Lawsuit seeks to halt Wolf Creek resort

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Spanning three decades of lawsuits and fierce debate, a controversial land swap at Wolf Creek Pass in Southwest Colorado faces another obstacle as opponents fight to keep the Village at Wolf Creek at bay.

LYNX

Protecting habitat for the threatened lynx is one of many concerns voiced by opponents of a planned luxury resort on Wolf Creek Pass in Colorado. Photo by Tanya Shenk, Colorado Division of Wildlife

A coalition of conservation organizations including Rocky Mountain Wild, the San Luis Valley Ecosystem Council, the San Juan Citizens Alliance, and the Wilderness Workshop filed a lawsuit June 24 against Dan Dallas, Rio Grande National Forest supervisor; Maribeth Gustafson, deputy regional forester; the United States Forest Service; and the United States Fish and Wildlife Service.

“What we’re trying to accomplish with the lawsuit is to finally have a federal judge acknowledge that the Forest Service has avoided the direct impacts of the Village and, moving forward, that they need to analyze those impacts,” said Christine Canaly, director of the San Luis Valley Ecosystem Council.

In May, Dallas approved a final record of decision allowing a land swap between the would-be developers of the Village and the Forest Service.

The exchange would allow year-round access to the site envisioned for the Village, a 30-year vision of self-made Texas billionaire Joe “Red” McCombs, 89, a member of the Forbes Top 400 list.

The proposed Village would be near the existing Wolf Creek Ski Area (owned by different parties) at around 10,000 feet elevation on the eastern slope of Wolf Creek Pass. The development would include 1,711 units to house 8,000 people, parking for more than 4,000 vehicles, a dozen or so restaurants, more than 200,000 square feet of commercial space, and storage for more than 25 million gallons of water.

The requests for relief specified in the lawsuit include determining and declaring that the defendant (McCombs and his business venture, Leavell-McCombs) has violated the National Environmental Policy Act (NEPA); has acted arbitrarily, capriciously and not in accordance with the law; and has relied on erroneous interpretations.

The suit also asks that the final environmental impact statement (FEIS) and record of decision released by the Rio Grande National Forest in May approving the land exchange should be abandoned and set aside.

The plaintiffs charge that lack of transparency and the narrow scope of those documents led to inadequacies in the FEIS and decision. Specifically, the plaintiffs argue that the Forest Service limited its environmental analysis to deliberately avoid full review of all the proposed project’s developmental impacts, and failed to comply with the NEPA.

“The NEPA process was limited in scope to the direct impacts of granting access,” the lawsuit reads. “The FEIS did not include a detailed analysis of the direct effects of the Village at Wolf Creek proposal pursuant to NEPA’s requirements.”

Of 14 other claims listed in the lawsuit, the range of alternatives considered by the Forest Service when reviewing the land swap was a particular area of contention.

“The range of alternatives was very narrow in scope,” said Jimbo Buickerood, public-lands coordinator for the San Juan Citizens Alliance, a Durangobased nonprofit. “It was set up in favor of the developer’s own private interests. That’s how the system works.”

Buickerood recently traveled to Washington, D.C., with four other advocates to discuss the situation with Colorado’s congressional delegation and said they were very well received.

“People were interested in the current status and were alarmed at the objections and narrowness in scope of the EIS,” he said.

The lawsuit charges, “Examination of acquisition alternative was unlawfully executed; the construction and operation limited to existing access was not analyzed; and the No Action alternative was inappropriately dismissed.”

Forest Service regulations state that the agency must “rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated,” the suit says.

Despite three alternatives being examined by the Forest Service, including one “no action” and two action alternatives, all assumed the Leavell-McComb Joint Venture would construct the Village regardless of outcome, according to the lawsuit.

The land exchange would allow the developers direct access to build a road through approximately 200 acres of the Rio Grande National Forest and connect the proposed Village to U.S. Highway 160 for the first time since the developers acquired a 300-acre private inholding on Wolf Creek Pass in 1986.

The impetus for the swap dates back to a 1980 law that requires owners of private inholdings within Forest Service land reasonable access to their property.

The FEIS indicates that “the Purpose and Need for Action is to allow the nonfederal party to access its property as legally entitled.”

However, according to a 2012 report by the SLVEC, vehicular access during snow-free periods to the private property is currently available via Forest Service Road 391. While this may be insufficient for the Village expansion, the plaintiffs argue that it allows for “reasonable use and enjoyment,” as stated in the FEIS Need for Action report.

Canaly said for herself and the San Luis Valley Ecosystem Council, one of the goals of the lawsuit is to establish a clear definition of “reasonable access.” She argues that the scope of analysis was too narrow for the Forest Service to define the term.

