GREENFIELD — A Superior Court justice has denied protesters in their call to have logging at Wendell State Forest temporarily halted.
Judge Michael Callan decided not to rule a “preliminary injunction” Friday, an action that would have forced the state Department of Conservation and Recreation (DCR) to stop the logging of a century-old, 80-acre oak stand, at least temporarily.
“While we are disappointed with today’s decision, we will continue our lawsuit for injunctive relief over the course of the next two years,” said Gia Neswald, lead plaintiff in the case. “This will be an important vehicle for forcing transparency on an agency that states at every opportunity that it is exempt from statute and regulation.”
The Wendell State Forest Alliance, the group of 29 co-plaintiffs who oppose the project, brought the state to court Aug. 21, naming as defendants in the civil lawsuit Kathleen A. Theoharides, secretary of the state Executive Office of Energy and Environmental Affairs; DCR Commissioner Leo Roy; and State/Public Lands Forestry Program Director William Hill.
In Franklin County Superior Court, the protesters told Callan they have a likelihood of winning the case in a future trial, and that allowing the project to continue in the meantime would cause “irreparable harm.” After a week of consideration, Callan answered the protesters Friday with a resounding “No.”
“The standard for issuance of a preliminary injunction is well known. In order to obtain a preliminary injunction, the moving parties must establish that one or more have a reasonable likelihood of success on the merits, that one or more will suffer irreparable harm if the injunction is not granted, that the harm to them outweighs the harm to the opposing party, and that the public interest will not be adversely impacted by issuance of the injunction,” Callan wrote in his decision.
Callan said the plaintiffs’ arguments did not satisfy any of the standards to issue a preliminary injunction, and that the plaintiffs had “unduly delayed” bringing the state to court — discussions of the project started in early 2016 “at the latest,” Callan wrote, and the physical logging started a few weeks ago.
The logging project, being carried out by John H. Conkey & Sons Logging Inc., is what DCR describes as the “selective” harvesting of trees in an 80-acre portion of the more than 8,000-acre Wendell State Forest.
For the last year, the Wendell State Forest Alliance has opposed the project by holding signs on the side of Route 2, having rallies and stationing members at the forest ranger station on Montague Road, sending letters to the governor and circulating petitions asking for the project to be halted. They’ve also tried to physically stop the project at the site, blocking loggers and machinery with their bodies and PVC-pipe barricades, and even chaining themselves by trees. At least 23 arrests have been made — with the charges typically being disorderly conduct and trespassing — by State Police on protesters in the last three weeks.
The Wendell State Forest Alliance’s main reasons for opposing the project concern climate change, protection of native populations — like the rare Jefferson salamander — and the forest’s recreational value.
On the issue of climate change, large, old trees — like those being harvested — sequester more carbon than their younger counterparts. Organizations like the U.N. have stated protecting forests to maximize carbon sequestration should be a strategy in fighting climate change and global warming.
But DCR doesn’t deny carbon sequestration is important for climate protection, and, in a meeting with the Wendell Selectboard last fall, Commissioner Roy said proper forest management, including cutting down old trees, will sequester the most carbon over time. Massachusetts’ forests are too homogenous, Roy said, and should be managed and diversified — forests with trees of varying types and ages are healthier and will sequester the most carbon over time by having a flow of trees reaching their peak-carbon-sequestering ages, he said.
While it is the department’s policy not to comment on pending litigation, Assistant Attorney General Kendra Kinscherf, who is representing the state in court, outlined some of the reasons for the project before Judge Callan.
Kinscherff said the project will eliminate diseased trees in the area that are dangerous to the health of the forest and also “a concern for the safety of the people who enjoy that area.” No new roads are being built, and the department is mindful of not impacting wetlands or vernal pools, she said.
Kinscherf also said the protesters’ claims that they were excluded from the process are false, and DCR allowed a 45-day public comment period, during which it reviewed “extensive” comments from the protesters.
Callan, in his ruling, agreed with Kinscherf’s assessment.
“There was a lengthy public process which included multiple periods where public comments were gathered,” Callan said. “There is ample evidence of some of the plaintiffs’ involvement in this process attached to the plaintiffs’ submissions. The result of the process yielded comprehensive data and a full plan to address forest management.”
Reach David McLellan at dmclellan@recorder.com or 413-772-0261, ext. 268.