess he was a medicine man and certainly was so highly regarded in the Sioux Nation. And when Sitting Bull addressed a joint session of the House and the Senate, he made the statement in concluding his remarks before that joint body, he said to the Congress, ``You, the Federal Government, have made us many promises and you never kept but one. You promised to take our land and you took it.'' And I want to say, Mr. Mose, I surely understand what you're saying. I think everyone in this audience understands it. And so it is an honor and a privilege to have you here and having you share with us about your people and your concerns about the future of the Jarbidge Road. And you stated that the Federal Government hasn't kept its promises. Concerning the South Canyon Road, what does the Federal Government need to do to keep its promises to you? Mr. Mose. The promises the Federal Government made to my people in 1863 is that they would, first of all, establish a reservation within the territory of the Shoshone country. They have never done that. The second promise that they made was to pay us $100,000 in compensation for the driving away of game. That was at $5,000 a year. The General Accounting Office did a study in the 1960's and determined that an Indian agent had to account for $79,000 of Indian money with which he was entrusted, including some $13,000 of money from the Shoshone. They could never account for that and the Indian people have never--as I said, we never received a penny of money for anything other than the government saying well, we own the land; you have to take our word for it. And we say, well, if we can go down here to the county recorder's office and find that title that transferred ownership of the land from us to you, or if we can go to your title plant in Albuquerque, New Mexico, and find it there in your records, the title where we transferred the land to you, we will shut up. We'll go away. We'll move to Mexico or Canada or somewhere. You know, we've never found that. And the government makes all kinds of representations, but the government for the most part just says it. It sort of takes it that it's got unlimited power to do what it wants to do whenever it wants to do it and regardless of any due process. It reminds me of the old saw about what is due process? Due process, I think according to the government, is a process that's due. That's not due process. Mrs. Chenoweth-Hage. Thank you, Mr. Mose. Mr. Price, your historical analysis of the South Canyon Road was priceless, exceptional. Has the Forest Service disputed any of your analyses? Mr. Price. Well, I don't know the answer to that because they haven't really communicated with us very much. We have several information requests. Some have been outstanding for well more than a year. We have no response on them. I have heard their public statements and if I can construe those correctly, I think they dispute all my findings. In other words, to make the public statements that they have been making, it seems to me they have to believe that no one was ever in there before the Forest Service was established. Mrs. Chenoweth-Hage. Well, you mentioned that plate number 2 was missing from the report. Can you tell me, why is plate number 2 significant? Mr. Price. Plate number 2 is significant. I have a copy of the bound report we got from the University of Nevada. It shows a portion of the South Canyon route. Now, this document is significant because the Forest Service sent it to Elko County as ostensible proof that the road, the route did not exist. Not only does it show the portion of the route that they buried recently, but when you go and do the research that we all do in this profession, you go to the USGS archives in Denver, Colorado, and you get the field notes of F.C. Schrader, he mentions not only two trails in the South Canyon, maps several cabins in the vicinity of Snowslide Gulch, which is the portion of the road in contention, and he stated, he acknowledged Mr. William Perkins, that's even farther up the canyon. That's at the very head of the Jarbidge River. So the significance has to do with whether the road was there the first time a scientist actually looked and recorded what was there, and absolutely it was there. And it shows on plate 2. That's my favorite part because that's the part they buried. Mrs. Chenoweth-Hage. Well, I want to thank the witnesses for their testimony. I do want to say before we end this series that the addendum Mr. Price has presented I don't think was presented as part of his testimony. So we will add that to the record, without objection. 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And is there anything else that you used in your testimony that you would like to see entered into the record? Everything you had there at the witness table, is it in your addendum? Mr. Price. Yes. And this report that you have is basically a copy of my testimony with the exhibits that substantiate the observations; plus the appendix which I hope you will have time to visit some day that talks about the experiences I have had in these other cases. Mrs. Chenoweth-Hage. Very interesting. Mr. Gibbons, do you have any further questions? Mr. Gibbons. Madam Chairman, I have just one for Mr. Bedford, if I could. Mr. Bedford, we hear a lot of reliance on the October 21, 1976 enactment of FLPMA, Federal Land Policy Management Act. What effect did that act have on RS 2477 roads? Mr. Bedford. It had no effect in that the act specifically protected the RS 2477 roads as they existed as of October 21, 1976. Specifically, the congressional intent is very clear. The intent is with respect to those roads or rights-of-way that had already gained recognition under 2477, that those would be protected and are not subject to FLPMA. Mr. Gibbons. Has there been any other congressional or legislative act passed by Congress which would have superseded RS 2477 rights-of-way? Mr. Bedford. Well, FLPMA itself abolished 2477, but everything that had already been established before that was protected. Mr. Gibbons. But since that time there has been no Federal act, no Federal legislation that has superseded these rights- of-way that were in existence prior to October 21, 1976? Mr. Bedford. They are still protected. Mr. Gibbons. Still protected. That's all I have, Madam Chairman. Mrs. Chenoweth-Hage. Now you prompted a question from me. Mr. Bedford, FLPMA is generally considered to be a law that applies to the Interior. Therefore, you were referencing FLPMA. Does that apply to roads on Forest Service land also? Mr. Bedford. Yes, it applies to both. Mrs. Chenoweth-Hage. So the 1976 date then, the date that FLPMA was enacted, is a date that roads that were constructed up to 1976 should be recognized under RS 2477? Mr. Bedford. Roads constructed prior to that date, assuming that they were constructed across unreserved Federal lands. Mrs. Chenoweth-Hage. And had--OK, and had been asserted by the county under their ownership? Mr. Bedford. By the county, by the State. I mean, the state has plenty of highways, too, across Federal lands. Mrs. Chenoweth-Hage. Mr. Bedford, I just have to tell you, there is another law that we enacted in the 105th Congress where I was a cosponsor of it and where we reasserted our rights under RS 2477. That was one of the first things we did for the 104th Congress. So I was real happy with that. I do want to thank these witnesses for your fine testimony. It was interesting, colorful, informative, and I thank you very much. Now I would like to introduce our second panel. Our next panel will consist of Ms. Kristin McQueary, Deputy District Attorney of Elko County; Mr. Anthony Lesperance, Chairman of the Elko County Commission; Mr. John Carpenter, Assemblyman, District 33, Nevada Assembly; and Mr. Charles Nannini, Elko County Commissioner. STATEMENT OF MS. KRISTIN MCQUEARY, DEPUTY DISTRICT ATTORNEY, ELKO COUNTY; MR. ANTHONY LESPERANCE, CHAIRMAN, ELKO COUNTY COMMISSION; MR. JOHN CARPENTER, ASSEMBLYMAN, DISTRICT 33, NEVADA ASSEMBLY; AND MR. CHARLES NANNINI, ELKO COUNTY COMMISSIONER Mrs. Chenoweth-Hage. I want to welcome our witnesses and explain, as with the first panel, it is the intention of the Chair to place all witnesses under the oath. I believe that you received a copy of our committee rules involving this procedure. So if you would please stand and raise your hand to the square. [witnesses sworn.] Mrs. Chenoweth-Hage. Thank you. The Chair recognizes Ms. McQueary for her testimony. STATEMENT OF KRISTIN MCQUEARY Ms. McQueary. Thank you, Madam Chairman and Congressman Gibbons. I'm an Elko County deputy district attorney. Mrs. Chenoweth-Hage. She's my kind of girl. Just go ahead and take that mike off. It's giving everybody a bad time. Take it off the stand. Ms. McQueary. Can you hear me now? Mrs. Chenoweth-Hage. Yes. Ms. McQueary. I'm an Elko County district attorney. I have represented Elko County on the Jarbidge South Canyon issue for more than a year. Elko County is deeply appreciative of this opportunity to talk to you about what is going on out here. From my perspective, the Forest Service has lost the trust of the people of Elko County. If the real issue were the bull trout, the county and the Forest Service could work out an agreement protecting all interests. It seems that the real interest is reducing access to public land. There are three reasons why I feel this way: one, the Federal Government has not kept its promise to fix the road; two, the bull trout, if you look at the issue, are red herrings used to divert attention away from reducing public access; and, three, the Forest Service administrative process is simply unfair. What is so frustrating is that the Forest Service promised Elko County that it would repair the road after the devastating 1995 flood. The county and the Forest Service had worked together on the Jack Creek Road project for the benefit of the bull trout. The county and the Forest Service had worked together on the Lamoille Campground restoration after its 1995 flood. The county, based upon that history, had no reason to doubt the Forest Service promises in 1995, 1996, and 1997 that it was going to fix the road. The county believed the Forest Service because the Forest Service documents right here showed what the county already knows, that the road and the bull trout can peacefully coexist. A Forest Service study indicates that economically the preferred alternative for the tiny town of Jarbidge is to fix the road. The Forest Service applied for and received ERFO funds to fix the road. The Forest Service has estimated that to fix the whole 1.5 mile section of the road would cost $462,000. The Forest Service spent an estimated $420,000 in its so-called repair of the road on the area that the county was never allowed to finish. That stretch of the road was only 900 to 1,000 feet long. The Forest Service spent not only the $420,000; it has spent the money for the original engineering and survey, the Environmental Assessments, the economic surveys, the biological surveys. The Federal Government has spent money on listing the bull trout as threatened, spent money on the litigation proposed against Elko County. It has spent money on the Carpenter lawsuit, to which a Federal judge has joined Elko County. The Federal Government has spent money on salaries of the assistant U.S. Attorneys that have been assigned the task of punishing Elko County for daring to assert its right to its road. Now Congress has to spend the money to hold this hearing, which could have been avoided if the Forest Service had kept its promises in the first place. Elko County has spent money for experts and expenses for field trips to Jarbidge to explain the situation to everyone who would care to listen. We spent money for trips to Reno to talk to the U.S. Attorney's office. And we have spent much money and staff salaries with attorney time, engineer time, surveyor time, road supervisor time, county manager time, clerical time, and of course the time of our county commissioners. For all the money spent arguing over this road, the road could have been fixed to a standard to protect even the most sensitive bull trout. Ironically enough, the county originally agreed to the Forest Service fixing the road to save county taxpayers money. The bull trout are really red herrings. If they were the real issue, the Forest Service would fix the sections of the road where the river has captured the roadway and is now eroding the hillside. If the Forest Service report says that water temperatures would be better if the river were put back in its pre-1995 channel, if the bull trout has survived the sheep, the mining boom, the damming of the Snake River, if the bull trout survived the 1995 flood, the road's impact is truly negligible. The real issue is cutting off public access to public property. About 1987 when the Jarbidge Wilderness Area was created, the South Canyon Road went even farther up the canyon at least to Perkins Cabin. The Forest Service closed the road down to the Snowslide Trailhead. Now the road is closed from the Snowslide Trailhead down to the Pine Creek Campground. We wonder, what is next? The road into downtown Jarbidge? The third point is that the Forest Service administrative process is simply unfair. The problem is striking a rational balance between environmental concerns for the forest and the economic and social impact of those resulting decisions. Traditionally, those disputes have been addressed within the administrative process of the public land management agencies. Unfortunately, as you can see by the statements from Gloria Flora and others, the agency is staffed by people with their own radical environmental agendas. The process of resolving disputes between administrative hearings presupposes impartiality by the agencies. As you can see, there has been no impartiality by Ms. Flora's statements. The cards are unfairly stacked against anyone who finds himself fighting an agency decision. The decision is almost final before the fight begins. Somehow the process to challenge an agency decision has to be removed from being decided by the very people who make the decision in the first place. Somehow the standard of review in a judicial review has to be changed from showing that the agency has been arbitrary and capricious, which means totally unreasonable, to simply showing that the agency is probably wrong. And that is the heart of the problem. There is no place to go for fair resolutions of disputes of these sorts, and certainly not any agency whose stated position is in opposition to Elko County's. In this dispute, the Federal Government lawyers have not reciprocated in giving this county evidence supporting the Forest Service's view that the South Canyon Road is not a public road. The government's proper role is to be an advocate for open and fair discussions of issues, not by playing its cards close to the vest. The Forest Service has lost the trust of Elko County by not keeping its promises, by using red herrings, and by demonstrating that the administrative process is unfair to us. Thank you. Mrs. Chenoweth-Hage. Thank you, Ms. McQueary. [The prepared statement of Ms. McQueary follows:] [GRAPHIC] [TIFF OMITTED] T7361.266 [GRAPHIC] [TIFF OMITTED] T7361.267 [GRAPHIC] [TIFF OMITTED] T7361.268 [GRAPHIC] [TIFF OMITTED] T7361.269 [GRAPHIC] [TIFF OMITTED] T7361.270 [GRAPHIC] [TIFF OMITTED] T7361.271 [GRAPHIC] [TIFF OMITTED] T7361.272 [GRAPHIC] [TIFF OMITTED] T7361.273 [GRAPHIC] [TIFF OMITTED] T7361.274 [GRAPHIC] [TIFF OMITTED] T7361.275 [GRAPHIC] [TIFF OMITTED] T7361.276 [GRAPHIC] [TIFF OMITTED] T7361.277 STATEMENT OF ANTHONY LESPERANCE Mrs. Chenoweth-Hage. Chairman recognizes Commissioner Lesperance. Mr. Lesperance. Thank you, Madam Chairman, my good friend Congressman Gibbons. Welcome to Elko County. Elko County has long since established its position of control over rural roads by a number of legal processes. More recently the Elko County Board passed Resolution 14-98, which further established law and policy on road access and that said right-of-road access shall not be interfered with or impeded by any agency acting beyond its authority. The resolution further established that all roads in question are duly recorded, all roads in question are defined under a certain set of maps which are duly recorded and held for public agency scrutiny by the office of the Elko County recorder. For the record, the South Canyon Road is clearly part of those maps. I will not go into a great deal of detail about the information about which you've already heard concerning the history of the road. You will hear more about the biology of the bull trout. I would like instead to go and review some basic facts which occurred. On June 2, 1995, environmental conditions in Elko County were such that a warm rain on a near record-breaking snowpack caused a deluge of near biblical proportions to cascade down South Canyon, destroying four segments of the South Canyon Road. Due to the fact this was a county-wide disaster, the road crews were unable to immediately repair the road. Shortly thereafter, the Forest Service requested that the county wait so they might obtain funding to help the county, as Ms. McQueary just recently recounted. Due to the extent of flood damage throughout the county, the Board of Commissioners agreed to allow the Forest Service to participate by obtaining emergency funding. Although a number of bureaucratic actions occurred over the next few years, to make a long story short, no road reconstruction occurred. During 1997, Trout Unlimited appealed the Forest Service decision, which was to rebuild the road; the reconstruction would not harm the bull trout population. And after considerable rhetoric, the Forest Service determined that more analysis would be required before any reconstruction could occur. On June 28, 1998, the Forest Service issued an updated environmental analysis which incorporated new information, quote unquote, basically stating that any road work reconstruction would seriously degrade the situation with the bull trout. In an informal visit to Jarbidge, a Forest Service representative indicated that the responding action would be to replace the road with a narrow walking trail. No other public hearing or comment concerning this matter ever occurred. On July 15, 1998, in reaction to this, the Board of County Commissioners passed Resolution 74-98 which more thoroughly established the county's legal standing on the issue. Briefly, that resolution clearly established that the South Canyon Road was of immense safety, economic, and environmental importance to the citizens of Elko County and, in particular, the citizens of Jarbidge. Further, Resolution 74-98 also established that South Canyon Road was a fully recognized part of the county road network. The resolution ordered the county road department to immediately implement action to fully restore the South Canyon Road. Board of County Commissioners is charged with public trust and thus obligated to protect the right-of-way and access of county roads and to protect