“What we consider to be ‘reasonable access’ and what the developer considers is very different,” Canaly said. “We would like to see a federal judge determine what ‘reasonable access’ is. Until that happens, developers can do whatever they want.”

McCombs has faced hurdles before.

In 1986, the Forest Service concluded that a transfer of public land with limited access to support a much smaller development McCombs proposed was not in the public interest and decided on the No Action alternative.

According to the Forest Service’s Decision Notice and Finding of No Significant Impact Report of 1986, “The No Action alternative provides for efficient and cost effective management of the National Forest System, meets the management objectives as expressed in the RGNF land management plan and will maintain the long term environmental quality of the natural resources.”

But two weeks after this decision was made, the No Action alternative was reversed at a federal level and in 1987, through a patent and land exchange, the United States conveyed 300 acres of national forest at the base of Wolf Creek Ski Area to Leavell Properties, Inc.

Canaly, who has been opposing the Village at Wolf Creek for more than 15 years, said it has been an interesting journey and wants to see this controversial exchange finally come to an end.

“What we’re trying to do above all else is to get the agencies and Forest Service to do more work upfront in the analysis to remove, reduce or minimize issues from coming up later,” Canaly said.

One difference between the original proposal and the current one is the loss of a scenic easement, which would have prevented certain types of building and provided the Forest Service oversight on the development, including size and color.

“They removed the scenic easement from the parcel, which prevents pink skyscrapers from being built,” Buickerood said.

The currently proposed land exchange would provide the federal government with 178 acres of private mountain wetlands in a different location in exchange for 204.4 acres of federal land on Wolf Creek. The government would also pay McCombs $70,000 as a “cash equalization payment” to offset differences.

The land that would be traded to the Forest Service includes wetlands, which is land that is protected and not able to be developed regardless of the exchange.

Among the furious objections for the Village at Wolf Creek are concerns about its impacts to the watershed on the pass, to wildlife, and to the area’s beauty.

“The current project that will require a grade-separated interchange to access US Highway 160 does not serve the public interest in maintaining the status quo of the relatively undeveloped and natural character of the Wolf Creek Ski Area and surrounding National Forest,” states a document filed by opponents as an “administrative objection” to the draft record of decision.

Wolf Creek Pass is one of the most biologically important areas in the Southern Rockies, providing habitat and migration pathways for elk, deer, black bear and the threatened Canada lynx.

“The proposed Village will dramatically increase the flow of traffic on US Hwy 160, resulting in increased wildlife habitat fragmentation and disruption of a crucial habitat between the South San Juan and Weminuche Wilderness areas,” the lawsuit states.

There is currently minimal impact to surrounding wildlife from existing activities, it says.

“Limited development allows the ski area to coexist with the wildlife, scenery, unique recreation and important values of the area,” notes the administrative objection. “[The project] will upset the fragile balance the Forest Service has struck in managing the Wolf Creek Ski Area.”

One suggestion by the Forest Service to handle this issue is to educate visitors and residents of the Village at Wolf Creek on safe driving practices to avoid running over lynx with vehicles.

Concerns about snowpack, late-season flow and climate change have also been cited by opponents of the proposed Village.

The effect the Village would have on neighboring communities, including South Fork, Del Norte, Alamosa, and Pagosa Springs, could also be an issue if the Village competes with existing businesses.

“The reality is that if this development goes up and they have all those in-house services, what is that going to do for the neighboring communities in terms of their businesses?” Canaly asked. “No one has been willing to fully analyze that issue. The income has been analyzed, but not the expenses or impact on the communities.”

A suggested alternative is to find more-suitable land for the proposed project.

“The developer should give the land back to the public and find a place that the development is welcome and able to sustain the needed infrastructure,” Buickerood said. “The resistance will be there forever and people are naive to think it could help them [economically].”

Representatives of the Village contend that the land exchange is their best option, according to the Village at Wolf Creek’s website.

The exchange “offers an opportunity to develop a village that is unique in character compared to other ski villages” and would offer “a place of tranquility and solitude” not found elsewhere, the site states.

The Rio Grande National Forest also said that a land exchange may be in public interest, thus meriting additional evaluation.

According to the Forest Service’s Village at Wolf Creek Final Scoping Notice, benefits of the Village would include the development of private lands moving further east from Wolf Creek Ski Area; a minimization of impacts to skiers and ski operations; a focus of residential and associated infrastructure to an area that is more suitable; and a net gain of wetlands and perennial streams in public ownership.

But the coalition of conservation organizations remains hopeful the lawsuit may succeed.

“I feel pretty good about it, I have to say,” Canaly said. “It’s gonna be what it’s gonna be and at least we’ve tried. Bringing up these issues is important because we’re not getting more and more land, we’re getting less and less.”

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