Federal judge rejects plea to cancel or delay Forest Service project; China Hat homeless must move

(Update: Judge's ruling)

BEND, Ore. (KTVZ) -- A federal judge in Eugene on Tuesday rejected a plea by homeless people living in the woods south of Bend to delay Thursday's deadline to move out for a large, year-long area closure for a fuels reduction project.

U.S. District Judge Michael McShane denied the request in a lawsuit filed by four disabled homeless people and two service providers for a temporary restraining order to block the nearly 36,000-acre closure for the Cabin Butte Vegetation Management Project.

"Because the Cabin Butte Vegetation Management Project is slated to begin in two days, the Court wanted to alert the parties it would not be granting injunctive relief," McShane said in a brief court filing, adding that his written opinion will follow.

Dozens of people who have lived in the Deschutes National Forest south of Bend, some for years, are dealing with Thursday's deadline to move out and make way for a large area fuels-reduction project.

In a 28-page response filed Monday in U.S. District Court in Eugene, federal attorneys said the judge should deny the request in a lawsuit filed by four homeless individuals and two service providers, seeking a temporary restraining order to halt or delay the nearly 36,000-acre public closure tied to the Cabin Butte Vegetation Management Project.

The "plaintiffs ... have not carried their necessary burden to obtain the drastic remedy of a TRO" against the Thursday, May 1 area closure, the attorneys told U.S. District Judge Michael McShane, assigned to the case.

They argued that the project opponents "fail to show a likelihood of success, or serious questions, regarding the merits of their claims. They also fail to show a likelihood of irreparable harm."

The plaintiffs filed their own 24-page reply Tuesday morning, to "renew their claim that they have carried the necessary burden to obtain the drastic remedy" of a temporary restraining order against Thursday's public closure of the area.

They claim the Forest Service failed "to take into account the adverse impact on the human environment" as required by the National Environmental Policy Act in the Cabin Butte environmental assessment. (You can read both sides' filings below).

The Forest Service disputed that the four named homeless can speak on behalf of others living there. They also argued that "self-represented homeless service providers" Eric Garrity and Chuck Hemingway have no valid third-party standing, not being homeless or living in the area.

Summarizing the 26,000-acre project to conduct thinning, prescribed burning and other steps to lower the threat of wildfires, the agency noted that "no environmental advocacy groups have objected to the project and none have challenged the project in court."

The attorneys also pointed to "a steady increase of human-caused fire starts in the area that correlates with the increase in the population in the (homeless) encampments," submitting photos of trash and encampments, among other evidence to back their stance.

The project was approved in January 2023 after a years-long environmental review "process in which none of the Plaintiffs participated," they wrote.

This year, they said, "Forest Service personnel have made early in-person notifications to homeless individuals in the China Hat (Road) area to provide individuals ample time to find more suitable living situations."

"The Forest Service also has worked with local service providers regarding outreach and an appropriate strategy to implement the area closure," the federal attorneys stated, often referring to "sovereign immunity" on related matters.

They also said the claim of "irreparable harm" if the project proceeds as planned "is undermined by their delay in seeking extraordinary equity" in the form of a court order.

The attorneys point to a news article in which one plaintiff said she plans to get help hauling her fifth-wheel RV to her mother's property in Bend. Another had been moving her belongings to a supportive housing unit in Bend.

Meanwhile, in a letter to Forest Service officials from Hemingway dated April 18 and filed in federal court late last week, the plaintiffs offered to drop their lawsuit and withdraw their 80 disability complaints "if USDA and the Forest Service is willing to agree to a 'rolling closure' over the course of the summer and early fall while the weather is good to allow all those remaining on the land to relocate."

Here's the complete federal attorney's response filing:

Here's the plaintiff's response, filed Tuesday: