Page: can00007.txt State: Nevada County: Nye Item: Dick Carver's response to USFS "notice of violation" Date: 10/17/97 Summary: Nye County and commissioner Dick Carver were served by the USFS with a "notice of violation" pertaining to the Archeological Resources Protection Act. The federales attempt to claim Nye damaged archeological resources when the Jefferson Canyon road was opened. This is Carver's personal response. Notes: 36 CFR 296.5(b)(1) is referenced 296.5(6)(1) in the original. It is corrected in this text for clarity. All of Carver's emphasis in the original has been preserved and delimited using the following standard HTML tags: underlining italics boldface Source: hard copy provided by Erin Donelle of Carlin, Nevada. ------------------------------------------------------------ CARVER RANCH * * * HCR 60 Box 5400 * Round Mountain, Nevada 89045 Phone 702-377-2175 To: USDA-Forest Service Intermountain Region Humbolt-Toiyabe National Forest Tonopah Ranger District Jim Nelson Monica Schwalbach Tony Valdez Dee Green From: Richard L. Carver HCR 60 Box 5400 Round Mountain, Nevada 89045 HAND DELIVERED TO USFS October 17, 1997 RE: NOTICE OF VIOLATION ARPA of 1979 Issue #1. What does the USFS want from Richard L. Carver? I was not in error nor was Nye County in error when Nye County reopened the Ione/Belmont, Austin/Belmont stage route, a NYE COUNTY ROAD in Jefferson Canyon, Nye County, Nevada on July 4, 1994. In fact, your notice of violation signed by Monica Schwalbach for Jim Nelson and hand delivered by Tony Valdez is invalid upon inception as Richard Carver is an elected official within the parameters of the Constitution of the State of Nevada and has sovereign immunity. The record shows that this issue, Jefferson Canyon road reopening, was agendized and approved by the board of Nye County commissioners prior to July 4, 1994. Issue #2. The intent and purpose of ARPA was to stop people from excavating and removing archeological resources and selling them. It was not the intent to penalize a county, or a county commissioner for reopening a road or road maintenance. In fact, the regulation that you included in the notice of violation clearly exempts the Ione/Belmont, Austin/Belmont stage route, a NYE COUNTY ROAD. 36 CFR 296.5(b)(l) [see note] "No permit shall be required under this part for any person conducting activities on the public lands under other permits, leases, licenses, or entitlements for use when those activities are exclusively for purposes other than excavation and/or removal of archeological resources." (My emphasis added.) The CFR cited above also excludes the activities of the road opening. "General earth-moving excavation conducted under permit or other authorization shall not be construed to mean excavation and/or removal as usual in this part." (My emphasis added.) Also, I don't know that any Nye County Road Department employee or myself could qualify for the issuance of a permit under 36 CFR 296.8(a)(1). Nowhere in ARPA of 1979 are the public lands managers given the authority to issue a permit appropriate for the work to be conducted in reopening a road or maintenance on a NYE COUNTY ROAD. Issue #3. There is no doubt in my mind that the Ione/Belmont, Austin/Belmont stage route is a NYE COUNTY ROAD in Jefferson Canyon, Nye County, Nevada. This road was a public road in existence prior to the passage of FLPMA in 1976, prior to the proclamation of the Toiyabe National Forest in 1907, was recognized as a public road by Congress in the 1800's serving the Jefferson townsite so a post office could be established. The stage stop of Darrough Hot Springs dates back to before statehood in 1864. In 1993, Nye County declared certain public travel corridors across public lands as Nye County Public Roads in Resolution 93-49. In 1995, the united States Justice Department filed a law suit, U.S. v Nye County, to invalidate Resolution 93-49. In the 1996 U.S. v Nye County decision, Judge Lloyd George only invalidated Resolution 93-49 to the extent, and the extent only where it conflicted with federal law. (My emphasis added.) In 1996-97 settlement negotiation in U.S. v Nye County, it was agreed upon that Nye County would rewrite Resolution 93-49 reflecting the court decision. It was also agreed upon that the only conflict with any federal law was the Federal Land Policy and Management Act 1976 (FLPMA). Nye County could not claim roads which were constructed after October 1976 or in the future without a right-of-way issued by the land management agency. Therefore, as an elected Constitutional official of the State of Nevada who has taken a sworn oath in the name of our Lord to uphold the Constitution and the laws of this great republic known as the united States of America, this notice of violation served upon Richard Carver is moot because the road in Jefferson Canyon, Nye County, Nevada is a NYE COUNTY ROAD and the USFS has no jurisdiction over this road. Issue #4. I believe it may be a violation of state law to falsify evidence. Location #1 the bulldozer did not leave the road, as this was an intersection with the Jefferson mill road and well