“Not Enough Analysis”: The Ongoing Saga of the Village at Wolf Creek

This is the map of the ski area.

When I was working in Region 2, I used to call this project “Reasonable Access for Unreasonable People”- I think at that point it involved ANILCA access to private land, and not a land exchange. This is a later incarnation of the same project.

For those who don’t remember the first incarnation, there was the infamous Redskin Tickets and Tetratech. Note that this is from a 2007 Denver Post editorial titled “scale back oversized plans for pristine area”:

Colorado Wild researchers may have found the proverbial “smoking gun” to back up their charges. According to the Herald, the project foes found e-mails from Tetra Tech executive Mark Blauer to Honts, asking for Washington Redskins football tickets for members of his staff who “put their heart and soul into your EIS.”

District Judge John Kane blocked construction of the roads until the case is finished and said the e-mails between Blauer and Honts raise concerns about the integrity of the EIS process.

It’s interesting that the Post editorial board (or the headline writer) called the area “pristine.” It was next to a ski area. So in the next incarnation, the proponents tried this.

Why is the proposed Land Exchange better?

We believe the Village at Wolf Creek Land Exchange offers an opportunity to develop a village that is unique in character compared with other ski villages. Specifically, by moving the Village into the trees away from the ski mountain, it creates a place of tranquility and solitude not found at other ski areas. Not to mention that it minimizes any disruption to the experience one feels when skiing at Wolf Creek. Here are the potential public benefits as outlined by the Forest Service in their Draft EIS:
development of private lands would be moved further east from Wolf Creek Ski Area, and would minimize impacts to skiers and ski area operations.
the land exchange would focus residential development and associated infrastructure in an area that is more suitable due to topography, natural resources, and proximity to US Highway 160.
the proposed land exchange would lead to a net gain of wetlands and perennial streams in public ownership.
the proposed exchange would accommodate a lower density development.
the land exchange would replace the need for ANILCA access.

If the ski area is full of people, and can be seen from the area proposed, could that area be “pristine”?

Anyway, in this incarnation, we have Judge Matsch who says (according to this Durango Herald article, I did not read the judge’s opinion)

Senior Judge Richard P. Matsch in no uncertain terms agreed with those concerns.

“What NEPA (National Environmental Policy Act) requires is that before taking any major action, a federal agency must stop and take a careful look to determine the environmental impact of that decision, and listen to the public before taking action,” he wrote in his decision. “The Forest Service failed to do that.”

Matsch noted “predictive bias” in the Forest Service’s decision to approve the land swap, suggesting the agency relied on environmental reviews that favored the developers and their request.

“Public awareness of the fragility of the natural environment has greatly increased in the intervening 30 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,” he wrote.

Matsch also took issue with the public comment process.

“The 900 public comments in the record show this heightened public awareness of the effects of human disruption of the native environment,” Matsch wrote. “Notably, responses to the public comments were prepared by the contractors who did the work. They would not be expected to find that work to be flawed.”

I think this is interesting that the judge said this about analysis, because even when I was involved (and I retired five years ago), there was no shortage of analysis including that with a “scientific” basis. I don’t know for sure, but the times I was involved, specialists from the forest reviewed the work of the contractors. I wonder what evidence the judge had that the FS wasn’t doing an adequate job of this?

The other thing about this project is that it shows that even with different political parties, with their own proclivities, in charge, some projects have staying power (30 years?). This should be encouraging to those who are worried about the impacts of the new administration.

And finally, as a citizen, I’d like to thank the people who have worked on the many incarnations of this project, caught between the legal requirements of ANILCA, and the opposition to the project. They have certainly put their hearts and souls into these many iterations and perhaps some generous soul could donate Broncos tickets to them!

11 Comments

  1. Well, Lake Tahoe is often described by the media as being “pristine”. Despite all the development and previous clearcutting in the Basin, during the Comstock Lode.

    Now, imagine what the Basin would look like, as a National Park, with no development and all of its former old growth. (Yes, there are many spots around the lake that still have their old growth)

  2. Sharon, who didn’t read the court’s opinion, wonders “what evidence the judge had that the FS wasn’t doing an adequate job . . .?”

