Dear Friends of Mount Hood,
We wish everyone a very happy holiday season! This newsletter is devoted to the litigation over the mountain bike facility proposed at Oregon’s beloved gem, Timberline Lodge. By going to our website (friendsofmounthood.org) you can update yourself on other important developments during 2016.
In 2013, FOMH and other conservation groups challenged a US Forest Service Environmental Assessment (EA) that authorized Timberline Lodge (dba RLK and Co.) to construct and operate a lift-assisted mountain bike facility, as well as to implement various “restoration” projects, within the Timberline ski permit area. To avoid a court-ordered injunction, the Forest Service (FS) and RLK shortly thereafter agreed to suspend construction/operation activities until the full case had been decided on the merits. That prohibition is still in place.
The FS and RLK were allowed to proceed with the restoration activities (which are now 95% completed). That summer, FOMH worked with a hydrologist to document the baseline conditions within the Timberline ski permit area. Our hydrologist (Jon Rhodes) conducted another field review in the fall of 2013 to assess restoration efforts during the first field season. That review showed ongoing issues with lack of restoration.
A decision was made by our attorneys to pursue limited discovery. There was a strong sense that the FS/RLK had additional records related to the Master Development Plan – in particular, the new parking lot – that had not been released to us as part of the administrative record. Unfortunately, the court ultimately ruled that discovery was not warranted.
Around that same time, the groups chose to add the National Marine Fisheries Service (NMFS) as a defendant because of the under estimated potential impacts to Lower Columbia River (LCR) steelhead from construction of a mountain bike facility in an area that serves as the headwaters of an important steelhead stream. That effort had rather profound effects as NMFS then decided to prepare a full Biological Opinion (BiOp) – which they had not done previously – on the potential impacts of the mountain bike project on listed species.
The case was stayed while NMFS prepared the BiOp. Then, during the fall of 2013, the groups learned of survey efforts for the Western Bumble Bee in and around Timberline. Biologists from Xerces Society warned the FS of potentially serious impacts from implementation of the mountain bike facility.
The FS mostly brushed aside those concerns. Consequently, the Complaint was again amended to challenge the FS decision not to prepare a supplemental NEPA analysis that included impacts on the bumble bee (the original EA does not even mention the bumble bee).
In August of 2014, NMFS released its BiOp. Although imperfect, it was a major step in the right direction. Prior to the BiOp, NMFS had simply signed off on the FS clam that the project was “Not Likely to Adversely Affect” any species. The BiOp chronicled a host of impacts from the proposed project – most sediment related – and included specific terms and conditions that were needed to try to minimize impacts.
To help assess whether to challenge the BiOp the groups had the BiOp reviewed. The conclusion was that the BiOp relied on the FS on-paper assumptions about restoration effectiveness without reviewing actual on-the ground conditions. Our hydrologist then conducted another field review to evaluate restoration activities from the two prior years. His work documented a host of restoration failures.
Since it appeared that the 2014 BiOp did not go far enough in ensuring protections for listed species, FOMH et al again amended the Complaint to include a claim based on the inadequate BiOp. In particular, the groups challenged the BiOp’s terms and conditions for not setting clearly defined thresholds. We also challenged NMFS’s failure to ensure that the project was consistent with the Aquatic Conservation Strategy of the Northwest Forest Plan.
In addition, we challenged the FS decision that it did not need to supplement its NEPA analysis despite the 2014 BiOp. We pointed out the huge disparity between what the FS had disclosed to the public in the prior NEPA analysis (where it claimed that the project was not likely to adversely affect listed species), and the conclusions of the expert agency in the 2014 BiOp – i.e., that the project actually was likely to affect the species and would cause at least some “take” of those species.
Our attorneys briefed all the issues in the Second Amended Complaint for the court during the first half of 2015. Suspecting that the FS and RLK would try to claim that there had been successful restoration efforts, we had our hydrologist conduct another field review in the fall of 2015. During that review he discovered a major project being undertaken on a Still Creek tributary that appeared to fall outside of the permitted restoration activities.
