After two and a half years of being politicized, publicized, debated and ligated locally, the issue of expanding the ski area on Mount Ashland funneled down to one line of questioning on Wednesday.
Justice Milan D. Smith of the 9th U.S. Circuit Court of Appeals in Portland asked attorneys both advocating for and against the project, "Is there a way to bring both parties to a reasonable compromise?"
To Marianne Dugan, the attorney representing the Sierra Club, the Oregon Natural Resource Council and several other environmental groups, "Are you implacably opposed to this project in any form?"
He asked a similar question of Robert Maynard, Mt. Ashland Association's attorney.
While neither side answered the question directly, an hour in court made clear that hope for a compromise has long since passed, and the final decision rests with the judges who heard the case.
No other option
In November 2004, the Rogue River-Siskiyou branch of the U.S. Forest Service approved a plan that would add new runs and chairlifts on 68 acres of national forest land in the Ashland Watershed.
The environmental groups opposing the expansion said the Forest Service erred in approving the project in November 2004, especially that the proposed option for expansion would have detrimental effects on Ashland's drinking water and the Pacific fisher, a threatened species that lives in the forest above town.
"It just may be that Option 2 is a violation of federal law," Justice Smith said to Maynard. "If that is the case, what is the chance of finding a viable solution?"
Justice Smith was one of a three-judge panel for the ninth circuit that met in Portland on Wednesday to decide the legal fate of the controversial expansion project that has divided the Ashland community. Expansion advocates say the proposed new ski trails are necessary for Mt. Ashland to remain competitive in drawing skiers to the Rogue Valley. Opponents say environmental concerns should be considered before economics.
The ninth circuit, an appeals court, will decide whether Jackson County Circuit Judge Owen Panner erred when he ruled in September of 2006 that the project did not violate environmental protection laws. The ninth circuit, the West Coast branch of the second highest court in the nation, will likely be the last legal stop for the expansion lawsuit because neither side has raised constitutional issues.
Throughout oral arguments by attorney's for both Mt. Ashland and the forest service, Justice Smith asked if there was a way to complete the expansion without using the option selected by the forest service.
"Is it option two or bust," he asked of Robert J. Lundman, the Department of Justice attorney representing the forest service.
Maynard, Mt. Ashland's attorney, said, when asked a similar question by Smith, "That's the workable, viable alternative. The board at Mt. Ashland would have to look hard at it. My own understanding is it is just not there."
Smith, who did the majority of the questioning, also probed the attorneys advocating for the expansion about the protections for the Pacific fisher and sediment run-off caused by unstable soils. Environmentalists contend that the expansion would eliminate critical habitat for the Pacific fisher and that some areas were erroneously not considered as having a high probability for a landslide.
"I thought the [Northwest Forest Plan] required unstable soils need to be considered L2," Smith said. L2 is the second highest rating for soils in the Northwest Forest Plan's "landslide hazard zonation" designations.
Lundman, a department of justice attorney from Washington D.C., said the judge had an incorrect interpretation of the landslide hazard zonation.
"There is not an outright prohibition," he said. "It has impacts, and the Forest Service took that into consideration."
After the hour-long hearing, in which both sides were given 20 minutes to present oral arguments and answer questions asked by the panel of judges, environmentalists felt the judges' questions was a good harbinger of their chances for victory.
"It couldn't have gone any better for us," said Ashland City Councilor and co-plaintiff Eric Navickas. "It was clear through the questions that they didn't feel the forest service complied with the law."
Mt. Ashland's general manager Kim Clark said he couldn't draw any conclusions from the proceedings.
"It's hard to say with these things," he said. "Both sides presented their cases. We still feel confident we will be able to move ahead with our plans."
Dugan, the environmentalists' attorney, said after the hearing that Justice Smith's questions was a good sign for her clients. She said he was the x factor on the panel, with the other two justices having clear records on environmental litigation. Justice Stephen Reinhardt, she said, has a track record of siding with environmentalists. He asked very few questions during the hearing. Justice Cynthia Holcomb Hall, she said was a Reagan appointee who often sided against environmental lawsuits. She asked a question that seemed to indicate she was not sympathetic to further evaluation of the Pacific fisher habitat.
"We've been studying the Red tree vole for years," Justice Hall asked of Dugan. "How long are we going to have to study the fisher for?"
Environmentalists estimated after the court hearing that the justices decision could take more than five months to be announced. In the meantime, the court has placed a temporary injunction on Mt. Ashland's expansion plans.
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Mt. A expansion on trial in Portland