The decision by U.S. District Judge Roger L. Hunt means the 13-year-old case is likely to grind on for some time yet unless those involved reach a new agreement. Hunt encouraged all sides to do that.
He called the settlement being contested by two environmental groups “a good effort” and questioned whether closing the road — which the groups contend is the ideal option to protect a population of threatened bull trout — would be all that helpful for the fish.
“I think it ought to be settled,” Hunt said of the lawsuit.
An attorney for two environmental groups that have joined the case, The Wilderness Society and Great Old Broads for Wilderness, pointed out that while Hunt didn’t toss out the settlement on Monday, the deal has yet to take effect.
“We’ll live to fight another day,” Michael Freeman said after the hearing in Las Vegas.
Elko County Commissioner Demar Dahl said the decision sounded good.
“If it would end it, it would be even better,” he told the Elko Daily Free Press.
The case involves an unpaved road along the Jarbidge River in Elko County near Idaho that washed out in 1995. The U.S. Forest Service decided not to rebuild the road, citing fears the road would encourage erosion and wash silt into the water, harming the river’s bull trout.
Protesters known as the “Shovel Brigade” worked to rebuild the road themselves. Their work took place outside of the usual approval process required by federal environmental laws, prompting the federal government to sue local officials.
The two sides agreed to settle the lawsuit but an appeals court has allowed the two environmental groups to try to block the deal. The groups are seeking to either have the road closed or scaled back to a trail open only to non-motorized use.
A lingering issue is the basis for the settlement. The road crosses about a mile and a half of Humboldt-Toiyabe National Forest and Elko County would like for the road to be legally justified as a right-of-way that predates the national forest, which was established in 1909.
Such a right of way would give county officials more control over the road than if it were justified under a later federal law such as the 1976 Federal Land Management Policy Act, which would enable the Forest Service to retain control.
In that case, the Forest Service would be able to close the road if it ever decided that doing so was necessary to protect the threatened trout, Freeman said.
The case likely will be decided by some other judge, said Hunt, who has been reducing the cases he oversees while preparing to retire. Hunt nonetheless said he was interested in paying a visit to the area sometime within the next few months.