by David Long | March 11, 2016 9:09 am
Thousands of documents obtained from the U.S. Forest Service by a coalition of environmental groups opposed to building a luxury resort near the summit of Wolf Creek Pass are adding yet another controversial chapter to a complex legal battle that spans three decades.
And more may be on the way.
On Jan. 29, U.S. District Court Judge William Martinez ordered the Forest Service to conduct a more thorough search for relevant material in response to the coalition’s FOIA (Freedom of Information Act) request after ruling the agency’s previous effort had been inadequate – although not necessarily evasive.
“This ruling is significant, vindicating plaintiff ’s’ claims that the Forest Service has continued to improperly avoid public transparency laws,” said Dan Olson, executive director of the nonprofit San Juan Citizens Alliance, a member of the coalition, in a press release.
“Significantly, the ruling expands the search to all ‘records’ as opposed to emails and forces the Forest Service to search for records from 15 individuals previously not included.”
In a related lawsuit, the coalition, Friends of Wolf Creek, is challenging a land-swap decision made last May that would enable a two-lane access road to be built connecting the site of the long-planned development with a public highway, U.S. 160. It maintains an environmental- impact study performed for the Forest Service prior to the approval may have been improperly influenced by political pressure from billionaire developer J. B. “Red” McCombs. Documents produced by the new court-ordered search could show this, it believes.
“We’re trying to get searches conducted of the (Forest Service) Chief ’s office, the Undersecretary (of Agriculture)’s office – places higher up where we feel some of these conversations may have taken place,” Matt Sandler, a coalition attorney, told the Free Press recently.
Judge Martinez has now agreed, specifying the Forest Service must take a broader look at all “third-party and intra-agency communications and any other responsive records, whether embodied in a communication or not.”
That order includes “the records of the Undersecretary, the Chief and ‘decision- maker Dan Dallas’,” he ruled, and must be completed by March 31.
Dallas is the supervisor of the Rio Grande National Forest who approved the land exchange, which is essential to the construction of a sprawling complex of high-end houses, condos, restaurants and hotels that would accommodate up to 8,000 residents and tourists. The swap would provide access that is now lacking between McCombs’ 420-acre inholding and U.S. Highway 160.
Plans for the so-called Village at Wolf Creek were first announced by Mc- Combs in 1986, but opposition to developing the relatively pristine area was immediate and has remained stout ever since. (A day-use ski area adjacent to the proposed resort is the only other human intrusion for many miles.)
The coalition has accused the Forest Service of possibly colluding with the developer and his minions and then trying to cover it up, alleging documents it has obtained so far indicate that other records more clearly demonstrating this may have been either withheld or destroyed.
“It’s disappointing,” Sandler said. “The Forest Service is supposed to be working in the public interest, and some of this shows the lack of transparency that should be involved in a process like this.”
Among the documents already released by the agency are emails that plainly reflect Forest Service personnel coming under intense political pressure from McCombs, who was repeatedly described as “frustrated,” to grant approval of the crucial land swap.
In other emails supplied to the Free Press by the San Juan Citizens Alliance, Forest Service personnel offered assurances that the agency was devoted to eliminating any legal obstacles that might interfere with McCombs’ longheld vision of creating his exclusive hamlet.
“I expressed (to his lawyers) that we were working very diligently on making sure we had a solid and defensible package in light of the controversy and potential litigation of this case,” wrote Jim Bedwell, director of recreation, lands and minerals for the Rocky Mountain Region, in an email sent to Dallas and other key employees Oct. 22, 2014.
Even so, Bedwell noted, McCombs’ Washington, D.C., attorneys had warned him “that ‘Red will do what Red will do’ in terms of political contacts.” This was one of several implied threats contained in various communications circulated among staff members.
“They have questions about ‘Why is it taking so long,’ (McCombs is rattling cages) and who would be in opposition, congressional interest, etc.,” Bedwell also remarked in an earlier email, explaining he’d composed a “Q&A” (not included in the document release) ex plaining some of these delays.
And another lengthy email by deputy forester Maribeth Gustafson that outlines the convoluted history of the saga noted, “It is commonly understood that Mr. McCombs brought political pressure to bear to realize his dream. . . .”
Dallas’s approval of the land swap is being challenged by the coalition and is set for a hearing in federal court this spring.
Among other issues, it maintains the environmental impact study done before the land-exchange approval was influenced by McComb’s pressure, and that a new analysis needs to be conducted. Considerations include the impact on the lynx, a threatened species that was re-introduced in the Wolf Creek area in 1999, and the effects of a recent devastating wildfire.
Now 88 years old, McCombs had also attempted to circumvent these regulations in 2001 with a failed effort to have former Texas Congressman Tom De- Lay sponsor legislation that would have transferred the land without an EIS.
Yet other emails expressed concern that their communications might be disclosed under a FOIA request, and discussed ways of avoiding this.
For instance, a Jan. 9, 2013, missive from Randy Ghormley, a wildlife program manager, states that he’d had the “rationale” supporting the land exchange sent to him in a “hardcopy . . .so it would not be subject to FOIA (is this correct?)”
A Forest Service lawyer responded that such “gyrations” are unnecessary, since “we’d deny any request for it under the deliberative process privilege until (the decision) is issued.
“Then it would most likely be released.”
In an Aug. 24, 2012, email from Divide District Ranger Tom Malacek to Harold Dyer, a planner with the Forest Service, Malacek wrote, “Talked to both Dan and Steve, we are on track…..Dan’s main concern wasn’t the letter, but the emails around the letter that might be a little damaging in the event they are not all deleted in case we get a foia…. remember we are swimming with sharks and need to keep emails from even the remote appearance of whatever, so make sure you burn this once read!”
The degree to which the Village developers expected agency officials to respond to their requests was indicated in an Oct. 22, 2014, email from the agency’s Jon Sams to Dallas, in which Sams repeatedly expressed the developers’ expectations: “Just received a call from Harry Adams of Red McCombs Enterprises regarding Wolf Creek.
“Harry is insisting that a conference call take place this Friday afternoon with him, Red McCombs, Clint Jones and you and Dan Jiron. . . .
“Although this is the first I’ve heard of this request, Harry is expecting a call to take place this Friday, Oct 24. . . How would you like to handle this request? Harry is expecting a return call this afternoon….”
Contacted by the Durango Herald and other news agencies, Forest Service officials and McCombs’ representatives have emphatically denied any impropriety preceded the approval of the land swap, stating the emails had been interpreted out of context by foes of the development.
“I think it would be fair to say you can see some influence,” Jimbo Buickerood of the San Juan Citizens Alliance told the Free Press. “For example, it appears that the Rio Grande National Forest office was actually looking at a supplemental EIS that would examine an over-the-snow access alternative or possibility, and that seems to have been quashed.
“There’s not exactly a smoking gun, but it sure seems like the Forest Service was considering an alternative or looking at a supplemental EIS that would look at an over-the-snow access as being reasonable enjoyment.”
Under federal law, access must be provided to owners of inholdings to the extent they can have “reasonable enjoyment” of their land, but the law does not specify exactly what type of access is required.
He added, “If everything has been aboveboard and there has not been undue influence, then the Forest Service should be able to release documents to the public that tell that story and they’re making a conscious decision not to do that.
“They have been asked to bring forth these documents and tell the public the rest of the story, and if everything was transparent, with due process, all the protocols followed, that would be great — but show us the documents that tell that story. Especially when you see indications of Mr. Combs’ interest in influencing the process, there’s an inference there that something was pushed in appropriately or unethically.”
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