the economic and environmental health and general welfare of the county for its citizens. Consequently, when the county determines through legislative findings that an emergency exists, which it certainly did, it is indeed questionable that there is any higher authority in this land that can overrule that action at a county level. The county took the correct legal position and began the reconstruction of the road. The rest is obviously now history. One can legitimately ask: Is the condition of the bull trout really the issue? I offer a picture of the Jarbidge River taken 3 days after the peak flood, showing the extent of the volume of water, mud, and debris that flowed down that canyon. In this photograph, you are witnessing an event that produced a flow greatly in excess of any normal spring peak flow. In addition, boulders, trees, and other debris, countless tons of sediment washed down the channel for many days thereafter. But strangely enough, by every piece of evidence available, the bull trout not only survived this cataclysmic event, but have since prospered. It is indeed strange to me that the minute amount of silt introduced by the county could have ever been conceived to be so detrimental. No, the fight in South Canyon Road is not over bull trout or anything remotely associated with it. It's a fight between Elko County and the Forest Service as to who really controls the land and water and all the wealth associated with those resources. I'm sure you as Congressmen bear a significant burden of public trust at certain times. That burden rests on my shoulders as chairman of this commission. And it is with great difficulty that I conclude my comments. As far as Elko County is concerned, the South Canyon Road will be rebuilt. This county has the legal authority to do just that. And further, we have clearly stated our intention by resolution and action. Not being allowed to carry out that fiduciary responsibility of county government by any branch of the Federal Government will place in jeopardy every rural road in the West, and ultimately every blade of grass, every tree, every deposit of mineral wealth, every drop of water, and essentially every other property right as we know them today. The potential economic impact to the community of Jarbidge and, ultimately, the County of Elko, the State of Nevada, and the West in general, is beyond my wildest comprehension. No, this fight is not over the bull trout. In fact, it's over the very future of this great Nation. Thank you. Mrs. Chenoweth-Hage. Thank you very much, Commissioner. [The prepared statement of Mr. Lesperance follows:] [GRAPHIC] [TIFF OMITTED] T7361.278 [GRAPHIC] [TIFF OMITTED] T7361.279 [GRAPHIC] [TIFF OMITTED] T7361.280 [GRAPHIC] [TIFF OMITTED] T7361.281 [GRAPHIC] [TIFF OMITTED] T7361.282 [GRAPHIC] [TIFF OMITTED] T7361.283 [GRAPHIC] [TIFF OMITTED] T7361.284 [GRAPHIC] [TIFF OMITTED] T7361.285 [GRAPHIC] [TIFF OMITTED] T7361.286 [GRAPHIC] [TIFF OMITTED] T7361.287 STATEMENT OF JOHN CARPENTER Mrs. Chenoweth-Hage. Now the Chair recognizes Assemblyman John Carpenter. Mr. Carpenter. Madam Chairman, my good friend Jim Gibbons, my name is John Carpenter. I represent Assembly District 33 of the Nevada Legislature. District 33 is basically Elko County. I would like to go away from my prepared remarks and read to you what I think was a very blatant statement against the citizens of Nevada and especially Elko County. That was a statement--it was an open letter to the employees of the Humboldt-Toiyabe National Forest by Gloria Flora. I will read this to you to refresh your memory. ``This is the United States of America. All people have a right to speak and all people have the right to be protected from discrimination. However, I learned that in Nevada as a Federal employee you have no right to speak, no right to do your job, and certainly no right to be treated with respect. ``I could go on and on with examples of those of you who have been castigated in public, shunned in your communities, refused service in restaurants, kicked out of motels, just because of who you work for. And we cannot forget those who have been harassed, called before kangaroo courts, or had their very lives threatened.'' Now, I submit to you that we need to find out the truth here. We need to find out if any of these accusations are true. And I think it rests with you people that have the right to find out whether anyone was threatened, their lives were threatened, whether they have been kicked out of any motels, or have not been able to be served in a restaurant. Now, you know we can talk; we have the constitutional right to disagree. Jim and I know that on many times people did not agree with us and they gave us the devil. But that's what we accept when we get into political office. And so our right to speak against what we think is wrong is an inherent value of the United States of America. But we do not have the right to discriminate against anybody or to threaten them. And if these things are happening in our town, I want to know so that we can correct it. I did a little investigation on myself, by myself through myself, to these people and found very little. But I think that if any of these things are true, we need to find out about it. I am here to represent all of those who will not be able to testify today. It would be much better if the people in the audience were to testify, not just the bureaucrats and the politicians. It is the ordinary citizen and the legitimate users of the forest who have the horror stories to tell. I will do my best to cover for them. We are here today because of the frustration and distrust in the Federal Government. This frustration and distrust runs deep, all the way from the district judge in Las Vegas who wrote, ``The Federal Government through its various bureaucracies have unrelentingly and systematically sought to close out the residents of the State of Nevada from Federal lands. This is sought to be accomplished through a myriad of excuses, mostly environmental, few if any being valid in my opinion.'' All the way to my neighbor who asked, ``What is going on with the Forest Service? What is wrong with them, destroying roads and denying access?'' This level of mistrust and frustration is reaching the boiling point. Ranchers have been subject to one more reduction in grazing permits. Snowmobilers can no longer use their favorite canyon. Another case in point: the Forest Service was actually going to stop the flow of one of our springs and cover it with black dirt. The Kelly Springs Work Party was organized to prevent this from happening. Today, the water is running cold and clear for wildlife and livestock. The goshawk was a species that was going to shut down one of our great mines. Never mind that a few hundred people would be thrown out of work. It took a congressional hearing, undisputed scientific evidence, and people power to derail this debacle. Now we have the South Canyon Road. What is behind the closing of this road? The Forest Service cannot stand for someone to disagree with them. I ask you what is the use to have public input when they are going to do what they want to anyway? Another roadless area puts a feather in their cap with the Clinton administration. The Clintonites say the public wants more roadless areas. Scientific polls completed since Clinton announced his roadless public lands indicate just the opposite. The Paragon Foundation, a public nonprofit organization in New Mexico, released the results of a nationwide poll which indicates 67 percent of the people believe that we have enough protected wilderness and 68 percent thought protecting jobs, communities, and industries was more important than wilderness areas. When they close roads, they create more wilderness; one more way to deny access to the elderly, the disabled, and young families. The Federal Fish & Wildlife Service gets a chance to flex their people-control muscles. The NDOW report proves the bull trout are not threatened. The Endangered Species Act is not about helping species. It's about property and people control. The bull trout listing is as flagrant a violation of the Endangered Species Act as has ever been fabricated. I'm out of time. I hope you will ask me some questions about what went on in regard to the listing of the bull trout. I thank you for being here. Mrs. Chenoweth-Hage. Thank you. Mr. Carpenter. Good to see you, Jim. Mrs. Chenoweth-Hage. I thank you, Assemblyman Carpenter. I want to let you know without objection your entire testimony will be entered into the Record. If you have further comments, the record will remain open for 10 working days for you to submit them for the Record. Thank you very much. [The prepared statement of Mr. Carpenter follows:] [GRAPHIC] [TIFF OMITTED] T7361.288 [GRAPHIC] [TIFF OMITTED] T7361.289 [GRAPHIC] [TIFF OMITTED] T7361.290 [GRAPHIC] [TIFF OMITTED] T7361.291 STATEMENT OF CHARLES M. NANNINI Mrs. Chenoweth-Hage. The Chair recognizes Commissioner Nannini. Mr. Nannini. Thank you, Madam Chairman, Congressman Gibbons. For the record, my name is Mike Nannini. For the past 7 years I have represented District One in Elko County as a County commissioner, in which the community of Jarbidge is located. Since 1993 I have been the liaison member for the commissioners to the local U.S. Forest Service, along with Commissioner Skelton and County Manager George Boucher. Our affiliation with the Forest Service has been one of professionalism of which we have had a great working relationship, taking on several projects together. We accomplished many assignments during this timeframe, some that we are still working on, although the relationship between us has been severed. About a year and a half ago, the Forest Service closed the South Canyon Road, which is approximately one mile and a half before the start of the wilderness area. They did so without any notification to myself or any other officials at the county level. I will mention at this time that under no circumstances has the Forest Service ever indicated during our liaison meetings that the South Canyon Road did not belong to Elko County. In 1995 the South Canyon Road was devastated by one of the worst floods in its history, which also caused extreme damage to roads leading into the Jarbidge community. The county immediately traveled to Jarbidge to open the roads so that community members could have access to their property and community lands. While we were there with the men and equipment, we also began making plans to repair the South Canyon Road. During one of our planning meetings, the Forest Service approached us with an offer to help fix and restore the road. They added that they had the means to qualify for a $462,000 grant and, furthermore, could obtain additional funding throughout the road building process. Due to the fact that commissioners felt we had an excellent working relationship with the Forest Service, we agreed we would cooperate to repair the road and get it back to a normal state. Needless to say, we appreciated their concern and their willingness to help during these trying times. The people of Jarbidge have relied on the South Canyon Road for access to recreational areas, in addition to depending on it for safety reasons. They have used the road to keep in contact with fire crews and to help stage a fire line when a huge fire in 1992 crested the ridge and threatened the small community. Moreover, the South Canyon Road had been a very popular fishing spot with its serene and picturesque beauty, as well as providing the closest access to wilderness areas for seniors, special needs individuals, and others that are unable to do a lot of hiking. It also provides an entry to the wilderness trailhead, which is economically beneficial to the Jarbidge community. After the Forest Service closed the road, the Elko County Commissioners attempted to reopen it. Under no circumstances did we ever feel that we were operating under an emergency-- that we were not operating under an emergency situation. The Forest Service had proceeded with renovation of a road up to the first 900-foot wash-out. At each of the meetings they had indicated they had filled out all the necessary paperwork to obtain a rolling stock permit and had entered essential permits with the U.S. Army Corps of Engineers to enter the waters of the U.S. During the time we were under construction on the South Canyon Road, a Federal judge in Reno issued a restraining order and insisted that construction be terminated. As law abiding citizens, we followed his orders. I felt that we tried to discuss the situation in an honorable manner. And my personal perception on the matter was that it could be resolved diplomatically. With this sensibility, I was able to convince Senator Harry Reid into sitting with us as a mediator while all parties concerned could air their differences, express their viewpoints, and attempt to come to compromise. We seemed to be in agreement and to have a good understanding. It was perceived that we were able to make some progress. However, at our third and final meeting on April 19, 1999, it became apparent that the Forest Service and Trout Unlimited were unwilling to reopen the South Canyon Road. At one point during the heated conversation, there was a glimmer of hope that ATV travel would be allowed up the old road to the Snowslide Gulch with river crossings and a mountainside trail to the wilderness trailhead. Hope faded when the Forest Service insisted on a 40-inch mountainside trail. Additional alternatives laid out on the table actually had nothing to do with the South Canyon Road. Nevertheless, we took the proposal back to the full Board of Commissioners and it was denied. As far as we were concerned, there is no alternative to road replacement. We feel that the South Canyon Road, also called an RS 2477 road, is a county road. It was in place during the early 1900's, which was before the Forest Service was in place. The county has used men and equipment to maintain the South Canyon Road on a yearly or an as-needed basis since the early 1950's. I will mention once again that there has never been a time when the Forest Service has ever indicated that the South Canyon Road did not belong to Elko County. Furthermore, they have never discouraged us from maintaining our road. I feel that the South Canyon Road debate has been a pawn in a much bigger issue of who has the power to control. The day after the Forest Service closed the South Canyon Road, the sign that marked the start of the wilderness area was placed in front of a dirt barricade that closed the road, which is evidence to us that the Forest Service wanted to extend the wilderness area. This action by the Forest Service implied that they had no concern for the citizens of Jarbidge, the people of Elko County, and certainly no interest in the hundreds of individuals that have visited this area during the past several years. On a year-round average basis, Jarbidge is a community of about 30 people, although in the summer months its inhabitants number approximately 100 people. Seniors and retired persons make up the majority of the population of this small town. The South Canyon Road provides an access for individuals that may have limited recreational abilities. Furthermore, the ability to forewarn citizens of a pending fire is nonexistent due to the road closure, in addition to placing a damper on the economic future of Jarbidge. At the time of the flood, Elko County was in position to restore the South Canyon Road. However, we put our trust in the Forest Service to honor their word and; with our willingness to cooperate, we thought the process would go smoothly. Had the Forest Service done what they said they were going to do, we would not be here today discussing this issue. Obviously, it is impossible to enlighten you with firsthand information in its entirety. However, I'm willing to field any questions you may have regarding this situation. I appreciate your willingness to come to our county to listen to our concerns, and I hope you can relate to our travesty that we have endured. I thank you for your time and cooperation. Mrs. Chenoweth-Hage. Thank you, Commissioner, for your testimony. [The prepared statement of Mr. Nannini follows:] [GRAPHIC] [TIFF OMITTED] T7361.292 [GRAPHIC] [TIFF OMITTED] T7361.293 [GRAPHIC] [TIFF OMITTED] T7361.294 [GRAPHIC] [TIFF OMITTED] T7361.295 [GRAPHIC] [TIFF OMITTED] T7361.296 Mrs. Chenoweth-Hage. I want to thank all the witnesses for their testimony. Now I recognize Congressman Gibbons for his questions. Mr. Gibbons. Thank you very much, Madam Chairman. I would first like to turn to Ms. McQueary. In your testimony earlier, you mentioned that there was a closure along the South Canyon Road from Snowslide Gulch to Perkins Cabin, I think sometime in the 1980's? Ms. McQueary. Yes. Mr. Gibbons. Could you tell us what the reasons were for that closure? What regulatory authorities or citations were given for the closure of that portion of the road then? Ms. McQueary. The wilderness area in the Jarbidge was enlarged at that point in time. When they closed the road, they ripped it and reseeded it. It was under a wilderness, it was under an act of Congress, not an administrative decision by the Forest Service. Mr. Gibbons. OK. You indicated also that the cost of repair of the 900-foot to 1,000-foot section of this road was approximately $426,000? Ms. McQueary. $420,000. That figure was provided to us when we met with the U.S. Attorney's office for mediation in the proposed litigation against Elko County. The copy of that spread sheet was attached as one of the exhibits to my testimony that was provided to you. Mr. Gibbons. With that in mind, if the Forest Service were to repair the full 17--the full mile and a half, I believe you said, of road that needs to be repaired in that area, is it your belief that would be about $3.6 million for a mile and a half of dirt road? Ms. McQueary. Actually, it wouldn't be quite that bad. There are significant portions of the road that are still impacted. There are four bad spots, I would say. You have over a million, I guess. 