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Today's Mt. Ashland decision had several powerful conclusions. Some brief sections are well worth reading because of their impact on the future of Ashland and Mt. Ashland. i counted 4 main violations of law found by the US Court Of Appeals and 3 core issues: (1) public's right to know, (2) the fisher (a mammal living in old growth forests), and (3) protecting Ashland's water.
(1) You can chalk up one to the public's right to know: "generalized, conclusory assertions from agency experts are not sufficient; the agency must provide the underlying data supporting the assertion in language intelligible to the public." (See below)
(2) You can also chalk up a win for the 'little guy', in this case a rarely-seen mammal called a fisher, featured prominently in the Appeals Court decision: "We... conclude that the Forest Service’s evaluation of the Pacific fisher in the MASA expansion area does not comply with the requirements of the Rogue River LRMP and, therefore, violates the NFMA."
(3) You can also chalk up a win for those working to protect Ashland's water: "until the Riparian Reserve and Restricted Watershed lands are properly classified and subjected to the additional scrutiny required by these classifications, the possibility of environmental harm to the ecological health of the region’s waterways remains."
It's important to note that the expansion is not stopped permanently, only enjoined until the Court-held violations are corrected by further study. The Court's order doesn't prevent the eventual expansion of the Ski Area, though the extensiveness of the studies required does suggest it won't occur for at least 2 years. The decision can be appealed to the US Supreme Court.
For speed readers, emphasis is added below with bolds and italics, which may be visible to list recipients, though not online viewers. To get a properly formatted version, email OfThePeopleEditor@....
To help wade through the acronym swamp, here are some abbreviations:
ONRC=Oregon Natural Resources Council, the first Plaintiff and in the Court's order, a shorthand abbreviation for all appellants.
MAA=Mount Ashland Association (the defendant-intervenor)
MASA=Mount Ashland Ski Area.
NWFP=Northwest Forest Plan.
ACS=Aquatic Conservation Strategy (Part of Northwest Forest Plan)
NFMA=National Forest Management Act
Rogue River LRMP=Rogue River National Forest Land and Resource Management Plan
LHZ=Landslide Hazard Zone
NEPA=National Environmental Policy Act
[Violation 1]
1. NFMA Claim
...ONRC contends that the Forest Service violated the NFMA by failing to abide by the Rogue River LRMP’s requirement that it conduct a compliant Biological Evaluation to determine the impact of the proposed MASA expansion on the Pacific fisher. We agree and conclude that the Forest Service’s evaluation of the Pacific fisher in the MASA expansion area does not comply with the requirements of the Rogue River LRMP and, therefore, violates the NFMA.
...[3] We find that in this instance the Forest Service’s use of habitat as a proxy for population violated the NFMA. We have recently explained that species viability may be met by estimating and preserving habitat “only where both the Forest Service’s knowledge of what quality and quantity of habitat is necessary to support the species and the Forest Service’s method for measuring the existing amount of that habitat are reasonably reliable and accurate.”
...[4] We find the Forest Service’s analysis of the quantity and quality of the fisher habitat similarly devoid of supporting or explanatory data. ...other than commenting that it was similar to the environment in which the fisher was actually found, the Forest Service offered little explanation of its methodology for classifying the 10,200 acres in question as suitable fisher habitat.
Additionally, statements by two Forest Service biologists, Eugene Wier and William Zilinski, reveal that the Forest Service had insufficient data and knowledge regarding (1) the population of the Pacific fisher, and (2) the quantity and quality of habitat preferred by the Pacific fisher to justify using habitat as a proxy for population. Specifically, Wier observed that the Forest Service “know[s] nothing about how many individuals there are (within the Ashland Watershed or in the greater population), where they nest, how large their home ranges are, and what constitutes the core habitat within the greater Ashland Watershed upon which these individuals depend for future survival.”
...[5] Thus, given the dearth of information about the local fisher population generally and the Forest Service’s failure to explain adequately how it identified suitable fisher habitat, we hold that the Forest Service’s habitat analysis was insufficient to satisfy the demands of the Rogue River LRMP Biological Evaluation process, and is in violation of the NFMA.
[Violation 2]
2. NEPA Claims
ONRC also argues that the Forest Service violated the NEPA when it failed (1) to disclose the potential impact of displacing the fisher and damaging habitat in the corridor linking the Klamath-Siskiyou region and the Southern Cascades, and (2) to discuss the effect future projects in the MASA expansion area would have on the Pacific fisher. We agree with ONRC.
