DU Law Clinic may help with administrative or legal challenge
By Bob Berwyn
SUMMIT COUNTY — The U.S. Forest Service approval of the Peak 6 expansion at Breckenridge Ski Area probably won’t go unchallenged. Longtime critics of the project scrutinizing the the final environmental study say they are likely to appeal several elements of the decision, including, fundamentally, whether the expansion meets the stated purpose and need.
Vail Resorts claimed from the start that the new lifts and terrain will ease congestion at Breckenridge by spreading out skiers on peak visitation days, but at least some of the data in the Final Environmental Impact Statement seem to contradict that conclusion.
Skiers and snowboarders will still have to use the busiest lifts out of the Peak 8 base area to reach the new terrain. At one point in the document the Forest Service appears to flat-out acknowledge that the expansion won’t significantly shorten lift wait times on Peak 7 and Peak 8.
All the documents for the Peak 6 project are at this Forest Service website. Extensive background stories about Peak 6 are online at this Summit Voice page. Some of the ongoing community concerns and criticisms of the Forest Service decision are spelled out on the Save Peak 6 Facebook page.
An appeal may also hinge on whether the Forest Service has fulfilled its obligation to protect species listed as threatened or endangered, in this case Canada lynx, which depend on high-elevation spruce and fir forests for cover.
The Forest Service acknowledges that the expansion will affect about 80 acres of lynx habitat but hopes to improve conditions on a wider scale outside the resort by reducing other impacts. Both the Forest Service and the U.S. Fish and Wildlife Service said the expansion will have an adverse effect on the rare wild cats.
Appeals of a forest-level decision are decided at the regional level by an appeals deciding officer, often a deputy regional ranger. Decisions are most often appealed based on inconsistencies with guiding federal laws and regulations, including the National Forest Management Act, the Endangered Species Act and other Forest Service regulations and guidelines.
“We’re certainly looking at an appeal,” said Rocky Smith, formerly with Colorado Wild. Smith, who now is a freelance environmental advocate, said it’s outrageous that the Forest Service essentially ignored most of the public comments and may not have chosen the best alternative — from an environmental standpoint.
Many Breckenridge residents asked the Forest Service and the resort to consider improving outdated lifts and making other improvements to ease congestion within the ski area’s existing footprint before expanding into essentially untouched terrain.
Smith also raised questions about the terrain classifications the Forest Service used to make the decision fit the purpose and need by adding more “intermediate” terrain.
Critics will have to examine the document record with a fine-tooth comb to find possible grounds for overturning the approval, since a decision of this nature was likely run up and down the administrative flagpole a few times before Forest Supervisor Scott Fitzwilliams signed off on the expansion. In some cases, decisions are overturned on procedural grounds, if an agency misses a step, for example public noticing. But that’s unlikely in the closely vetted Peak 6 decision.
Any potential challenge will get a boost from legal experts at the University of Denver, where faculty and students at the Sturm College of Law Environmental Law Clinic will also examine the Forest Service decision and underlying documentation for flaws.
The clinic won a legal challenge to a proposed Forest Service timber sale in the San Juans, when a judge ruled earlier this year that the agency’s environmental analysis for the project was inadequate.
The proposed Handkerchief Mesa timber sale would have permitted logging on more than 3,000 acres. along with the constructon of 11 miles of logging roads. Law clinic students successfully argued that the environmental analysis was lacking in several areas.
Peak 6 support
The Peak 6 expansion has a number of vocal critics in Breckenridge, but there’s also support for the project from longtime skiers and from at least parts of the business community who see the expansion as part of the ski area’s natural progression. Read about the ongoing concerns in this Summit Voice story.
“I think it’s wonderful, I think it’s sad that we can’t do Peak 5, as well,” said sport shop owner Greg Abernathy, a 40-year resident of the town. “I’m all for it, even though there are some people that think Breckenridge doesn’t need to serve the community outside the locals,” Abernathy said, adding that he’s disturbed by what he characterized as an anti-tourist sentiment.
“I think it benefits Breck in that it gives us a higher quality experience for our customers. It adds the same stuff that opening the Imperial Chair did, some more advanced skiing, plus it should aid the crowding a little bit,” he said.
According to Abernathy, support for the expansion was widespread in some parts of the community.
“All the HOAs were all for getting this done,” he said.
Mayor John Warner said it’s been tough for him to pin down the sentiment in town one way or the other, but promised that the town would keep a watchful eye on the project, particularly with regard to how it may impact downstream resources like Cucmber Gulch.
“Overall, it’s a good thing. Is it perfect, probably not, but it’s pretty hard to reconcile having the busiest or second busiest ski area but but only having half the terrain (compared to Vail),” Warner said, adding that the ski area’s comfortable carrying capacity will be boosted by the expansion.
“Hopefully it will move people across the mountains to the north and disperse them from some of the busier places … Upper Peak 6 is wonderful, but it’s not for intermediates in bad weather,” he said.
“I’m thankful they listened to the community as far as saving special trees,” he continued, referring to the decision’s language that mentions some of the great old spruce and fir trees high on Peak 6, promising to avoid cutting those legacy trees whenever possible.
Warner said the Forest Service also responded to the town’s concerns by approving a bottom-drive lift for the project, which means the ski area won’t have to build a road to the top terminal.
Warner said he was disappointed that the Forest Service and resort didn’t commit to improving some of the ski area’s existing infrastructure. He reckoned it was partly political.
They really wanted to get this appproval. It’s the first expansion in a while … It’s a mixed bag, I’m mostly positive about it. It will be good for economy and good for jobs,” he concluded.