by Gail Binkly | October 10, 2016 10:46 am
The future of a seldom-seen feline and the fate of a luxury development on Wolf Creek Pass, seemingly distinct issues, are inextricably entangled.
The status of the shy, snow-loving Canada lynx, listed as threatened under the Endangered Species Act, influences discussions about the proposed resort, while the final decision about the project – whenever it comes – will certainly impact the animal.
A recent court decision has complicated the picture. On Sept. 7, a U.S. District Court in Montana ruled that the U.S. Fish and Wildlife Service had wrongly decided not to include southern Colorado when it designated critical habitat for the rare animal. In a lawsuit brought by five environmental nonprofits including WildEarth Guardians, Chief District Judge Dana L. Christensen ordered the service to reconsider its “final rule” regarding lynx habitat, issued two years previously.
Court proceedings are also a big part of the picture regarding the “Village at Wolf Creek,” a Texas billionaire’s proposed development high on the snowy pass, south of U.S. Highway 160. The highly controversial project, which could accommodate 8,000 people, would include up to two hotels, 16 condominiums, 46 townhomes, 138 single-family homes, and 221,000 square feet of commercial space.
On Sept. 29, attorneys for Rocky Mountain Wild, the San Juan Citizens Alliance, and two other environmental groups filed an opening brief in their ongoing lawsuit against the U.S. Forest Service and Fish and Wildlife over the approval of a land swap that would provide access to the 290-acre private inholding in the Rio Grande National Forest where developer “Red” McCombs hopes to build the Village. The land swap would give McCombs 205 acres of national forest land on the pass in exchange for 177 acres of private land he owns elsewhere in the forest, in order to provide year-round vehicular access from Highway 160 to the Village site.
“I feel we’ve got some really strong claims in there,” Matt Sandler, attorney for Rocky Mountain Wild, told the Free Press.
The brief argues that the Forest Services failed to do a thorough-enough review of the land-swap proposal before approving it in 2015, arguing the agency unlawfully limited the scope of its environmental analysis and failed to analyze other options. The brief also asserts that the review was “biased and conflicted,” based on tens of thousands of pages of correspondence between agency officials and the developers that were obtained through lawsuits demanding information under the Freedom of Information Act.
“By providing land adjacent to U.S. Highway 160 with unfettered and unrestrained access,” the brief states, “the Forest Service paved the way for a development proposal that would detrimentally impact one of the most important wildlife corridors in the Southern Rockies.”
Wolf Creek Pass, the plaintiffs argue, “is cherished for its wilderness lands, remote location, and natural beauty.”
The San Juan and Rio Grande National Forests meet at the top of the pass and “are managed to protect habitat for a variety of wildlife, plants, rare aquatic environments, fragile high alpine ecosystems, and the unique Wolf Creek Ski Area,” the brief states. The ski area, located far from transportation hubs, sits in an area known for receiving “The Most Snow in Colorado” (an average 465 inches annually), according to the brief.
The proposed Village would be built at an elevation of between 10,860 feet and 10,240 feet. “If constructed, this would be the highest town in North America,” the brief states.
“Wolf Creek Pass is a wild place that has been managed for limited use to preserve it for generations to come, until the Forest Service approved [the] plan to create an urban center at the base of the Wolf Creek Ski Area.”
The 159-page brief contains more than 30 pages relating to the lynx.
The bobcat-sized, big-pawed cat is native to Colorado and many other states with snowy, high-elevation forests, but it was extirpated here by habitat loss and trapping. In the 1970s the last known lynx in Colorado was clubbed to death by a trapper near Vail Pass.
However, in 1999, the state Division of Wildlife (now Parks and Wildlife) began releasing lynx taken from Canada into the southern San Juan Mountains near Wolf Creek Pass in an effort to re-establish the animals, which were declared federally threatened in 2000. Although the first cats released all died and the reintroduction was widely criticized, more were turned loose, and eventually a self-sustaining population developed.
“In 2010 we deemed the effort a success because we hadn’t done any releases since 2006 and we were continuing to document reproduction,” said Eric Odell, species conservation program manager with Colorado Parks and Wildlife.
Odell told the Free Press that at that time the agency ended its intensive monitoring and stopped trapping and radio collaring lynx. “It’s very invasive,” he said. “There is an impact to the animal and also it’s very expensive.”
Monitoring continues through methods such as trail cameras and snow tracking, which provide less-detailed data but give information about whether the animals occupy certain territory. Although not all the data has been analyzed, he said the lynx appears to be doing well.
The predators rely almost exclusively on snowshoe hares in other parts of their range in the lower 48 states as well as Canada and Alaska, he said, but in Colorado they have learned to survive by eating a fair amount of other prey, such as red squirrels.
While the felines have roamed into New Mexico and Utah and have spread to other parts of the state, such as south of Interstate 70 in the Vail Pass area, the San Juan Mountains remain their “core area” in Colorado, Odell said.
He said he doesn’t expect the court decision about critical habitat will have a major impact on CPW’s efforts regarding the lynx because the state is no longer actively managing the population.
“We have done what we set out to do, establish a self-sustaining population in the state,” Odell said, though he added that over time the species could still fail.
The potential impact on the Village of the critical-habitat ruling is unknown.
“Colorado habitat is really important to the lynx,” Sandler told the Free Press. “And I can’t imagine a critical-habitat designation in Colorado without Wolf Creek Pass.”
However, even if Fish and Wildlife ultimately decides to include Colorado in critical occupied habitat for lynx, the decision likely will be years in coming.
“If things really get moving [on the Village], it’s going to be harder for a judge or an agency to really put a stop to it,” Sandler said.
But concerns about the lynx are a key factor in arguments in the Sept. 29 brief.
The plaintiffs assert that lynx are heavily using what is termed the “Wolf Creek Pass Landscape Linkage” area, “and the viability of this linkage is important to the recovery of lynx in Colorado.”
They say lynx frequently cross Highway 160 because it runs between two breeding areas, and increased traffic associated with the Village would mean many more of them would be killed by cars.
The plaintiffs cite comments from CPW voicing concern about “dispersed winter recreation from cross-country skiing, snowshoeing and snowmobiling into lynx hunting areas and travel corridors, which could result in either direct movement out of the area by lynx, direct mortality from illegal take, or disruption of lynx hunting activities, all of which could result in lower productivity of lynx in the general area.”
“This is the time when the Forest Service is supposed to be looking at all the potential impacts,” Sandler told the Free Press. “We’re saying they haven’t given it that hard look that they should have. They aren’t doing what they should be legally to protect the Canada lynx.” The plaintiffs challenge the Forest Service’s approval of the land swap on numerous other bases as well.
They say the agency was improperly and unduly influenced by McCombs, who as a billionaire was able to bring political pressure to bear on the agency.
They argue that numerous public comments oppose the development.
“A key public interest identified in the public comments confirmed that the remote Wolf Creek Pass is a place people go to escape the grind of daily life which generally involves developed landscapes, populous environments, and traffic,” the brief states. “The land exchange and subsequent large scale development is going to bring all of this hustle and bustle to Wolf Creek Pass. The solitude and rather pristine setting will be no more.”
Plaintiffs also say the Forest Service failed to follow its own rules about land exchanges, to consider alternatives such as over-the-snow access in winter, and to analyze other factors and impacts it should have.
All documents and arguments are expected to be in the hands of Senior U.S. District Judge Richard P. Matsch by Feb. 2, 2017, according to a release from the conservation groups. The developers have agreed not to begin construction of the Village until legal issues have been resolved.
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