December 26, 2005

Expansion may start ahead of challenge

Mt. Ashland to give 60 days’ notice to plaintiffs

By Robert Plain
Ashland Daily Tidings

The expansion project at the Mt. Ashland Ski and Snowboard Resort could begin before legal challenges to the project are exhausted, according to those working on the case. But opponents of the expansion won’t be blindsided by the groundbreaking.

“We got an agreement from the Mt. Ashland Association to give us 60 days’ notice before they start any activity on the ground,” said MaryAnn Dougan, a lawyer representing the Sierra Club.

Representatives for Mt. Ashland would not comment, citing the pending litigation.

Dougan said that because lawyers for the defense have requested a 30-day extension before they file their opening brief, the plaintiffs have asked to be notified before construction starts.

“It looks like the case is not going to be decided until spring time,” Dougan said. “That’s why we wanted the 60 day heads up — so we can do an emergency motion to ask the court to stop any on-the-ground work until it can make a decision on the merits of the case.”

The Sierra Club and local environmental activist Eric Navickas are both suing the Forest Service, in separate cases, for approving Mt. Ashland’s expansion plans based on arbitrary and capricious reasoning. Both suits contend that the expansion will have an adverse effect on Ashland’s drinking water, which comes from the area the ski resort plans to expand into.

U.S. Justice Department attorneys representing the Forest Service were supposed to file their opening briefs with Judge John Cooney in Medford by Jan. 10. According to Dougan and Navickas, they have asked for a 30-day extension to better prepare their argument. Justice Department lawyers would not comment for the record, as is their protocol.

Navickas said he will not agree to the Justice Department’s request for an extension unless the ski resort agrees to suspend all expansion work until the legal questions are decided.

“Mt. Ashland is unwilling to allow the litigation to move forward before they begin work,” he said. “This spits in the face of the civil process. I’ll agree to the extension if I have their firm word that they will allow the civil process to proceed and won’t begin work until they have clearance from the courts.”

Navickas, who is acting as his own legal representative, said that the Justice Department is attempting to add testimony to the administrative record as a part of their defense. He said the case should be based on the administrative record, created by the National Environmental Policy Act document, that the expansion plan was based on.

“Their NEPA document should be solid and stand on its own,” he said. “If it wasn’t in the NEPA document then it doesn’t have any standing.”

The NEPA document is approximately 30,000 pages long, said a person familiar with the case.

After the Justice Department files its opening brief, each party has two more rounds of briefs to file before Judge Cooney will hear the case in Medford. The case could be heard over the phone but any lawyer has the right to request an in-person hearing, which is expected to happen.

Those familiar with the case said they expect it to be heard in court either this spring or this summer.

Staff writer Robert Plain can be reached at 482-3456 x 226 or bplain@dailytidings.com.