Forest Service violated federal law with land swap approval
By Bob Berwyn
*Read previous Summit Voice coverage here
A federal court judge has put an end to a 30-year battle over a proposed resort development at Wolf Creek Pass.
Ruling that the U.S. Forest Service violated federal law when it made an arbitrary and capricious decision to approve a land exchange near Wolf Creek Ski Area, U.S. District Court Judge Richard Matsch set aside the agency’s 2015 approval for a land trade that would have enabled large-scale resort development., The decisions says the Forest Service failed to look closely at the environmental impacts of its decision, and failed to listen to the public before making its decision.
Court records also suggest the Forest Service tried to cover up for its flawed decision by hiding key documents. The ruling also casts a spotlight on the dubious land exchange process that often favors private economic interests over the public interest.
The ruling was hailed as an “incredible victory for the flora and fauna that rely on Wolf Creek pass for their survival,” according Tehri Parker, executive director of Rocky Mountain Wild, the nonprofit advocacy group that has been fighting the development proposal for so many years.
Judge Matsch spelled out the reasons for his decision in a 40-page ruling that covered the convoluted history of the project, including charges that the Forest Service was unduly influenced by the development proponent who lobbied high level federal officials for approval.
The complex history of the case goes back to 1987 when the agency initially approved a land trade that suddenly created a private parcel of land, called an inholding, surrounded by public national forest lands. Since then, the Forest Service has used that original decision for its subsequent actions, but Matsch said the 1987 decision was made “ without benefit of an environmental impact statement or public participation.”
The project was proposed by Texas billionaire and developer Red McCombs, who focused on trying to avoid public scrutiny of the project. Over the years, McCombs has used his political influence to try and win approval by attaching riders to unrelated legislation, lobbying for federal staff appointments favorable to his plans, and even writing local land use codes that would guide the development. A previous federal court decision found that an earlier environmental review process was illegally influenced by the developer.
Development plans included hundreds of residential units, along with large-scale commercial facilities that would have been plopped down in the middle of a relatively pristine mountain ecosystem linking two wilderness areas.
“Public awareness of the fragility of the natural environment has greatly increased in the intervening thirty years and the need for a scientifically based analysis of the impact of the Forest Service decisions in managing National Forest System lands to support a decision is imperative in explaining the decision to the public,” Matsch wrote.
He also addressed recurring concerns among public lands advocates that the Forest Service decision-making process is sometimes tilted toward predisposed outcomes that favor ski area development.
“In reviewing and relying on that work (the analysis by private contractors hired by the proponent) there appears to be a predictive bias in the Forest Service to make the outcome consistent with the 1987 decision that a ski resort complementing the Wolf Creek Ski Area would be in the public interest.” the judge wrote.
“This ruling is an incredible victory for the flora and fauna that rely on Wolf Creek pass for their survival. This order specifically recognizes the ‘unique’ environmental qualities of this region, and the role that it plays as a wildlife movement corridor between the Weminuche and South San Juan Wilderness areas,” Parker said.
Matsch also acknowledged that the development would have adversely affected lynx, protected under the Endangered Species Act, and that the Forest Service decision failed to comply with protective provisions of that law.
“The American public expressed strong opposition to this development proposal, recognizing that it was a bad idea, in the wrong place, at a perilous time,” said Christine Canaly, of the San Luis Valley Ecosystem Council. “This is a special core area of the forest that is essential for the Canada lynx and it deserves long term protection,” she said.
“We took up this fight because approval of this project stunk of inappropriate political influence, because the Forest Service completely ignored public comments asking for protection of the area, and because it would wreck one of the most important wildlife corridors in the state,” said Sloan Shoemaker, director of the Wilderness Workshop. “Today’s decision is a victory for open and transparent public process, and against undue influence of big campaign donors.”
“Wolf Creek is precious to people in southwest Colorado. Thank you to Judge Matsch for recognizing the enormous wildlife and natural resources at risk from the proposed resort development. This decision gives us the chance to get it right.” said Jimbo Buickerood of San Juan Citizens Alliance. “We look forward to working with the Forest Service to make sure we find a solution that keeps Wolf Creek just the way it is for everyone’s benefit.”