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Challenge to ski area expansion rebuked

Judge: Mount Ashland Association can work with U.S. Forest Service on timber sale related to trails
 Posted: 2:00 AM October 24, 2008

The Mount Ashland Association faces one less barrier in its long campaign to add new ski trails and chairlifts on the 7,500-foot mountain.

Jackson County Circuit Court Judge Mark Schiveley ruled the nonprofit association can work with the U.S. Forest Service on the timber sale associated with making ski trails on 70 acres adjacent to the existing ski area.

"It's a major victory, but it's a small step in imposing," said Kim Clark, the ski area general manager, noting the expansion plan still needs to be approved by a federal judge.

"It clears the way for us to go back to dealing with the Forest Service on the timber sale," Clark said, "so that when we do get the go-ahead (from the federal court) we can move ahead."

Ashland City Administrator Martha Bennett said the ruling makes it "even more important for us as a city to make sure the city's water supply gets protected. ... Obviously, we're disappointed."

"When you read the opinion you can see the logic of Judge Schiveley's opinion," she said. "We just don't see it that way."

The case was essentially a contract dispute. The Mount Ashland Association operates the ski area under a lease issued by the city, which holds the permit issued by the Forest Service to operate the ski area. The ski area occupies some 200 acres at the top of Ashland's 14,000-acre municipal watershed on the north side of the mountain.

The association sued the city in July 2007 for breach of contract, after the two parties could not agree on which one should work with the Forest Service on the timber sale. The association contended its lease gave it sole authority and responsibility for improvements and expansions. Ashland officials contended the city was the primary responsible party because it holds the special use permit.

City officials wanted the association to work with a city-appointed quality assurance/quality control team that would oversee the expansion to protect the watershed. In a five-page opinion, Schiveley observed that the lease "does not give the City the legal authority to impose (conditions such as the quality control team), nor to act as though the City had imposed them."

"These actions, taken together, resulted in interference with the (association's) ability to fulfill its obligations and rights under ... the lease," Schiveley wrote.

The opinion followed a two-day trial last week, in which several witnesses, including former mayor Cathy Shaw and former City Administrator Brian Almquist, testified about the city's minimal involvement in the ski area during its first 10 years of operation as a nonprofit organization.

"Our interest in the mountain was never in the business of running a ski area," Shaw said in an interview Thursday. "It was simply to help Southern Oregon retain this asset."

The city's involvement with the ski area began in 1992, when its private owners announced plans to close it and remove the equipment. City officials were asked to take the special use permit during the fundraising campaign to provide a mechanism to receive state funds and make contributions tax-deductible.

The City Council began to express serious interest in the ski area in 2005, after the Forest Service approved an expansion plan.

The City Council could decide to appeal the ruling to the Oregon Court of Appeals. Bennett said the council would probably discuss the ruling at its Oct. 30 meeting. An appeal would have to be filed in 30 days.

The ski area's expansion plan must still gain final approval in federal court. Environmental groups that opposed the association's expansion lost their case in Judge Owen Panner's federal district court, but won in the 9th U.S. Circuit Court of Appeals, which found deficiencies in the Forest Service's environmental review of the expansion.

The 9th Circuit directed the Forest Service to fix the inadequacies in its environmental documents and sent the case back to Panner for review. Clark, the ski area manager, said Forest Service officials told him they plan to complete the supplementary documents requested by the court before the end of 2008.


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