Friends of Wolf Creek Successfully
Challenging
Massive "Village" Proposed at Wolf
Creek Ski Area
|
Texas billionaire developer "Red" McCombs
seeks to construct a city of up to 10,000 people just below the
Continental Divide at Wolf Creek
Ski Area, one of the snowiest spots in Colorado. The “Village” at Wolf Creek would
destroy
lush meadows, alpine creeks, unspoiled backcountry recreation
opportunities, and
one
of the most critical wildlife corridors in the Southern Rocky
Mountains, harm
already established businesses that service Wolf Creek visitors, and
dramatically increase traffic on a snowy mountain pass. To build
the "Village" though,
McCombs needs Forest Service access approval to the 287.5 acre
inholding – exchanged in 1987
out of
public hands under highly questionable circumstances – across federal
lands, as well as Mineral County approval. Stop the "Pillage" |
 |
Forest Service Suspends “Village” EIS Process
Project on Hold Yet Again
November 21, 2008
Holding true to its promise to the public, the U.S. Forest Service yesterday officially suspended the Village at Wolf Creek Environmental Impact Statement (EIS) process. The agency had not received an updated development plan from the developer Red McCombs, and determined it was appropriate to simply shelve the EIS process rather than hold the public comment period open indefinitely.
Colorado Wild commends the Forest Service for taking this action, which follows its decision on October 7th to grant Colorado Wild’s request for an extension of the public comment period for the “Village.” After we presented information showing that the old development plan was impossible, the Forest Service requested a new development plan from McCombs. After a month and a half, McCombs has failed to supply a new plan.
This is great news for our efforts, having foiled yet another attempt by developers to fast track review of their project. When and if McCombs submits a new application to the Forest Service, the Friends of Wolf Creek is ready to continue our nine year battle to protect the public from the impacts of this proposed development.
Thanks to all of you who continue to support our efforts, attend public meetings, write letters to the newspaper and your elected officials. Together, our efforts continue to produce results.
We look forward to another Village-free winter at Wolf Creek. The forecast looks white for the Thanksgiving holiday. We hope to see you out there!
Forest Service Grants Extension to Public Comment Period
Comment Period Extended Until December 31
UPDATE: The Forest Service granted Colorado Wild’s request for an extension of the public comment period for the “Village” on Tuesday October 7th. The agency has requested a new development plan from McCombs, and will share the new plan with the public once it is received. This is great news for our efforts, but we must continue to get the word out, attend public meetings, write comments, and reach out to our elected officials to get them involved.
Nine months after our successful lawsuit, the US Forest Service and billionaire developer Red McCombs are heading back to the drawing board and starting a new Environmental Impact Statement (EIS) for the so called “Village” at Wolf Creek. The Forest Service has formally begun accepting public comments during this the scoping phase of the EIS, and will now be accepting comments through December 31, 2008.
In order to ensure protection of our public lands and the public process designed to care for them, we must continue to demonstrate the public concern and opposition to this damaging proposal that has stopped the Village from moving forward to date. Please try to attend tonight’s public meeting, write your own letter to the Forest Service, and spread the word amongst your friends and neighbors.
We can stop the Village at Wolf Creek, but only with your help!
Background
In recognition of Wolf Creek’s many values, Colorado Wild’s Friends of Wolf Creek campaign has fought since 1999 to preserve a critical wildlife corridor, threatened species, wetlands, air quality, scenic and recreational resources on the Continental Divide, and the integrity of nearby Wilderness areas in the Southern Rockies from a massive development proposal at Wolf Creek Pass. Squeezed between the South San Juan Wilderness Area – the Southern Rocky Mountains’ wildest – and the Weminuche Wilderness Area – Colorado’s largest – the habitat along Wolf Creek Pass forms the headwaters of both the Rio Grande and San Juan Rivers and serves as a critical ecological and recreational linkage. Yet out-of-state developers with little knowledge of high altitude conditions and values are proposing the “Village” at Wolf Creek, a city of up to 10,000 people at the top of the Pass. This intense development in an otherwise undeveloped area entirely surrounded by National Forest would dramatically impact the entire region.
The current proposal appears poised to repeat the same errors made in years of foiled attempts to circumvent the public process, and millions spent on politically manipulated approvals. The Friends of Wolf Creek have successfully overturned every permit thus far acquired by the developer. This saga to protect one of Colorado’s prized landscapes continues to be made possible thanks to the dedication and generosity of thousands of committed citizens.
Where’s the Beef? Forest Service Asks for Comment on Undisclosed “Village” Proposal
McCombs is seeking expanded access rights across public land for purposes of building is proposed “Village.” The new EIS will allegedly consider the full impacts of the Village to the environment, wildlife, public safety, and surrounding communities. Curiously though, the Forest Service’s Scoping Notice fails to provide any specific information about McCombs’ development proposal. We understand from recent documents recorded in Mineral County that a new plan in the works, but apparently the developer was attempting to withhold this information from the Forest Service and the public.
The developer seems to have rushed the Forest Service into calling for public comments prematurely, without providing any basis on which the public, Forest Service scientists, and other government agencies may evaluate the developer’s plans. On September 24th and again on October 6th we requested an extension of the public comment period until such time as a clear, written proposal is presented by McCombs and the Forest Service officials overseeing the preparation of the EIS. Thankfully, that request was granted on October 7th.
