Foes of more Ochoco OHV trails win round in court

(Update: Attorney explains why judge’s decision is preliminary, not final)

It’s not a final ruling, but a preliminary decision by a federal judge in Pendleton gave environmental groups, hunters and state wildlife biologists a victory Monday, recommending rejection of a planned 137-mile expansion of off-road vehicle trails on the Ochoco National Forest and the plan’s return to local U.S. Forest Service officials for further work on protection of elk and other habitat.

“Here, the Forest Service committed multiple substantive errors, as to multiple statutes, regulations and rules,” U.S. Magistrate Patricia Sullivan wrote. “For the Forest Service to proceed with the SFEIS (Supplemental Final Environmental Impact Statement) and ROD (Record of Decision) has the potential to affect multiple environmental resources, including sensitive elk habitat, and could impact the endangered gray wolf.”

“On the other hand, for the Forest Service to delay construction of recreational vehicle trails poses little risk of disruptive consequences or costly delay,” Sullivan added in her findings and recommendation to vacate those two documents and remand the matter to the Forest Service.

Here is the Western Environmental Law Center’s news release announcing the judge’s decision:

Court Victory Protects Clean Water and Wildlife in the Ochoco Mountains
Proposed motorized trail system through heart of old-growth forests and sensitive habitat ruled illegal

Prineville, OR–In a preliminary ruling today, Judge Patricia Sullivan rejected a U.S. Forest Service plan to add 137 miles of off road vehicle trails in central Oregon’s Ochoco National Forest through old-growth forest. The plan would have expanded the Forest’s existing network of 674 miles by 20 percent. WildEarth Guardians, Oregon Wild, and the Sierra Club, represented by the Western Environmental Law Center, were the prevailing litigants. Companion cases were also brought by the Oregon Hunters Association and Central Oregon LandWatch. The Oregon Department of Fish and Wildlife also opposed the plan.

Seven hundred miles of illegal OHV trails already mar the Ochoco National Forest. This new Summit Trail System would have rewarded illegal off-road use by adding 20 percent more trails without offering any additional enforcement, scarring important wildflower meadows and old-growth ponderosa pine ecosystems. OHV use disrupts wildlife that inhabit and migrate through the secluded Ochoco Mountains, including Rocky Mountain elk, mule deer, redband trout, and gray wolves. The Forest Service had approved the project despite major opposition from the community and concerns from Oregon’s Department of Fish and Wildlife about disruptions to elk calving and security areas on the forest.

“Today’s decision validates Oregonians who demand more from their government,” said John Mellgren of the Western Environmental Law Center. “Obfuscation of the significant environmental impacts of such a destructive project cannot be tolerated. Today’s decision is a victory for transparency, reasoned government decision-making, and a healthier, more climate-resilient central Oregon.”

“This is a big win for the Ochocos. While we are thrilled that the courts came to the rescue today, the long term solution for the Ochoco Mountains will require leadership from Oregon Senators Wyden, Merkley and Rep. Walden to craft a plan that better balances wildlife, clean water, recreation, and fuels reduction. Today’s decision by the courts was good news for Oregonians who treasure the Ochoco Mountains, from landowners to anglers to hunters and hikers,” said Sarah Cuddy, Ochoco Mountains Coordinator of Oregon Wild.

“Today’s decision provides crucial protection to the Ochoco National Forest’s wild landscapes, wildlife, and non-motorized recreation,” said Marla Fox, Rewilding Attorney at WildEarth Guardians. “At a time when the Trump Administration continues its attacks on bedrock environmental laws, it is refreshing and hopeful to see our court system holding the line.”

Judge Sullivan issued findings and recommendations that still need to be reviewed by an Article III judge. That means her decision is not final, and theoretically could be changed by the Article III judge. The litigants are confident today’s decision will stand in the end.

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And a release from Central Oregon LandWatch:

Federal Judge Rules 137-Mile Off-Road Vehicle Trail System Would Harm Elk Habitat

A decision in Central Oregon LandWatch’s fight to protect elk habitat and quiet recreation opportunities in the Ochoco National Forest came out Monday. In a victory for public lands and wildlife, Magistrate Judge Sullivan determined that the Forest Service failed to satisfy its legal obligation to study the environmental impacts of a major new trail system for off-road vehicles, and to ensure that sensitive habitats for elk calving and mating are protected.

LandWatch brought a legal challenge in federal court over the Forest Service’s proposal to carve up the Ochoco Mountains with a new 137-mile off-road vehicle (ORV) route system. The new destination trail system posed severe threats to elk wallows and calving sites, riparian areas, and other forest visitors’ ability to hunt, fish, hike, and mountain bike in the area.

LandWatch’s Executive Director Paul Dewey said, “There is unprecedented opposition to the proposed project because so many Central Oregonians have a special connection to the Ochoco Mountains. We are pleased that the court listened to the diverse voices of the local community who have been telling the Forest Service for years that a destination ORV trail system in one of the last quiet and serene forests just doesn’t make sense.”

The Oregon Hunters Association is one of the diverse sets of groups who also filed suit to stop the project. Hunters oppose the project because it would displace big game and reduce survival rates of the elk population by constructing trails through sensitive calving and fawning areas. The Oregon Department of Fish and Wildlife filed legal briefs in support of LandWatch’s lawsuit, explaining to the court that when elk survival rates decrease, ODFW is forced to issue fewer elk tags, meaning fewer and fewer hunters will be free to take on the unique challenge of hunting this iconic big game species.

Robert Rock, a retired Forest Service biologist and LandWatch member, believes it is important to preserve the Ochoco National Forest because of the majestic sights and opportunities for convening with nature it provides Central Oregonians. “I am an avid hunter, fisherman, and woodsman, and I have a deep appreciation for this very special forest in the heart of Oregon. Unfortunately, opportunities for fishing, hunting, and camping have already been severely impacted by ORVs. The Forest Service’s solution to this problem was inexplicably to build more ORV trails, in defiance of scientific information on the harmful impacts of ORV use as well as basic common sense.”

LandWatch was represented by Crag Law Center. Staff Attorney Oliver Stiefel said the court took the opportunity to dig into the issues, especially with regard to the project’s adverse impacts on elk habitat, and determined that the Forest Service violated a series of federal laws. The writing is on the wall for the Forest Service: the agency must do a better job of protecting healthy wildlife habitat and high-quality recreational opportunities–now and for future generations.

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Why is it a preliminary and not final ruling? John Mellgren, an attorney in the case for the environmental groups, explained to NewsChannel 21:

“The project is technically still alive because Judge Sullivan is a magistrate and the parties did not consent to her hearing the case. This means that her decision will be reviewed by an Article III judge in Portland (meaning one who is appointed by the president and confirmed by the Senate, as opposed to a magistrate who is appointed by the chief judge for the District of Oregon).

“The case has been referred to Judge (Marco) Hernandez,” Mellgren continued. “The parties have an opportunity to submit objections to Judge Sullivan’s decision, and then there is an opportunity for a response. After that, Judge Hernandez will issue a decision either affirming Judge Sullivan’s decision in full, in part, or rejecting it in full. Usually, Article III judges affirm magistrate decisions, but you never know, and sometimes magistrates can be reversed.”

Ochoco National Forest spokeswoman Jill Welborn told NewsChannel 21 on Tuesday, “Pending the final decision from the court, we can’t comment specifically on the case.”

“The purpose and need for the project was to provide a designated OHV trail system and address unauthorized routes,” she added. “OHV use continues to be one of many ways the public uses the forest.”

Here is the forest’s Frequently Asked Questions list about the Ochoco Summit Trail System Project.