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Earthrise Wins Bench Ruling for Wallowa-Whitman National Forest

November 21, 2012

Last Thursday, November 15, Earthrise Law Center (for the first time under our new name) won a ruling in U.S. District Court in Portland. In November 2010, Earthrise filed a complaint against the U.S. Forest Service on behalf our client, the Blue Mountains Biodiversity Project of the League of Wilderness Defenders. We alleged that the Forest Service’s decision to greatly increase the use of herbicides on the Wallowa-Whitman National Forest to combat invasive plants violated several federal laws. After lengthy briefing and an oral argument in January 2012, Judge Michael Simon ruled for our client in late June on one of our claims, finding that the Forest Service had violated the National Environmental Policy Act by failing to consider the potential cumulative impacts of their decision. However, the question of the proper remedy for that proven legal violation remained open.

Several recent Supreme Court and appellate court decisions have changed the law somewhat regarding remedy issues. Earthrise had to address those changes when deciding what remedy to request from the Court. Earthrise filed its motion and brief regarding remedy in early September. We asked that the Court partly set aside the agency decision and remand it to the Forest Service to correct its error. The Forest Service responded in October with a 30-page brief and declarations from six agency experts, all of whom insisted that any restrictions at all on the Forest Service’s use of herbicides would be “extremely disruptive.” The Forest Service asked that the illegal agency decision remain intact while the Forest Service corrected its flawed analysis. In other words, the Forest Service was insisting that it be allowed to continue to spray herbicides in the national forest even though the Court had ruled that the decision authorizing them to do so was illegal. Earthrise had only two weeks to file its reply brief addressing the Forest Service’s voluminous opposing papers.

We argued the remedial issues before Judge Simon just seven days later on November 15. Judge Simon ruled from the bench, granting our motion to partially vacate the illegal agency decision. It is unusual for a judge to rule from the bench on such a significant, contested motion. The judge also complimented Earthrise’s strategy of seeking only a partial vacatur of the agency decision.

Many people helped to achieve this great result for Blue Mountains Biodiversity Project. Earthrise alum Amy van Saun ‘11 drafted the complaint that we filed in 2010. Recent graduates Rochelle Gutfran ‘12, Marcel Gesmundo ‘11, and Jenny Loda ‘12 helped draft our summary judgment briefs. Current Earthrise student Alexis Andiman helped draft our reply brief on remedy and was at counsel table helping to find supporting record evidence during the argument on November 15. Current Earthrise student Carter Moore also pitched in to help get the reply brief filed before the deadline. Earthrise alum and current Lewis & Clark Law School adjunct professor Scott Jerger ‘03 was co-counsel on the case with Earthrise Managing Attorney Tom Buchele, who lead the oral argument. Finally, the entire Earthrise class and staff helped to strategize regarding the reply brief and argument and many attended the argument itself.

Overall, the hearing was a great learning experience for Earthrise students and a significant win for our client and the protection of public lands. See the related motion and briefs below.

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