City won't join suit on watershed

If your neighbor got sued, would you volunteer to join him as a defendant?

Most people wouldn't willingly enter a potentially costly legal quagmire.

The Ashland City Council was no different when members decided on Tuesday not to join the U.S. Forest Service as a defendant in a lawsuit over thinning in the Ashland Watershed.

In January, Ashland City Councilor Eric Navickas and Arizona ecologist Jay Lininger, a former local resident, sued the Forest Service over plans to conduct thinning and prescribed burning on 7,600 acres to reduce wildfire risk. The two cited environmental concerns and potential impacts to the city's water supply in the watershed.

An Ashland City Council majority had previously endorsed the Forest Service's plan, which was developed after years of community input from city officials and others.

The City Council has also agreed to help the Forest Service carry out the plan, with further help from The Nature Conservancy and the Lomakatsi Restoration Project ecological repair company.

Because Navickas is a party in the lawsuit against the Forest Service, he was excluded Tuesday from the City Council's discussion over whether to join the federal agency in the case.

Councilor Kate Jackson said the thinning project is essential to the health of the Ashland Watershed, but the city's legal department doesn't have expertise in the environmental laws that are at issue in the lawsuit.

"I'm not convinced our intervening will have much effect on the case," she said.

Like Jackson, Councilor Russ Silbiger said he was conflicted about whether to join with the Forest Service on the case.

He said the City Council needs to take a strong stand in support of the thinning project. But taking part in the case would eat up the city legal department's time and could prove costly if the Forest Service and city lost the case.

Navickas and Lininger are seeking payment of their attorneys' fees if the Forest Service loses, as well as payment for any other damages the court deems appropriate.

The last time the city of Ashland got tangled in a lawsuit over a watershed project, the case proved expensive.

The Mt. Ashland Association had sued the city, claiming it interfered with proposed plans to expand the Mt. Ashland Ski Area. A judge sided with the association in 2008 and ordered the city to pay $85,000 to the association for legal fees.

The City Council also had to authorize spending up to $225,000 to cover city costs for outside lawyers.

Instead of joining the Forest Service in the watershed thinning case, councilors Jackson, Silbiger and David Chapman voted to send a letter in support of the thinning project. The Forest Service could use the letter in the case.

Councilor Greg Lemhouse was absent.

Councilor Carol Voisin voted against sending the letter.

She said she supports the thinning project, but has concerns about the part of the plan that deals with the McDonald Peak Roadless Area that occupies part of the watershed.

A thinning plan drafted by community members and submitted to the Forest Service had asked that no trees larger than seven inches in diameter be cut in the roadless area.

The Forest Service did not include the diameter limit in its final plan, but said the thinning will focus on mainly small diameter trees and brush.

"Removal of large trees in the Watershed, whether in or out of roadless areas, is only authorized to protect larger, older legacy Douglas-fir and pine trees, provide for worker safety, and for operational needs related to yarding," the Forest Service said in its October 2009 decision.

Lininger said the city councilors' decision not to join the Forest Service in the lawsuit showed that they recognized that the agency's thinning plan disregarded elements of the community-crafted plan.

On a related issue, Lininger accused Forest Service Chief Thomas Tidwell of misrepresenting the community plan in order to win the go-ahead from the U.S. Department of Agriculture for the Forest Service's thinning plan.

In a 2009 memo Lininger secured through a Freedom of Information Act request, Tidwell said 1,045 acres in the McDonald Peak Roadless Area would be treated with thinning, burning and commercial timber extraction.

Tidwell said in the memo that the treatments in the roadless area "are part of a Community Alternative provided by the City of Ashland, as allowed under the Healthy Forests Restoration Act."

He added, "Extensive collaboration was conducted and consensus has been reached on this alternative."

In the memo to President Barack Obama's Secretary of Agriculture, Lininger said the Forest Service grossly misrepresented community views on roadless area treatments.

"The Forest Service misled the administration to think that the community supports logging old-growth trees in roadless forests," he said. "Foresters want to remove big trees using fire as a pretext, and lied about our collaboration to get the secretary's approval."

Rogue River-Siskiyou National Forest Acting Public Affairs Officer Paul Galloway was still awaiting a response to Lininger's accusations from Forest Service officials in Washington, D.C. as of press time.

Darren Borgias, manager and ecologist for The Nature Conservancy's southwest Oregon field office, said the Forest Service did not adopt the community proposed 7-inch diameter limit for trees cut in the roadless area. But he said the Forest Service has continued to work with community members to design the thinning plan.

"I'm confident the community will see the benefits of the project as it is finally rendered," Borgias said. "It's good for the community, good for nature and good for the roadless area."

Marty Main, the city of Ashland's forestry consultant, and staff from the Lomakatsi Restoration Project will help plan what trees and brush will be removed from the watershed, according to a January partnership agreement between the city, Lomakatsi, The Nature Conservancy and the Forest Service.

In their lawsuit, Navickas and Lininger did not ask for a preliminary injunction from a judge. That means thinning work can move forward while the lawsuit is pending.

The two specifically asked for all treatments to be allowed that are closest to Ashland in the urban-wildlands interface.

Staff writer Vickie Aldous can be reached at 541-479-8199 or

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