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Forest Service, county, prevail in Lostine Corridor lawsuit

Environmental groups plan appeal

By Steve Tool

Wallowa County Chieftain

Published on June 19, 2018 2:33PM

An Oregon District Court magistrate judge did not find merit in a controversial suit filed by two environmental groups to stop a U.S. Forest Service public safety project that included logging along the Lostine River Road.

Wallowa County participated as an intervenor in the suit. Judge Patricia Sullivan handed down her decision June 11.

According to USFS, the Lostine Corridor Public Safety Project included cutting hazard trees and other fire mitigation projects such as logging, thinning and fire breaks. Those were designed to enhance forest health and public safety in approximately 2,100 acres of the canyon. Kris Stein, District Ranger for the Eagle Cap Ranger District, signed off on the project April 5, 2017.

On May 31, 2017, Oregon Wild and the Greater Hells Canyon Council filed a lawsuit against both the USFS and Stein in her official capacity to halt the project.

They argued the agency did not follow the river or forest plan of the area and improperly used a categorical exclusion on the project that allowed it to bypass specific environmental assessments of the area. The suit also alleged that the agency did not utilize proper collaboration on the project.

Sullivan based her decision on submitted written evidence, research and sometimes contentious oral arguments from both sides during a March 20 hearing held in a packed courtroom in Pendleton.

One-by-one, Sullivan torpedoed and sank the plaintiff’s oral and written contentions in her ruling. She spent at least six pages of her findings on the plantiff’s contention that the project was nontransparent and noncollaborative. She noted a dozen entities, including the Nez Perce Tribe and local landowners, as well as the plantiffs, were collaborators on the project.

“Instead of participating, plaintiffs often objected to how the project was being developed, rather than providing meaningful, substantive input,” Sullivan ruled.

Sullivan granted the defendant’s motion for summary judgment. Sullivan also wrote that the USFS Decision Memo on the project does not violate the National Environmental Policy Act, the National Forest Management Act or the Healthy Forest Restoration Act.

She added that the project does not fall under the arbitrary or capricious standard pursuant to the Administrative Procedure Act that would allow the court to set aside an agency action for the above reasons.

Lastly, she recommended that the court should also strike the plaintiffs’ extra-record evidence (evidence outside the administrative record).

The judge will refer her findings and recommendations to a U.S. District Court judge for review. Objections to the findings must be filed by June 25.

The environmental groups are expected to appeal Sullivan’s findings. Oregon Wild Conservation Director Steve Pedery said he looks forward to an appeal.

“This was expected, and it clears the way for the case to be heard in a court where both sides can actually present evidence,” he said.

Pedery added that the environmental community were somewhat bemused that the Forest Service and logging interests were trying to paint Sullivan’s findings as the greatest legal decision since Dred Scott, a landmark decision by the U,S, Supreme Court ruling that slaves could not be American citizens.

“This was all based on the Forest Service’s record in this initial finding,” he added.

Wallowa County commissioner Susan Roberts welcomed the ruling.

“From the county’s perspective, we’re pleased with the outcome,” she said. “We’ve been uncomfortable with the condition of the upper Lostine for a long time, knowing that we have thousands of visitors a year that use that canyon and the folks that live up there. We’re comfortable with the work that’s going to be allowed that can save the lives of those people should anything occur up there. It’s not as much work as we desired (to see accomplished), but it’s far more than was happening prior.”

She added that she hoped people would realize the project would not destroy the pristine values of the area, and it’s time the USFS was allowed to do their jobs.

Commissioner Todd Nash said he never doubted the Sullivan would find for the USFS and the county. He also said he wasn’t worried about the appeals process.

“We will prevail again,” he said. “Wallowa County is not going away.”


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