1.2 million, approximately, if you use Forest Service construction techniques. Mr. Nannini. Let's hope they don't. Mr. Gibbons. A million here, a million there. We've forgotten how to build a dirt road. Commissioner Lesperance, let me ask you a question as well. During the 1995 flood of this river in the South Canyon area, there was also one in Lamoille. Mr. Lesperance. Correct. It was a county-wide situation, but the two hardest hits were the South Canyon and Lamoille. Mr. Gibbons. The road was washed out in Lamoille, was it not? Mr. Lesperance. Pretty severely damaged. A lot of boulders came off the mountain. It was closed in several places. Several cabins destroyed. Fair amount of damage. Mr. Gibbons. Was that road on public land? Mr. Lesperance. Yes. Well, it was Forest Service land, but that road was fixed very quickly. Mr. Gibbons. It would be under the same situation? In other words, it was a county road on Forest Service-managed property? Mr. Lesperance. I believe it is not. I think the Forest Service has control of that road at this point in time. Mr. Gibbons. But they did repair it? Mr. Lesperance. It was repaired as rapidly as it could be. Mr. Gibbons. After the county had made an effort to stabilize the South Canyon Road, are you aware of any efforts by the Forest Service to go back in there and undo what the county had attempted to do? Mr. Lesperance. Very definitely. It is probably remiss on my part; there is an excellent video the county has obtained. I think under your 10-day rule I can still submit that. Mr. Gibbons. I ask you for the record to submit that to our committee. Mr. Lesperance. That video clearly shows what the Forest Service did to, in their minds, restore the canyon to a condition somewhat similar to what they must have viewed it to be before the county decimated the situation. I will remind you the only thing the county did was to move a piece of heavy equipment in there to divert the channel from the road back to the original channel. The only piece of equipment that ever touched the water under any circumstance was the end teeth on a backhoe. And that simply breached the side where the stream washed out, placed it back into the original channel. Furthermore, we have documentation that despite the tremendous amount of silt the county placed in the river at that point in time, which we hear swept clear to Idaho, that in fact a camper was fishing at the termination of the construction of approximately a thousand feet and readily caught fish that afternoon in rather clear water. The amount of sediment the county put in the road as compared to what actually happened or what is clearly visible on our video of the Forest Service activity is inconsequential. The amount of sediment even that the Forest Service put into the river in their construction activity, which was very, very significant, was many, many times whatever the county did. As far as construction of the road, it is my opinion that the county could easily go back there and fix the road clear to the trailhead, and we are prepared to do so. And it would not cost a great deal of money. We would not use, as my good friend Kristin McQueary said, we will not use Forest Service techniques, however. Mr. Gibbons. The issue becomes one of whether or not the remedial efforts of the Forest Service were in fact of greater damage to the habitat at the time than the efforts of the county. Mr. Lesperance. The county, to my knowledge, did not knock down a single tree. The county simply removed the stream from the road bed and put the stream back into the channel and then reconstructed the road bed where the stream had removed the top soil. The Forest Service came in and, much like a mine reclamation project, completely reclaimed the road, placed it back. The side of the mountain was now contoured down over the road. And I cannot tell you how many trees were knocked down in the process. The area is scattered with downed trees at this point in time. It's difficult to walk in a straight line because you have to walk under the downed trees or step over them or whatever. What is of significance and what is totally amazing to me-- and you may or may not have testimony today--but again I believe our video will document this. One of the concerns about the bull trout is the shading effect of the canopy being very critical on water temperature. The area that the Forest Service restored no longer has a canopy. All the trees were removed. Mr. Gibbons. Assemblyman Carpenter, John, it's always good to see you, and I appreciate your testimony. Did you in your investigation ever hear of anyone disparaging the Forest Service? In other words, kicking them out of a hotel, or a restaurant, et cetera, that's been set forth by Ms. Flora? Mr. Carpenter. I went and talked to Ben Siminoe, who is here today, and asked him directly if he knew of any such events. He said that he had never heard of anyone being physically threatened with harm. He said that he had heard that some people were asked to leave, some government employees--I suppose they were Forest Service employees--asked to leave the Shiloh Inn. I went to the Shiloh Inn, and I talked to the lady who is now the manager. She said that she had been the manager since April. Before that she had worked on the desk for about 3 years. She did not absolutely remember of any incident like this happening. But she said if the time and the name could be given, they would investigate it. Mr. Siminoe also said that maybe there was an event happened at one of our pizza places. We got a few pizza places in Elko, and I didn't have time to go around and ask them if there was somebody who was not served at one of our pizza places. I think there was a couple of situations in our schools, but I think that they were handled quite effectively. I don't know what it entailed, you know. But that's the only thing that I could find out. But as far as anybody being threatened with physical harm, Mr. Siminoe did not know of any. This is a small community, and you usually hear of those kinds of incidents. I have never heard of any in my time here in Elko. Mr. Gibbons. Well, let me say that I agree with you wholeheartedly that if these incidents occur, we need to find out about them and we need to put an end to that type of thing. I will ask then for specific documentation. Because if anybody is threatened with bodily harm or injury, there should be a police report; there should have been a filing of some sort, some documentation around that we will have access to. It is our interest to make sure that the laws of this state, the laws of this county and the community of Elko are indeed followed and all people are treated equally under the law. No one is either above or beneath the law in Elko or anywhere else in this country, as I've said. Mr. Nannini, thank you very much for being here as well. Let me reaffirm your comments that you indicated where apparently Elko has contributed resources to the repair and the maintenance of the South Canyon Road for at least the last 40 or 50 years. Is that what you indicated? Mr. Nannini. For several years, yeah. You know, I have been involved for the last 7 years. I just would like to mention just a few because we did have a good working relationship up to this situation with the South Canyon. We worked on the Powder House Campground, and it was at the bottom of the Lamoille Canyon. And the commissioners threw in $100,000. During heavy budget times, that's--I think that's significant, you know. We had a partnership where we developed a campground and put in restroom areas, stuff like that. We worked with the Forest Service on the Lamoille Grove restrooms, which is county property; and they worked with us. We worked with the Forest Service on the Harrison Pass. It's an ongoing project. They paved part of it, and then we're going over the top of the hill and paving all the way into the Ruby Valley area. We are working with them on the Blue Jacket Road, and we worked with them on the Jarbidge Road project, Jack Creek Bridge project, the North Fork Jack Creek Road. And we, of course, worked with them for title to try to give us a graveyard in the Jarbidge area, which we are all aware of. We worked with them consistently with the legal access to the private grounds, the Bald Mountain Road, Mountain City grant to upgrade the water system up there. We were working with them in the helipad for the Jarbidge area. We worked with them on the law enforcement agreement where it's a cooperative deal with the sheriff. And we have actually moved Forest Service equipment with Elko County equipment; Worked with Forest Ranger Dave Aicher on the Three Creek and the Bull Creek upgrade on the road situation over there. So you know, when I hear all these statements, you know, I have to laugh because that kind of atmosphere in Elko County is not happening. It's wild statements, and I think if you talk to the local forest people that they will tell you the same thing if they were allowed to speak. Mr. Gibbons. Madam Chairman, I have been asked by the Cattlemen's Association, not to have a stampede in the room here, but your 3 o'clock policy meeting is about to begin. They would appreciate any of you who are involved in that attending the Cattlemen's Association 3 o'clock policy meeting which will take place right now. Mrs. Chenoweth-Hage. I guess that's become part of the Record, too. Mr. Gibbons. When you're a public servant, you have to do what you have to do. The followup to all of that is that you have had a working relationship, cordial working relationship where there has been a great deal of support both from the Forest Service and the county over the years. So can I take it from your comments that you're surprised at some of the comments of the Forest Service about the intransigence of Elko County in this regard? Mr. Nannini. I'm just appalled at those kind of statements. I don't think that she even knows what has been going on. I don't think she has a handle on it. I don't think she cares and hasn't taken the time to find out. Mr. Gibbons. The fact that they moved the sign regarding the Jarbidge Wilderness Area to the end of the road, or to the end of the existing road now, does that indicate to you that the boundary of the wilderness area begins there? Mr. Nannini. That's correct. We felt that was the whole purpose, you know, is to extend the wilderness area. And when they put those two signs up and moved them in front of the berm that closed the Jarbidge Canyon Road, it was a definite significant situation there that we felt that was a statement saying that this is where we are going to start the wilderness area from now on. Mr. Gibbons. Is that a different area than has been identified as the boundary of the wilderness area? Mr. Nannini. Oh, yes, it is. It's the start of the South Canyon Road, which is a mile and a half from where the wilderness trailhead begins. Mr. Gibbons. Now, let me ask Commissioner Lesperance one final question. With the fires that have taken place in Elko County over the last year, there's been a great deal of concern about the safety of the people. I think you mentioned that earlier. Does that concern you, the ability to access these areas? To stop or put fires out or to ensure the safety of people who may be in the area to be able to egress certain areas? Mr. Lesperance. Absolutely. As part of my testimony--you have two different testimonies, I believe. With the original one I do make reference to the fire. I make reference to the fires that have occurred not only in Elko County but in Northern Nevada. And what probably none of us have really come to grips with yet is that the greatest ecological disaster that has ever occurred in this State occurred this last year. We destroyed by fire nearly two million acres of land. Those fires were going as late as this week. We lost nearly 10,000 more acres of what I call one of the Nation's great jewels, and that's the range lands of the Great Basin. We lost nearly 10,000 more acres just this last week in Elko County. We have agency mismanagement occurring at a level that has created a fire state throughout northern Nevada that is unacceptable for the safety and the welfare of the people. Nowhere in my knowledge--nowhere is a community more trapped by a potential fire than the community of Jarbidge, Nevada. I shudder to think what would really happen if a fire storm occurred there. I suspect lives would be lost. Without proper access to get to those fires, we are placing those individuals or certainly those up in the mountains in the summertime, campers, fisherman, or whatever, in great peril. I can't stress that point enough. In that situation, as long as the mismanagement that we are dealing with at this point in time continues, this situation will only get worse. It will not get better at this point in time. Mr. Gibbons. Madam Chairman, I see my time has lapsed. Thank you for the opportunity. Mrs. Chenoweth-Hage. Thank you, Mr. Gibbons. Ms. McQueary, I wanted to ask you, or Commissioner Lesperance or Commissioner Nannini, either one of you. First, Ms. McQueary, when you negotiated with the Forest Service a couple years ago, or 3 years ago to maintain that road, did you have any idea or was there any indication you may be abrogating any rights the county may have under your 2477 right-of-way? Ms. McQueary. As I was not counsel for the county at that time, I would turn that question over to Commissioner Nannini, who was there. Mr. Nannini. Well, I think--I don't know that we were aware we were giving up any rights. It was a situation where we felt it was our road. We--since the early 1950's, we were maintaining that road. We were--we had our blades on there. We had our equipment on there. We--there was never a mention that it wasn't our road, you know? All they did is, they came in and offered help to rebuild the road so that we could get it back to where the citizens of the area and the outside citizens could use that camp, those campsites and travel to the trailhead so they can get into the wilderness area. You know, one thing that has never been mentioned and I would like to bring out is there's a restroom facility at this trailhead at the top of the trailhead that is plumb full. And nobody has figured out yet how they are going to empty that. It doesn't sound like much, but when it overflows and gets into the Jarbidge River, I'm a little bit nervous about that whole situation. Mrs. Chenoweth-Hage. That would endanger the bull trout habitat. Mr. Nannini. Yes, they might not be very good eating. Mrs. Chenoweth-Hage. Ms. McQueary, in today's Elko Daily Free Press, Chris Fotheringham wrote about $1.3 million in unspent ERFO funds received by the Forest Service. What do you know of these funds and the Forest Service use and/or plans for these funds? Ms. McQueary. The Forest Service as part of the road reconstruction project applied for and received ERFO funds. The road construction got put off, and they received an extension from--I have a copy of their extension letter in here. I do not know what money that they used when they went and allegedly tried to stabilize the 1,000 feet last winter. I don't know where they found that money. Mrs. Chenoweth-Hage. Do you know if this money was used for the contract that they let to do the earth work that has been referred to? Ms. McQueary. I don't know the answer to that one either. Mrs. Chenoweth-Hage. Have you seen the contract? Ms. McQueary. I have not seen the contract. Mrs. Chenoweth-Hage. OK. I want to ask you, at any time has the Forest Service denied the early heavy use of the South Canyon Road as testified by Bill Price? Ms. McQueary. Madam Chairman, I didn't catch the first part of your question. Mrs. Chenoweth-Hage. At any time has the Forest Service denied to you or the commissioners the early heavy use of the South Canyon Road as testified to by Mr. Price? Ms. McQueary. The only response we have received from the Government on whether--their evidence that it was not an RS 2477 road is the Schrader Report which Mr. Price told you about. When we went into the mediation in September with the U.S. Attorney's office, we made an agreement that we would share our evidence showing that it was an RS 2477 road so they could reevaluate their position. We asked that they also provide us their evidence that it was not an RS 2477 road. They sent us the incomplete copy of the Schrader Report. We have repeatedly asked them for any additional information that they may have. And they have not been in contact with us at all. Mrs. Chenoweth-Hage. That's unfortunate. If Mr. Price's analysis is correct, what would keep the county from just going ahead and asserting your rights to maintain the road? Ms. McQueary. That's what Elko County did on July 21, 1998, when they sent the road crew up there to reopen the road. Mrs. Chenoweth-Hage. OK. Commissioner Lesperance, that's a very impressive picture that you show, the point that you made about the amount of sedimentation in the stream as compared to the minor maintenance work that the county was doing. Mr. Lesperance. I might add that picture is taken very close to the present termination of the road. That gives you an idea of the significance of the road as it was. And that bridge did not wash out. It looks like it's perilously close to washing out, but the damage occurred above there. I might add when you look at that road we hear how difficult roads are to build in canyons by the Forest Service and everything else. That road is quite passable and always was quite passable. I will remind the committee that I have enjoyed Elko County in one form or another nearly all my life. As a young man having a young family in the 1960's, I routinely camped in the Jarbidge area. We climbed all the mountains. I was successful in getting all of my family to the top of the Matterhorn. To make a long story short, I routinely drove a two-wheel drive Falcon station wagon with my entire family in it to Perkins Cabin, where I always camped. Mrs. Chenoweth-Hage. Interesting. I want to get back to you with some questions regarding economic impact, but I want to ask Mr. Carpenter first, what was the scientific proof used by the Federal Government to permanently list the bull trout? Mr. Carpenter. Thank you, Madam Chairman. By profession I'm a cowboy and sheepherder. And I suddenly became embroiled in this bull trout issue. And when the Fish and Wildlife people had a hearing in Jackpot, I went up there just to see what was going on because I have been very disturbed about what I read about what is happening under the Endangered Species Act. So I tried to do some research on this subject. And in 1994 the bull trout were recognized as a candidate for listing under the Endangered Species Act. Further review by the U.S. Fish and Wildlife Service has resulted in the finding that the Jarbidge River population segment of the bull trout is not warranted for listing. This finding was made on March 13, 1977. Why was it subsequently listed? In my research, the best thing that I could find is that there was a series of court cases filed by environmental groups that when the judge would come back and say use your best science, which they must under the Endangered Species Act, they finally got to the point that they thought: we need to list this to get the court off our back. On March 28 of 1997 or May 1997, the first Environmental Assessment was released for the completed, for the reconstruction of the road. And on June 2, the Forest Ranger, he made his decision which was to reconstruct the four sections of the Jarbidge Canyon Road. And there are about six or eight things listed here, why they felt that road needed to be reconstructed. And this is in their Environmental Assessment that they spent thousands of dollars upon. If you go up there today, you'll find pins in the ground where the road was to go. You'll find ribbons on the trees. They've done a great deal of work. That work was done by the Forest Service people here in Elko