There was a hearing on the merits in front of Judge Aiken in November 2015. During the hearing, the judge seemed to be receptive to our claim that the 2014 BiOp was inadequate, as well as our claim that the FS had a duty to supplement its NEPA analysis with respect to the bumble bee.
In December of 2015, the FS and NFMS apparently realized that RLK had violated the terms of the 2014 BiOp in carrying out restoration activities during the summer of 2015. Specifically, RLK had disturbed an area within Riparian Reserves that exceed the footprint allowed by the BiOp. This required re-initiation of Endangered Species Act consultation.
FOMH’s attorneys submitted extensive information to NMFS. We asked the agency to take a hard look at the disturbances from restoration activities, and to fully evaluate the potential for restoration effectiveness (as opposed to merely taking the FS assumptions at face value). NFMS ultimately agreed to again engage in consultation with the FS.
In March of 2016, the court issued a partial opinion and order, resolving some of the claims, and staying the others. Here is how the judge ruled:
– The FS did not need to prepare a NEPA analysis over the Master Development Plan – we think this is legally wrong, and we will be evaluating our appeal options once the case if fully resolved;
- The FS did not need to prepare a full Environmental Impact Statement – same situation here;
- The FS did not improperly substitute mitigation for habitat degradation, and thereby did not violate the National Forest Management Act – again, same situation; and
- The claims related to LCR Steelhead and NEPA supplementation were stayed until after FS and NMFS competed re-consultation.
The claims that the court did not resolve are:
- Whether the FS had to prepare a supplemental NEPA analysis regarding the Western Bumble Bee;
- Whether the FS had to prepare a supplemental NEPA analysis regarding NMFS’s change in position after the release of the BiOp; and
- Whether NMFS’s BiOp was lawful.
Following the issuance of the partial opinion and order, NMFS told the court that it would be preparing a new Biological Opinion. Although NMFS initially told the court the BiOp would be finalized by May 2016, the agency did not release the final BiOp until August 2016.
After the 2016 BiOp was released the FS informed us that the agency was undertaking a 60-day review process to determine whether supplemental NEPA was required given (1) the issuance of the 2016 BiOp; and (2) the recent surveys for Western Bumble Bee. FOMH et al submitted comments to FS on these issues on October 31. We are now awaiting the agency’s final decision.
It is important to keep in mind the success that FOMH et al have had to date:
1. We secured a stipulated injunction at the very beginning of the case. Under the terms of the injunction the restoration projects could move forward; however, construction and operation of a potentially damaging mountain bike facility could not.
2. We were able to watch-dog RLK’s restoration efforts every field season. It is hard to say for certain, but it seems likely that RLK took extra care knowing that they were being closely watched. Moreover, RLK was able to spend three full seasons focusing strictly on restoration. As originally planned, they would have undertaken restoration at the same time as construction activities, which likely would have distracted (to put it mildly) from the restoration work.
3. NMFS was “persuaded” to prepare not one, but two full Biological Opinions. The first provided additional protections for threatened LCR steelhead above and beyond what the FS had provided. Now, the 2016 BiOp provides even greater protections.
4. The FS has also now added additional project design criteria to mitigate impacts to the bumble bee, including pre-construction surveys and re-routing trails away from nests. We think the FS still has plenty of work to do with respect to the bees, but these measures are important incremental steps.
Had we not stepped up to fight this project there would be a fully operational lift-assisted mountain bike facility in place, which would have just wrapped up its second or third season. In short, FOMH et al have secured some important victories so far and we are not by any means finished with our efforts.
THANK YOU for your continued support and commitment to this effort. We commend our attorneys at Crag Law Center for their ongoing efforts. We encourage all our members to donate to FOMH this holiday season to support our continued efforts to protect Mount Hood.
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FOMH is a volunteer-run 501(c)3 non-profit
*Protecting Mount Hood since 1988*