Despite numerous problems with the original land use plan, and recent claims by McCombs new development team that the original 10,000 person Village proposal is off the table, McCombs’ application to the Forest Service for the new EIS relies on the original 2004 development plan found illegal by the Colorado Court of Appeals. It appears as though the developer is keeping their real plans in the dark while asking the Forest Service and the public to again rush forward with an EIS process for access without knowing even the most basic details regarding the size, scope, and type of development proposed by McCombs.
1. TAKE ACTION: Write a Letter Expressing Your Concerns about the “Village”
Written comments are due to the Forest Service by December 31, 2008. Send your letter to:
Wolf Creek Access EIS,
C/O Content Analysis Group,
1584 South 500 West, Suite 202,
Woods Cross, UT, 84010,
E-mail: wolfcreek@contentanalysisgroup.com,
Fax: 801-397-5628
Consider making some or all of the following points in your letter:
- Describe you use of the Wolf Creek Pass area and your relationship to the region and its resources.
- Describe how the development of a city of up to 10,000 people at Wolf Creek Pass would adversely affect your interests (aesthetic, recreational, economic, health, etc.)
- Ask the Forest Service to consider a full range of alternatives in the EIS including returning the property to the public via a land exchange or buyout.
- Request that the Forest Service determine “reasonable access” based on the carrying capacity of the area (water availability, utility availability, highway safety, wetland avoidance, etc.) and not simply on McCombs’ illegal development proposal. At a minimum, the Forest Service should consider a reduced-scale development alternative in the EIS based on these resource constraints.
- Request that the Forest Service enforce the scenic easement that the public owns on McCombs’ property which restricts industrial facilities, prevents storage of hazardous materials, and allows the Forest Service to review and approve (or deny) land use proposals for the property.
- Request that the Forest Service complete a thorough analysis of all of the projects’ impacts including, but not limited to water quality, water quantity, wildlife, wetlands, traffic, air quality, socio-economic impacts, public safety, and more!
2. TAKE ACTION: Write a Letter to the Editor
We need to continue to spread the word about the “Pillage” at Wolf Creek, and expand our network of concerned activists. Consider writing a Letter to the Editor (usually under 300 words), or call your local paper and ask if you can submit a full editorial (usually around 700 words). Either is a great way to reach out to the public and share your concerns. Feel free to contact us at Colorado Wild if you want any help with your letter.
3. TAKE ACTION: Contact Your Elected Officials
Friends of Wolf Creek have had outstanding support from elected officials at the local, state and federal level. As the Forest Service initiates a new EIS process, it is critical that we re-engage our elected officials, and ask for their help. Beginning with Colorado’s Congressional Delegation, we encourage you to contact:
- Representative John Salazar: (970) 259-1012, e-mail
- Senator Ken Salazar: (303) 455-7600 or e-mail
- Representative Mark Udall (candidate for Senate): (303) 650-7820 or e-mail
Ask each for their continued leadership on this issue. Specifically, request that they:
- Request that the Forest Service conduct public hearings, not just open houses, to solicit public comments on the new development plan once it is released.
- Request that the Forest Service consider a full range of alternatives in the EIS including return of the property to public ownership.
Please also contact your local and state elected officials. You can find their contact information here.
Friends of Wolf Creek Archives
Friends of Wolf Creek Win Reconsideration of the “Village” at Wolf Creek
Lawsuit Challenges Forest Service Decision, Ongoing Improprieties | At it Again? Developer Asks DC Bureaucrats to Intervene on His Behalf
Citizens Appeal Forest Service Decision | Forest Services Releases Access Decision
Mineral County Conceals Collusion with Wolf Creek
Developer | Developer & Mineral County Protest Judge's
Ruling
Congressman
Salazar Joins the Opposition |
A
Massive Development with Major,
Irreversible
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Read Our Analysis of McCombs' Influence throughout the "Village" approval process
Friends of Wolf Creek Win Reconsideration of the “Village” at Wolf Creek
The Friends of Wolf Creek celebrated a monumental victory on February 19, 2008. Culminating 16 months of legal wrangling, the U.S. Forest Service and developer Red McCombs agreed to go back to the drawing board and complete a fair and unbiased Environmental Impact Statement for the controversial development proposed at the top of Wolf Creek Pass.
This settlement is a tremendous victory for the environment and the citizens of Colorado and the Nation. After nine years of false starts, behind-closed-door dealings and tainted analysis, the public will finally get a fair review of the Village’s thus far unregulated impacts.
The settlement comes after US District Court Judge John Kane issued a Preliminary Injunction on October 4, 2007, stopping the project from moving forward. Rather than wait for a final ruling from Judge Kane, the Forest Service and developers agreed to fulfill plaintiff’s demands, and complete an entirely new EIS.
This agreement gives us everything we asked for in our lawsuit. Beginning in 1999, we argued the Forest Service was required to conduct a complete and unbiased analysis of the development’s environmental impacts. This lawsuit, and the resulting settlement agreement, put a stop to the attempted end run around such analysis, and makes clear to the Forest Service and the developers that whatever is proposed for this site in the future will have to be done with full public disclosure and adherence to the highest environmental protection standards."
