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Sunday, June 16, 2024 | Back issues
Courthouse News Service Courthouse News Service

Plan for Road Damaged by Old Flood Ducks Suit

(CN) - The U.S. Forest Service did not violate environmental law in its nearly 20-year effort to repair a flood-damaged road near a Nevada wilderness area, the 9th Circuit ruled.

Click here to check out Courthouse News' Environmental Law Review.

South Canyon Road, in Elko County, Nev., is the only way to the Snowslide Gulch Wilderness Portal in the Humboldt-Toiyabe National Forest's Jarbidge Wilderness. The Jarbidge River flooded in 1995 and damaged the road, cutting off access to most vehicles.

For several years the U.S Forest Service worked on a plan to repair the road, while Great Old Broads for Wilderness and the Wilderness Society proposed replacing much of it with a hiking trail.

At one point, Elko County sent crews to repair the road, claiming a need to access the area to fight forest fires. The crews ended up damaging stream habitat of the threatened Jarbidge bull trout and were called off by state authorities. At other times, "bucket brigades" of local citizens tried to fix the road, leading to federal trespassing charges and a complaint against Elko County for the damages done by its road crews.

In 2001, the Forest Service and Elko County reached a settlement that allowed the county to restore the road with Forest Service oversight and in compliance with federal environmental laws. In a quest to stop the settlement, which they found unsatisfactory, Great Old Broads for Wilderness went to the 9th Circuit twice and eventually won intervention in the case. Meanwhile, the Forest Service and Elko County moved forward with the project.

Four years later the agency issued a decision and an Environmental Impact Statement (EIS) on a plan to restore the road, and Great Old Broads filed a new challenge to the project in federal court. The group alleged that the project design violated the National Forest Management Act, the National Environmental Policy Act and other laws.

Finding that Great Old Broads had failed to exhaust its administrative remedies before filing the action, the District Court granted the Forest Service summary judgment. Great Old Broads went back to the 9th Circuit on appeal but came up empty-handed Monday.

A three-judge panel disagreed with the lower court as to exhaustion, but nonetheless found that the group's claims failed on their merits.

"Great Old Broads points to no specific changes that it deems not adequately analyzed in the final EIS," Ronald Gould wrote for the San Francisco-based court.

The panel further found that the plan the agency chose for the road, "incorporated several mitigating modifications." These included "minimizing the number of river crossings by heavy equipment during construction;" "clearly marking low-water crossings and posting them with 5 MPH speed limits;" and designing the new road not for passenger cars but four-wheel drive vehicles.

"This change lowered the construction and maintenance costs for the road and limited the amount of traffic the road is likely to bear," Gould added.

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