in cooperation with the county, with no outside influence from Trout Unlimited or the higher-ups in the Forest Service. They concluded we must rebuild this road. This was appealed by Trout Unlimited. So on June 10, 1998, there was a proposal by the Fish and Wildlife Service to list the bull trout as threatened. And on June 29, 1998, the preferred alternative at that time under the new Environmental Assessment was to construct a trail. Now, this decision sounds a little fishy to me, especially when these fish have been around for centuries. How in 1 year can things change if it is not political? The only scientific evidence which has been presented is the March 30, 1999, report by our own Nevada Department of Wildlife which maintains the fish are not threatened. And the first Environmental Assessment contains the statement, ``The probability is very low that the river between Snowslide and Pine Creek are used for spawning, rearing, or adult resident trout. The primary reason for this are a lack of spawning gravels and excessively high temperatures in the late summer. Recent surveys indicate that most if not all spawning by bull trout occurs in the headwaters of the Jarbidge River above the Snowslide Gulch.'' So in reality, the fish are up there in the wilderness area where it's cool enough for them to live. This fact is substantiated in the NDOW report. I thought that Terry Crawforth was going to be here, but I haven't seen him, to present his findings. Their findings say that the bull trout are occupying all the habitat suited to them. I think that the chief problem with the fish is because they are eating each other. And this is substantiated in the Fish and Wildlife, in their final rulemaking to list the fish. And it says, ``Bull trout are opportunistic feeders with food habitats primarily a function of size and life history strategy. Resident and juvenile bull trout prey on terrestrial and aquatic insects,'' another word I never heard of; a few other things, but something I do understand, ``and small fish.'' So, the adult migratory bull trout, which is some bull trout that would go down from the areas high in the wilderness, they are known to feed on various trout and salmon species. So I think they are eating each other. Mrs. Chenoweth-Hage. I think you're right. I want to say that is very interesting testimony. And if you have a report there, I wonder if we can enter the entire report into the record? Mr. Carpenter. Yes, I will be glad to. [The information referred to follows:] [GRAPHIC] [TIFF OMITTED] T7361.297 [GRAPHIC] [TIFF OMITTED] T7361.298 [GRAPHIC] [TIFF OMITTED] T7361.438 [GRAPHIC] [TIFF OMITTED] T7361.299 [GRAPHIC] [TIFF OMITTED] T7361.439 [GRAPHIC] [TIFF OMITTED] T7361.300 [GRAPHIC] [TIFF OMITTED] T7361.440 [GRAPHIC] [TIFF OMITTED] T7361.301 [GRAPHIC] [TIFF OMITTED] T7361.441 [GRAPHIC] [TIFF OMITTED] T7361.302 [GRAPHIC] [TIFF OMITTED] T7361.442 [GRAPHIC] [TIFF OMITTED] T7361.303 [GRAPHIC] [TIFF OMITTED] T7361.444 [GRAPHIC] [TIFF OMITTED] T7361.304 [GRAPHIC] [TIFF OMITTED] T7361.445 Mrs. Chenoweth-Hage. You know, it's very interesting. In Idaho they listed the bull trout in certain areas, too, that are streams where salmon return to spawn. So that's a raging debate. I thank you for bringing it to our attention. I do want to ask Mr. Nannini, Commissioner Nannini, apparently during the flood in 1995, the nearby Lamoille Canyon suffered the same kind of damage as did Canyon Springs. And the Lamoille Road was repaired so quickly. Why wasn't the road in question, South Canyon Road, repaired? Mr. Nannini. Lamoille Canyon probably averages 2,000 people a day during the summertime for usage. Somewhere around there; a thousand. They have heavy traffic in that area and a lot of people, and it's well-known. And had it not been repaired, it would have really had a lot of people here in this room today. South Canyon probably numbers in the hundreds during the summer season. So I think just notoriety of the area, accessibility to the area, and that's probably the reason. Mrs. Chenoweth-Hage. What you're telling us is it was public pressure from recreation and tourism? Mr. Nannini. That's correct. Mrs. Chenoweth-Hage. Let me ask Commissioner Lesperance, the South Canyon Road doesn't have the same demand for tourism, obviously. But are there property rights up there? Mr. Lesperance. There certainly are. I think we ought to back up a little bit and talk about property rights in general that are being infringed upon by the current philosophy of the Forest Service, which undoubtedly will be followed by a similar philosophy in the Bureau of Land Management in a matter of time. That philosophy is--it was clearly described a number of years ago when I was a young professor at the university attending many of these meetings and trying to draw attention to the fact that the government of the United States was insisting that they have full control over the public lands. And I have attended many, many seminars where the technique of obtaining title to all property within the boundaries of the Federal property was discussed. The No. 1 item is always to obtain the water. No. 2 item is to close the roads. Mrs. Chenoweth-Hage. Very interesting. Mr. Lesperance. When that happens, we must remember that the ability to take those resources and produce them into wealth becomes extremely limited and perhaps totally stopped. You must never forget, all wealth ultimately only comes from the land and the waters associated with it. Mrs. Chenoweth-Hage. No, we can't be reminded of that too often. And ultimately the focus of this whole issue really isn't the bull trout, is it? Mr. Lesperance. Absolutely not. Mrs. Chenoweth-Hage. The focus is the road. Mr. Lesperance. The focus of this issue is: Who will control the future of this country, the Federal Government or the people that made it what it is? Mrs. Chenoweth-Hage. Well, I wanted to ask you, what impact will not rebuilding the road have on the local economy in Jarbidge? Mr. Lesperance. It will definitely hurt the local economy. It's a great tourist-focused community. Many of us like to go up there. It will have an impact on me. It will have an impact on my grandchildren and every person in this room in one form or another. But it won't stop there, that's the problem, because the impact will grow and grow and grow. This is a battle line. This is a line in the sand. Do we allow this to happen and lose one more freedom? Or do we finally say enough is enough? And this County Commission is saying enough is enough and we will rebuild that road and we will put it back to where it was, come hell or high water. Mrs. Chenoweth-Hage. The hearing will come to order, please. I want to ask Commissioner Nannini, what do you believe the cost of rebuilding that road will be? And the future maintenance, if you were to do the rebuilding? Mr. Nannini. You know, the maintenance on the road is insignificant. I think the numbers that we have is around a million-and-a-half to two million dollars to rebuild the road. That's if we go all the way up to the trailhead. You've got to understand, and it doesn't seem like everybody does, this road wasn't wiped out. There's only, there was a 900-foot stretch that we built, and the Forest Service unbuilt. It was wiped out. And then the rest of the areas, the other two areas there was about an 80-foot stretch; and there was about a 90-foot stretch. At the very top where the trailhead is, a whole mountain of rocks came down on top of the road, you know. That's the area that will require lots of funds and lots of equipment to redo. But it wasn't totally devastated, the road. It was just in areas where the water was bunched up and crossed over. Mrs. Chenoweth-Hage. Were the Commissioners consulted before the reconstruction of the road was done under contract by the Forest Service? Mr. Nannini. Absolutely not. That decision was given to the people in Jarbidge. It was actually delivered to them on a Commissioner day. None of us were notified. Dave Aicher, who is the Forest Ranger for that area, took a trip up into the area, met with the people of Jarbidge in their community hall, and told them at that time that that road would not be rebuilt. Nothing like that was ever mentioned in all these meetings that we were having with them. There was never any indication of that up to this point. It was all: We were working together; things were great; we were getting the funds; we were going forward. There was never an indication of a change. Not one of us were notified beforehand of the final decision until it was announced. Mrs. Chenoweth-Hage. Ms. McQueary, was there NEPA compliance by the Forest Service in this? Was there an Environmental Impact Statement? Ms. McQueary. I have not seen one. Certainly in the time that they took, they didn't have time to go through all the process. We haven't gotten any documentation of NEPA compliance. We haven't had a comment period to my knowledge. Commissioner Lesperance, you want to make a comment on that? Mr. Lesperance. No, I would be happy to. Mrs. Chenoweth-Hage. Commissioner? Mr. Lesperance. There has been no compliance. And I might add, NEPA calls for the best method. And I can assure you, what the Forest Service did in Jarbidge and South Canyon was not the best method. It was the most devastating kind of action they could have possibly have taken. It was as if it was to us as County Commissioners: This is in your face. And that is precisely what my feeling as chairman of the Elko County Commission has been and is and will continue to be until the Forest Service officially apologizes for the actions they took. Mrs. Chenoweth-Hage. That's very interesting. In your opinion, was that--. Mr. Lesperance. Madam Chairman, yes, that is my opinion, in case you doubted it. Mrs. Chenoweth-Hage. Was there an environmental impact that occurred as a result of their actions? Mr. Lesperance. I've already indicated that the canopy of trees was removed. There is downed timber everywhere in this 900-foot section. And realize I'm in the reclamation business, and I evaluate reclamation projects all the time. I might add that their reclamation project is a total failure. Mrs. Chenoweth-Hage. Was increased sedimentation there? Mr. Lesperance. Again I'm totally remiss for not having documented that with the video we have, but that video clearly shows the amount of sedimentation that Forest Service project placed in the river. Mrs. Chenoweth-Hage. Would you be willing to, would you please send a copy of the video to the committee? Mr. Lesperance. I'll even bring myself with it if you wish. Mrs. Chenoweth-Hage. I wanted to ask two final questions of Mr. Nannini, and we will excuse this panel. Mr. Nannini, are there mining claims up above the South Canyon Road? And are they active? Or what is the state of the mining claims? And do you have any evaluation on them or numbers? Mr. Nannini. I don't know if we have the numbers. It was my understanding through the people of Jarbidge, the old-timers that have been there a long time that there were two mining claims, known mining claims up in that area; but I don't have that information. Mrs. Chenoweth-Hage. What about the impact on real estate values in Jarbidge with this road being closed? Mr. Nannini. Well, the real estate value would be hindered. The amount of traffic that flows up there during the summertime, of course, now that they've taken the South Canyon Road. You've got to understand that's where a lot of the people that visited that area went up there and did their camping. You know, you can picture a family spending the night or the weekend and cooking out and then going down to the river and fishing and doing some hiking, stuff like that. I think there was like four, five campground areas. Then for the folks that like to hike, it was a trail. There was a road up to the trailhead, and they parked their cars there. There was a nice parking area. As I mentioned, there was a restroom facility. All of those folks that like to do that kind of thing, are in shape to do that kind of thing, parked their vehicles and walked the mountains in the wilderness area. That was the easiest and best way to go. Mrs. Chenoweth-Hage. I want to ask one final question. This really is my final question. Do any of you on the panel remember the exact words on the sign that said this is the beginning of the wilderness area? Or do you have a copy of that sign? Or a picture of it? Mr. Nannini. I think we have a picture of that. Mrs. Chenoweth-Hage. Would you be willing to submit it for the record, please? Mr. Lesperance. I will make sure that you get all documentation of that nature. And we will go back and review all of our files and prepare a copy of this video as well and have that formally submitted to the committee as rapidly as we possibly can. Mrs. Chenoweth-Hage. Thank you. Ms. McQueary. Madam Chairwoman, for the committee's reading pleasure I have compiled a number of Forest Service documents regarding the South Canyon Road issue. In this it has biological assessments regarding the benefit of having the road replaced to not only the bull trout but to the administration of the Forest Service. It also has the economic specialist report indicating that road reconstruction would help the economy of Jarbidge. It talks about that only 1.2 percent of the watershed would be disturbed with road reconstruction. It talks about--these are all Forest Service documents. It talks about the whole road issue in perspective. I think it is important that you, as a committee, review these documents and see that this road can be put back in place with Elko County's interests and the bull trout interests both taken into consideration. Mrs. Chenoweth-Hage. Without objection, the full notebook will be entered into the record. Mrs. Chenoweth-Hage. I want to ask Mr. Gibbons if he has any further questions. Mr. Gibbons. No, I don't, Madam Chairman. Thank you very much. Mrs. Chenoweth-Hage. I want to thank this panel for your very, very interesting testimony. We may be asking you further questions. Mr. Gibbons. Mr. Carpenter? Mr. Carpenter. Madam Chairman, I don't believe that our head of the Division of Wildlife is here today. I would like to submit this for the record and--. Mrs. Chenoweth-Hage. Would you read the title of it? Mr. Carpenter. It's the Status of the Bull Trout in Nevada. Mrs. Chenoweth-Hage. And it's produced by? Mr. Carpenter. The Nevada Department of Conservation and Natural Resources, Division of Wildlife. Mrs. Chenoweth-Hage. And the date is? Mr. Carpenter. March 30, 1999. Mrs. Chenoweth-Hage. Thank you. And without objection, it will be entered into the record. [The information referred to follows:] [GRAPHIC] [TIFF OMITTED] T7361.305 [GRAPHIC] [TIFF OMITTED] T7361.306 [GRAPHIC] [TIFF OMITTED] T7361.307 [GRAPHIC] [TIFF OMITTED] T7361.308 [GRAPHIC] [TIFF OMITTED] T7361.309 [GRAPHIC] [TIFF OMITTED] T7361.310 [GRAPHIC] [TIFF OMITTED] T7361.311 [GRAPHIC] [TIFF OMITTED] T7361.312 [GRAPHIC] [TIFF OMITTED] T7361.313 [GRAPHIC] [TIFF OMITTED] T7361.314 [GRAPHIC] [TIFF OMITTED] T7361.315 [GRAPHIC] [TIFF OMITTED] T7361.316 [GRAPHIC] [TIFF OMITTED] T7361.317 [GRAPHIC] [TIFF OMITTED] T7361.318 [GRAPHIC] [TIFF OMITTED] T7361.319 [GRAPHIC] [TIFF OMITTED] T7361.320 [GRAPHIC] [TIFF OMITTED] T7361.321 [GRAPHIC] [TIFF OMITTED] T7361.322 Mr. Carpenter. I would also like to say it won't cost very much to rebuild that road. I think we can organize a work party to do most of it. Mrs. Chenoweth-Hage. Next on the panel we have Mr. Caesar Salicchi, the Treasurer of Elko County; Mr. Matthew Holford, Nevada Chairman of Trout Unlimited; Mr. Terry Crawforth, Nevada Department of Wildlife; and Mr. Dick Carver, Nye County Commissioner. The hearing will come to order. I want to welcome our new panel of witnesses. And as has been explained to previous panels, it is the intention of the Chair to place all witnesses under the oath. If you would stand and raise your hand to the square. [witnesses sworn.] STATEMENT OF CAESAR SALICCHI, TREASURER OF ELKO COUNTY; MATTHEW HOLFORD, NEVADA CHAIRMAN OF TROUT UNLIMITED; TERRY CRAWFORTH, NEVADA DEPARTMENT OF WILDLIFE; AND DICK CARVER, NYE COUNTY COMMISSIONER Mrs. Chenoweth-Hage. The Chair recognizes Mr. Ceasar Salicchi for his testimony. STATEMENT OF CEASAR SALICCHI Mr. Salicchi. Thank you, Madam Chairman. I am Ceasar E. Salicchi. I reside at 91 Skyline Drive, Elko, Nevada. I am a life-long resident of Elko County for 72 years. I was raised on the family ranch in Lamoille, Nevada. As a young fellow, I had the pleasure to ride and hunt horseback in many mountains in Elko County. I have ridden or walked to most of the lakes in the Ruby Mountains. I also have ridden and hunted in the Jack Creek area, including Copper Basin. I have also ridden the Pequop Range. To me that was a joyous adventure to be in the beautiful mountains. In 1952, I contracted polio. This left me unable to walk without crutches and braces. Since then I have not been able to ride horseback or walk in the mountains. I have driven over many roads and jeep trails in my vehicle. I have always and will always enjoy the mountains in Elko County. I have taken many trips to Lamoille Canyon, Angel Lake, and the Jarbidge area. As time passes, I find it more difficult to go into many areas because of the management of the Forest Service. Many of the areas are shut off without regard for the physically challenged. And many of the roads in the Ruby Mountains have been shut off. The South Fork Canyon Road to Jarbidge has been shut off because of a washout. This road could be repaired and opened without any damage to the bull trout. A little common sense would go a long way to repair the road. There would not be near as much damage repairing the road now than in the spring runoffs. The spring runoffs cause rivers to jam, with rocks and sand running down the rivers. This would not be the case with repairing the road. I have also, all the parks I have visited provide for the physically challenged and are a pleasure to visit. There is no reason the roads going into the wilderness area and the camping areas of Elko County should be closed without regard to the physically challenged. I see no reason why the South Canyon Road cannot be opened to the benefit of the physically challenged. I thank you for the opportunity to present my testimony. Mrs. Chenoweth-Hage. Thank you very much, Mr. Salicchi, for your testimony. [The prepared statement of Mr. Salicchi follows:] [GRAPHIC] [TIFF OMITTED] T7361.325 STATEMENT OF MATTHEW HOLFORD Mrs. Chenoweth-Hage. Now the Chair recognizes Mr. Holford. Mr. Holford. Madam Chairman, Members of the Committee, I appreciate the opportunity to testify before this committee on this important matter. Trout Unlimited is a national organization dedicated to the protection and restoration of trout and salmon and their habitat. In Nevada alone, over 650 members volunteer their time and resources to protect and enhance the State's streams, rivers, and watersheds. We have a long track record of working with local communities, State, and Federal agencies to