If McCombs decides to move forward with this project at all, we’re hopeful that the Forest Service and other regulatory agencies will now fulfill their legal responsibility to protect the public and our resources from damage.
It is unknown at this point what form the Village at Wolf Creek will take when McCombs re-applies for permission to build roads through public forest land to access his proposed development site, or what timeline any new proposal would proceed on, but what is now clear is that as a result of this settlement agreement, the public will have a true picture of the environmental impacts of such a development and an opportunity to be involved in the new decision making process.
Judge Halts Proposed “Village” at Wolf Creek
No Construction to Occur Before Public’s Concerns Heard
Another Huge victory for the Friends of Wolf Creek!
On Thursday Oct 4th, US District Court Judge John Kane halted billionaire developer Red McCombs’ plans to begin road construction to his controversial year-round resort development. Following Magistrate Judge David West’s June 6th recommendations, Judge Kane’s order identifies numerous potential flaws and logical inconsistencies in the US Forest Service’s decision to authorize the building of roads through the national forest, and shed light on developer McCombs’ influence over the Forest Service’s approval process. After thoughtful deliberation, the Judge extended the Preliminary Injunction (PI) that has prevented, since last fall, any road construction or other Village related activity until the Court has had an opportunity to issue a final decision on our legal claims.
The lawsuit challenges the US Forest Service’s decision to authorize construction of two access roads across public lands for the purpose of building the proposed 10,000 person “Village” without analyzing the environmental impacts of the proposed development.
Judge Kane’s Order clears the way for the public’s concerns to be heard by the Court before any construction begins. Although it has been a long road to get here, the Court’s impartial review is a breath of fresh air after the Forest Service’s tainted analysis and decision.
The Judges Order recognizes the public’s interest in this development:
“The thousands of public comments submitted on the draft EIS, the majority of which reportedly opposed [Leavell-McCombs Joint Venture] access request and development plans, also demonstrate the public interest in maintaining the status quo by not allowing the Forest Service and [Leavell-McCombs Joint Venture] to begin implementation of the [decision] until this challenge to the Forest Service’s decision is fully resolved.”
The Court’s Order also speaks directly to the problems with the whole Village process. The assumptions that guided the development of the EIS just don’t hold water. For example, as Judge Kane writes:
"I am also at a loss to understand how (Leavell-McCombs) could represent to the Forest Service during the EIS process that it could and would construct the Village utilizing only FSR 391 and now contend that it cannot even conduct preliminary survey, baseline engineering and design work for the Village unless it has vehicular access to the property via an extended Tranquility Road."
Now that the Court has seen our arguments, it has ordered a halt to all activity on the proposed Village until a final decision is issued in the case. We expect the case to continue through the upcoming winter before a final decision is reached.
Thanks to all of you for making these efforts possible. Not only have we reserved another Village-free winter at Wolf Creek, but we are now well positioned to force a fresh look at the Village and its thus far unregulated impacts. Yesterday’s ruling takes us one huge step closer to preserving a Wild Wolf Creek Pass.
Colorado Court of Appeals Rejects Appeal by Wolf Creek Developers
In another key strategic victory for the Friends of Wolf Creek, on September 20th, the Colorado Court of Appeals upheld the decision by District Court Judge O. John Kuenhold, overturning the plat approval by the Mineral County Commissioners for the proposed Village at Wolf Creek. Colorado Wild and the San Luis Valley Ecosystem Council, along with the privately-owned Wolf Creek Ski Area, had originally brought the lawsuit over the development approval in late 2004.
In rejecting the developer’s appeal of that lower-court decision, the Court called the developer’s legal argument that it need not demonstrate proper vehicle access to its land “absurd and unreasonable.” The Court further stated that the Mineral County Board of Commissioners “abused its discretion in granting final approval, because the record contains no evidence of year-around access to the state highway system at the time of final approval.”
The Court applied a solid legal analysis in affirming the lower court. You simply cannot approve such a massive development without having done your homework. In this case, that means having a viable access route up front.
We are relieved by the Court’s ruling. Watching this massive development get rushed through the planning commission in Mineral County back in 2004, and giving very little time for the public or decision makers to actually absorb the magnitude of this proposal, was alarming. Fortunately, the Courts have held them accountable to the law. Now, if the developer wants to revive this project, they will need to demonstrate access and go back through the County process the right way.
But demonstrating access is no simple matter. The developer has been playing a shell game with federal and state agencies, working to play one regulatory approval off of another to fast track the process.
Despite having been ruled illegal by Judge Kuenhold in October of 2005 (and now found illegal again), the US Forest Service relied on Mineral County’s approval of the Village development plan when it granted access last year. As with the Colorado Court of Appeals, we are hopeful that the Federal District Court will also see through the developer’s scheme to rush approval of this project by making similarly absurd and unreasonable claims that the Village could be built without new access roads. Those claims became the foundation of the Forest Service EIS, and the agency’s excuse for ignoring the project’s impacts.
