Partial Win in Challenge to Fed Herbicide Project

PORTLAND, Ore. (CN) - The U.S. Forest Service did not consider the collective effects of spraying herbicides in the Wallowa-Whitman National Forest in Eastern Oregon, a federal judge ruled.

In 2010, the League of Wilderness Defenders/Blue Mountains Biodiversity Project challenged the Forest Service's plan to increase herbicide spraying to control invasive plants in the Wallowa-Whitman National Forest.

The Eastern Oregon forest stretches across 2.3 million acres from the Blue Mountains to the Idaho border, an area bigger than Delaware and Rhode Island combined.

Among other arguments, the environmental group claimed that the Forest Service did not properly consider the cumulative effects of the spraying in conjunction with other actions it might take.

District Judge Michael Simon agreed with that argument in an order last week.

The Oregon judge found in largely in favor of the Forest Service in the court's 59-page order on the summary judgment motions.

However, the judge agreed with the environmentalists that the agency had partly violated the National Environmental Protection Act in its analysis of cumulative impacts of the herbicide project.

"[The impact statement] does not [...] consider the impact of this continued introduction and spread of invasive species. For example, continued introduction implies a need for continued treatment, which will presumably include continued applications of herbicides, yet the [impact statement] does not address how the cyclical use of herbicides could further affect forest lands that are already highly impacted by the activities that are introducing the invasive species in the first place," Judge Simon wrote.

The Forest Service acknowledges that "recreation, grazing, vegetation management, wildfire and fire prevention, logging, road use and maintenance, and agriculture," all contribute to the spread of invasive plants, which the plaintiff claims has not been adequately addressed.

Judge Simon balked at the Forest Service's argument that "the potential for non-herbicide treatments to result in effects of concern to the public is very low."

"This misunderstands the purpose of the cumulative impacts analysis," the judge wrote.

He continued: "The Forest Service cannot start with the assertion that direct impacts will be minimal and conclude that a thorough cumulative impacts analysis is therefore not needed. The very point of a cumulative impacts analysis is to draw attention to combined impacts that might otherwise be overlooked when considered separately."

Judge Simon remanded the issue to the agency to further develop its analysis, but found that its other decisions around the project were not arbitrary or capricious.

The plaintiff's attorney Tom Buchele was pleased with Judge Simon's ruling on the cumulative impact report, but said he and his client may appeal "one or more" of the issues they lost, depending on the course of action the Forest Service takes.

Buchele clarified that there are situations when the use of herbicides is appropriate, but the Forest Service should not use them "as a first choice, all the time."

"The Service made a pretty abrupt switch here from a policy of using herbicides as a last resort to the policy of using herbicides first, and in very large amounts," the attorney told Courthouse News. "We think there's a middle ground."

Buchele says grazing is the biggest source of the spread of invasive plants, because cattle move invasive plants into riparian zones- areas that act as buffers to prevent soil erosion and water contamination, as well as healthy habitats for native plants and animals.

In other parts of the Wallowa Forest, ATV use and timber logging affects invasive plants to a large degree, Buchele said.

The Forest Service is "not really taking on the sources" of invasive plants, and Buchele stressed that the government needs to control grazing, ATVs and logging to "figure out how to stop them from introducing the invasives in the first place."

Judge Simon's order enjoins the Forest Service from further use of its herbicide plan in the national forest, and remanded to the agency for further consideration of cumulative impacts. The agency is represented by Brian M. Collins, Kent E. Hanson, Jason Alan Hill, and Stephen J. Odell of the Justice Department.

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