seek sound solutions to environmental challenges. The Jarbidge River is of particular concern to T.U. Members in Elko County and the rest of Nevada. The river is home to the southernmost population of bull trout in North America, and T.U. Has worked hard on the ground to improve the conditions for the fish. Two years ago, the Northeastern Nevada T.U. Chapter raised $10,000 to help build a bridge that replaced an ill-placed culvert on Jack Creek, a tributary of the Jarbidge. The old culvert had been a barrier to fish passage, and the project has reopened spawning habitat for the bull trout. Bull trout have since begun to repopulate Jack Creek. T.U. Has also sponsored a spring fencing project to protect Jack Creek and devoted hundreds of volunteer hours improving the habitat and management of Jarbidge watershed. As you can see, T.U. Members have dedicated a tremendous amount of time, energy, and resources to protect and improve the river for everyone's enjoyment. On a personal level, I'm a long-term resident of Nevada and of this area. I have been going to Jarbidge to fish and hunt since I was a teenager. Some of my first fishing experiences were on the East and West Forks of the Jarbidge River. T.U. Has long opposed the rebuilding the 1.5 miles of road from the Pine Creek campground to the trailhead. We have taken this position for two reasons. First, every scientist who looked at the issue has concluded that the road is bad for bull trout, bull and redband trout that live in the river. Second, the road has washed out repeatedly over the years, and the costs of repairing and maintaining the road probably outweigh the economic benefits. T.U. Has consistently played by the rules and effectively voiced its opposition by using the well-established appeal process to challenge the Forest Service's initial decision to rebuild the road. Unfortunately, the County Commissioners and their supporters choose not to pursue administrative or legal actions, or indeed negotiations, to resolve this issue. Instead, they sent road crews up the South Canyon to rebuild the road. They did this despite being warned that working on the road and in the river would violate State and Federal law. The road crews channelized a 900-foot stretch of the Jarbidge River, damaging the aquatic habitat while stabilizing the site. The refusal of the proponents of the road to participate in the administrative and legal processes available to them, but rather to take or threaten actions outside the established legal framework has imposed significant costs on the county. The county's roadwork, which achieved nothing once it was abandoned in the face of the cease and desist order from the Nevada Division of Environmental Protection, almost certainly cost county taxpayers hundreds of thousands of dollars. The county has always claimed that the road belongs to the U.S. Forest Service. Excuse me, the county has always claimed that the road belongs to it and not the U.S. Forest Service. T.U. Repeatedly reminded road-building proponents that there is a simple well-accepted method of asserting that claim. The county could simply file a lawsuit arguing the road belongs to it. If the county proves its claim was correct, it would win the lawsuit and its rights to the road would be established. To do so would short-circuit all the current controversy and resolve this issue at far less cost than the path that the County Commissioners have apparently chosen. One of the claims that has been made by the proponents of the road is that the bull trout is not really in trouble. They cite the recent work of the Nevada Division of Wildlife in this regard. Fisheries biologists on T.U. Staff have reviewed the work of the NDOW biologist. And our biologists, based on their review, our biologists disagree with the primary conclusions of the NDOW study. Our biologists assert, as I believe, the Jarbidge bull trout does warrant listing under the Federal Endangered Species Act. While you may reject this analysis, we would also like to point out that there has been no peer review of the NDOW study. We suggest that it may, we suggest that it be subjected to scientific peer review. In conclusion, the insistence of some of Elko County's elected officials to ignore the rules of law with respect to South Canyon Road has accomplished nothing but a waste of time, effort, and taxpayer dollars. Unfortunately, the rebellion represents one of the serious inflammatory actions by Elko County politicians, preventing any meaningful discussion on a very difficult issue. Lost in all of the posturing is the opportunity to pursue alternatives that could bring much greater benefits to Jarbidge than 1.5 miles of dead-end road and recognition of the value of a healthy bull trout fishery. Thank you for this opportunity to testify today. Mrs. Chenoweth-Hage. Thank you, Mr. Holford. [The prepared statement of Mr. Holford follows:] [GRAPHIC] [TIFF OMITTED] T7361.326 [GRAPHIC] [TIFF OMITTED] T7361.327 [GRAPHIC] [TIFF OMITTED] T7361.328 [GRAPHIC] [TIFF OMITTED] T7361.329 STATEMENT OF TERRY CRAWFORTH Mrs. Chenoweth-Hage. The Chair recognizes Mr. Crawforth. Mr. Crawforth. Thank you, Madam Chair. My name is Terry Crawforth. I'm the administrator of the Nevada Division of Wildlife. I am hopeful that during the next legislative session when our budget is being reviewed, Assemblyman Carpenter can't spot me then either. By Nevada statute, fish and wildlife in its natural state is part of the natural resource belonging to the people of the State of Nevada. The Division of Wildlife is charged with the preservation and protection, management, and restoration of that wildlife and its habitat. In accordance with this legislative mandate, the Division is responsible for fish populations in the Jarbidge River system, which is under consideration here today. As early as 1954, the then Nevada Fish and Game Commission was monitoring and actively managing fish populations in the Jarbidge River system. In 1992, in direct response to growing concern about the range-wide status of the bull trout, the Department of Wildlife embarked upon an exhaustive inventory of the trout in the Jarbidge system, with specific emphasis on bull trout. This study was completed in 1994, and the results of that study are in the support material in the package I submitted to you today. Beginning in 1998, another exhaustive survey of the Jarbidge River fish population was undertaken by the Nevada Division of Wildlife. Those results are also in your packet that you have received today. My additional comments, especially technical information, comes from those reports. As was previously mentioned, there has been a number of listing actions regarding the bull trout in its entire range in recent years. Initially the United States Fish and Wildlife Service felt that that listing was not warranted for the Jarbidge population. On August 11, 1998, as a direct result of work by Elko County to reconstruct the South Canyon Road on the West Fork of the Jarbidge River, the bull trout was listed as emergency endangered under the authority of the Endangered Species Act. The emergency endangered classification is a temporary one, normally used only when a species is in immediate peril of extinction. The Division of Wildlife disagreed with the emergency listing because the area of the Jarbidge River immediately affected by Elko County's actions on the South Canyon Road is not critical to survival of the Jarbidge River population of the bull trout. In April 1999, when the emergency endangered listing expired, the bull trout was listed by the Fish and Wildlife Service as threatened. The Division of Wildlife has disagreed with that listing also. There are five criteria for listing of endangered species. I won't read those to you. They are in my statement. We don't feel that any of the five criteria nor the specific threats enumerated in the ruling support the ruling. Virtually all of the essential bull trout habitat in Nevada is located deep within the Jarbidge Wilderness Area where impacts by man are virtually nonexistent. There are currently no existing impacts from grazing, mining, recreation, or any other land use on bull trout populations or their habitats within the wilderness area. Some adult Jarbidge bull trout are migratory and seasonally may inhabit lower reaches of the Jarbidge River, such as the South Canyon Road site. However, naturally higher water temperatures in these areas discourage year-round bull trout habitat. Bull trout are a glacial relic and are dependent upon cold clear water between 40 degrees and 51 degrees Fahrenheit, moderate stream gradients of less than 12 percent, and stream flows of more than one cubic foot per second for spawning and rearing. These exacting habitat conditions are naturally limited in the Jarbidge River. However, the Division study shows that where these habitat conditions prevail, bull trout exist in reasonable and viable numbers. Bull trout are classified as a game fish in the State of Nevada. However, to maintain consistency with neighboring States such as Idaho, a regulation prohibits the angler harvest of bull trout. Fish disease testing in the drainage has revealed no harmful or threatening pathogens. The Division no longer stocks hatchery trout in the Jarbidge River. There are no competitive or hybridizing species in the river. Evidence collected by the Division suggests there are a minimum of three genetic subpopulations in the Jarbidge system. This mitigates threats to the population from natural disasters and ensures genetic diversity. I am very proud of the efforts of our fisheries personnel to document the biology of the bull trout. I believe that the reports that you have on the status of the bull trout in Nevada are the very best science concerning this species. The Division has further argued that even if the threats defined in the listing rule were real, there are virtually no practical management actions which could be applied to remedy them. This is due to the protected nature of the existing populations and the near pristine condition of their primary habitats. There are no significant threats to the Jarbidge River population of bull trout. Forest health is good. We currently have a listed species in the Jarbidge River with no conceivable means to delist it. Yet the Division is now obligated to divert significant resources from sport fish management to the recovery efforts of the bull trout. The Division has determined through extensive biological investigations of the Jarbidge River system that bull trout are well distributed through the system. It has been mentioned that from historical data, this canyon was well used in the early part of this century. There is a picture in your support material from Stanley Pahers' ``Ghost Towns of Nevada.'' I think if you look at that picture, you'll see that 70 years ago it was not a nice place to live. In fact, if we had an Endangered Species Act in 1917, we probably would have requested a listing of the bull trout and our recovery plan would have been made, designed to make that canyon look like it looks today. I'm not criticizing anybody here for past actions on the river. But I believe that at this point in time the use of the Endangered Species Act at this point in time was an unfortunate action. The river, the bull trout and the river, the road on the South Canyon are separate issues; should have been maintained that way. And the Nevada Division of Wildlife stands ready to continue to do its part for Nevada citizens and their resources. And however we can help to resolve this issue, it would be our pleasure. Thank you, Madam Chairman. Mrs. Chenoweth-Hage. Thank you, Mr. Crawforth. [The prepared statement of Mr. Crawforth follows:] [GRAPHIC] [TIFF OMITTED] T7361.330 [GRAPHIC] [TIFF OMITTED] T7361.331 [GRAPHIC] [TIFF OMITTED] T7361.332 [GRAPHIC] [TIFF OMITTED] T7361.334 STATEMENT OF DICK CARVER Mrs. Chenoweth-Hage. The Chairman recognizes Mr. Carver. Mr. Carver. Thank you. Before you start the green light, I think I've got a little possible conflict I would like to resolve with you. First I would like to congratulate you on your marriage to Wayne. If you realize, he's a neighbor of mine. But maybe the conflict rests more with Wayne than it does with you. The first time I met you, I think we were in Boise. I was just about to make a presentation. You were just about to run for Congress. And you walked up to give me a big hug. I wondered if you hugged me first or Wayne first. The second thing I would like to say is that I'm really looking forward to trying to get you to move to Nye County. Wayne has a big ranch in Nye County. I'm going to run for Commissioner one more time. When I go out of office, maybe we can get you to run for Commissioner and take my place so we can keep this battle up. Mrs. Chenoweth-Hage. I want to remind the Commissioner this is all on the record. Mr. Carver. With that--. Mrs. Chenoweth-Hage. We look forward to your testimony, sir. Mr. Carver. With that, my name is Dick Carver. I'm chairman of the Nye County Commissioners. I'm here today representing Nye County because what happens here in Elko County will spill over to Nye County. The problem we have, we have a double standard with the Forest Service. They treat Nye County one way and are treating Elko County another. As you know, we opened Jefferson Canyon Road, a very similar issue, in 1994. It's gone to court. What's the difference between what happened in Jefferson and what happened here? It's already been settled. We've got the road issue in Broad Canyon, which is in Smoky Valley, that was brought to my attention. The Forest Service sent me a letter in August. They were going to close about 150 feet of that road. I went up to the district ranger's office during the Commissioner meeting. I said, Tony, I'm here to remind you that's a county road. You have to have an encroachment permit. He said, Dick, we don't need an encroachment permit. I said, Tony, I'm reminding you, you have to have the encroachment permit to work on the county road. He said, What happens if we don't? I said, I'll notify the Sheriff's Office to arrest your people and impound your equipment, just like you did Bob Wilson up in South Twin a few years ago. A month went by and he called me up on a Saturday night and he said, Dick, we're going to drop closure of Broad Canyon Road because there's too many issues. I think the real issue here that we need to look at is, and this has been brought to my attention by the Forest Service employees, that the Forest Reserve Act of 1906 repealed RS 2477. Before I get to the bottom line, I would like to say that Nye County in 1993 passed Resolution 93-49 that claimed virtually every road on public lands in Nye County, whether in the past, present, or the future. On July 4, 1994, we reopened the road up Jefferson Canyon without the Forest Service permit, permission. Again on October 15, 1994, along with fellow Commissioner Ray Williams, who is in the audience, him and I reopened the San Juan Canyon Road, again without the Forest Service permission. The reason was because we did our homework and we knew we had a valid existing right of both of those roads. That led to the U.S. Versus Nye County court case, where the Attorney General of the State of Nevada agreed in a stipulation with the Justice Department, and the judge had no recourse to go except to rule that the Federal Government owned and had the right to manage those lands. But he did not invalidate Nye County's resolution or say that that Jefferson Canyon Road belonged to the Forest Service. He said he invalidated our resolution to the effect and to the extent only it has no valid existing rights. I want you to know that I believe that every road out there on these public lands, whether it's a trail, whatever, leads to a valid existing right. That Nye County lawsuit led to the tri-party framework. I handed that to you a little bit earlier. In the resolution it's got the, it's right in the middle as an amendment to that, or appendage to that. You can read it. What that tri-party framework is is a contract with the Forest Service and the BLM that we'll sit down and resolve issues at the table rather than going through the Court. That also led to the Resolution 99-01 where we agreed with the Justice Department we would rewrite resolution 93-49. And we did rewrite it. Before we rewrote it, we took it to the Forest Service and the BLM and got them to concur that they could live with it. We did not ask them to sign it, because they have no jurisdiction in signing county resolutions. And I'll get to, hopefully in answering questions, about how we define a county road in Nye County. But on the 18th of October, I had five staff people with me and we went to the Forest Supervisor's office in Sparks. On a conference call with legal counsel in Ogden, Utah, we asked them to provide us the law that shows that the Forest Reserve Act of 1906 repealed RS 2477. A week ago yesterday, we had staff in Ogden, Utah; and again we did not get that law. So what I would like to do now, and just the day before yesterday I was in Reno testifying in a Forest Service hearing. I would like to read to you--I'll wait and do it during the questions. I want to present a solution. Courts are not going to resolve this issue. The only people that can resolve this issue is you. So what I'm going to ask is that you require the Secretary of Agriculture and the Secretary of Interior to develop a pilot project with Nye County and Elko County, and come back in 1 year with a program to resolve which roads are county roads, which roads are Forest Service roads, and which roads are BLM roads. And you people pass the legislature that resolves this issue forever. The second thing I would like to present to you right now, too, before the red light comes on. I would like to invite you representatives, Elko County Commissioners, Regional Forester, the Assistant Forest Supervisor, and Nye County to sit down and resolve this tomorrow. Because the cost of fixing that road is not that great. I am a professional blade dozer operator. The Chairman of the Elko County Board can run a dozer. I will bring my dozer up here, and it will not cost you anything. We will pass the hat among the audience right out here to cover the cost. That's all it will cost. With that, I'll wait and answer some questions. But I want to get into the FLPMA law; that lays it out. Mrs. Chenoweth-Hage. Thank you, Commissioner. And the Chair turns to Congressman Gibbons for his questions. Mr. Gibbons. Thank you very much, Madam Chairman. Mr. Salicchi, today with the status of the South Canyon Road in its current condition, are you able or is it possible for you to access this area in a vehicle? Mr. Salicchi. No, I can't. I can go to--I can just go part of the way, but I cannot go all the way up there. Because of the reconstruction that has been done, it's nothing but rocks and no way you can drive over it with a vehicle. Mr. Gibbons. You, with your physical condition, are denied access to this area under the current