The separate lawsuit filed by Colorado Wild and the San Luis Valley Ecosystem Council challenging the Forest Service’s April 2006 access approval remains in front of US District Court Judge John Kane in Denver. We do not expect resolution of that case until some time this winter at the earliest.
Court Recommends Extending Wolf Creek Injunction:
Continuing Evidence of Developer Influence Surrounds Case
On June 6th, US District Court Magistrate Judge David West issued a recommendation to extend the Preliminary Injunction (PI) that has held the proposed “Village” at Wolf Creek at a standstill since last fall. The earlier injunction, which the Court entered November 20, 2006, was set to expire on June 15th. Specifically, the Magistrate Judge recommended that Senior U.S. District Court Judge John Kane continue the PI until a final decision can be reached on the lawsuit (which could occur sometime in late 2007).
The Magistrate Judge’s recommendations identify a number of potential flaws with the Forest Service’s access decision that warrant careful consideration by the Court before allowing any ground disturbing activities to proceed.
We are grateful that the Court has taken the time to review our concerns and consider what is at stake. The Judge’s recommendations are both thoughtful and thorough. Even after our years of work on this issue, the closer one looks at the Forest Service’s Environmental Impact Statement and the circumstances surrounding its development, the more alarming this whole matter becomes.
The Forest Service claims it made an informed decision, but seems to have no idea what was going on behind its back.
The Judge’s recommendations describe an agreement where “Tetra Tech was to serve under the direct supervision of the U.S.F.S. to prepare an environmental analysis for the U.S.F.S.” and which barred most communications between the Developer and the government contractor developing the EIS--Tetra Tech. During litigation, thousands of pages of communications have emerged that show Tetra Tech Director Dr. Mark Blauer and Developer Bob Honts in regular communications about how to get the Forest Service to “see the light” and ignore the impacts of the Village in the EIS. Eventually, the Forest Service gave up on its earlier commitments and caved in to the pressure from the developer.
Dr. Blauer and Bob Honts even discussed the developer getting tickets to NFL Football games for those on Tetra Tech staff that put their “heart and soul” into the EIS.
After a 10 day objection period, Judge Kane will issue and order based on Magistrate Judge West’s recommendations.
Obviously, this is a huge victory for the public. We are hopeful that Judge Kane will adopt Magistrate Judge West’s recommendations, and ensure that no construction occurs on the Village until a final decision is reached in this case.
Court Suspends “Village” Construction
The PI is a huge victory for our efforts, ensuring that the Village is essentially held at a standstill until our concerns are heard by the court. As a result, we’ll all enjoy another winter at Wolf Creek without any Village activities.
Specifically, the agreement bars road construction, application for highway access permits from CDOT, or any other ground disturbing activities. The Forest Service had refused to delay road construction for even a few days, so we were forced to seek the court's intervention. Thankfully, you and I can now rest assured that the developer and the Forest Service can't continue to rush this project forward.
Once the court takes a close look at the Forest Service's flawed decision, we believe that the agency will have to go back and consider all of the impacts associated with its decision to allow access from US Highway 160 to the proposed Village site, not just those arising from the footprint of the access roads themselves.
As 2006 draws to a close, McCombs still needs permits from CDOT, the Army Corps of Engineers, the Colorado Department of Public Health & Environment, Mineral County, and others before he can legally begin construction of the Village. Ongoing FOWC efforts will scrutinize and, if necessary, challenge every one of these processes to ensure that the project remains at a standstill until all of the government agencies involved take a hard look at the project and its thus far unregulated impacts.
Lawsuit Challenges Forest Service Decision, Ongoing Improprieties
FOWC groups filed a lawsuit in federal court Thursday October 20th challenging the Forest Service’s April 3rd Environmental Impact Statement and Record of Decision authorizing two separate roads across public land to access the proposed “Village” at Wolf Creek. The lawsuit filed by Colorado Wild and the San Luis Valley Ecosystem Council also challenges recent Forest Service actions modifying their earlier decision to make it easier for the developer to begin construction.
The public has been waiting 20 years for the Forest Service to fulfill its lawful responsibility to analyze and disclose the impacts of this project on water, wildlife, traffic, and local businesses. Unfortunately, we had to bring this matter to court to force the agency to live up to its obligations to the public.
The lawsuit alleges that the Forest Service violated the National Environmental Policy Act and other federal laws when it opted to ignore the impacts of the proposed Village and other forthcoming federal decisions in its April approval of two access roads. Blindly focusing on only the roads themselves, the Forest Service’s EIS adopted the developer’s legalese as its own, ignoring thousands of comments from citizens and government agencies alike who demanded that the agency take a hard look at the broad implications of its decision.
Nonetheless, the Forest Service decision apparently failed to satisfy the developer’s every desire. In July, the developer’s lobbyist in DC hand delivered a “discretionary review” request to his former timber industry colleague Mark Rey, now Undersecretary of the US Department of Agriculture overseeing the Forest Service. Despite the agency’s August 3rd acknowledgement that there is no legal authority for the agency to conduct a discretionary review, Rio Grande National Forest Supervisor Peter Clark nonetheless signed a letter just weeks later that illegally modified the Record of Decision (“ROD”) by eliminating the requirement that the developer “construct, use, and maintain” both roads simultaneously in order to provide “sufficient emergency access.”
