Texas billionaire and developer Red McCombs has spent more than 30 years attempting to circumvent legitimate public review of his proposed “Village.” His efforts have included attaching riders to unrelated legislation, lobbying for federal staff appointments favorable to his plans, and even writing local land use codes that would guide the development. A 2006 lawsuit lead by Friends of Wolf Creek coalition partner Colorado Wild (now Rocky Mountain Wild), forced the Forest Service to throw out an Environmental Impact Study (EIS) on the development. Senior Federal Judge John Kane found evidence that the EIS process was illegally influenced by the developer, and issued an injunction preventing the Forest Service from using the EIS. The lawsuit was resolved by the Forest Service agreeing to scrap the EIS and promising to prepare a new transparent and unbiased EIS to be conducted before access would be granted to the proposed development. In press reports, Forest Supervisor Dan Dallas refused to acknowledge any problems with the EIS. Shortly thereafter, the Forest Service began preparation of a new EIS.
On November 21, 2014 the Forest Service completed the second EIS and issued its Draft Record of Decision. Forest Supervisor Dan Dallas opted to grant a land exchange that would trade approximately 205 acres of federal land for 177 acres of private land. As part of this exchange the U.S. Government is also paying Texas Billionaire Red McCombs $70,000 as a “cash equalization payment.” This land exchange would connect the private land to U.S. Highway 160, allowing for greater development of the private inholding.
On January 6, 2015, Friends of Wolf Creek filed a 96-page Objection with the Forest Service concerning the proposed land exchange. This Objection addressed the failure to comply with the National Environmental Policy Act by unlawfully narrowing the scope of analysis and failing to adequately analyze many important issues. These issues relate to energy and water use, wildlife impacts, wetlands and drainage concerns, infrastructure development, economic determinations, and other direct and indirect impacts.
On March 23, 2015 the US Forest Service responded to our Objection on the decision to approve the land exchange at Wolf Creek Pass. The Service largely ignored the issues raised in our Objection, but sent the decision back to the Forest Supervisor, Dan Dallas, to explain why he didn’t follow existing Lynx protections in his decision to approve the land exchange.
On May 21, 2015 Forest Supervisor Dan Dallas issued his Final Record of Decision, approving the land exchange that will pave the way for the development. The process for how this decision was made is the subject of two separate Freedom of Information Act (FOIA) requests submitted by Rocky Mountain Wild. The Forest Service has gone to great lengths to conceal communications and documents that were used to justify its decision, forcing us to file suits to obtain the records. Not surprisingly the records we have obtained show a continued pattern of secrecy and conflict of interest that plagued the 2006 EIS.
On June 24, 2015 the Friends of Wolf Creek coalition filed a lawsuit to stop the land exchange that paves the way for the construction of the “village.” Click here to read the press release.
You can read our full complaint here: RMW v Dallas Complaint 6.24.15
This lawsuit is in response to the Forest Supervisor Dan Dallas’ Final Record of Decision that was issued in May 2015. That decision would trade 205 federal acres for 177 acres of private land within the boundaries of the Rio Grande National Forest. The exchange will connect the private land to U.S. Highway 160, thus securing access to the developer’s private inholding.
The process for how this decision was made is the subject of two separate Freedom of Information Act (FOIA) requests submitted by Rocky Mountain Wild. The Forest Service has gone to great lengths to conceal communications and documents that were used to justify its decision, forcing us to file suits to obtain the records. Not surprisingly the records we have obtained show a continued pattern of secrecy and conflict of interest that plagued the 2006 EIS.
On July 14, 2015 the Friends of Wolf Creek coalition, U.S. Forest Service, and the Leavell-McCombs Joint Venture signed an agreement that will stop all construction and development of the “village” until our case is heard in Federal Court. Click here to read the press release.
September 30, 2015, a Colorado U.S. District Court found that the Forest Service violated the Freedom of Information Act by failing to conduct and make available to the pubic a full search of documents pertaining to the proposed “village.” Senior Judge Wiley Y. Daniel gave the Forest Service until October 30th to produce the documents for public scrutiny. On October 27th, the Forest Service requested and was granted 30 more days to produce the documents.
On December 10, 2015, Friends of Wolf Creek coalition member, San Juan Citizens Alliance created this beautiful video that explains the fight against the “village” at Wolf Creek:
In January 2016, a federal judge ruled that the Forest Service needed to do a more thorough search of the records in response to Friend’s of Wolf Creek’s Freedom of Information Act lawsuit, including high-level employees’ records and previously withheld documents. For the complete story, check out the article by The Durango Herald.
Our lawsuit challenging the current land exchange, which gives the developers year-round access to the highway, is scheduled to be heard this spring.