condition? Mr. Salicchi. Yes, I am. Mr. Gibbons. Mr. Holford, thank you for being here today. Let me say right off, no one here in this committee or I'm sure in the audience or the area denies that the conservation of our wildlife is the benefit of all Americans. What I would ask you basically is: Do you feel, is there absolutely no way to have this road and have good habitat for the bull trout? Mr. Holford. I'm not quite sure. We have never been able to get through any of the processes that have been put in place. Every time we get an environmental analysis, there's some other action that leads us into some stoppage through processes from other factions. We've never been able to take the E.A. To a final conclusion. Mr. Gibbons. If I ask you the question then, Trout Unlimited biologists according to your testimony disagree apparently with the Nevada Department of Wildlife. Have you worked with the or have they worked with the U.S. Forest Service on this issue? Mr. Holford. Has the State worked--. Mr. Gibbons. No, Trout Unlimited biologists worked with the Forest Service or the Fish and Wildlife on this bull trout issue? Mr. Holford. No, our biologists have not worked together on this issue. Mr. Gibbons. Even though your biologists disagree with the State's conclusion, what is the basis of their disagreement? Mr. Holford. From my understanding, the basis of the disagreement was the requirements for the fish to be threatened. We feel that the, or from what I have been told, we feel that the information that was provided by the State leads to listing. The information that they had is two snapshots in time, one in 1998 and one in 1994. Mr. Gibbons. And your biologists have had a more extensive experience with the bull trout than the State of Nevada? Mr. Holford. I'm not saying that they have. What we're asking for is peer review, scientific peer review just like 3809. We came out with a scientific peer review, and I think it's very fair. Mr. Gibbons. The road you indicated, South Canyon Road, belongs to the Forest Service. Is that your testimony? Mr. Holford. It is, and I base that on--I've never seen on the county road map, even during the time this issue was going on, that the county had detailed that road as a county road. They detailed the other roads around it as county roads, and they didn't write the E.A. To repair the road. It appears to me the road belongs to the Forest Service. Mr. Gibbons. Your interpretation of the ownership of the road is based on its location on Forest Service land and not on legal precedent? Mr. Holford. I think the legal precedent is a great question. I think it needs to be decided in court. I don't know the legal precedents. I'm not a lawyer. This situation keeps on going around and keeps on following it back and forth in this county. It's time to take it to the court and find out who owns this road and get together and come to a resolution and go forward. Mr. Gibbons. Would it be your interpretation also that any highway, any roadway crossing Federal BLM land, Forest Service land if it were washed out would be an issue of ownership of the road or a question of maintenance of that road across that Federal land? Mr. Holford. The issue that Trout Unlimited is interested in is: How does that road affect aquatic habitat and the fisheries that are associated with that road? So to say a road that crossed all Federal land is unfair, I think. Mr. Gibbons. That goes back to my original question that I asked. In your opinion, can this road co-exist with the habitat for the bull trout? Mr. Holford. Not under the analysis that has been done. When Senator Harry Reid was here, they sat down and went through that whole process and the analysis said that the road couldn't be built. Mr. Gibbons. Mr. Crawforth, what information has the, either the Fish and Wildlife Service or the Forest Service, for that matter, shared with you regarding, over the past year regarding the bull trout? Mr. Crawforth. Congressman Gibbons, my knowledge, I think most of the information on the bull trout back to our work clear back to 1954, is the chapter and verse on bull trout in the Jarbidge River. And we have been in the mode of sharing our information with them. We have been the people on the scene. We have regularly consulted with the Forest Service on their various land management practices. And more recently the Fish and Wildlife Service, I think, has reviewed our information extensively. Mr. Gibbons. The Fish and Wildlife have relied on the Department of Wildlife from the State of Nevada to make any decisions based on bull trout and the habitat? Mr. Crawforth. That's correct. Mr. Gibbons. Have the biologists for Trout Unlimited shared any information with you regarding their assessment or their work on the bull trout with you? Mr. Crawforth. Other than a statement similar to Mr. Holford's, not to my knowledge. Mr. Gibbons. Mr. Carver, welcome. You are the first person that we have had testify here who has actually suggested a solution. While we all debate the facts and debate what has gone on and whether or not this person or that entity was right or wrong in all this, may I say you're the first one who has suggested a solution, getting together to find what would work for the interests of the people of Elko County, the management of our forest, the habitat for the wildlife in the area as well. I laud you for coming forward with that solution. You indicated you had something you wanted to read to us prior to the 5-minute light expiring. If there is a short statement you want to read to us, I permit you to do that now. Mr. Carver. Thank you. Jim, I want to thank you for inviting me here today. As you see, you had one cancel out, and you let me fill in. I feel very honored. In fact, I feel more honored than I did on July 4 of 1944. You ought to feel my little heart pounding. I want to tell you, Nye County has got a definition that we think is very strong. It's been held up in court. It's based on law and court decisions. The basic law it was based on was Public Law 94-579, passed on October 21 of 1976. I will read it. ``Repeal of laws relating to right-of-ways.'' I'm going to answer the question, did the Forest Service Reserve Act of 1906 repeal RS 2477? ``Section 706A. Effective on and after the date of approval of this act, RS 2477, 43 USC 932, is repealed in its entirety and the following statutes or part of statutes are repealed insofar as they apply to the issuance of right-of-ways over, upon, under, and through the public lands and lands in the National Forest Systems.'' And it's got a big long list of other repeals. You've got it. It's the third page from the last that I handed you in my handout. I'm going to go on and read to you Section 509. It says ``Existing Right-of-Ways.'' A, ``Nothing in this title shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted. However, with the consent of the holder thereof, the Secretary concerned,'' Secretary of Agriculture or Secretary of Interior, ``may cancel such a right-of-way or right-of-use and instead issue a right-of-way pursuant to the provisions of this title.'' And I'm going on to Section 701 of Public Law 94-597, effective on existing--``Effect on Existing Rights.'' Section 701A, ``Nothing in this act or in any amendment made by this act shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date or approval of this act.'' And on Section 701H, it says, ``All actions by the Secretary concerned''--again, Secretary of Agriculture or Secretary of the Interior, ``under this act shall be subject to valid existing rights.'' Mr. Gibbons. Thank you very much. Mr. Crawforth, let me ask you a question. With your experience in wildlife habitat, the East Fork of the Jarbidge River is similar in nature, gradient, topography, morphology, et cetera, to the West Fork of the Jarbidge River. They both support a bull trout population. The East Fork of the Jarbidge River does not, however, have a road next to it. Is the bull trout population recovering faster in the East Fork of the Jarbidge River as compared to the bull trout population in the West Fork which has a road next to it? Mr. Crawforth. No. Our surveys indicate that where bull trout habitat is appropriate, whether for temperature, stream gradient, et cetera, bull trout populations are equal. They are reestablishing in some areas. But the natural factors are the limiting. And most of the critical habitat for bull trout in the West Fork are above the South Canyon roadsite. Mr. Gibbons. Mr. Holford, would you be willing to submit your biologist, Trout Unlimited biologist research to this committee on the bull trout so that we may also have the privilege and the benefit of their analysis and their study to make our determination in this? Mr. Holford. Yes. 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OK. Madam Chairman, I see that the stop light is on. Like you, when I see the green light, I go. Yellow light comes on, I slow down, not speed up. Red light comes on, I stop. Mrs. Chenoweth-Hage. Thank you, Congressman. Mr. Salicchi, I wanted to ask you, has the Forest Service ever really acknowledged that access for the handicapped was abridged when the reconstruction occurred on the road? Mr. Salicchi. No. It wasn't an issue that I think was even thought of at the time. There's so many other issues going on, handicapped people were just kind of ignored, and nobody has ever presented it to the Forest Service to see just what could be done about it. Mrs. Chenoweth-Hage. I would be interested in the county's followup on that. There are definite Federal laws involved there in access for the handicapped. Mr. Salicchi. Yes. Mrs. Chenoweth-Hage. Mr. Crawforth, did the Fish and Wildlife Service provide input into your March 1999 report on the bull trout, or did they make comments to you after the report was issued? Mr. Crawforth. The conversations that I am personally aware of, the Fish and Wildlife Service supports our data and has never questioned the quantity or quality of that data. Mrs. Chenoweth-Hage. Have they submitted to you any reports that they have generated on the bull trout? Mr. Crawforth. Only in relation to the listing itself. Mrs. Chenoweth-Hage. I see. Mr. Holford, you're representing Trout Unlimited here. Do you work full-time for Trout Unlimited? Mr. Holford. No, I don't. Mrs. Chenoweth-Hage. What do you do in your other life? Mr. Holford. I worked for Newmont Gold for 7 years. I broke my back 2 years ago and right now I'm returning to the work force, not with Newmont. I'm looking for a job. Mrs. Chenoweth-Hage. The work that you do with Trout Unlimited is voluntary? Mr. Holford. Voluntary. Mrs. Chenoweth-Hage. Let me ask you, from your point of view does it matter really who owns the road, since the Endangered Species Act applies regardless? In your opinion? Mr. Holford. I'm hearing a radio in the background. It's repeating what you're saying. Could you ask the question again, please? Mrs. Chenoweth-Hage. Yes. From your point of view, does it really matter who owns the road with regard to the application of the Endangered Species Act? Mr. Holford. I think our point has always been that we were concerned with the fish and it wouldn't matter who owned the road as long as they worked in an ethical manner that didn't push this situation to where it is today. We have never been able to get that far. Mrs. Chenoweth-Hage. Commissioner Lesperance has entered this picture into the record. That's pretty dramatic. There's an awful lot of sedimentation there. It defies common sense to understand why the entry of the county into a very small portion of that river in repairing the road would justify this kind of activity on the part of your organization as compared to what mother nature actually did. Would you care to comment on that? Mr. Holford. Yes. Our, Trout Unlimited from the very beginning has been in all the public process comments. We've made the comments. We were there in Jackpot when there was a public hearing on bull trout. And the next day we find that the county enters the road and bulldozes, bulldozes the river. That was out of the process. That was out of the box. If we're supposed to work together and we're supposed to work together in the processes that were set up by Congress with the Forest Service and with the BLM and other officials in the State, and we are all working together and someone jumps out of the box and does something, you know, it just is detrimental to the process. We never have been able to sit down and talk. When Harry Reid came out and we were going to talk about this situation and mediate it, Elko County made sure that Trout Unlimited members and myself were excluded. They asked for a national representative to come in to represent Trout Unlimited. We have been trying to get through this situation, but we never have been able to keep it in a mediation or in a negotiation or any, you know, anything that would end up with the resolution at the end. Mrs. Chenoweth-Hage. Well, it may have been that Trout Unlimited didn't oppose the restoration of the Lamoille Canyon Road, and so it would just logically follow that you wouldn't oppose the restoration of the South Canyon Road. In fact, why didn't Trout Unlimited oppose the restoration and repair of the Lamoille Canyon Road? Mr. Holford. The Lamoille Canyon Road above where they were working on the campground and the areas that were damaged do not have a native trout population. They are planted by NDOW. There's a fish barrier or fishfall. There's a waterfall down below that blocks fish from going up. That is a planted fishery. It's not a native fishery. Mrs. Chenoweth-Hage. Mr. Crawforth, do you agree with that statement? Mr. Carver. What's that? I'm hard of hearing. I couldn't hear you. Mrs. Chenoweth-Hage. I was asking Mr. Crawforth if he agreed with the statement by Mr. Holford. Mr. Crawforth. Regarding Lamoille Canyon? Mrs. Chenoweth-Hage. Yes, with the impact on--would the impact be similar on the Lamoille Canyon restoration and repair of that road as it would the South Canyon Road on any alleged bull trout habitat? Mr. Crawforth. I don't think they are similar situations. Mrs. Chenoweth-Hage. What do you see is the difference? Mr. Crawforth. The width of the canyon. Mr. Holford is correct, the type of fish that are in that canyon. We do not have a native fish population in the Lamoille Canyon. There is fish movement there, but we do stock rainbow trout in there. There are brook trout. Mrs. Chenoweth-Hage. All right. Thank you. Mr. Carver, I want to thank you very much for your testimony and for coming to our hearing today. Without objection, I would like to enter your exhibit into the record. We are going to move along now. I do want to wish you the very best in your negotiations with the county. But since we are from the Congress, we are trying to stay out of that except oversight on the issue. So, I want to thank you very much. It's always enjoyable to hear from you. 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I want to thank all the witnesses for their testimony. At this time we will excuse this panel. Committee will come to order. I will now introduce our final panel. Final panel consists of Mr. Jack Blackwell, Regional Forester, Intermountain Region, U.S. Forest Service in Ogden, Utah. Mr. Blackwell is accompanied by Mr. Ben Siminoe, Assistant Forest Supervisor, Humboldt-Toiyabe National Forest; and Mr. Robert Williams, Field Supervisor for the U.S. Fish and Wildlife Service. Gentlemen, as explained to the previous panels, we will be placing you under the oath. If you would stand and raise your arm to the square. [Witnesses sworn.] Mrs. Chenoweth-Hage. Thank you. The Chair recognizes Mr. Blackwell for his testimony. STATEMENT OF JACK BLACKWELL, REGIONAL FORESTER, INTERMOUNTAIN REGION, U.S. FOREST SERVICE, ACCOMPANIED BY BEN SIMINOE, ASSISTANT FOREST SUPERVISOR, HUMBOLDT-TOIYABE NATIONAL FOREST; AND ROBERT D. WILLIAMS, FIELD SUPERVISOR, NEVADA FISH AND WILDLIFE OFFICE, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF INTERIOR STATEMENT OF JACK BLACKWELL Mr. Blackwell. Madam Chairman and Congressman Gibbons, thank you for the opportunity to be with you today and discussing management of the South Jarbidge Canyon on the Humboldt-Toiyabe National Forest. I'm accompanied by the Assistant Forest Supervisor, Ben Siminoe. The Forest Service faced a dilemma in providing public access in South Jarbidge Canyon while maintaining fisheries habitat and properly functioning condition of the watershed. The alternative of rebuilding the Forest Road Number 64, known as the South Canyon Road, has been analyzed extensively and the Forest Service does not believe this is a feasible option. In my testimony, I will summarize the analysis of South Jarbidge Canyon and the events that have affected the management of this canyon and its aquatic resources. South Canyon Road is a narrow canyon with steep slopes prone to periodic and brief flows. Forest Road Number 64 is located adjacent to the West Fork of the Jarbidge River in the bottom of the canyon. Records since the 1950's indicate that floods have washed out portions of this road about once every 10 years. Prior to 1995, the Forest Road Number 64 was roughly two miles long and terminated at a parking area at the Snowslide Trailhead that includes an outhouse and a horse loading ramp. Along the road about one-half mile from the parking area is another outhouse and four primitive campsites. In 1995, the flood washed out portions of the upper 1.5 miles of the road. In 1997, the Humboldt-Toiyabe National Forest prepared an environmental assessment and the District Ranger issued the decision to rebuild the forest road. I reviewed that 1997 decision as part of an administrative appeal, and I remanded it to the Humboldt-Toiyabe National Forest for further analysis on the effects to the bull trout and other aquatic species from road construction and from possible future road failure. The West Fork of the Jarbidge River is home to a unique population of bull trout through its isolation and its location on the southern boundary of bull trout habitat. On June 13, 1998, the Fish and Wildlife Service proposed listing the Jarbidge River bull trout under the ESA. In April 1999 the bull trout were formally listed as a threatened species. The listing requires the Forest Service to consult with the U.S. Fish and Wildlife Service on agency actions such as construction to ensure the trout survival is not jeopardized. In late June 1998, the Humboldt-Toiyabe National Forest released the second EA for public comment. Although this environmental assessment included alternatives for rebuilding the road, the preferred alternative was a 1.5 mile lofted trail to access the Snowslide Trailhead. The Forest Service has not made a final decision regarding reconstruction of the road or trail and when it does, it also will be subject to administrative appeal and possible judicial review. While the Forest Service continued to evaluate the environmental effects of the various alternatives for the forest road, the