USDA officials apparently have a short memory, as documents show USDA officials and lawyers drafted Peter Clark’s letter less than three weeks after they determined that they had no authority to do so. The earliest versions of the letter may have been ghost drafted by the developer’s lobbyist himself, but the Forest Service has refused to make public documents that fill in the gaps.
The lawsuit filed Thursday also directly challenged Peter Clark’s August 28th letter, its legal basis, and the agency’s failure to involve the public in this new decision.
It is alarming that the public’s nearly 3,000 comments seem to have fallen on deaf ears, yet when the developer asks for a favor, federal officials go out of their way to respond. The courts are unfortunately the only venue where the public seems to get a fair hearing on this matter.
Prepared by the Western Environmental Law Center, the lawsuit aims to force the Forest Service to go back to the drawing board and conduct a through and legally sufficient analysis. We sincerely hope that the Forest Service will immediately cease implementation of their decision until the Court reviews this matter. If they refuse, we’ll be forced to ask the Court to stop the agency from moving forward.
At it Again? Developer Asks DC Bureaucrats to Intervene on His Behalf
Not content with the Forest Service's access decision that granted Mr. McCombs not just one, but two access roads to build the "Village" at Wolf Creek, the developer petitioned for “discretionary review” of the Forest Service’s April 3, 2006 Record of Decision by the US Department of Agriculture (USDA).
In Leavell-McCombs Joint Venture's August 15th court motion in their ongoing lawsuit with the Wolf Creek Ski Area, they note:
“The Joint Venture has filed a request for a discretionary review of the Final Decision with the Secretary of Agriculture urging that only one road, the Tranquility Road, is necessary for the Village and that the second access road, the Snow Shed Road, constitutes an unnecessary environmental impact on Forest Service lands. That appeal is pending and the outcome is uncertain.”
On August 28th, Colorado Wild sent a letter to the USDA raising concerns about the petition's lawfulness and the developer’s continued attempts to circumvent public process. Early reports in the Denver Post suggest we may have nipped this in the bud, as USDA spokespersons have confirmed that McCombs’ request is “not going to happen.”
The complexities and expense of the two access road alternative should provide sufficient time for Colorado Wild and the Friends of Wolf Creek to mount a legal challenge to the flawed Forest Service FEIS, ensuring that the public is finally informed of, and protected from the unabated impacts of the proposed development.
Forest Service Denies Citizens Appeal
On Tuesday, May 30th, Colorado Wild and two other organizations representing thousands of citizens throughout Colorado and the nation challenged the Forest Service’s April 3rd approval of two access roads for Texas Developer Red McCombs to build his “Village” at Wolf Creek Ski Area. Our Administrative Appeal alleged that the agency made major errors in the scope and substance of its analysis, and failed to live up to its responsibilities to the public.
Toeing the line, on July 13th, the Regional Office of the Forest Service denied our appeal and upheld the decision to authorize two separate access roads across public land for purposes of building Red McCombs' "Village" at Wolf Creek. In denying the administrative appeals brought by various entities including Colorado Wild, the San Luis Valley Ecosystem Council, San Juan Citizens Alliance and even the developer, the Forest Service decision is now final, and susceptible to legal challenge.
The Appeal also alleged that the developer improperly influenced the Forest Service decision-making process, and compromised the integrity of the analysis. These allegations are also currently being reviewed by the USDA Inspector General, who was asked by Colorado Wild and Senator Ken Salazar to investigate the developer’s political influence on the process.
Unfortunately, the Forest Service continues to ignore major problems raised by the public as well as other State and Federal agencies. Shirking its lawful responsibilities, the Forest Service adopted the developer’s legal argument as their own thinly veiled justification for the project after generous lobbying and influence from the developer.
Although the appeal denial is a setback, it also poses and opportunity. The public has been waiting for 20 years for their government to take a hard look at the threat posed by the Village to their water, wildlife, local economies, and way of life. Freed from the tainted administrative process of the Forest Service, the Friends of Wolf Creek look forward to the court taking a fresh look at the evidence.
Meanwhile, several other hurdles still stand before the developer, including obtaining a permit from CDOT, as well as returning to Mineral County for development approval. Together, it remains highly unlikely that the developer will have any opportunity to begin construction before the public gets a fair hearing on this matter in court.
The Forest Service released its Final Environmental Impact Statement (FEIS) and Access Decision April 3rd, granting the developer two access points across Forest Service Land . The decision is a slap in the face to the public, who spoke out with near unanimity in opposition to the agency granting access. Follow this link to the Forest Service webpage to download the FEIS.
The Friends of Wolf Creek oppose the access decision. Based on our preliminary legal review, we are now compelled to file an administrative appeal and may eventually be forced litigate the decision. Although the decision is clearly a setback for anyone who cares about Wolf Creek , the resources that the area supports, and the communities that depend upon them, it also opens the door for us to formally challenge the Forest Service approval process.
The Forest Service decision to grant not one, but two accesses to McCombs is only as valid as the process that created it. As retired Forest Service employee Ed Ryberg just exclaimed in an April 6th article in the Denver Post, "The no-action alternative is bogus. If you have a bogus no-action alternative as the basis for the whole EIS, then all of the analysis is bogus."
