Judge dismissed litigation to block logging project in Upper Fryingpan Valley
Aspen Times file
A federal judge has dismissed a lawsuit by several property owners in the Upper Fryingpan Valley that tried to block a timber harvest project from advancing.
U.S. District Judge Timothy Tymkovich issued a judgment Sept. 3 in favor of the U.S. Forest Service. The judge ruled the property owners “fail(ed) to show that the Forest Service violated (the National Environmental Policy Act) or acted arbitrarily or capriciously in approving the project.”
White River National Forest Supervisor Scott Fitzwilliams said there is always a chance for an appeal and further legal deliberations. For now, the Forest Service is assuming it can move forward with a logging project that covers 1,631 acres.
“We’re happy with the decision,” Fitzwilliams said. “I guess none of us are surprised. We knew we were pretty strong on those (contested) points.”
The property owners were represented by John Swomley, a Boston attorney whose family owns property in the Fryingpan Valley and was among the petitioners in the lawsuit. Efforts to reach him by an email and phone call to his office were unsuccessful. It’s unknown if the decision will be appealed.
The Forest Service started review in October 2016 of an internally generated plan designed to provide forest timber products and improve forest health. The agency released an Environmental Assessment in August 2017 that found the project “would have no significant impact on the environment.”
The proposal is to clear-cut lodgepole pine trees larger than 5 inches in diameter over 1,061 acres. Any merchantable tree of any type over 5 inches in diameter would be cleared from another 198 acres. Selective tree thinning would occur on another 270 acres.
“Generally, the harvested trees will be removed for use as forest products and biomass fuel,” the Forest Service review said. “The waste resulting from the logging, known as ‘slash,’ will be piled and burned, lopped and scattered, or removed for biomass energy generation.”
The project area is north of Frying Pan Road, to the east and northeast of Ruedi Reservoir and to the south and west of the Harry Gates Hut, part of the 10th Mountain Division network of backcountry ski cabins.
The Forest Service issued a Draft Decision Notice in December 2017 that it intended to move forward with the project. The property owners and other parties filed objections. The Forest Service made slight adjustments to the original size of 1,759 acres and the design of the project and issued a Final Decision Notice in April 2018.
A group of 21 property owners teamed to file the petition in U.S. District Court in April 2019. They contended the review process was flawed because it violated the National Environmental Policy Act and Administrative Procedure Act. Specifically, they contended the review failed to adequately consider the impact of the project on climate change, failed to adequately consider scientific evidence on the project’s impact on fungi, and erroneously concluded a more detailed Environmental Impact Statement wasn’t necessary.
The judge determined the petitioners “fail to carry their burden to show that the project’s CO2 emissions will likely result in a cumulatively significant impact.”
He also found in favor of the Forest Service process on the other two points.
Fitzwilliams said the agency would prepare information necessary to offer two major timber sales in the project area, then seek bids.
The bids likely will be offered this fall. Once they are awarded, the purchasers typically have four years to conduct the project, Fitzwilliams said.
The purpose of the project is to provide timber products and improve forest health, Fitzwilliams said. It isn’t a fire mitigation project.
“That wasn’t the overall objective,” he said.
When asked if the Forest Service should be focused on fire mitigation projects instead of timber product production, Fitzwilliams said the funds for the different types of projects come from different sources within the agency.
“We try to keep a balance of that work,” Fitzwilliams said. “Some years we have more timber sales. Some years we have more fuels mitigation.”
The majority of the projects in the White River National Forest are fire mitigation, he noted. The Fryingpan Valley timber production project doesn’t mean fire mitigation efforts are being ignored, he added.
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