Elko County Commission directed its county road department to reconstruct the road. This reconstruction work began on July 21 but was halted on July 22, 1998 when the Nevada Department of Environmental Protection and U.S. Army Corps of Engineers issued cease and desist orders. The section of the South Jarbidge Canyon altered by the construction activity was extremely unstable and at risk for failure. To prevent further damage to the aquatic habitat of the Jarbidge River, stabilization work on the river channel and surrounding floodplain was necessary before the onset of winter. In November and December 1998, the Forest Service and contracted crews rehabilitated the damaged area, stabilized the site before spring. Had the site been left in an unstable condition there could have been severe damage during the spring snowmelt and runoff. As we've heard, the rehabilitation cost was about $400,000. On August 27, 1999, the U.S. Attorney's Office, District of Nevada, notified Elko County that it intended to file suit against the county to recover the cost of the 1998 stabilization work and to address violations of the Clean Water Act unless some resolution of this dispute could be negotiated. Negotiations are ongoing. Two months ago, three individuals announced they were organizing a work party to reopen Forest Road Number 64. If this event had gone forward as planned, damage could have occurred to the bull trout and its habitat. On October 7, 1999, the United States filed suit against the three individuals and the work party. In connection with the lawsuit, a U.S. District Court judge issued a temporary restraining order enjoining the work party, due to likely violations of the Endangered Species Act. Subsequently on October 21, 1999, the same district judge joined Elko County in the lawsuit against the work party and directed all parties to participate in settlement negotiations to be mediated by the U.S. Institute for Environmental Conflict Resolution. We hope that a settlement at this time can be reached to resolve the matter once and for all. In conclusion, the Forest Service and the other involved State and Federal agencies look forward to bringing this issue to closure. NEPA analysis of Forest Road Number 64 is ongoing. The District Ranger will issue another decision for public review and comment in the near future. We sincerely hope that Elko County will actively participate in this established planning process. Madam Chairman, this concludes my statement and I would be happy to answer any questions you may have. Mrs. Chenoweth-Hage. Thank you, Mr. Blackwell. [The prepared statement of Mr. Blackwell follows:] [GRAPHIC] [TIFF OMITTED] T7361.431 [GRAPHIC] [TIFF OMITTED] T7361.432 [GRAPHIC] [TIFF OMITTED] T7361.433 [GRAPHIC] [TIFF OMITTED] T7361.434 Mrs. Chenoweth-Hage. The Chair recognizes Mr. Williams. STATEMENT OF ROBERT D. WILLIAMS Mr. Williams. Thank you, Madam Chairman and Congressman Gibbons, for the opportunity to meet with you today to discuss the bull trout and the South Canyon Road. My name is Bob Williams. I'm the Field Supervisor for the U.S. Fish and Wildlife Service, Nevada Field Office. The Fish and Wildlife Service's mission is working with others to conserve, protect, and enhance fish and wildlife and plants and their habitats for the continuing benefit of the American people. The actions taken by the Fish and Wildlife Service for the bull trout and the Jarbidge River system of Nevada and Idaho are consistent with that mission. Since 1995 the Fish and Wildlife Service has at the request of the U.S. Forest Service provided comments and professional opinions with respect to the reconstruction of the South Canyon Road and its effects on bull trout. From the spring of 1995 when flooding washed out the one and a half miles of dirt road until today, the Service has provided consistent input with respect to the effects of road reconstruction on the Jarbidge River bull trout population. However, because of the range-wide listing of bull trout during this same period, the Service's biological opinion has been elevated in importance and the Forest Service is now required to consult on any alternatives selected. For the record, the Fish and Wildlife Service considered listing bull trout long before the 1995 flood event. The Service in 1994 found the Jarbidge River population warranted for listing as a result of a 1992 petition, but precluded the listing of that population as well as the other populations in the coterminous United States due to other workload. In 1996, the Service was ordered or directed by the Oregon Federal court to reconsider the warranted but precluded finding. The Service in March 1997 found the Jarbidge population not warranted based solely on the information that was in the 1994 administrative record. In December 1997, the same court ordered us to reconsider our March 1997 finding. But the court allowed us to use all available information rather than limiting it to the administrative record in 1994. All of the information was available in our decision to list. Our analysis, which included information from the Nevada Division of Wildlife as well as other sources, led us to propose the species as threatened in June 1998. As I stated earlier, since 1995 Service staff, Fish and Wildlife Service staff have participated in numerous reviews with the Forest Service and State and local agencies with regard to the South Canyon Road. Through the NEPA process in 1997, the Service recommended the Forest Service close this section of road in order to minimize the impacts to bull trout and the aquatic environment. This is before we were ordered to reconsider our listing decision in December 1997 and long before we proposed the species as threatened. In the spring of 1998 the bull trout was proposed for listing. We conferenced with the Forest Service on their alternatives, once again providing comments supporting closure of the road. Again this was before the bull trout was actually listed. However, as we know, the bull trout was emergency listed as endangered in August 1998 as a result of unauthorized reconstruction of the South Canyon Road that occurred in July 1998. The Service concluded that continued reconstruction of the South Canyon Road would impact bull trout in the West Fork of the Jarbidge River and the aquatic environment. In the fall of 1998, at the request of Senator Reid, the Fish and Wildlife Service in partnership with the Forest Service and others met to evaluate alternatives to the South Canyon Road reconstruction that would not affect or impact bull trout. This effort in our opinion failed to identify an alternative that was acceptable to everyone. In October 1999, the Service requested the U.S. Attorney to issue a temporary restraining order against a group of local citizens who intended to reopen the South Canyon Road because proposed activities would likely result in harm and harassment of bull trout and would constitute a violation of Section 9 under the Endangered Species Act. It is the Service's position that any unpermitted action which has not undergone Section 7 consultation wherein the Service can identify means to minimize the adverse effects to a listed species such as bull trout would constitute a taking under the Endangered Species Act. The Service will continue to participate in the NEPA process with the Forest Service and their decision to provide access to the Jarbidge Wilderness. We are prepared to complete a biological opinion as required under Section 7 of the Endangered Species Act once a preferred alternative is identified. The Service is presently forming a recovery team to prepare a recovery plan for the Jarbidge River bull trout population along with the other distinct population segments. We hope that representatives from the State, local, and Federal agencies, environmental and recreational organizations and concerned citizens will actively participate. We recognize that the bull trout cannot be recovered without the participation and support of local governments and citizens. The Service will also be working with the Nevada Division of Wildlife and Idaho Department of Fish and Game to develop the bull trout conservation and management plan for the Jarbidge River under the authority of the special rule that was identified in the final rule. Thank you, Madam Chairman, for the opportunity to comment. [The prepared statement of Mr. Williams follows:] [GRAPHIC] [TIFF OMITTED] T7361.435 [GRAPHIC] [TIFF OMITTED] T7361.436 [GRAPHIC] [TIFF OMITTED] T7361.437 Mrs. Chenoweth-Hage. I want to thank the witnesses for their testimony. I recognize Mr. Gibbons for his questions. Mr. Gibbons. Thank you very much, Madam Chairman. Mr. Blackwell, it's awfully encouraging to sit here and listen to your remarks and know that, contrary to recent news reports, that the United States Forest Service is looking forward to working with the citizens of Elko County to put this issue behind us in what the chairman of the committee says, in a rationally responsible manner. So I thank you for your comments along with that. Mr. Blackwell, are you familiar with the repair efforts that the Forest Service undertook with regard to the road in question? Mr. Blackwell. Yes, I am, Congressman. Mr. Gibbons. Were you there present when they undertook those efforts? Mr. Blackwell. No, I was not. Subsequent to them I've personally walked every inch of that washed out mile-and-a-half section. Mr. Gibbons. Did you see any reports as to how they accomplished their repair work? Mr. Blackwell. Well, the reports I had were verbal. I haven't seen any of the film that has been referred to today. I have seen some pictures. I stand corrected, I have seen pictures as well. Mr. Gibbons. Did the Forest Service put any equipment into the stream? Mr. Blackwell. I believe so. Mr. Siminoe can answer more accurately, but I believe we did, yes. Mr. Gibbons. Now, let me ask another question. Did the Forest Service do a full Section 7 consultation before they went in and entered into the repair work? Mr. Blackwell. It is my understanding we did, yes. Mr. Gibbons. Let me ask another question. How do you plan to handle the full outhouse? Mr. Blackwell. Congressman, I used the outhouse and I can testify it's full. It looks like it's surface runoff that is getting into that outhouse and supposedly the sealed vault is full of what appears to be rainwater and surface runoff mostly. We haven't finalized what we are going to do about that. We will have to consult over it. What we talked about when I was up there, and I asked the same question you did, we will try to get permission to pump most of the liquid, which appears to be mostly water, out on the hillside and then we will have to remove that more solid stuff to a treatment facility. Mr. Gibbons. Mr. Blackwell, what is the Forest Service position regarding access to the forest for the disabled? Mr. Blackwell. The Forest Service always tries to work with access so that we make it as easy as possible for the physically disabled. Mr. Gibbons. Now, you have personally walked this area that you have repaired? Mr. Blackwell. Correct. Mr. Gibbons. Can a person access that area, like Mr. Salicchi, who just testified, and access the forest using that same trail that you've now walked? Mr. Blackwell. No. And I would like to expand, though, and point out it's my understanding that there are approximately 12 to 14 other motorized access points to the Jarbidge Wilderness. Mr. Gibbons. To that area? Mr. Blackwell. To that area, I would say no. Mr. Gibbons. Who did you contract with to do the repair on the South Canyon Road? Mr. Blackwell. I would have to refer that question to Mr. Siminoe. Mr. Gibbons. Mr. Siminoe? Mr. Siminoe. Congressman Gibbons, we contracted with a firm in Bozeman, Montana; Confluence, Inc. They provided project oversight. It was a mixture of their crews and forest camp crews that did the work. Mr. Gibbons. You were obviously there during the work? Mr. Siminoe. Yes. Mr. Gibbons. Did they put equipment into the stream? Mr. Siminoe. Yes, they did. Mr. Gibbons. Their equipment in the stream, was that of any more egregious nature than what the county did? Mr. Siminoe. They spent a period of time in the stream that was permitted, I might say, by Army Corps of Engineers, Nevada Department of Environmental Protection. Mr. Gibbons. Did you note any sediment or sedimentation of the river caused by their activity? Mr. Siminoe. There was sediment produced during the rehabilitation activities. Mr. Gibbons. What impact did that have to the bull trout? Mr. Siminoe. We don't know. We had our fish management practices in place. But again there was sediment produced. Mr. Gibbons. Mr. Blackwell, why did it cost $420,000 to repair 900 feet of dirt road? Mr. Blackwell. I, Congressman, do not have all the answers. I can tell you that the design of that involved, the design of that and repair involved one of the best firms that we could find in the country, and I think that because of that it didn't come cheap. Mr. Gibbons. You couldn't find somebody here in Elko County to do the work? Mr. Blackwell. Not that design work, no, sir. Mr. Gibbons. Did you cut down trees? Mr. Blackwell. Did we cut down trees? Mr. Gibbons. In your repair work? Mr. Blackwell. I don't know that trees were cut down. Mr. Gibbons. Were they knocked down? Were they felled by some manner? Mr. Blackwell. I believe they were. Again, I refer that answer to Mr. Siminoe. Mr. Gibbons. Mr. Siminoe? Mr. Siminoe. During reconstruction activities there were some trees that were removed. However, there was every effort made to maintain the tree cover there. The fact is, we had hand crews go in and rake the dirt and gravel from around existing trees that had been damaged during the county's activities. Mr. Gibbons. I guess the issue gets down to the ownership of the road, Mr. Blackwell. Do you maintain that the Forest Service owns the road? Mr. Blackwell. The Forest Service as an agency doesn't own any roads. The Federal Government where applicable owns roads. We manage the land and the improvements like roads within the National Forests. Our position is that the Federal Government does indeed own that road. Mr. Gibbons. Did the Forest Service or the Federal Government pay for its construction? Mr. Blackwell. It's my understanding that that road was constructed around 1910 or 1911. I don't know who paid for the construction of that road. I do know that based on my walk of it, I was told about several major bridges where the Forest Service has contributed greatly to the expense of constructing that road. Mr. Gibbons. Mr. Blackwell, you moved the sign on the wilderness area to the end of the now existing road. Does that literally move the boundary of the wilderness area? Mr. Blackwell. The boundary of the wilderness area has not been moved and we have no intention to move it. When I heard the testimony today, that was new news to me. I have no knowledge of that sign being moved. I would like to look into that and get an answer back to you. Mr. Gibbons. Maybe Mr. Siminoe can tell us if he moved the sign. Mr. Siminoe. I would like to address that. The wilderness boundary sign is still at the Snowslide Trailhead. There is a road closure sign at the Pine Creek Campground when the road washed out, just from a public safety standpoint. We have no intention to move the wilderness boundary sign down to Pine Creek. Mr. Gibbons. Mr. Blackwell, over the last several months the State of Nevada in particular and many other States have endured a great number of fires, wild land fires. There is a problem in our community with these fires and the number of acres that have burned. What is the Forest Service policy now with accessing these fires without roads, the problems that that is going to cause in terms of fire suppression, management of fires in these Forest Service areas? Mr. Blackwell. Congressman, I refer you to, which I would be glad to supply for the record, to a Nevada Division of Forestry assessment of Forest Road Number 64 at South Canyon, and I would like to read just a couple of passages from that, if I could, from this state assessment. ``In the event of a fire start in the area of Forest Road 64, local initial attack personnel and equipment could access the area, size up the situation, and make initial attack provided personnel arrive while the fire was still small, close to the road, and fire conditions were not too high. With the topography of the area it is unlikely that there would be a fire start from natural causes''; that is, lightning, ``close to the road or at the bottom of the canyon.'' ``A fire above the canyon's bottom would require fire personnel to walk into the scene, provided the fire behavior was light. As the fuels in the area become dry and the fire danger increases, the fire has the potential to become large and uncontrolled. In the event of a catastrophic fire in the area, it would be extremely unsafe to place any fire personnel or equipment in the vicinity of the Forest Road Number 64. In my opinion, the closure of Forest Road 64 is not an immediate threat to the community of Jarbidge in the event of a large fire.'' This is signed by the local fire official for the Division of Forestry, and is accompanied by a cover letter from the regional manager saying he concurs with this report. Mr. Gibbons. So you feel that the closure of this road would have no impact on the ability of the Forest Service or the State of Nevada to fight a fire in the area provided that it was close to the road and it's small in size when it was in its early stages? Mr. Blackwell. Yes, I wouldn't say no impact. To paraphrase what I just read, if there was a start in the bottom and you got there quickly, the road would help. Of course, the road would also provide access to humans that cause the human- started fires. If it's a lightning start, it's going to be high on the ridge. Lightning rarely strikes in the bottom of a canyon. If the fire behavior is light, the road could still contribute some toward the initial attack. If it's catastrophic fire conditions, firefighters don't belong anywhere near that road because of the danger of entrapment. Mr. Gibbons. I would say that would be true in any fire. Unfortunately, we can't predict or preempt the actions of Mother Nature. Nor can we accurately project where we are going to be at any one given time with regard to where she may have an effect. This road had been washed out in the past and it was repaired. Mr. Blackwell. Correct. Mr. Gibbons. What impact did it have then on the bull trout? Mr. Blackwell. Well, it undoubtedly had some effect on the bull trout, both negative and positive, I would say. Mr. Gibbons. What information do you base that on? Mr. Blackwell. I base that strictly on my own field reconnaissance of that area. Mr. Gibbons. In between all these periods when it was washed out over a period of 10 years at a time or once each decade, basing your opinion on that? Mr. Blackwell. Yes, Congressman. I can look at the topography of that canyon and visualize these periodic storm