by Christine Larsen | September 12, 2015 3:16 pm
No work will be done on the Village at Wolf Creek until a lawsuit filed in late June against the development is resolved in federal court, according to a recently signed stipulation agreement.
The agreement, signed in July, halts all construction on the proposed luxury resort on Wolf Creek Pass in Southwest Colorado until a decision is made regarding the legality of a Forest Service land exchange that would allow access to the development site.
“We wanted to have our day in court and make sure that we had it without any ground-disturbing activity,” said Christine Canaly, director of the San Luis Valley Ecosystem Council, a nonprofit. “We now know we will have that day.”
The agreement is among a coalition of conservation organizations, including Rocky Mountain Wild, San Luis Valley Ecosystem Council, the San Juan Citizens Alliance and the Wilderness Workshop; as well as Rio Grande National Forest Supervisor Dan Dallas, Deputy Regional Forester Maribeth Gustafson, the United States Fish and Wildlife Service and, on the other hand, the Leavell- McCombs Joint Venture (LMJV), the leading force for the development of the Village at Wolf Creek.
According to the recent filing, “the parties have agreed to enter into this Stipulation in order to promote the fair and efficient resolution of any dispute concerning the Record of Decision, Exchange Agreement, or the descriptions described therein.”
The lawsuit seeks to overturn a land swap, recently approved by the Forest Service, that would give Texas billionaire “Red” McCombs 205 acres of federal land connecting his property atop Wolf Creek Pass with U.S. Highway 160, in exchange for 177 acres of private wetlands that would go to the Forest Service.
The stipulation prevents any work being done that would “physically alter the condition of either the Federal or Non- Federal Lands. . . in such a way that such alteration would prevent or preclude full relief requested in the Complaint.” No groundwork, vegetative treatment, road or physical construction, or alteration on either parcel will take place.
“Most commonly, if a land exchange is finalized through a Record of Decision, then a new owner, new situation, or developer can jump into the permitting process,” said Jimbo Buickerood, public-lands coordinator for the San Juan Citizens Alliance. “This is very significant because they can’t do that until there is a legal outcome. They are prohibited from moving dirt or getting permits – in essence, they are frozen until the court decides.”
The stipulation offers advantages to both the conservation and developmental sides of the Village at Wolf Creek.
In the event the lawsuit is successful, the agreement ensures that the land will be returned in its current state and no action will be needed to restore the original conditions. This allows both parties to avoid the expense and inconvenience of work needing to be reversed.
“Our fear was why they wouldn’t use this time to do preliminary activity,” said Matthew Sandler, staff attorney for Rocky Mountain Wild. “Either way, it makes us more comfortable having the assurance that things won’t move forward.”
The avoidance of an injunction is also a benefit to both sides.
Clint Jones, project leader for the Village at Wolf Creek, said in an interview with the Farmington Daily Times that the stipulation means the conservation groups will not seek an injunction to halt the project until the court reaches a decision on the lawsuit.
An injunction hearing can become confrontational and would involve a judge as the intermediary. In 2007, an injunction was obtained as a last resort over this debate.
Jones said the agreement allows his team to finalize the land exchange and do preliminary engineering and design work while the lawsuit goes through the court. He also said that construction was not planned for the immediate future.
The stipulation agreement buys both sides time that could be used to look for different options and other possible outcomes, including a possible site for development not on the Continental Divide.
“Our goal is that the land is protected up there and enjoyed for the purposes of the ecosystems and that people can enjoy the intact landscape and wildlife,” Canaly said. “We filed this lawsuit to provide other opportunities for discussions to occur.”
The land-exchange agreement between LMJV and the Forest Service will continue to be in effect. The United States will convey federal lands to LMJV in exchange for non-federal lands owned currently by the group. The developers will still be able to file certain documentation, including patents, payments, and deeds.
“What we gave up was allowing the Forest Service to close on the land exchange,” Sandler said. “What we gained were no permits being finalized with the county, the Colorado Department of Transportation, or Army Corps [of Engineers].”
Developers will still be permitted to perform some activities, including engaging in investor relations; wetland monitoring; hydrology investigations and monitoring; surveying; geotechnical investigations; baseline engineering; and design work for Phase 1 of the proposed Village and use of Tranquility Road. However, no formal applications or agreements to Mineral County for landuse approval or to the Colorado Department of Transportation for permit access will be allowed.
The stipulation agreement does not impact Wolf Creek Ski Area’s current use of the exchange parcels for its continued operation and maintenance.
“Wolf Creek Ski Area itself has always needed to perform a careful balancing act because their property involves both private and public land of the exchange,” Canaly said. “It’s been very important that they move forward with ski area operations as usual.”
At this point, it is hard to say how long resolving the lawsuit will take. “There are too many variables,” Canaly said.
But she is hopeful.
“I know Red McCombs is more open now than ever before to leaving a lasting legacy. . . that will benefit future generations,” she said. “He wasn’t there 10 years ago, but I think he’s there now.”
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