Thanks to an alert TSW reader who forwarded this link to the Flathead Q&A’s about the Holland Lake Special Use Permit. The process is complicated enough, and specific enough to recreation special uses, that there are plentiful opportunities for misunderstandings. For one thing, the application for a new permit with the new company is still under review and hasn’t been approved.
I think the FAQs clarify what Anonymous said here.
“Those are the terms stated right on the face of the Holland Lake Lodge permit. The Forest Service ignored those terms and let the parties attempt to expand and upgrade by submitting an MDP and telling the public their preliminary decision would be to approve it as a categorical exclusion. The Forest Service accepted that MDP in April, 2022 but didn’t put it out for public comments until September, 2022, long after the permit had
been terminated. ”
It seems that there are three things that could easily be confused.
- The FS reviews a new permit (to a new party) for an existing site.
- The FS accepts an MDP.
- The FS makes a “NEPA decision” to allow a specific kind of expansion or change to the existing site.
So if we go back to Anonymous’s comment.
Those are the terms stated right on the face of the Holland Lake Lodge permit. The Forest Service ignored those terms and let the parties attempt to expand and upgrade by submitting an MDP and telling the public their preliminary decision would be to approve it as a categorical exclusion. The Forest Service accepted that MDP in April, 2022 but didn’t put it out for public comments until September, 2022, long after the permit had been terminated.
Here’s what the FAQ says about accepting an MDP:
A master development plan (MDP) is a conceptual guide encompassing the entire operation presently envisioned for potential long-term development in connection with use authorized by the permit. Upon acceptance by the authorized officer, the master development plan shall become a part of the permit. There is no public process for acceptance of the master development plan because this is a conceptual plan only and does not authorize any action. No proposal for changes to existing authorized use at the resort, including development or construction of improvements, will be authorized without the requisite environmental analysis and documentation needed to support that additional construction or development under the National Environmental Policy Act (NEPA).
Acceptance of the MDP does not constitute approval of its contents or provide any assurance that any item in the MDP will be authorized by the Forest Service or constructed by the holder. No rights or obligations of the holder or the Forest Service are determined by the authorized officer’s acceptance of the original or revised MDP, including the legal requirement to conduct environmental analysis under NEPA. Screening criteria are applied and if accepted as an application, subsequent NEPA analysis will occur when a proposal is brought forward for consideration.
It’s confusing because the “what is to be done” under the MDP may be similar, or identical, to a specific FS proposed action. An MDP is a “might could” in the current regs between the FS and the permit holder. The proposed action is a proposal for something to be done on the ground with environmental impacts, with all the public involvement and analysis requirements that need to be followed.
For those of us more used to the ski industry, an MDP is a strategic document that outlines what might happen and what direction the Permittee wants to go. Here’s an example of some coverage and here is a link to the Breckenridge 2022 MPD.
Here is a link to the Breckenridge 5-Chair Environmental Review, which uses similar language in terms of “it is anticipated but we are looking at scoping comments and further analysis.” Shout out to Dillon Ranger District for their story map.
Based on resource information gathered to date, it is anticipated that the Proposed Action falls within a Forest Service category of actions under 36 Code of Federal Regulations (CFR) § 220.6 that may be excluded from documentation in either an environmental assessment or an environmental impact statement, and that no extraordinary circumstances exist that would preclude its use. Scoping comments along with a complete resource analysis will determine whether this project can be categorically excluded.
The proposed project is consistent with category 36 CFR § 220.6(e)(22): “Construction, reconstruction, decommissioning, or disposal of buildings, infrastructure, or improvements at an existing recreation site, including infrastructure or improvements that are adjacent or connected to an existing recreation site and provide access or utilities for that site.” Activities within this category include but are not limited to “Replacing a chair lift at a ski area.”
Anyway, back to the Flathead FAQ’s.
What is the process if a new expansion proposal is submitted?