events that contribute enormous amounts of runoff and sediment into the canyon bottom. And to repair that, I believe, would have been both beneficial and have some short-term negative effects to the bull trout. Mr. Gibbons. Have you studied the bull trout in the East Fork of the Jarbidge River? Mr. Blackwell. No, sir, I have not. Mr. Gibbons. Have you looked at that canyon? Mr. Blackwell. Only from the confluence of where the two rivers come together along the road. I have looked at that, that's all. Mr. Gibbons. Perhaps Mr. Williams has looked at the population of bull trout in the East Fork of the Jarbidge and compared that to the bull trout in the West Fork. Would you tell us what your findings are? Mr. Williams. The Fish and Wildlife Service doesn't have specific findings. We would rely on the Division of Wildlife information for those findings. Mr. Gibbons. As we heard from Mr. Crawforth, that the Fish and Wildlife Service gets its information from the State of Nevada with regard to the bull trout population, which he indicated through his studies did not indicate a need or basis by which it should have been listed; or that the road, or the repair of the road would have had an impact on the bull trout? Mr. Williams. Well, I guess--. Mr. Gibbons. You were here sitting in the audience for his testimony? Mr. Williams. I was. Mr. Gibbons. Did you hear him? Mr. Williams. I did. Mr. Gibbons. Do you disagree with him? Mr. Williams. With respect to the Division of Wildlife data, we have used other information in terms of our listing actions. I don't disagree, you know, with the information that has been presented by the Division of Wildlife in 1994 or, you know, the report that we received in 1999. The use of conclusions of the data is what we do not agree with. Mr. Gibbons. OK. Madam Chairwoman, my time has elapsed. I certainly thank you for this opportunity and turn it back to you. Mrs. Chenoweth-Hage. Thank you, Mr. Gibbons. Mr. Blackwell, I wanted to ask you, why did it take the Forest Service 6 weeks to fix the damage that was supposedly done by the county in 1\1/2\ days? Mr. Blackwell. I can repeat some of the information Mr. Siminoe gave you, but it might be better if you allow him to answer that. Mrs. Chenoweth-Hage. All right. Mr. Siminoe? Mr. Siminoe. Madam Chairman, thank you. Our approach to the situation was entirely different. The county's desire was to go in and reestablish the road through the washed out section. When we went in to rehabilitate it, we went in with a desire to rehabilitate the watershed, not just the road. So our objectives were different. We totally rebuilt the stream channel, adding the complexity necessary to support healthy aquatic life in that section of the stream. It was a much larger job than if we had just gone in and put the road to bed, so to speak. Mrs. Chenoweth-Hage. I've got to say with all due respect that last September I sent my staff out to meet with you, Mr. Siminoe, Mr. Gibbons sent his staff in for an on-the-ground meeting at the site, and you refused to meet with the Congressional staff. Could you tell me why? Mr. Siminoe. Yes, definitely. That was on advice of the U.S. Attorney's Office. Because we are in litigation, they felt it would not be proper for me to meet. As I expressed to your staffer on the telephone, had I been able to I would have enjoyed meeting with them, being out on the ground. That invitation holds to deal with any issue that is not tied up in litigation. Mrs. Chenoweth-Hage. Who was the attorney that worked, gave you this advice? Mr. Siminoe. Which U.S. Attorney? Mrs. Chenoweth-Hage. Yes. Mr. Siminoe. Steve Meyrey, Chief of Civil in the Las Vegas office. Mrs. Chenoweth-Hage. Did he give you a written opinion? Mr. Siminoe. He did not. Mrs. Chenoweth-Hage. He didn't give you a written opinion? Mr. Siminoe. He did not. That was verbal. Mrs. Chenoweth-Hage. That's unfortunate. I want to get back to this issue about the sign. You heard it testified to by an attorney, member of the bar, and county commissioners under oath there was a sign placed at the point of reconstruction that indicated this was the beginning of the wilderness area. You indicate there was no sign. I want to give you a chance again to rethink that. Are you sure there was no sign placed there? It's been testified there's pictures of the sign that has been placed at that point. Mr. Siminoe. The way I understood the question was whether or not the wilderness boundary sign had been moved to Pine Creek. My reply was it had not been. I also replied that there was a road closed sign at the end of Pine Creek Campground where the road washed out. Mrs. Chenoweth-Hage. That road closed sign indicated this was the beginning of the wilderness? Mr. Siminoe. It did not. Mrs. Chenoweth-Hage. All right. I will look forward to seeing your pictures and maybe we can communicate further on that. Mr. Siminoe. I would look forward to that. Mrs. Chenoweth-Hage. Your contractor out of Bozeman, Montana, how was he awarded the contract? Was it a unit price contract or was it hourly? Or what? Mr. Siminoe. You know, I don't recall exactly how that contract was handled. We have a contracting office in Boise, Idaho, that handled it for us. Mrs. Chenoweth-Hage. In Boise? Mr. Siminoe. Yes, uh-huh. Mrs. Chenoweth-Hage. So you don't know, was it let out with competitive bid? Public notice? Mr. Siminoe. I think it was a primary source contract. We had gone out and looked at a number of firms that had that skill and experience in doing those type of jobs. But I would have to defer. And if you would put your question in writing, I would be glad to find you an answer and provide it to the committee. Mrs. Chenoweth-Hage. If it will help you, I will put it in writing. I will also ask you how much was the contract for? Mr. Siminoe. Again, this is a matter of litigation and I can't go into that kind of specifics. Plus I honestly do not remember. Mrs. Chenoweth-Hage. Mr. Siminoe, in working with the Forest Service in Washington, DC., they assured me you would be very open to my questions. Mr. Siminoe. That would be my preference. Mrs. Chenoweth-Hage. I would not issue subpoenas in believing that they told me you would be open to the questions and answer the questions. It should be a simple matter of record about the contract and what the price of the contract was. That is something that should never be withheld from the public, whether I'm asking or any citizen is. Let me ask you again: What was the cost of the contract? Mr. Siminoe. And my reply is the same. I really don't recall. I will be glad to provide that information to you through the U.S. Attorney's Office. Mrs. Chenoweth-Hage. Would you please provide us a copy of the contract? Mr. Siminoe. Yes. Mrs. Chenoweth-Hage. Mr. Blackwell, in your testimony you state that the South Canyon Road was built around 1910 or 1911. Do you dispute Bill Price's testimony which states that the route has been in use by Native Americans since prehistoric times and by trappers and miners and grazers since as early as 1825? Mr. Blackwell. Madam Chairman, there is nothing I would like to do better than to talk about the merits of this case. But once again, under direct orders from the U.S. Attorney, because this matter is in litigation, I am prohibited from discussing the merits of the case. Now, I can tell you generally if that case, if that information that we heard holds up in the legal dispute, then I think there's a strong case for the county. The Forest Service believes that the U.S. Government has made an equally strong case and the courts will resolve this. The reason I can talk about direct orders from the U.S. Attorney is because I tried to bring that material here with me today, the material provided by the Forest Service to the U.S. Attorney and the courts, and I was prohibited from doing that. I am told that that will be provided sometime next week. As fast as that's provided, we will get it to you for inclusion in the record. Through the U.S. Attorney, I might add. Mr. Gibbons. Would the Chairman yield for 1 second? Mrs. Chenoweth-Hage. Yes, I may. Mr. Gibbons. Madam Chairman, let me indicate that the U.S. Congress is not a party to any litigation the Forest Service is involved in. I would find it unusual and highly improper for the U.S. Attorney's Office to deny Congress access to information based on any litigation that it's involved with that is not bringing the U.S. Congress in as a party. Congress has an oversight role to play. Whether or not that information is part of evidence that is used in behalf of one party or the other is immaterial to an oversight hearing at the behest of Congress. It is improper for the United States Attorney's Office, and unless you can show us the legal authority to deny Congress access to information based on a judicial proceeding that does not involve the U.S. Congress as a party, I would be surprised to find it upheld that you could deny Congress that kind of information at this point in time. Madam Chairman, I'll yield it back to you. Mrs. Chenoweth-Hage. Thank you. I would like the name of the attorney who gave you that advice. Mr. Blackwell. This advice was provided on a telephone conference to our office's General Counsel and Mr. Siminoe, who relayed it to me, and I think Mr. Siminoe may know the name of the individual. Is it the same Steve Meyrey? Mr. Siminoe. Yes. Mr. Blackwell. Chief of the Civil Division for the U.S. Attorney's Office in Nevada. Mrs. Chenoweth-Hage. As indicated by my colleague, that is not a small matter, especially since your chief has personally assured us that you would answer our questions. Mr. Blackwell. Madam Chairman, if I could, this is not the first time that this has come up before this subcommittee, as you may remember, and the position of the U.S. Government, as far as I know, has been consistent, that matters in current litigation cannot be discussed in an open public forum and the merits of these civil suits discussed. There may be alternatives where we can go into closed session with the U.S. Attorney, I don't know. But I do know that the policy of the Federal Government is to prohibit its employees from discussing the merits of these cases. Mrs. Chenoweth-Hage. Well, the fact is that the Forest Service policy is different than the law, and if you don't answer the questions of Congress, that's a serious matter. Mr. Blackwell, we will have to subpoena the information if you're unwilling to abide by what your chief has personally told us, and I'm very sorry about that. To date $930,000 of a $2.3 million ERFO fund was received by the Forest Service and has been spent. But approximately another $1.3 million hasn't been spent for road repair. Now, No. 1, can all of the $930,000 already spent be accounted for? Mr. Blackwell. Well, I believe it can. Mrs. Chenoweth-Hage. What is the status of the remaining $1.3 million and where are the funds now? Mr. Blackwell. The ERFO dollars--let me back up. We requested ERFO dollars for every major flooding event. So the sum that you have just referred to I am not sure if it applies to the 1995 storm event in the State of Nevada only or if it's some others. For example, in Idaho we applied for and received numerous amounts of ERFO money, authority to spend ERFO money. In many of these cases where we have not spent all of the money that was authorized, it's returned to the Federal Government and available for other projects in other parts of the Nation. That's my understanding of where this Nevada money has gone. As I understand it, it was extended at least once and then the unexpended funds were returned to the U.S. Treasury. Mrs. Chenoweth-Hage. Were ERFO funds used to pay the contractor from Bozeman, Montana? Mr. Blackwell. I don't think so, but I want to hear Mr. Siminoe's answer. Mrs. Chenoweth-Hage. Mr. Siminoe? Mr. Siminoe. Yes. They were not. We used watershed rehabilitation funds to do the rehabilitation work in the South Canyon. If you, with your permission I'll address the ERFO question a little bit further. Mrs. Chenoweth-Hage. Yes, please do. Mr. Siminoe. In 1995 after the flood events which caused substantial damage, as we heard earlier, in other places in Elko County, and also in White Pine County, the Ely area, we applied to the Federal Highway Administration for emergency funds to rehabilitate those. I may say that what we actually get is the authorization. We do not get the funds. We set up an account that we spend against. Once the work is done, then we are reimbursed. Sometimes there is a lag of several years before we are reimbursed. In the case of South Canyon, we did apply for that authorization. We received it. Because the road was not constructed in the first construction period, we carried it over. We lost that authorization at the end of the last fiscal year. Mrs. Chenoweth-Hage. I have many more questions that I was prepared to ask you. But I think you probably are prepared not to answer them, based on the advice from Justice, and that is unfortunate. So I am going to turn to Mr. Gibbons for any final questions or any final comments. Mr. Gibbons. Madam Chairman, I want to thank you. I have no further questions of this panel. I just want to thank you for your leadership on this issue, for bringing the committee here to Elko County to open this forum up so that we can get the information out on this very, very important, very sensitive issue. You can tell by the tenor of the audience, you can tell by the tenor of the witnesses who have been before us that we have actually brought the process out into the open. We have discussed it in an open, humane, and I think civilized fashion. I think the record is clear there is the legal precedent that was established on the ownership of the road. The record is somewhat less clear about the effort of the Forest Service in their work after the county has gone in. We will expect to hear more and see more about that issue later on. I think from this point we certainly have our work cut out for us, because there are some solutions and some issues that we have to address, and it is clear to say that without your leadership, without your willingness to be here, to have this forum, to have the information brought out, that we would still be dealing with serious unknown issues. And I want to thank you. I'm sure that the people from Nevada want to thank you for this effort. And with that, Madam Chairman, I look forward to the rest of our work in resolving this issue. Mrs. Chenoweth-Hage. Thank you, Congressman Gibbons. And thank you for your invitation to join you in your district. When I first came to Congress in the 104th Congress, I made the statement several times--I think Mr. Blackwell heard me--that I was afraid the Forest Service was too broken to fix. And then I became chairman of the very committee of the agency that I thought was too broken to fix, and I put my shoulder to the wheel and worked with this agency and tried to see if we still couldn't make it work. I want to say that this is one of the most discouraging issues that I have been faced with. It's a little road. The whole universe of problems we deal with in the forest jurisdiction that we have from the East Coast to the West Coast, it would seem like a tiny problem, but it indicates so much more than a tiny problem. It indicates that maybe I was right, and I know that in the State of Idaho our legislature has put together a resolution and a bill to study the ability of the States to manage the National Forests that are in distress. And most of our forests are either in distress or near a state of near collapse or quickly becoming that way. You know, going beyond what people are asked to do under certain administrations, I guess common sense solutions could be reached on the ground; that congressional staff would not be ignored when they come into someone's area; that questions would be answered. I look forward to the day when we have that openness again. It is not here now, and I will have to ask the chairman to issue subpoenas for the rest of the information. I regret that. This is a situation that shows some of the most high- handed, arbitrary, and capricious actions I have seen in a long time. I guess the tank traps in southern Idaho come kind of close to it. But this is not the way to treat a small community. The Forest Service was established to enhance communities, to enhance human activity, and developing the rest. And more than just bridges on the South Canyon Road need to be repaired and mended. The bridges between local communities and the Federal Government need to be mended. The bridges between you and the local county commissioners need to be mended. I'm sure it comes as a surprise to the Forest Service that the communities are upset. I would ask you, Mr. Blackwell, to ask your people to turn the volume down on the rhetoric. The rhetoric has been quite subdued, I think, from the local county people who have been absolutely insulted, and I think they have been quite restrained. Mr. Blackwell, I would ask you again to ask your people to keep the volume turned down on this kind of rhetoric because that only serves to inflame the situation. I know that both you and Mr. Siminoe have come to the Forest Service when it was a different agency. Although you can't say much now, I think that there are common sense solutions that you still can bring to the table, to this community, in spite of the fact that we do have a different boss in Washington. I would expect to see very quickly, within the next weeks or days, some real resolution to this problem and that the flames of the conflict have been turned down. We are going to go ahead with our investigation. We are going to go ahead and subpoena information. We may need to subpoena you again to come back to Washington, DC. I do hope that this serves to open doors instead of causing more problems. I do hope that this hearing will bring resolution to the people of Elko County on this road. They have a right to rely on a road that has provided access for them, for their parents, for their grandparents, and we as Americans have a right to rely on the fact that those who have been entrusted to take care of our culture and our history will take that trust to heart. Because by closing the roads and submitting our forest to one use only, we are literally destroying the very culture of this great West. So I want to, I would like to be able to thank you for your time and I think probably, gentlemen, all three of you learned something by listening to all of the witnesses, as I did, and I look forward to working with you on this and looking for a very quick resolution. With that, I would like to say again that the hearing record will remain open for 10 working days. If you wish to make any changes, additions to your testimony, you are welcome to do so. I do want to remind you and anyone in the audience who wants to submit testimony that our address is 1337 Longworth Building, H.O.B., Washington, DC. 20515. With that, this hearing is adjourned. 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