Colorado Wild has spent the last several months compiling evidence demonstrating that the entire EIS process and therefore the final decision are fundamentally flawed, and biased towards the developer’s interests. Ryberg's statements confirm the allegations made in Colorado Wild's White Paper. Ignoring the impacts of the proposed “village,” the Forest Service chose to only study the impacts of the access road. In so doing we believe that the Forest Service has abdicated its responsibility to analyze the impacts of its actions on the public and our natural resources.
Under closer scrutiny, we are confident that the agency’s final decision will fall short of the requirements of the law. It is unfortunate that we had to wait for the Forest Service to issue its decision before the public can get a fair hearing on the matter, but that door is now open.
Our concerns about the Forest Service decision are not unique. Congressman John Salazar stated yesterday, "I am extremely disappointed that the Forest Service chose not to analyze the full impact the Village of Wolf Creek development will have on our watersheds and wetlands, but instead chose to focus solely on the access issue. This is more than a matter of road access - this is a matter of the well being of our communities."
Fortunately, the Forest Service decision is only one of a number of hurdles that stand in the developer’s path. The Colorado Department of Transportation, Army Corps of Engineers, and Mineral County must all approve aspects of the development before it can move forward. Our effort to stop the Pillage at Wolf Creek has only just begun!
The County's failure to include these damaging documents as part of the record of Colorado Wild’s case challenging the lack of meaningful public participation in Mineral County’s approval of the Village at Wolf Creek is highly suspect. Further, these documents appear to have been concealed or withheld from Colorado Wild despite the fact that they were expressly requested under CORA in September of 2004. Mineral County has likely violated state law and their ethical responsibilities. While it is disturbing to see that the developer was essentially authoring the County’s policies, it is even more outrageous that Mineral County appears to have deliberately concealed this information from the public.
Meanwhile, the Forest Service is continuing to evade its responsibility to provide information to the public under the Freedom of Information Act (FOIA), despite a January 17th Federal District Court ruling that ordered the agency to provide an index of communications between the developer and the Forest Service. As a result, Colorado Wild’s ongoing lawsuit against the Forest Service under FOIA remains unresolved, and we will likely be forced to again go back to Court.
With mounting evidence of collusion between the developer and government agencies emerging, the Federal government has become much more aggressive in attempting to conceal its actions from the public. Colorado Wild believes that the Village at Wolf Creek should not be allowed to move forward until a full investigation into improper political influence and government cover-up has been conducted. Fortunately, we are getting support on this matter from Colorado State Representative Mark Larson.
Larson believes evidence of undue influence and pressure being brought to bear by the developer on the U.S. Forest Service should mobilize Colorado’s Congressional delegation. “Based on what we’ve seen so far, a Congressional investigation is not only warranted, but needs to happen before the Forest Service issues its Final Environmental Impact Statement for the Village at Wolf Creek.” said Larson. At the state level, an investigation by Colorado Attorney General’s Office is also now necessary. ”This has gone on long enough.” stated Larson. “We believe it’s time for the Colorado Attorney General’s office to take a hard look at the legal and ethical issues raised by the developer’s behind-closed-door actions and influence. This needs to happen before the Colorado Department of Transportation (CDOT) issues any permit to the developer for access.”
Download the Legal Ruling | Download the Complaint
In a major victory for Friends of
Wolf Creek, State District Court Judge John Kuenhold on Oct. 13 2005
threw
out Mineral County’s approval of the massive
Village at Wolf Creek development. Kuenhold ruled
that Mineral County’s “decision
to abandon a requirement for meaningful year-round access was arbitrary
and capricious”, and that they “misconstrued the state statute and the
Mineral County Subdivision Regulations”. The judge also
critically questioned Mineral County’s lack of public involvement,
hurried process, and inattention to vital details. The ruling requires that the
developer not only gain Forest Service approval for full year-round
access, but obtain an access permit from the Colorado Department of
Transportation – an agency that has thus far objected to the project’s
major impacts to highway traffic and safety, not to mention the
developer’s refusal to pay the cost of road upgrades.Despite the developer’s claims in the media, rejection of Mineral County’s approval is no mere “speed bump”. Why else would they ask the judge for reconsideration of his decision? It will be a long, arduous, and very uncertain process for the developer to gain all of the approvals necessary for this massive development. Even with numerous impacts on local communities, traffic, wildlife, air quality, water quality, water supply, valley agriculture, and recreation likely, the developer wants the public to pay for highway upgrades needed to accommodate huge projected increases in traffic.
Unfortunately, at the direction of County attorney John Wilder, Mineral County continues to do the developers’ bidding. They too filed a motion for reconsideration, and even voted to appeal the judge’s decision should the motion for reconsideration fail, assumedly at the expense of their own taxpayers. Unfortunately, Friends of Wolf Creek knows nothing of their deliberations, as they undertook all such discussion behind closed doors in executive session (barring the public).
