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  • Court orders re-evaluation of Ashland thinning

    Decision means local judge will have to again take up issue of soil erosion
  • The Ninth U.S. Circuit Court of Appeals has ruled that a Medford U.S. District Court judge needs to take a closer look at a forest-thinning project in the Ashland watershed and whether it is violating forest standards concerning soil erosion.
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  • The Ninth U.S. Circuit Court of Appeals has ruled that a Medford U.S. District Court judge needs to take a closer look at a forest-thinning project in the Ashland watershed and whether it is violating forest standards concerning soil erosion.
    The appeals court ruling took effect Tuesday and requires District Judge Owen Panner to consider again whether some of the thinning work as part of the U.S. Forest Service's Ashland Forest Resiliency Project is exposing too much soil in areas that are at a high risk of eroding.
    In February 2013, Panner ruled against former Ashland City Councilor Eric Navickas' claim that portions of the watershed thinning project are violating Rogue River-Siskiyou National Forest soil erosion standards.
    In his summary judgment, Panner said the Forest Service is complying with its standards because it has agreed not to thin in areas that have a special designation as "restricted riparian" land and only use helicopters to remove harvested trees from "restricted watershed" lands before promptly covering any exposed soil with forest slash.
    However, the Court of Appeals ruled that the Forest Service's commitment to those practices came after the fact of the project's approval, and Navickas' soil-erosion claims must be addressed again by Panner.
    Navickas argues that data included in the project's Final Environmental Impact Statement indicates that the project will exceed soil exposure limitations in some areas and that scattering branches from thinning operations on exposed soil doesn't protect the soil adequately following exposure.
    The Forest Service argues that on-the-ground monitoring of the actual project shows that thinning work on restricted watershed lands is actually exposing far less soil than the FEIS data indicate and is well within the forest's governing standards.
    "We're still talking to the government about how they are going to implement the Ninth Circuit ruling," said Marianne Dugan, a Eugene-based attorney representing Navickas and co-plaintiff Jay Lininger, a former Ashland resident.
    Removal of trees from restricted watershed lands are what have the plaintiffs concerned, Dugan said.
    "It may be that we have to go to the court and ask for a specific injunction that carves out those high-erosion areas," she said. "We've asked them to give us the maps regarding the erosion hazard of the (restricted watershed) lands."
    Dugan said both sides plan to sit down in an attempt to hash out a plan concerning the restricted watershed lands and avoid future litigation, but whether that will happen is unclear.
    No project work is planned in the next six months that the plaintiffs oppose, Dugan said, but there is plenty in the entire scope of the 7,600-acre project.
    There are about 1,600 acres of restricted watershed land within the project, said Don Boucher, the Forest Service's AFR project manager.
    Because the appeals court didn't rule that the project is out of compliance with the National Forest Management Act or the National Environmental Policy Act, Boucher said, the Forest Service is waiting for instructions from Panner to replace his reversed summary judgment.
    "The Forest Service's position is that whatever goes forward will be in compliance with the Ninth Circuit Court's ruling," Boucher said. "Potentially we could have to supplement the (Environmental Impact Statement) ... although I can't speculate as to how he'll rule."
    In a letter to the plaintiffs following the Ninth Circuit's ruling, Forest Supervisor Rob MacWhorter and District Ranger Donna Mickley said implementation of the AFR project will continue.
    Dugan said the letter from MacWhorter and Mickley "is not very heartening."
    "We're actually attempting to do more than what the forest plan calls for, and our actual monitoring actually says that so far," Boucher said. "The bottom line is we feel like we're following what the Ninth Circuit ruled on."
    Reach reporter Sam Wheeler at 541-776-4471 or swheeler@mailtribune.com. Follow him at www.twitter.com/swhlr.
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