Opponents of controversial expansion considering legal action
By Bob Berwyn
FRISCO — Barring legal action, Breckenridge Ski Area could start implementing the controversial Peak 6 expansion as soon as early December after regional Forest Service officials rejected an appeal filed by a coalition of conservation groups, skiers and local residents. Read the appeal here.
Scott Armentrout, Supervisor of the Gunnison, Uncompahgre and Grand Mesa National Forests, the appeal reviewing officer, wrote Nov. 14 that he found that the approval for the project did not violate any federal laws, regulations or policies and recommended upholding White River National Forest Supervisor Scott Fitzwilliams’ decision to approve the 550-acre expansion.
“I agree with the ARO’s analysis as presented in the enclosed letter. All appeal issues raised have been considered and the record is adequate to support the Forest Supervisor’s decision,” Ferebee wrote in his Nov. 19 decision letter. “I affirm the Forest Supervisor’s decision to approve the Breckenridge Ski Area Peak 6 Project. I deny requested relief to set aside the decision or complete additional analysis.”
“I wasn’t surprised at their response to not accept the appeal, but I was very disappointed with the quality of their response to the appeal,” said Breckenridge resident Ellen Hollinshead, who has coordinated opposition to the expansion. “Instead of addressing our issues they just referred back to the FEIS as their source to prove that everything we said was incorrect. Which makes no sense since that it what an appeal is all about, finding problems with the FEIS,” Hollinshead said via email.
Opponents of the expansion are trying to decide if they want to pursue a lawsuit to try and block the project, which they say violates the Endangered Species Act and other federal planning regulations.
At issue is a plan by Breckenridge ski area to add two new lifts, a ski patrol/warming hut and a restroom facility. The approval allows construction of seven below-treeline trails, totaling about 68 acres as well as about 339 acres of intermediate, advanced-intermediate, and expert skiing above treeline, some lift-served and some hike-to terrain.
The expansion was controversial from the get-go, as former Dillon District Ranger Rick Newton laid the groundwork with a behind-the-scenes boundary adjustment involving Breckenridge Ski Area and the Breckenridge Nordic Center.
The first round of public input elicited hundreds of critical comments from residents concerned about both environmental and social impacts. A subsequent community task force tackled some of the social issues like housing and traffic, but the only way the Forest Service could skirt the issue of impacts to threatened lynx was by weakening forest plan rules intended to protect sensitive wildlife.
“We’ll consider going to court after a pretty thorough review by the DU Law Center,” said long-time conservation activist Rocky Smith, who put together the appeal. Smith indicated that he’s already heard from some appellants that they’d like to argue their case in federal court.
The resort is unlikely to start working on the project during the next few months, so the timing of a potential lawsuit is still a question mark. If there is a legal challenge, it would likely come well before Breckenridge starts working on the installation of new lifts.
Critics of the expansion once again expressed frustration with a process they say was preordained from the start.
“They really just blew off all the points that we made,” said Kevin Lynch, an assistant law professor at the University of Denver’s Sturm College of Law. “After reviewing their response it doesn’t look like they really engaged with our arguments … That’s something we think won’t stand up in court,” Lynch said.
Any potential lawsuit would likely focus on the same issues as the appeal, including impacts to lynx habitat and the fundamental question of whether the proposed expansion actually meets the stated purpose of alleviating congestion and reducing wait times at existing lifts, Lynch said.
“We pointed out that the project won’t ease lift waits … and they said it doesn’t have to,” Lynch said, referring to a startling section of the EIS which seemingly acknowledges that the Peak 6 expansion won’t do what the resort has claimed all along.
“They seaid the habitat isn’t good lynx habitat now, but it could be in the future … it really undercuts their own argument … “They’re really talking out of both sides of their mouth here,” Lynch concluded.