In a Nov. 23 statement, Congressman John Salazar stated that a project the size and scope of the Village at Wolf Creek “cannot continue”. Salazar stated that "At the end of the day, I just don't see how a project of this scope and size can continue. I've taken the time to meet with the involved parties, ask questions, and gather information about the proposed development… the development brings the threat of dangerous roads, contaminated water, and harm to the very wildlife and landscape that makes this area so unique. I will not support a project that hurts the community I represent."
Earlier this fall, Mr. Salazar met with the Forest Service and asked for a written response to numerous questions. Driven by major political pressure, the Forest Service continues to rationalize that it must grant access to billionaire developer Red McCombs, and his front-man Bob Honts, despite clear legal ability to enforce conditions of the 1986 land exchange that simply disallow the development as currently proposed.
Eyes now turn to the Forest Service’s forthcoming decision and Final EIS on if, and under what conditions, they should grant access to the 287.5 acre in-holding traded out of public hands in 1986 under highly questionable circumstance. That land exchange included a contract between the developer, Forest Service, and ski area - now termed the "Scenic Easement" - that bans hazardous products storage, industrial facilities, airports, and other facilities, yet the current development proposal includes many of those components.
Thousands of comment letters to the agency opposed to any grant of access, a 58-page legal critique from Colorado Wild, and major concerns expressed by the EPA, Colorado Department of Transportation, Federal Highway Administration, and other agencies and legislators appear to have delayed the EIS and the year-round access it is destined to approve. Based on partial FOIA responses, Friends of Wolf Creek continues to find evidence that the Forest Service is under tremendous political pressure to grant access despite this overwhelming public opposition.
In a related development, the United States Fish and Wildlife Service on Oct. 5 2005 published a Draft Biological Opinion (BO), suggesting that even though the development may be responsible for the death of almost ¼ of the lynx in Colorado, they wouldn’t grant a “jeopardy” decision, the harshest rebuke possible. Rather, the Service stated the development would be “likely to adversely affect” lynx, and required that an expert panel be convened at the developer’s expense to determine what mitigation measures would be required, such as Highway 160 under- or over-passes for wildlife. The failure of the Service to make a jeopardy decision is not unexpected. Without a recovery plan, designated critical habitat, or any Forest Service commitment to protect lynx habitat, government agencies will continue to approve projects like this that dramatically harm the ability for species like lynx to survive.
Forced to sue in June 2005 to acquire documents that should have been available to the public all along, Colorado Wild uncovered collusion between the developer and the Forest Service. The lawsuit seeks to end Forest Service stonewalling and force the agency to disclose critical public records as required by law. Partial document releases in Sept 2005 under court order revealed that McCombs’ high powered Washington D.C. attorneys and lobbyists ghost wrote federal policy providing access across National Forest lands for the proposed Village, notably a March 11 2004 grant of access also the subject of litigation. Through June 12 2003, numerous emails and facsimiles – many of which the Forest Service continues to withhold the content of – show additional collusion. On June 14 2004, Village developers submitted an application for final approval to Mineral County, a key component of which was that March 11 2004 letter from the Forest Service establishing the developer’s limited, seasonal use access.
The Forest Service agreed to release all documents and provide a list of withheld documents by Oct. 7 2005. Once Colorado Wild publicized those political favors in a Sept. 14 2005 press release though, the doors shut once again. Colorado Wild agreed to grant the Forest Service an extension to Nov. 11 2005 to release all the documents and certify the search as complete (i.e. state under oath that all documents - including communcations between the developer and government officials - have been handed over), but only with the condition that the EIS and final access decision not be published until Nov. 28 2005. Despite the agreement, as of Nov. 25 2005, the Forest Service had still failed to adhere to the court’s order, forcing the organization to ask the court to rule the agency in contempt. Friends of Wolf Creek anticipates that these additional documents will reveal yet more collusion between the Forest Service and the developer.
Friends of Wolf Creek has been receiving conflicting statements from the agency that the EIS would indeed be released the week of Nov. 28, or be delayed into January. Thus Colorado Wild also filed an emergency motion on Nov. 23 asking the court to enjoin the agency from releasing the Final EIS and road access decision until it fully complies with open government requirements under the Freedom of Information Act.
Colorado Wild was also forced to sue the Forest Service for granting temporary access to the inholding in the spring of 2005 without any public notification or process. This lawsuit sought to enjoin the Forest Service from illegally granting any further access to the developer – as it did on April 28 2005 – without full public involvement. Even though agency’s own Draft EIS even concluded that springtime access would result in major water quality impacts, the Forest Service granted the access without any impacts analysis. The Forest Service went so far as to cite regulations that no longer exist to rationalize this approval.
Colorado Wild has thus far held at bay a Forest Service motion for dismissal and secured the right to conduct discovery (i.e. obtain documents and question agency officials under oath) regarding the grant of access. Colorado Wild will be seeking to depose Forest Service officials and/or the developers (i.e. require them to answer questions about the legality of the access process), yet this will be costly. Magistrate Judge Dave West granted Colorado Wild until January 15 to complete this process, under which Friends of Wolf Creek hopes to further expose any illegalities. The government, not surprisingly though, has already appealed the Magistrate’s decision, which Colorado Wild is currently fighting.
