Judge Simon: 'I want to do the least environmental damage'

By MATEUSZ PERKOWSKI

Capital Press

A federal judge said he plans to impose limits on an herbicide spraying project aimed at fighting invasive weeds in an Oregon national forest.

Earlier this year, U.S. District Judge Michael Simon ruled that the U.S. Forest Service violated environmental law by insufficiently studying the cumulative effects of the program.

The agency argued the herbicide project in the Wallowa-Whitman National Forest should nonetheless remain in effect to prevent further damage from invasive species.

An environmental group countered that allowing the herbicide project to proceed unimpeded would harm sensitive fish.

At the conclusion of the Nov. 15 court hearing, Simon said he intended to partially vacate the spray program, effectively letting it continue on a restricted basis.

"I want to do the least environmental damage in both directions as possible," he said.

The specific limitations have yet to be hammered out, however. The judge asked the Forest Service to confer with environmentalists about the best way to suppress weeds while the spray regime undergoes further study.

The Forest Service and the environmental plaintiff -- League of Wilderness Defenders-Blue Mountains Biodiversity Project -- have two weeks to submit a compromise.

If they're unable to reach an agreement, Simon said he will devise the details himself.

During the oral argument that preceded Simon's statements, the environmental group argued that partially vacating the herbicide project wouldn't be unduly disruptive, as the Forest Service claimed.

"I don't think that passes the smell test," said Tom Buchele, attorney for the group, noting that the agency would retain some weed-fighting tools.

Many streams in the national forest are "temperature impaired" -- too warm -- which makes fish even more sensitive to herbicides, he said.

The effect of spraying in such conditions hasn't been thoroughly studied, Buchele said.

The Forest Service violated the National Environmental Policy Act by failing to explain how it would deal with this scientific discrepancy, he said.

"The violation here is not a minor procedural error," Buchele said. "Adding herbicides has a cumulative impact on fish."

Jason Hill, attorney for the Forest Service, said the environmental group was fundamentally opposed to herbicides.

In reality, though, mechanical methods of weed control would cause the same environmental harms as chemicals, he said. Removing vegetation from around streams will boost the water temperature.

"Pulling the weeds will cause that same shade problem," Hills said.

Allowing invasive species to invade riparian areas will aggravate the situation, as they will crowd out native species, he said.

"The invasive species are already in the forest and they're going to continue to spread," Hill said.

In the five years that the Forest Service devoted to studying the herbicide project, the invasive plant infestation in the national forest expanded from 5,000 acres to 23,000 acres under the previous weed control regime, he said.

Revising the cumulative impact analysis will require one or two additional years due to administrative regulations and the agency's workforce constraints, Hill said.

In that time, the infested acreage will likely grow at an even faster rate, he said.

The delay is unnecessary because the Forest Service is unlikely to drastically alter the project after further studying its cumulative effects, Hill said.

"They're not seeing this as something that will yield a much different result," he said.