In March 2016, we filed a motion in the U.S. District Court to have records in the possession of the contractors that the Forest Service hired to prepare the environmental analysis of the land exchange disclosed and potentially added to the Administrative Record. While these records legally belong to the Forest Service, they have refused to ask the contractors to supply all of them. The attorneys for the Forest Service and the Leavell-McCombs Joint Venture responded to the court arguing that the Administrative Record was complete without these additional records. In the first week of May, we filed a 23-page Reply brief. Full copies of our Brief, the defendant’s Responses, and our Reply brief can be found here:
- March 11, 2016 Our Motion
- April 11, 2016 Forest Service Response
- April 11, 2016 Leavell-McCombs Joint Venture Response
- May 3, 2016 Our Reply Brief
On January 27, 2017, in a related Freedom of Information Act (FOIA) case, Judge Martinez ruled that the Forest Service did not have to collect and disclose records in the possession of the contractors who prepared the environmental analysis underlying the Forest Service’s land transfer decision. Although we already succeeded in obtaining thousands of government records in this case, the Court’s decision on this issue insulated the private contractor records leaving unanswered questions as to whether or not the developer exerted undue influence over the private contractors and what information was before the contractors that didn’t make it into analysis provided to the public.
On February 28, 2017, Rocky Mountain Wild submitted the Reply brief for the Wolf Creek case. The brief detailed how the Forest Service unlawfully limited the scope of the environmental analysis and used the process to benefit a private business over the good of the public. Despite the site of the proposed development being located in crucial habitat for the endangered Canada lynx, a wildlife corridor linking two major Wilderness areas, and containing rare fen wetlands, the Forest Service did not properly analyze protections or demand mitigation as part of the land transfer.
On April 19, 2017, Friends of Wolf Creek spent the day in court answering questions and clarifications Judge Matsch had about the case. Travis Stills, one of the attorneys representing Friends of Wolf Creek explained how the Environmental Impact Statement did not investigate in full the effects of the project, especially for the threatened Canada lynx, and how the US Forest Service claimed it did not have the authority to control the development, which had jumped from a 208 unit development to nearly 1,200.
Barclay Samford, an attorney for the Department of Justice, claimed that the Forest Service stated that the land exchange was considered a better option than easements it would have had to manage and maintain. “It’s actually better for the public interest to use the land exchange,” he said.
Judge Matsch responded: “I understand the public interest but there is also the natural environment’s interest, which is what this is all about.”
We won! On May 19, 2017, Judge Matsch found that the Forest Service “failed to consider important aspects of the issues before them, offered an explanation for their decision that runs counter to the evidence, failed to base their decision on consideration of the relevant factors, and based their decision on an analysis that is contrary to law.”
The Court rejected the Forest Service conclusion that it lacked any control over the use of the private parcel. The Court explained that “there is no legal or logical basis for Defendants‟ position 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.” The Court was troubled by the fact that the Forest Service previously conditioned use of the original parcel created in 1986 “with a scenic easement that limited development.”
Judge Matsch was also concerned with the fact that “development resulting from the Forest Service’s approval of the land exchange will adversely impact an endangered species, yet fails to comply with the statutory requirements for the protection of that species.” The species the Court was referring to is the Federally listed Canada lynx which would have been harmed had the Village construction and operation commenced.
On June 16, 2017, the Leavell-McCombs Joint Venture filed a Motion to Reconsider asking Judge Matsch to reconsider his decision, alleging that Judge Matsch suffered from “a misapprehension of controlling law and facts.”
On September 14, 2017, Judge Matsch denied this Motion describing the Forest Service’s Wolf Creek Decision as “a patent effort to circumvent [the agencies] obligations to protect the natural environment of the Forest.” Judge Matsch again reiterated that the Forest Service’s decision was unlawful and an “attempt at an artful dodge of its responsibility.”
Now we wait to see if either the Forest Service or Red McCombs decide to appeal this decision to the 10th Circuit Court of Appeals.
Article in The Durango Herald: “Federal juge hears arguments in Village at Wolf Creek lawsuit”
Press Release: “Final Arguments, Filings Against Massive Development at Wolf Creek in Judge’s Hands”
Article in The Durango Herald: “Future of Village at Wolf Creek awaits judge’s decision”
Blog post about ski area character: “Glitz and Glamour at Wolf Creek?”
Blog post about Canada lynx: “The “Village” at Wolf Creek Pass – a disaster for the Endangered Species Act listed Canada lynx”
The Friends of Wolf Creek coalition is busy preparing for the next steps in our epic challenge to this ill-conceived development, and monument to one man’s ego. We thank all of our friends for your continued support, and urge you to help us continue the fight. Together we can stop the bulldozers. Please see our How You Can Help page.
The administrative record is the paper trail that documents an agency’s decision-making process and the basis for the agency’s decision. Here is a link to the administrative record provided by the Forest Service on their decision to approve the land exchange with Red McCombs.