...In this case, the Forest Service acknowledged that there is a biological corridor linking the Klamath-Siskiyou region and the Southern Cascades, and concluded that the expansion would have an inconsequential effect on the fisher. The Forest Service failed to meaningfully substantiate this finding.
...[8] The Forest Service’s 2004 FEIS violates the NEPA because it fails to adequately discuss the impact on the Pacific fisher of two future projects: (1) the construction of nine miles of new logging roads within three miles of the project area, which will require the cutting of approximately 4,250 acres on the south side of Mount Ashland and (2) a habitat restoration and fuel hazard reduction treatments, which include controlled fires.
...The Forest Service argues that it did not have to detail these projects’ impact on the fisher because the ski area expansion is modest. We reject this justification. We have repeatedly explained that generalized, conclusory assertions from agency experts are not sufficient; the agency must provide the underlying data supporting the assertion in language intelligible to the public.
...More specifically, the NEPA explicitly requires a cumulative impact analysis. A particular action may seem unimportant in isolation, but that small action may have dire consequences when combined with other actions. As we observed in Klamath-Siskiyou Wildlands Center, “[s]ometimes the total impact from a set of actions may be greater than the sum of the parts. For example, the addition of a small amount of sediment to a creek may have only a limited impact on salmon survival, or perhaps no impact at all. But the addition of a small amount here, a small amount there, and still more at another point could add up to something with a much greater impact, until there comes a point where even a marginal increase will mean that no salmon survive.”
...We cannot excuse the Forest Service from the NEPA requirement to include an adequate cumulative impact analysis in the 2004 FEIS. Two future projects, the Ashland Forest Resiliency Project (a logging project), and the Ashland Watershed Protection Project (a habitat restoration and fuel reduction project), are scheduled to occur in the vicinity of the proposed MASA expansion. Though the Forest Service generally addressed the impact of these projects elsewhere in the FEIS, it failed to discuss in detail their impact upon the fisher as part of the cumulative impact analysis required by NEPA.
[Violation 3]
C. Riparian Reserves and Restricted Watershed Terrain
1. Riparian Reserves
...ONRC contends that (1) the Forest Service’s failure to designate the LHZ 2 land as Riparian Reserve violated the NFMA because its finding that the land was not “potentially unstable” is contradicted by record evidence, and (2) this failure to make an appropriate designation resulted in further violations of the Rogue River LRMP, the NWFP (and ACS), and the NFMA, because a proper designation as Riparian Reserve would compel specific management practices to ensure that the terrain is appropriately protected. We agree. Evidence in the record clearly shows that debris flow landslides persistently originate from LHZ 2 lands
...[10] The district court sought to avoid this conclusion by reasoning that “[o]ne cannot make an omelet without breaking a few eggs...." We disagree. ... By failing to designate the LHZ 2 terrain as Riparian Reserve, the Forest Service violated the NWFP, the Rogue River LRMP, and the NFMA. Whether the acreage at issue is relatively large or small is irrelevant to this inquiry— relevant law contains no de minimis exceptions.
[Violation 4]
2. Restricted Watershed Terrain
ONRC asserts that the district court erred in its holding because the NFMA clearly prohibits a departure from the forest management plan without a plan amendment. We concur. Because there is no amendment to the Rogue River LRMP in the record permitting the contemplated change to the Watershed, the Forest Service violated the NFMA by failing to ensure that the expansion will comply with the Rogue River LRMP standards and guidelines for Restricted Watershed MS 22 terrain.
E. Injunctive Relief
In this case, we conclude that ONRC has shown the potential for irreparable harm to the Pacific fisher should the project continue. The MASA expansion would result in eliminating habitat that may be vital to the preservation of the fisher population in the project area. Until the Forest Service conducts a proper Biological Evaluation establishing the size of the local fisher population and its relationship to its habitat, there remains a “sufficient possibility of environmental harm” to justify injunctive relief.
...Similarly, until the Riparian Reserve and Restricted Watershed lands are properly classified and subjected to the additional scrutiny required by these classifications, the possibility of environmental harm to the ecological health of the region’s waterways remains.
...[15] MAA argues that these violations are insignificant and are outweighed by the risk of financial harm should the project be enjoined further. We disagree and find that in this case, the risk of permanent ecological harm outweighs the temporary economic harm that MAA may suffer pending further study. We note in particular that this is not a case where an injunction would halt ongoing economic activity but would simply delay the expansion of an existing facility.... We also conclude that in this case, the public’s interest in preserving the environment favors injunctive relief.
CONCLUSION
We remand the case to the district court and instruct it to promptly enjoin the MASA expansion project...until the Forest Service has corrected the NFMA and NEPA violations we find in this opinion.
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