Herbicide injunction challenged

By By Katy Nesbitt The Observer August 07, 2012 01:04 pm

An injunction banning all invasive plant treatment on the Wallowa-Whitman National Forest is being contested by the U.S. Forest Service in District Court.

Judge Michael Simon set an expedited briefing schedule July 30, giving the plaintiff, League of Wilderness Defenders, an opportunity to respond by Aug. 3.
The government’s reply is due Monday, with a decision expected sometime soon after, according to the Department of Justice’s Public Affairs Office in Washington, D.C.

Shortly after releasing its noxious weed plan in 2010, the forest was sued. 

A decision signed by Judge Simon on June 29 ruled on two counts in the Forest Service’s favor, but agreed with the plaintiff that the Forest Service did not show enough evidence of the cumulative effects of herbicides. Now all invasive plant removal, including the use of weed eaters, has been halted except around administrative sites.

The Forest Service argued that the League did not “explicitly seek a broad injunction halting all aspects of the project in its complaint.”

The memo said, “Moreover, the Supreme Court has recently made clear that a plaintiff is not entitled to an automatic permanent injunction as a result of success on one of its claims under the National Environmental Policy Act.”

The forest’s 2010 noxious weed treatment plan was in response to not both a nation-wide executive order and Region Six’s 2005 noxious weed treatment plan. To align the forest plan with both the national and regional plans, the Wallowa-Whitman undertook an invasive plants treatment project. The project adopted a plan to treat 22,842 acres of sites infested with invasive species, less than 1 percent of the forest’s 2 million acres.

According to Mark Porter who heads the Wallowa County Weed Board and the Wallowa Canyonlands Partnership, the plaintiff has also sued the Deschutes, Umatilla, Ochoco, and Malheur National Forests for their noxious plant treatment plans. However, the League lost a suit filed against Region Six for its plan.

In 1985 the Wallowa-Whitman was enjoined for a misapplication of pesticides. The forest was not allowed to use herbicides for ten years, said Porter. 

“We have a little bit of history of watching things go,” said Porter. 

His fear, as well as Wallowa County ranchers Rod Childers and Scott McClaran, is that private landowners are treating their lands for weeds while adjacent, public land, managed by the Forest Service is not, allowing weeds to release their seeds at a time they would normally be treated.

Porter said between 1995 and 2010 the forest was allowed to use four herbicides, but the new plan expanded that to ten chemicals, some of which are better at killing noxious weeds while being safer to surrounding plant and wildlife species. 

“To enjoin the forest now, our biggest concert is that we are not able to protect resources for political reasons,” said Porter.

McClaran questioned why the League would be against the removal of noxious weeds.

“Who is against wanting to try and stop invasive species? I thought we had that in common.”