Environmental groups file 'Village' lawsuits
Staff Writer - http://www.pagosasun.com
Two area environmental groups filed a lawsuit in federal court Oct. 19 challenging the United States Forest Service's environmental impact statement (EIS) and record of decision (ROD) regarding the proposed Village at Wolf Creek.
Ryan Demmy Bidwell, executive director of Colorado Wild, a group that filed the suit jointly with the San Luis Valley Ecosystem Council, said the thrust of the lawsuit is twofold. First, the lawsuit alleges the entire EIS and record of decision is illegal and inadequate because the Forest Service failed to address the impacts of the village as a whole. And secondly, the suit alleges Forest Supervisor Peter Clark unlawfully modified the record of decision "making it easier for the developer to begin construction."
The Forest Service released the EIS and record of decision in March, and the documents authorize two access roads across public land to the 287.5-acre parcel located atop Wolf Creek Pass and adjacent to the Wolf Creek Ski Area.
The proposed Village at Wolf Creek has been described, at final build-out, as a small city capable of housing 10,000 inhabitants with more than 200,000 square feet of commercial space and 2,000 single family homes, all at an elevation of 10,000 feet on one of the snowiest passes in Colorado. The village parcel is a private property inholding within the Rio Grande National Forest.
Despite the scope and scale of the project, the EIS looks solely at the impacts of constructing two access roads across public land into the inholding, and the tack has drawn the ire of Colorado Wild, the San Luis Valley Ecosystem Council, and hundreds of private citizens. The roads will connect the inholding to U.S. 160.
On a recent visit to Pagosa Springs, U.S. Sen. Ken Salazar leveled a similar complaint.
"The construction of a road is not the development that will cause the environmental impact. The EIS should address the impact of the Village itself," said Salazar.
The Forest Service has long argued their primary charge, as outlined in the Alaska National Interest Lands Conservation Act of 1980 (ANILCA), is to provide access across Forest Service land to the inholding, and that Mineral County is the governing body for land use on the parcel, hence the focus of the EIS.
The Mineral County Board of County Commissioners approved the developer's proposed build-out of the village parcel in October 2004, however 12th Judicial District Judge O. John Kuenhold overturned their ruling in October 2005, stating Forest Service Road (FSR) 391 (Tranquility Road) did not provide reasonable year-round access to the development. In court documents, FSR 391 is described as a single-lane seasonally-closed road unsuitable to accommodate "the kind of services that are required in a development of this size and scope - even for its first phase."
Mineral County Attorney John Wilder described FSR 391 as a "miserable little road."
In addition, Kuenhold ruled that once the developer - Leavell-McCombs Joint Venture, fronted by Billy Joe "Red" McCombs and Bob Honts - obtains adequate year-round access and secures the necessary Colorado Department of Transportation (CDOT) permit or permits to access U.S. 160, the developer may request Mineral County approval of their development plan.
In focusing solely on the two access roads, Bidwell said the Forest Service "ignored thousands of comments from citizens and various government agencies who demanded the agency take a hard look at the broad implications of its decision."
The second facet of the lawsuit, that Clark unlawfully modified the record of decision for the final EIS, is built from documents obtained by Colorado Wild via a Freedom of Information Act request.
Chronology of events
On March 15, 2006, Rio Grande National Forest Supervisor Peter Clark issued his decision concerning the final EIS entitled, "Application for Transportation and Utility Systems and Facilities for the Village at Wolf Creek." In the decision, Clark identifies Alternative 4 - also called the Dual Access Road Alternative - as the Selected Alternative. The selected alternative provides for two access roads to the private property - a 250-foot extension of FSR 391, or Tranquility Road; and a new road, to be constructed, called Snowshed Road.
According to Clark's selected alternative described on page six of the Record of Decision, "The Applicant will be authorized to construct, use, and maintain both the Snowshed Road and Tranquility access roads as all-season, year-round roads as shown in Figure ROD-1. I am requiring the applicant to construct both roads to provide for increased public safety and operational compatibility with the Wolf Creek Ski Area."
In the final EIS, chapter 4 page 201, the document describes the public safety concerns linked to using Tranquility Road as the sole access point.
The document states, "The single access road to the private property would not provide emergency evacuation options and would allow only one source for traffic ingress/egress. This Alternative represents a high probability of increased public safety issues in the event of mass evacuation using one access road for ingress and egress."
On May 30, 2006, attorneys for the village developer appealed Clark's decision.
According to the appeal, the developer asked the Forest Service to change its decision in one of three ways.
First, the developer asked the Forest Service to amend the record of decision to identify the Proposed Alternative (Alternative 2) as the Selected Alternative.
According to the record of decision, the developer proposed Alternative 2 and the alternative would authorize access to the inholding via one road - Tranquility Road (FSR 391).
The alternative proposes a 250-foot extension to Tranquility Road in order to reach the inholding.
As a second request, the developer asked for a modified version of the Selected Alternative, with Tranquility Road identified as the primary access route and to condition the development of a second access road - Snowshed Road - "based on specific traffic thresholds tied to actual safety and engineering concerns."
At a minimum, the developer requested year-round use of Tranquility Road until it completes design, approval and construction of Snowshed Road.
According to Clark's decision, the developer will only be authorized full use of Tranquility Road during times outside the Wolf Creek Ski Area's operating season in order to mitigate Village and ski area traffic conflicts.
On July 13, 2006, after reviewing the developer's appeal request, Deputy Regional Forester Greg Griffith, and Appeal Reviewing Officer Brad Exton upheld Clark's decision and denied the developer's request.