The permit holder must submit a proposal from the accepted MDP. The proposal will be reviewed under the screening process criteria (Title 36, Code of Federal Regulations, section 251.54). If formally accepted, the proposal will be processed as an application and analyzed through the NEPA process as a proposed action. If rejected the proposal will be returned to the proponent.
OK, so what about the old permit and the new permit?
What is the Forest Service’s authority when a business changes control or ownership?
While the Forest Service does not regulate or otherwise control privately owned improvements, it authorizes and regulates use of National Forest System lands in accordance with applicable federal laws and regulations.
Any transfer of title to the improvements covered by a Special Use Permit or a change in controlling interest triggers termination of the permit. When private improvements change ownership or a change in the controlling business entity takes place, it is Forest Service policy to issue a new special use authorization to the new owner/controlling business entity. The acquiring party or entity must submit an application for a new permit.
Has the existing permit been terminated due to change in control?
The Forest Service was formally informed of the change of control and an application for a new permit was submitted. Acquisition of a controlling interest in Holland Lake Lodge, INC. triggered termination of the existing permit; however, termination is not effective until/unless a new permit is issued.
So there seems to be a question, brought up by the letter by Save Holland Lake, CBD and AWR as to whether the FS should authorize a new permit. But to me, the permit and specific construction in any proposal are separate.
In their letter, they say they “demanded it comply with mandatory regulations when determining whether to issue Utah ski giant POWDR a new term special use permit to triple the size of the lodge on the pristine mountain lake.” But a permit by itself wouldn’t authorize any of those actions without a further NEPA decision. So I’m still confused about that.
10 thoughts on “Holland Lake: The Forest’s Side of the Story”
Here is my take.
Agree with 1. 2. 3. stated above. That is the order of how it’s supposed to happen. Here’s what happened from 2020-present.
1. December, 2020 and January, 2021. Flathead is notified of the pending sale of the Lodge. Copy of letter of intent dated January, 2021 is given to FNF.
2. October, 2021: New entity emails Flathead to inform that they are now in control of the business entity and the holder of the permit is managing the Lodge as an employee. A lot more happened behind the scenes to show the change in control, but this email should have alerted the Flathead to check into the permit termination clause and get an application for a special use permit from the new entity. (Apparently the Forest Service did not recognize or realize this triggered the termination clause even though it is stated on the face of the permit that change in control terminates the permit and the entity that acquires control must apply for a special use permit.)
2. So, no new permit application had been submitted when in April, 2022 the
3. Flathead accepted an MDP, and in September 2022, a proposal was put out for scoping. Public backlash was strong regarding the preliminary intent to approve the proposal using CE authority, inaccuracies in the proposal, beginning with the amount of acreage, among many, many other things.
4. After the public comment period ended, the public discovered, then pointed out that the permit was actually terminated because of the change in control. (How do you accept an MDP before you approve a new permit? Cart before the horse?) 5. November, 2022 Flathead ceased review of and returned MDP due to inaccuracies and inconsistencies (along with cost share money) and requested legal counsel on the permit termination clause.
So at this point, there is a terminated permit and no MDP or proposal to consider.
6. February, 2023: Flathead received an application for a new permit. No decision has been made on the new permit, but Flathead Supervisor says he can issue a new permit for the existing use if only changing the name on the permit and the applicant can meet financial and technical ability. This is a categorical exclusion.
7. Opponents question use of CE to approve the new permit. Instead, say the new application should be screened in accordance with https://www.ecfr.gov/current/title-36/chapter-II/part-251/subpart-B/section-251.54.
8. If/when a new permit is issued the applicant may submit a new MDP and things can go from there.
As for the link with FAQs. Those answers are very generic and raise more questions. For example what does it mean when a permit is terminated the termination is not effective until/unless a new permit is issued?
A- I am even more confused. it seems sort of chicken and egg-y or maybe pig in a poke-ery.
