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Ski industry wins water rights lawsuit against Forest Service

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A judge rules this week that the Forest Service can’t force ski areas to transfer water rights to the federal government. Bob Berwyn photo.

Judge orders Forest Service to go back to the drawing board on developing permit language to govern water originating on national forest lands

By Bob Berwyn

FRISCO — A long-running dispute over water rights at ski areas operating on public land was resolved — at least temporarily — this week, as Federal District Court Judge William Martinez ruled that the U.S. Forest Service violated its own regulations and other federal laws when it adopted a new water rights clause to be added to ski area permits.

Martinez stayed away from the takings issue raised by the ski industry, but slammed the Forest Service for issuing a new rule without providing a chance for formal input and public comment. Read the ruling here.

He vacated the water rights clause, enjoined the Forest Service from enforcing it and remanded the matter back to the agency for further action to be guided by the court ruling. Specifically, Martinez said the Forest Service failed to develop the new water rights clause under formal public processes required under federal regulations.

He also ruled that the Forest Service violated federal regulations because the agency did not evaluate the economic costs of forcing some smaller ski areas to to assign their water rights to the Forest Service without compensation.

“Given how critical and valuable water is to ski area operations, we are pleased that the court has stopped this unreasonable and unlawful policy in its tracks,” said Michael Berry, president of the National Ski Areas Association. “We look forward to working in cooperation with the Forest Service to develop a water policy in the future that respects property rights and state water law.” Continue reading

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Forest Service responds to ski industry water-rights lawsuit

Ski areas claim takings; agency says it’s protecting a public resource

Ski areas and the Forest Service continue their legal tussle over water rights.

By Bob Berwyn

SUMMIT COUNTY — The U.S. Forest Service has responded to the ski industry’s lawsuit over water rights, claiming it has every legal right to attach certain requirements to ski area permits ensuring that the water originating in streams on public lands remain dedicated to continued ski area obligations.

In the response, the Forest Service said:

“The 2012 ski area water rights clause speaks for itself and is the best evidence of its contents. Defendants deny any allegations contrary to the plain language and meaning of the 2012 ski area water rights clause. Defendants deny any violation of the Constitution, federal law or regulation.”

Read the entire Forest Service response on the Summit Voice Scribd.com feed.

The latest skirmish in the long-running water war started late last year when the agency inserted a new water rights clause into standard ski area permits. The clause replaced language developed in 2004 that gave ski areas more absolute control over the water. According to the Forest Service, the 2004 language could have enabled resorts to sell off some of their water rights. More background here. Continue reading

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