New claim in lawsuit alleges the Forest Service didn’t consider impacts to small businesses from new permit conditions
By Bob Berwyn
VAIL — The ski industry last week honed its attack on a new Forest Service permit condition that affects water rights, claiming the agency failed to consider the economic impact on small businesses, as required under the Small Business Regulatory Enforcement Act.
At issue is language in the permits under which most Colorado ski areas operate on public land. The two sides have been engaged in a long-running tussle over who owns the water originating on national forest lands.
By amending its original lawsuit against the Forest Service in Federal District Court, the ski industry also gives the Forest Service an extra month to respond to the legal challenge. The industry also claims the new permit condition is an unlawful “takings ,”and that it conflicts with state water law.
“The bottom line is, I don’t think the 2012 revisions solved the problem,” said attorney Glenn Porzak, representing the National Ski Areas Association in the legal challenge.
Porzak said when he filed the initial complaint, he wasn’t aware of the small business aspect of Forest Service regulations.
“It’s a new claim that was discovered … Clearly, a number of ski areas fall under that category,” he said.
The ski industry claims that, under Colorado law, the water is private property that can be bought and sold independently of the permits.
Forest Service officials say they want to ensure that the water rights remain tied to the ski resort use for which it was appropriated, be it snowmaking, golf course irrigation or domestic use in ski lodges and hotels.
The dispute has been simmering since the 1980s, when the Forest Service developed permit language requiring resorts to assign ownership of certain water rights to the federal government. While many resorts signed off on the permits with that clause, industry attorneys say they never acknowledged the legality of the requirements.
In 2004, the ski industry worked with top Forest Service officials and political appointees to revise the language, trying to establish a joint-ownership scenario for the water rights.
But those conditions did not comply with water law in states like Colorado, the Forest Service said late last year when it issued the new directive , triggering the current legal showdown.
The industry has called the new permit language a takings, claiming that the Forest Service is forcing ski resorts to “abandon” or trnaswer water rights when permits are not renewed, and requiring ski areas to relinquish any legal claim for compensation for water rights “seized, taken, and subject to compelled transfer under the 2012 directive.”
The area where the industry may find relief from the court is related to the procedure or lack thereof) used by the Forest Service to adopt the new policy.
According to the industry’s lawsuit, the agency failed to subject the change to any sort of environmental analysis, or to allow for public review and comment. According to Porzak, the Forest Service violated its own regulations by inserting the new clause without following those procedures.
The Forest Service has a policy of not commenting on matters under litigation.
Outside observers like Mark Squillace, director of the Natural Resources Law Center at the University of Colorado Law School, and Rocky Smith, of Rocky Mountain Wild, said that, aside from the issue of conflict with state water law, the procedural aspect of the issue may resonate with the court.
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