Mt. A Expansion STOPPED by US Court of Appeals
Wild Mount Ashland, 24.09.2007 21:35
9th Circuit Court of Appeals overturns lower District Court judgment. Mt. Ashland expansion plan stopped!
Mt. Ashland Expansion Newsletter
Please forward this e-newsletter to others who may be interested.
Ninth Circuit opinion filed in favor of Plaintiffs-Appellants
! ! ! The Expansion has been stopped by the United States Court of Appeals ! ! !
Mt. Ashland Expansion is DEAD!
9th Circuit Court of Appeals overturns lower District Court judgment. Mt. Ashland expansion plan stopped!
Ninth Circuit opinion filed in favor of Plaintiffs-Appellants
! ! ! The Expansion has been stopped by the United States Court of Appeals ! ! !
The appellants challenged the USFS's approval of the proposed expansion of the Mt Ashland Ski Area. The District court granted summary judgment in favor of the Forest Service, finding it had not violated NEPA or the NFMA (National Forest Management Act) in authorizing the MASA expansion. The opinion written by Judge Milan D Smith, Jr and filed today, holds that the FS failed to properly evaluate the impact of the proposed MASA expansion on the Pacific fisher, is in violation of both the NEPA and the NFMA, and that it violated the NFMA by failing to appropriately designate Riparian Reserves and Restricted Watershed terrain, as required by the Rogue River National Forest Land and Resource Management Plan and the Northwest Forest Plan. The Ninth Circuit has reversed the district court's grant of summary judgment in favor of the FS and remanded to the district court for issuance of the injunction specified in their opinion.
Celebration on the Mountain
Saturday
September 29th
noon
11am carpool meet-up at Evo's
Anyone with ideas for this celebration please contact Tracy Harding, 488-7884 or 
reclamation@riseup.net
************************************************************************************************
UPDATE FOR CELEBRATION
Gathering to Honor Mt Ashland
Sunday October 7th, noon
"Rabbit Ears" rock outcrop
Please consider carpooling. Meet at Evo's at 11am to discuss ride sharing and intended times to arrive back in town.
Please park in the back parking lot (past the ski lodge) and walk to our gathering place. There are limited parking spaces near Rabbit Ears. We can arrange a shuttle from the parking lot if needed. Someone will be in the parking lot to direct.
Everyone is invited to participate in the creation of a nature mandala in the upper meadow.
There will be a hike after the celebration. Hikers wishing to take a moderate hike should have hiking shoes, clothing layers, food and water. The hike will be a few hours and get folks back to town before dark.
************************************************************************************************
If you have received this enewsletter as a forwarded message and would like to receive future messages, please contact wild@mountashland.com
Your comments or requests regarding this email should also be sent to wild@mountashland.com
| Download this article in pdf format >> |
| Add this article to your pdf newsletter selection >> |
| Checkout and Download your PDF-newsletter selection >> |
| Email this article to someone >> |
| Make a quick comment on this article >> |
|
Chalk Up One For The Public's Right To Know.. 25.09.2007 - 07:49 The following information comes from an email that was sent to the Ashland Community Action listserv... Chalk Up One For The Public's Right To Know: Federal Appeals Court's Decision On Mt. Ashland The report below was published at:  http://groups.yahoo.com/group/OfThePeople/message/63
Mon, Sep24, 2007: Today, the US Court Of Appeals for the Ninth Circuit ordered the Mt Ashland expansion stopped until certain studies are done to correct several violations of law by the US Forest Service. The Ninth Circuit Court (the western US's federal appeals court) reversed the federal District Court decision, which had found no violations of law in the decision to expand Mt Ashland Ski Area. The Ninth Circuit "remanded" (returned to a lower court) with an injunction to stop the expansion until specified studies are done to remedy the violations of law. 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@ yahoo.com. 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-interveno r) 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. sent by Art Bullock to the ACA listserv> Fire MASA Board 26.09.2007 - 11:53 Rick Saul, among others, should be fired for gross negligence, dereliction of duty, and fraud, among other things, for the following reasons: 1) misleading the association into and through this marketing mess, 2) spending huge sums to market the expansion to Rogue Valley residents 3) claiming, possibly fraudulently, that the lawsuit had no merit (i.e. what did he know, when did he know it?, did he ever research other, similar lawsuits?) Now, rather than admit he was wrong, and resign, Mr. Saul intends to continue to represent MASA for a "smaller, more environmentally friendly" expansion, which, if he had listened several YEARS ago, would not be an issue now. Get rid of him, and hope the door doesn't hit his ass on the way out! A Pissed Off Former Skiier> Part of 30.09.2007 - 11:41 the logic behind expanding Mt Ashland was to keep from filling the need for more lift served skiing and boarding elsewhere. The logic was it would have less additional impact than building elsewhere. I still believe that is the case but maybe it is time to reconsider plans for Mt Baily and maybe even Pelican. The MA board should be praised for trying to do the right thing even though they know it is an uphill battle. Good job MA Board and thank you! Curious> Try the ancient art of snowshoeing instead! 03.10.2007 - 17:23 There is still plenty of space on Mt. Ashland for snowshoeing and other non-invasive outdoor activity without having to clearcut the forests for a downhill ski slope. Really, this clearcutting for downhill skiing is just another recipe for avalanches. People can enjoy the mountain wilderness in the winter season by donning some snowshoes and mimicing the snowshoe rabbits, walking quietly through the forest without disturbing it. Novel concept, eh?? Varying Hare (Snowshoe Rabbit) A native of the timbered areas throughout Oregon, this big brown hare with a white tail can hardly be distinguished from the shadows into which it seems to melt. If you return to the same spot in the dead of winter the same animal might be there. It is still almost invisible, but instead of being brown it is as white as the snow that covers the landscape. Only dark eyes and black-tipped ears betray its presence. Because of its varying color with the season, it is called the varying hare. Its "snowshoes" have also given it the name of snowshoe rabbit. Its long toes spread wide and the soles of the feet are covered with coarse hair that is longer in winter than in summer. These "snowshoes" prevent slipping on icy crusts and hold the animal up in soft snow. visit snowshoe rabbit @; http://www.dfw.state.or.us/springfield/rabbitsoforegon.html
snowshoe rabbits> |