February 21, 2006

Frustration boils over expansion legal delays

Plaintiffs says Mt. A is trying to skirt their rightful day in court

By Robert Plain
Ashland Daily Tidings

Plaintiffs in the lawsuit opposing the Mt. Ashland Ski Area expansion say lawyers for the U.S. Forest Service have been slow to respond and mired the legal process with delays.

“I don’t know if I’ve ever seen the government ask for this many delays before,” Marianne Dugan, a Eugene attorney who is representing the Sierra Club, Headwaters and the Oregon Natural Resources Council, said. “It’s getting pretty annoying. Usually it takes about a month to write an opening brief. They’ve had three months. There is no reason they need more time. They’ve had a lot of time already.”

But even with the extra time, U.S. Justice Department attorney Steve O’Dell, who is defending the expansion plans approved by the forest service in 2004, asked for another extension last week.

O’Dell did not return several phone calls to his office last week.

Ashlander Eric Navickas, who is the other plaintiff in this case, suspects the delays are a tactic used to force the plaintiffs to require a preliminary injunction to halt the expansion work. A preliminary injunction, which would be employed by the plaintiffs if the expansion work was scheduled to begin before the lawsuit was decided, would cause the case to be heard on an expedited schedule and would not allow for all the legal merits of the case to be heard by Judge Cooney in Medford.

“It’s very suspect,” he said.

Jeff Hanson, who is overseeing all expansion plans for Mt. Ashland, said the delays have been a result of a heavy workload for O’Dell. He said the ski resort’s summer work schedule is due May 15 and will likely include some tasks related to the expansion.

“Anything for this summer will be minor and will not include any plans under litigation,” Hanson said. “It’s important to hear all the arguments. It’s also important to move forward on the projects that will improve the area.”

Dugan said the ski resort has promised the plaintiffs 60-days notice before they start the expansion but added that there is nothing legally binding them to do so.

“The closer it gets to spring, the more likely it is that we will have to submit a preliminary injunction,” Dugan said, noting that she already has such an injunction written and ready to be filed if and when it becomes a necessity.

Navickas said he will not agree to anymore extensions until the defense agrees to allow his case to heard on its merits before beginning the expansion. “I’ve seen other cases like this,” he said. “The case is being decided by the courts and they get in there and cut a bunch of trees down.”

If the case would have remained on its initial schedule, it would have been decided “some time late last year,” Navickas said.

Dugan said that this type of schedule is damaging to the legal process because, “It’s hard on the judge. It takes his resources away from other cases.”

Hanson believes the lawsuit will be completed by the time Mt. Ashland is ready to start its summer work schedule. But in winter, staff is focused on the ski season, not the construction season, he said.

“We’re in the middle of the season,” he said. “We’re not working much on summer plans at the moment.”