Monday, February 6, 2023
Feb. 6, 2023

Linkedin Pinterest

Federal appeals court upholds decision allowing Spirit Lake access road


LONGVIEW — Last week, a U.S. Ninth Circuit Court of Appeals panel upheld a lower ruling dismissing challenges to a project that includes building a temporary road through Mount St. Helens’ Pumice Plain.

The road is part of the U.S. Forest Service’s plan to replace an old intake gate at Spirit Lake that helps protect the downstream communities from catastrophic floods.

In March 2021, a coalition of researchers and conservation organizations challenged the plan to build the temporary access road, saying the Forest Service has not done the proper environmental assessments or adequately weighed the importance of research on the monument or the damage the road will cause.

In late December, U.S. District Court Judge Robert Bryan, of the Western District Court of Washington, ruled in favor of the Forest Service, writing that the agency complied with requirements and properly considered the consequences of the work.

The plaintiffs appealed on Jan. 29, and a three-judge panel heard arguments on Oct. 7. Last Wednesday, Oct. 19, the three-judge panel affirmed the district court’s decision.

The memorandum states the record reflects the Forest Service took the requisite “hard look” at effects of the project, including on scientific research. The agency complied with other planning requirements and didn’t act “arbitrarily, capriciously or contrary to law,” the panel wrote.

Western Environmental Law Center attorney Susan Jane Brown said to her and her clients, the panel’s decision makes little sense from a legal and ecological standpoint.

“The Forest Service’s proposal to build a road across the Pumice Plain will not only destroy the globally unique scientific research occurring there, but also will indelibly scar the landscape: all of which would be a tragedy,” she wrote in an email.

Brown represents the coalition of plaintiffs, including the Cascade Forest Conservancy; the Great Old Broads for Wilderness; the Washington Native Plant Society; the Sierra Club; researcher James Gawel; biologist John Bishop; and Susan Saul, a former Cowlitz County resident who was instrumental in getting Congress to create the monument.

Brown said she and her clients are still considering next steps, which could include an appeal to the United States Supreme Court or a petition for rehearing en banc by the entire Ninth Circuit Court of Appeals.

When Mount St. Helens erupted in 1980, debris blocked the historic outflow of Spirit Lake, raising the water level 200 feet. Engineers built a tunnel in 1985 to drain the lake and to prevent a catastrophic flood, but the 35-year-old tunnel needs repairs and upgrades.

Work on the first part of the four-phase project began this summer and was unaffected by the appeal, said Gala Miller, Forest Services spokeswoman.

Earlier this year, the Forest Service awarded a construction contract to improve the Forest Road 99 Extension, the 2-mile section from Windy Ridge Viewpoint to the researcher parking area. Starting in July and continuing through the end of the year, Forest Road 99 Extension/207 — the mostly nonmotorized road usually open to the public for hiking or mountain biking — will be closed on weekdays and open on weekends.

Construction only can be done from June through October due to weather conditions. Miller said work will likely be wrapping up soon, as higher elevations received snow over the weekend