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In June 1995, a cloud-burst in a remote area of northeast Nevada washed out parts of a road used by local residents for decades to access private and public lands. The road, and its future, became a lightning rod in a power play pitting federal, state and local governments against each other in a political battle the exemplifies the constant tug of war over public lands out West.

The road, referred to as the Jarbidge South Canyon Road, is located near the border with Idaho in Elko County, Nevada and within the Humboldt National Forest. The United States Department of Agriculture, (USDA) Forest Service administers the public lands within the Humboldt National Forest. The road connects to a trailhead for a wilderness path and provides vehicle access to fishing and camping along the Jarbidge river.

The future of the road became a contentious issue between Elko County (a slice of cowboy heaven) and the U.S. Forest Service, due to a simple fact: Elko County wanted the road repaired and the U.S. Forest Service did not.

Key Dates 1866-The Mining Act: "The right-of-way (later codified as rs2477) for construction of highways over public lands, not reserved for public uses, is hereby granted." 1976-FLPMA: Prohibited new right-of-ways across public lands, but honored valid existing rs2477s as of October 21, 1976. Post 1976-Applications subject to federal regulations at 43 CFR 2800.

The dispute over the Jarbidge South Canyon Road between Elko County, Nevada and the U.S. Forest Service boils down to two basic questions:

1. Who has ownership ¹of the road?

2. Who has jurisdiction ²over the road?

The answers are anything but simple and involves much more than a 1.5 miles of dirt road in a remote canyon in the wilds of northeastern Nevada's Great Basin. The road became the stage for this standoff where access to public lands is sacred. The County of Elko claimed ownership of the road known by virtue of their assertion of rights under a statute commonly referred to as RS 2477. The U.S. Forest Service asserted they do not recognize the county's ownership rights and claimed jurisdiction over the road under the Treaty of Guadalupe Hidalgo ³, the proclamation creating the Humboldt National Forest, the Wilderness Act, the Federal Land Policy and Management Act (FLPMA), the Endangered Species Act, and the Clean Water Act.

The U.S. Forest Service (and the U.S. Fish and Wildlife Service) position is that repairing and reconstruction of the road will jeopardize the survival of the southernmost population of bull trout in North America. Elko County's position is that the road must be made accessible to the community.

The crux of the matter revolves around whether Elko County has a "right-of-way" ⁴ to the road under the law and therefore can determine what occurs within the width of that "right-of-way" in accordance with laws and regulations.

Timeline 1995-Thunderstorm washed out the road. 1997-County started repairing the road but was halted by the State of Nevada and the U.S. Forest Service. 1998-U.S. Fish & Wildlife provided protection to the bull trout under the 1973 Endangered Species Act. 1999-U.S. Forest service closed the road by placing rocks and dirt. 1999-Local citizens attempted to remove the rocks and reopen the road with hand tools but was restricted by a court order. 1998-The U.S. Justice Department initiated a law suit against Elko County. 1999-U.S. District Court put the suit on hold and required a mediation and issues a temporary restraining order to both parties. 1999-U.S. District Judge lifted the temporary restraining order. 3rd & 4th of July 2000-Citizens reopened the road using shovels.

Does the RS2477 route comes into existence through self execution upon the mere fact of historical usage or thru a formal legal instrument such as an agreement or an approved land use? Is it within Elko County's right to decide the future of a popular road within it's borders or is it the U.S. Forest Service responsibility to regulate and control what occurs on public lands within its jurisdiction? The answer is not surprisingly: Yes.

Here's why?

As the West was rapidly settled, there was no law passed by Congress to define the settlement process for the western mineral lands until Congress addressed this problem by a series of acts beginning in the 1860s. Key among the split-estate mining/settlement laws was the Act of July 26, 1866. Congress established a lawful procedure whereby the mineral estate of the United States could pass into the possession of private miners. Private mining operations could then turn the dormant resource wealth of these lands into active resource wealth for the benefit of a growing nation. The 1866 Act also dealt with the surface estate of mineral lands. The act clearly recognized local law and custom and decisions of the court, which had been operating relative to these lands and extended these existing laws and customs into the future. The 1866 Act created a general right-of-way for settlers to cross these lands at will. It also allowed for the establishment of easements.

Section 8 and 9 of the 1866 Act are the seminal U.S. law defining the rights of ownership in the Jarbidge South Canyon Road. Section 8, which was later codified as Revised Statute 2477, deals with the establishment of "highways'' across the land. The term highways, as used in the 1866 Act, refers to any road or trail used for travel. The right-of-way portion of this act was an absolute grant for the establishment of general crossing routes over these lands at any point and by whatever means was recognized under local rules and customs. Section 9 of the Act of July 1866, "acknowledged and confirmed'' the right-of-way for the construction of ditches, canals, pipelines, reservoirs and other water conveyance/ storage easements. Section 9 also guaranteed that water rights and associated rights of "possession'' for the purpose of mining and agriculture (farming or stock grazing) would be maintained and protected.

Present day Nevada, had been carved out of the western portion of the territory of Utah. Utah Territory had been a portion of the Mexican cession resulting from the Mexican War of 1945-46. "unappropriated public domain," and that's was meant by "public land" in 1866.

There were many ways for that "unappropriated public domain" to become appropriated private land. Congress appropriated land grants to the early transcontinental railroads. Homesteading was another method of appropriation, as were mining claims. As soon as it was surveyed, much land was just sold outright through the General Land Office. And states were given "school sections" by the federal government when they came into the union, which the states could sell or lease.

The issue boils down to timing. If the forest was established before the road was in use, then the federal government has ownership and jurisdiction. But if there is documented evidence that the road was used prior to the establishment of a national forest, the local government has a right-of-way over the public lands.

Does the RS2477 route comes into existence through self execution upon the mere fact of usage or thru a formal legal instrument such as an agreement or an approved land use?

There are RS2477s ticking time bombs, such as Jarbidge South Canyon Road example, all over the West.

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