within the berms both on the right and left sides of the road probably left by earth moving equipment of the county when Nye County maintained the road in the 1950s and 1960s. Also, to the best of my knowledge, this site may be on patented land owned by Raymond and Elaine Jensen of Tonopah Nevada. Location #2 was not excavation of a new section of road but only pushing down a berm of dirt that the USFS had a reclamation contractor construct prior to 1994 to block the road from vehicular entrance. The fire pit you accused me of damaging was recognized when Nye County had an archeological study done prior to the reopening of the road on July 4, 1994 and was not damaged. Location #3 was a pile of dirt from a former exploration drilling operation where there is a piece of rubber at the bottom of the pile of dirt. This area is on the county road right-of-way to Sawmill Canyon. We did not go up the Sawmill Canyon Road. Location #4 is the historic road itself and is recognized in the violation as a possible existing right-of-way and was removed from further consideration. In this location the road was widened to make it possible for vehicular traffics for about 225 feet. Within the prehistoric site 1479, the access was identified in the U.S. v Nye County settlement negotiations by Ranger Dave Grider as a two foot wide trail before the widening on July 4, 1994. How is it that location #4 is a possible right-of-way removed from further consideration when the road was widened for vehicular traffic and the prehistoric site 1479 was included when the trail was widened? The Ninth Circuit Court of Appeals has acknowledged that an unimproved, unpaved trail suffices as a "road" for the purposes of law. The Ninth Circuit Court of Appeals also acknowledges that "the manner of travel (by foot or by beast or by vehicle) is legally irrelevant ... what matters is that there was travel between two definite points." The trail in the location of the prehistoric site 1479 was used when the road was washed out below the creek crossing so this trail is also a NYE COUNTY ROAD and should have been removed from further consideration just as location #4, as should #3, #2 and #1. The locations are all on a NYE COUNTY PRESUMPTIVE ROAD RIGHT-OF-WAY. On July 3, 1994, the USFS officials never mentioned prehistoric site 1479, only a fire pit on the hillside above the existing road at location #4. The officials did say on more than one occasion that the proposed route was the Forest Service preferred alternative. The prehistoric site 1479 was not established until July 17, 1994 thirteen days after the Jefferson Canyon road opening of July 4, 1994. All of the archeology references cited in your notice of violation are either for Monitor Valley or the Toiyabe Range. Jefferson Canyon is in Smokey Valley and in the Toquima Range. Issue #5. I believe it may be a felony to bring a fraudulent claim against Nye County under state law. Asking Nye County to pay a proposed penalty of $82,855.68 I believe is a fraudulent claim when Nye County possesses a preemptive road right-of-way in Jefferson Canyon which is clearly exempt from the ARPA of 1979 regulations. Issue #6. I believe there may be a civil rights violation when two or more people take action to damage another, under a Congressional act passed by Congress in 1866. The enclosures included in the notice of violation is an affidavit by Richard L. Carver, July 3, 1994. Reading it, it is very clear on pages one and two, that I was in my official capacity as a commissioner for Nye County, Nevada. Issue #7. I believe it to be in the best interest of everyone involved that the USFS admit that they are in error, and drop the ARPA of 1979 violation and recognize that the Ione/Belmont, Austin/Belmont stage route is a NYE COUNTY ROAD. The feelings expressed in this letter are those of Richard Carver and may or may not be the feelings of the Board of Nye County Commissioners. In conclusion, the credibility, trust and communication that developed since the July 4, 1994 road reopening has taken a big step backward because of the action taken by the USFS to make Nye County and Richard Carver pay for a victory. We are still no better off than we were in 1992 when Nye County stepped into this arena. It appears that we still have to deal with the arrogant attitudes of some federal employees who think they are better than God, can ignore the Constitution, are above the law and can do whatever they please and get away with it. The purpose of government in this Republic is to protect the people and the people have a right to access the public domain, commonly referred to as public lands. It is my duty as a Nye County elected official to protect the peoples right to access the public lands in Nye County. Remember, it was a USFS official who said, "Leave the road (in Jefferson Canyon) closed, in two or three years the people will forget and we will have another area locked up." Well, forest service, that won't happen! When I am wrong, I will be the first to admit it, but when I am right, I will never, never, never, give up. Respectfully submitted, /s/ Richard L. Carver