Colorado Wild filed a similar access permit lawsuit in October 2004. The organization voluntarily dropped that lawsuit based on promises from the Department of Justice and Forest Service in both October 2004 - and way back in 1999 - that no access would be granted until after completion of the EIS. On August 31,1999, the Forest Service signed an agreement in exchange for Colorado Wild dropping its appeal of a new lift and parking lot at the ski area. Yet in the March 11 2004 letter to the Village at Wolf Creek developer, the Forest Service violated that agreement, prompting Colorado Wild's Oct. 2004 lawsuit against the Rio Grande National Forest for breach of contract. On Oct. 21 2004, the Forest Service declared that the March 11 letter did not "grant any right of access on FSR 391 to any party", undermining the developers contention that they had access sufficient for development. Subsequently, Colorado Wild voluntarily withdrew its Oct. 8 2004 lawsuit, but had to reinitiate a similar complaint given the most recent April 28 2005 grant of access.
In 1999, Wolf Creek Ski Area proposed the Alberta lift, the bottom of which terminated on the now private land. Suspecting a real estate development scheme, Colorado Wild appealed the Forest Service approval of both the lift and a parking lot expansion that originally extended to the private land. Subsequently, the Forest Service agreed to withdraw the parking lot back from the private land, promised a comprehensive analysis, and agreed to accept public input on the developments' impacts in an EIS.
For years Friends of Wolf Creek helped foil attempts by the developer to get a rider passed in Congress allowing an end run around the Forest Service's agreement. After years of failed back door efforts though, the developer gave up and initiated the Forest Service EIS process in late 2003.
Posing
Financial Risk to Local
Residents Believing
promises of econonic development and tax windfalls, Mineral County
Commisioners (in Creede) nontheless approved the development in Octover
2004. In so doing, they refused to require an independent fiscal impact
analysis- standard procedure with such developments- to ensure their
own taxpayers would not be harmed. For instance, should the volunteer
property owners association (POA) and the non-profit water company
responsible for the numerous (and expensive) services normally provided
by local governments fail, financial liability would likely fall back
upon Mineral County residents. Meanwhile, Archulets and Rio Grande
Counties would bear the brunt of
the impacts, including affordable housing shortages; costs to taxpayers
for health care, police, and courts; and water quality impacts from
sewage discharges. Subsequently, Colorado Wild and the San Luis Valley
Ecosystem Council sued Mineral County in late 2004 to uphold the public
interest.
Creating Local Traffic and Safety Problems A city larger than Alamosa just below the Continental Divide would cause huge traffic increases. The developers' own studies show that a traffic light would be needed within just two or three years bringing major accident potential when vehicles try to stop on a blind curve in one of the snowiest spots in Colorado (see photo, above). Alternately, a highway cloverleaf or other major exit would be needed, all at over 10,300 feet. The developer is arguing against paying for the necessary road infrastructure leaving the tab for Colorado's taxpayers.
Harming Local Businesses Skiers, employees, and locals love Wolf Creek Ski Area precisely because it is not Aspen or Vail. In 1986 McCombs was a partner in the failed Cuchara Ski Area, outside La Veta, Colorado, which today provides no economic benefit to local communities. Even were the Village successful, it would harm backcountry and downhill skiing at the ski area, and is likely to undermine existing businesses in Pagosa Springs and South Fork that rely on Wolf Creek Ski Area tourists for wintertime income. Wolf Creek Ski Area was even forced to sue to protect its own property rights and help ensure that they can continue operating.
Threatening Critical Wildlife Habitat, Watersheds, and Wetlands Nestled between the South San Juan Wilderness the wildest left in the Southern Rocky Mountains, and the Weminuche Colorado's largest Wilderness, the habitat along Wolf Creek pass serves as a critical wildlife migration corridor. Extensive traffic growth from the development will increase roadkill, reducing the ability of lynx to cross the highway, find mates, and reproduce. Alberta Park Reservoir and its tributaries, all within or adjacent to the property, also provide some of the best habitat for the Rio Grande cutthroat trout petitioned for listing as Federally endangered.
Fostering Water Wars? Studies performed by hydrological and legal firms contracted by the ski area concluded the developer doesn't have sufficient water rights, or actual water at the site, for this massive development. The developer or future owners unaware of the problems they bought into are therefore likely to seek water from the San Luis Valley, prompting competition for water with the Valley's agricultural economy. Up to 93 acres of high-quality wetlands that help purify water and contribute to late season flow of the Rio Grande are likely to be filled, dried up, or otherwise impacted by the development. Spikes in residency during winter and summer are likely to result in sewage discharges, polluting Alberta Lake, Pass Creek, and the Rio Grande downstream. Should the developers' on-site power plant proposal fail, utility and power lines would also be needed, increasing off-site impacts.
Join the growing chorus of businesses, skiers, hikers, anglers, hunters, conservation groups, and others opposed to ill-considered development in the wildlest corner of Colorado. For more information, contact:
| Ryan Bidwell, Colorado Wild 970-385-9833 ryan@coloradowild.org Howard Cox, San Luis Valley Ecosystem Council 719-580-5564 howage@hotmail.com |
*Stay abreast of the latest developments with the Village at Wolf Creek. Learn about other ways to help challenge this ill-conceived project. Join our email alert list: |
© Friends of Wolf Creek, 2008