So a company wants to buy a resort but it wants to update it. It seems like the company would want to know before it buys it, what the FS will permit as changes. But the company has to own it before it can submit the MDP or the FS can initiate a “NEPA” proposal to make the changes. So the FS can issue a permit, but can’t know what they will ultimately allow because they have to work through the NEPA process. But if they can’t issue a permit unless they know what will be allowed, how can the company have standing for the FS to initiate the NEPA proposal? And while everyone is waiting, if the company buys the property and the permit is terminated, then what is something goes wrong with the facility? Can the new owners legally do anything?
It seems to me logical that the new permit would be approved but only with the same conditions as the prior permit, then the MDP submitted, then any proposal carved out of the MDP for a NEPA process. But maybe that’s not the way it works. And if the permit conditions are the same, then using a CE would be appropriate. What am I missing?
This is the order the Flathead uses for Holland Lake Lodge:
1. The FS accepts an MDP.
2. The FS reviews a new permit (to a new party) for an existing site.
3. The FS makes a “NEPA decision” to allow a specific kind of expansion or change to the existing site.
It looks like this process was designed for situations where there are no existing private improvements. Getting a permit without knowing what you’ll be allowed to do is a minor problem in that situation. Where existing improvements are involved, it should probably be incumbent on the private parties to negotiate the terms of their transfer in recognition of the Forest Service process.
I think there may also be a public perception problem resulting from the gap between the time the MDP was accepted, and public notification. “If formally accepted, the proposal will be processed as an application and analyzed through the NEPA process as a proposed action” (Forest Service statement). “The Forest Service accepted that MDP in April, 2022 but didn’t put it out for public comments until September, 2022… ” (what actually happened). Is there public notice of “formal acceptance?”
“when a permit is terminated the termination is not effective until/unless a new permit is issued”
This sounds funny, but it prevents a gap between permits where any existing improvements would technically be “not permitted.”
I live in Montana. This expansion has been a mess from the beginning. Montanans do not trust the Flathead National Forest.and definitely not Powdr. Montana is the last best place for a reason. We will fight corporate greed to keep it that way.
I get that. As an old person, I’ve seen many employees of all responsibilities come and go through time. When you say “Montanans do not trust the Forest”- do you mean “the current set of employees” or “historically” or what exactly?
The current supervisor has been very secretive about Powdr from the beginning. Go to the save holland lake website and you will exactly see what I mean. Montanans feel duped. The public has spoken and most public land owners do not want this. But the underhandedness and secretive behind the scenes meetings and texts. Makes it even worse.
The current supervisor of the Flathead Forest has been secretive about this. Since it began. It is not just some resort wanting to upgrade. This is a Mega resort. I suggest you go to the save holland lake website. Read all that is there and come to your own conclusions. Holland lake is also grizzly bear habitat right next to the Bob Marshal wilderness. Not exactly the place for another Disney Land. Like 99 percent of public comment opposes this. And the public owns the land.
Randy, I totally get the difference. I totally get that you think it’s a bad idea and others do as well. I was just trying to understand the process. From what I can tell, there is (1) buying the resort and (2) getting permission to expand, the latter of which is a public process. Micro or mega scale as far as I can tell, buying the resort – and an MDP- are not public processes. Making changes to the site is a public process, and that’s what the Forest started with the scoping effort.
Only the Forest actually allowed POWDR to start making improvements on the property BEFORE scoping. (See the Amendment for two wells dated 8/22/22.) So that right there is a pretty big problem with the “process”. All while lying to the public about the acreage and control of the business entity and trying to ram everything through with limited public input and a CE. The Forest clearly was attempting to allow POWDR to slide a major expansion through on the previous owner’s permit. So now that they’ve been caught, POWDR should simply be issued a new permit with a CE as if none of these transgressions ever happened?
The public does not trust the current leadership at the Flathead National Forest… with plenty of good reason. Read the FOIA emails. They are enlightening, to say the least.