    I’ll summarize. The judge chastised the Forest Service for refusing to assess the environmental impacts of building the Wolf Creek Village: “there is no legal or logical basis for Defendants’ position in the FEIS and ROD that the Forest Service had no power or jurisdiction to limit or regulate development on the federal lands being conveyed to LMJV in the present exchange” because, the judge pointed out, the Forest Service had previously imposed such restrictions under precisely the same circumstances at Wolf Creek.

    PS: My first posting after forestry school was on Colorado’s White River National Forest, home to several world-class ski resorts. At first I didn’t believe the colorful stories told around the bunkhouse of petty bribes, gifts, and graft that wedded the Forest Service and its key employees to the ski industry. Later I learned those stories were only the tip of the iceberg.

    • Andy- the only reason I didn’t read it is that I couldn’t get a copy… do you have one you could send?

      And what you said in the quote was a “they claimed they couldn’t” legal question, not a question of “scientific analysis.” Which makes me dubious because, I know the legal folks and the FS couldn’t have gone to court (with the Obama administration DOJ- for partisan-watchers) without some pretty high level legal advice.

      As to the ski business and the FS, some of the stuff I have heard creeps me out too, but I don’t have any direct experience other than a negative experience with an industry rep while working on roadless. I think that had more to do with personality issues than industry self-importance, though.

      • There’s a link to the court’s opinion in the comment above.

        The FS didn’t choose to go to court; it was sued. The FS did choose to ignore the environmental impacts of the Wolf Creek Village itself when writing its EIS. That was a choice, not a legal mandate. The FS could have chosen to follow NEPA and assess the impacts of the Village. Instead, it chose the easier way out, i.e., claiming that ANILCA’s access requirement eliminates its discretion, thus obviating the need to consider the environmental impacts of building the Village. The FS knew (or should have known) better; it lost the same argument in 1993 (Alpine Lakes Protection Soc’y v. United States Forest Serv., 838 F. Supp. 478, 484-485 (W.D. Wash. Oct. 18, 1993):

        Defendants argue, nevertheless, that a finding that the Forest Service is required to consider the environmental impact of such connected and cumulative actions in determining whether an EIS is necessary is precluded by the Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3101, et seq. (ANILCA), which requires the Forest Service to grant Plum Creek access across Forest Service lands to its inholdings. Where two statutes are in apparent conflict, however, they should be read to give effect to each, if such a reading is possible while preserving their sense and purpose. Watt v. Alaska, 451 U.S. 259, 266-67 (1981). ANILCA provides: “Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment thereof: Provided, That such owner comply with the rules and regulations applicable to ingress and egress to or from the National Forest System.” 16 U.S.C. § 3210(a).

        That the Forest Service does not lack discretion in determining what is reasonable access is demonstrated both by the fact that the determination thereof lies within the Secretary’s discretion and that the statute permits the Forest Service to establish “terms and conditions” for the use of any such road. See also 1980 U.S. Code & Admin. News at 5254 (Congress intended that inholders have the right of access to their lands subject to reasonable regulation by the Secretary of Agriculture in the case of National Forests).

        As noted above, the NEPA process is intended to help public officials make decisions that are based on an understanding of their environmental consequences. 40 C.F.R. § 1500.1(c). The court finds that, in this particular context, NEPA simply requires consideration by the Forest Service of the environmental impacts in determining what is reasonable access across National Forest lands pursuant to ANILCA. See 42 U.S.C. § 4332(1) (the policies, regulations, and public laws of the United States shall be administered in accordance with the policies set forth in NEPA); 6 Fed. Reg. 27410 (June 14, 1991) (it is not necessary that Forest Service regulations implementing ANILCA require compliance with NEPA because compliance with NEPA is required for all Forest Service land management actions as set forth in 36 C.F.R. Part 219). The court therefore concludes that ANILCA’s requirement that the Forest Service grant reasonable access across Forest Service lands to inholders does not preclude compliance with the requirements of NEPA as set forth above.

        Speaking of whether the FS should have bailed instead of litigating the Wolf Creek Village case . . . the same question came up in the 1993 Alpine Lakes Protection Society case. DOJ told the FS that it wouldn’t defend the agency in court (DOJ can do that!) because its position was legally indefensible. The FS, being stubborn, didn’t heed DOJ’s advice and turned to one of its OGC lawyers who, while lacking any actual litigation experience, didn’t lack for enthusiasm to test some of his novel NEPA theories. After the FS lost on all counts in the district court, it wanted to appeal to the 9th circuit. That, however, is a decision that DOJ, not the agency, controls. DOJ said “Hell, no.”