In a letter to Steven P. Quarles, attorney for the developer, Exton establishes the rationale for mandating two access points.
On page 12 of the 14 page document Exton writes, "During all seasons of the year it is imperative that there be two roads for access to and egress from the property. Colorado is a state known for wildfires in the summertime. The Wolf Creek Area is one of the snowiest locations in the State in the winter. One access route does not provide sufficient emergency access, and this is true whether the property is in the construction stage or construction has been completed. Delaying the construction of Snow Shed Road will not serve to meet the emergency egress routes that public safety requires ..." In conclusion Exton writes, "I recommend the decision of the Forest Supervisor be affirmed in whole and the Appellant's request for relief be denied."
In Griffith's correspondence, he uses similar language and adds, "I am also issuing an instruction that Supervisor Clark not issue the authorization to construct or use the Snowshed or Tranquility Roads until the Applicant obtains the necessary highway access permit(s) from the Colorado Department of Transportation.
"My decision constitutes the final administrative determination of the Department of Agriculture."
On Aug. 3, 2006, Richard J. Cook of the United States Department of Agriculture responds to Quarles' request for a discretionary review of the appeal decision made by Exton and Griffith.
The lawsuit alleges that a developer lobbyist in Washington D.C. hand-delivered the discretionary review request to Mark Rey, the under secretary of the United States Department of Agriculture (USDA) who oversees the Forest Service.
Cook writes, "Thank you for your letter of July 28, 2006, to Agriculture Secretary Mike Johanns, Under Secretary Mark Rey and Forest Service Chief Dale Bosworth requesting a discretionary review ..."
In the letter Cook states Johanns asked him to respond to Quarles' request and Cook writes, "As noted in the last sentence of ADO Griffith's decision on your appeal, the regulation at 36 CFR 215.18(c) directs that '[t]he Appeal Deciding Officer's appeal disposition constitutes the final administrative determination of the Department of Agriculture.' Therefore, there is no statutory provision for a higher-level official to conduct the discretionary review you have requested."
Cook concludes by denying Quarles' request.
On Aug. 28, 2006, Clark wrote a letter to a second village attorney David Ross. Both Ross and Quarles are part of the firm Crowell and Moring LLP representing Leavell-McCombs Joint Venture in their appeal of Clark's decision.
Clark writes, "Recently, I was made aware that you requested a discretionary review of my March 2006 decision ...I believe I may be able to address most of your concerns about my decision, as identified in your request."
Clark continues, "The decision authorizes the building of two routes of access to the VWC (Village at Wolf Creek) from State Highway 160, the Tranquility Road and the Snowshed Road. Your client may elect to build the Snowshed Road first, build both roads simultaneously, or build the shorter road - the approximate 250-foot extension of the Tranquility Road - to provide for access to the VWC property from State Highway 160, and at a future date, build the longer access route, the Snowshed Road."
Later in the letter Clark writes, "Your client may want to construct the Tranquility Road as the first means of access to the VWC property."
In the letter Clark offers to consider realigning Snowshed Road and to work as a middleman on negotiations between the developer and the ski area should the developer choose to use Tranquility Road for access when the ski area is in operation.
Due to the litigation between the Forest Service, Colorado Wild and the San Luis Valley Ecosystem Council, Clark declined to comment for this story.
Bidwell said Clark's letter constitutes an illegal modification to the record of decision "by eliminating the requirement that the developer 'construct, use and maintain' both roads simultaneously in order to provide 'sufficient emergency access.'" And Bidwell said Clark's statements in the letter run contrary to the mandates of the final EIS and record of decision.
E-mails between Gloria Manning, associate deputy chief of the National Forest System, Dave Tenny, USDA resources and environment deputy undersecretary, Thomas Millet, assistant general counsel for the USDA Office of General Counsel, and Randy Karstaedt, director of physical resources for the Rocky Mountain Region of the Forest Service, detail a discussion over the appropriate language for Clark's letter.
On Aug. 22, 2006, Manning wrote to Millet and Karstaedt, "Randy, I talked to Dave and we did not get the next to last paragraph correct. It should read: ..."
In the same e-mail, Manning continues, "I think this is it but for finding out the person to whom we should address the letter ... Let me know if there is heartburn with the wording of the letter."
The e-mail was also sent to Rick Cables and Richard Stem.
On Aug. 23, 2006, Manning wrote to Tenny and Millet, "Here is the Region's counterproposal to our language. They felt a strong need to acknowledge the necessity of having CDOT engaged to alleviate any problems with the intersection of the roads. Are we comfortably (sic) with letting them go with this rendition?"
Regarding the e-mails and Clark's letter to Ross, Bidwell said, "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."
Bidwell alleges early drafts may have been ghost written by the developer's lobbyist, but said the Forest Service has refused to release documents that illuminate the origin of Clark's letter.
Bidwell said Clark's letter and modification of the record of decision smacks of developer collusion and casts doubts on USDA Inspector General Phyllis Fong's finding of no improprieties, improper conduct or undue political pressure wielded by the developer in regard to Forest Service decisions related to the Wolf Creek Project.
Fong released her findings in September 2006 following a request by Sen. Salazar for an inspector general's investigation into allegations of collusion between the developer and high ranking Forest Service officials.
Bidwell said Clark's letter marks a change from the record of decision, and therefore the public should have been privy to the process.
"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," said Christine Canaly of the San Luis Valley Ecosystem Council. "The courts are unfortunately the only venue where the public seems to get a fair hearing on this matter."
Geoff Hickox an attorney from the Western Environmental Law Center who prepared the lawsuit said, "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."
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