  3. Thanks for providing the opinion and some background, Andy. To directly respond to Sharon’s question about “scientifically based analysis,” that wasn’t really an issue in the case. (It was only mentioned in that closing summary sentence.)

    It was all about the legal argument that the Forest Service didn’t have to take a hard look at the effects of the development (it apparently did take a “limited” look). This court actually dealt with the ANILCA issue in a different way than the Alpine Lakes case. It basically said that ANILCA doesn’t apply to land exchanges as a means of providing access. Those have a different set of requirements, including consideration of restrictions on the federal land conveyed (which led to a scenic easement on the prior parcel conveyed). So those requirements should have led to evaluating the effects of the development and considering alternatives that would have restricted the development to reduce the effects. The court did acknowledge that ANILCA also left the agency some discretion to determine conditions for allowing access, which also would have triggered NEPA.

    Given the history and context, it’s not hard to imagine the politicians (at the request of the developer) looking over the shoulder of the Forest Service, and reminding them that they have no control over the development. The desire to cut corners this way shows up especially well in the ESA section, where it was evident that staff from the FS and FWS were uncomfortable with the shell game they were being asked to play to avoid anyone being responsible for the effects of the development on lynx.

    (I thought the point about responding to public comments was a little strange, too. When the NEPA process is done by agency employees, aren’t they usually the ones who review the public comments, so could be considered biased as well? But that was also just in the summary, so probably not important.)

  4. OK so I read the judge’s opinion.. and I have a couple of phone calls in to get the USG lawyers’ side..
    Here seem to be the facts to me..
    In 1986 there was a land exchange with the idea that some housing around the ski area would be a good thing. But for some reason there was no access to this land (!!!!).
    In 2000’s LMJV tried to get access via an ANILCA access decision and EIS. That was thrown out by the courts so they decided to try a land exchange, which was also thrown out by the courts.
    Given that the 1986 exchange was a bad idea, the question is whether or how much the owner can develop their land. given that there was no access provided and any way of having access requires a federal action which is subject to litigation.
    A reasonable person might think that somewhere in there is a solution (of some development) that wouldn’t require years of federal employees reviewing NEPA documents and NEPA contracts and US attorneys defending them. Or maybe some rich environmental person could buy the property and not develop it?
    Otherwise, it seems like the judge is proposing the solution to be analysis of some proponent developed alternatives with ESA consultation on each one?

    • I’m not sure the Forest Service has to know exactly what development is being proposed in order to impose restrictions on the resulting outcomes it is willing to accept. (The desired outcomes should start, and maybe end, with what the forest plan says.) Since the proposal is conveyance without restrictions, which would potentially allow unlimited development, the safest NEPA course would probably be to assume the “worst case” environmental scenario for its effects, and then consider an alternative that mitigates them. (Whatever process led them to impose the first scenic easement might make a good model to start with.)

      ESA consultation rarely occurs on anything other than the selected alternative. (Which also raises interesting NEPA issues.)

  5. Well, I have not heard back on my question “if I wanted to learn what the US Government arguments are, what document could I go to? where would the public find that?” from the folks I asked at OGC. So.. unless I hear differently, it sounds like if we want to understand we have to figure it out for ourselves.

    Note: seems like it’s really difficult for the FS to tell their side of the story… if before the resolution of the case, they can’t talk about it because it’s in litigation (the cone of silence). If it’s afterward, it seems like “water under the bridge” and only a few of us care. Public affairs might not be into the legal details, and I’m not sure that OGC and DOJ even have public affairs. This may work out if you have an industry that wants to tell their side of the story, but not so much otherwise. This might be a good project for law school interns or retiree volunteers.

    • Not sure what you are looking for, Sharon. The “US Government arguments” in the lawsuit would be in their briefs (which are public information), but hopefully also summarized in the court’s opinion. The reasons for their decision should have been in the Record of Decision. If you are looking for something more “behind the scenes,” that’s never easy to get. Especially when somebody apparently screwed up. I’d be interested in knowing whether OGC made the wrong legal assessment as the project was proceeding (assuming they were consulted, which seems likely here), or if the Forest Service ignored their legal advice (I would expect that the developer’s attorneys had some input as well). I also don’t think we should assume the project is dead either, so it may still be “before the resolution of the case.”

  6. Pingback: September litigation monthy – A New Century of Forest Planning

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