Village at Wolf Creek EIS Administrative Objection

For your information here's the introduction to the Objection filed against the Rio Grande National Forest's decision to go ahead with the LMJV land swap proposal. It was filed by a coalition of: 

Rocky Mountain Wild, 
San Luis Valley Ecosystem Council, 
San Juan Citizens Alliance, 
Defenders of Wildlife, 
Wilderness Workshop, 
Colorado Mountain Club, 
EcoFlight, 
Great Old Broads for Wilderness, and 
Rocky Mountain Recreation Initiative. 

Pre-Decisional Administrative Objection
RE: The Final Environmental Impact Statement for the Village at Wolf Creek Access Project and Draft Record of Decision

http://friendsofwolfcreek.org/wp-content/uploads/2015/01/Wolf-Creek-Access-Project-Administrative-Objection.pdf
{I've added the highlights}

Introduction

This objection is submitted by Rocky Mountain Wild, San Luis Valley Ecosystem Council, San Juan Citizens Alliance, Defenders of Wildlife, Wilderness Workshop, Colorado Mountain Club, EcoFlight, Great Old Broads for Wilderness, and Rocky Mountain Recreation Initiative.

Objectors request that the Forest Service Reviewing Officer invalidate the Environmental Impact Statement and, if the project is to proceed, issue a new scoping notice to begin anew the National Environmental Policy Act Process based on consideration of the full project proposed by Levell-McCombs Joint Venture’s (LMJV): 

construction of a resort city known as the Village at Wolf Creek at the top of Wolf Creek Pass. An independent reviewing officer must be carefully chosen to handle this matter, as LMJV and its agents have conducted extensive lobbying efforts over the past thirty years at all levels of the Forest Service and within the USDA, particularly previous leadership and staff within the office of the Under Secretary for Natural Resources and the Environment and current staff within the USDA Office of General Counsel.

The LMJV project is within the National Forest System on a federally encumbered inholding created “to allow for the development of the lands by the proponent for uses compatible to the existing Wolf Creek Ski Area.” Draft ROD at 9. This Objection addresses issues raised by these organizations and their members, and in some instances, issues that have emerged through events occurring after the DEIS was issued or revealed through the limited subset of agency records released by the Forest Service in ongoing Freedom of Information Act (FOIA) requests. Objectors reserve the right to supplement these objections based on agency records unlawfully withheld by the Forest Service in pending FOIA requests.

The Wolf Creek Ski Area (WCSA) sits in the middle of a unique and important natural area of the National Forest System and next to the Wolf Creek Ski Area (WCSA). Although WCSA does have impacts to the Forest Service lands subject to a special use permit, the limited development associated with the developed recreational use allows the ski area to coexist with the wildlife, scenery, unique recreation, and important values of the area. 

An 1171-unit city of 10,000 people will upset the fragile balance the Forest Service has struck in managing the WCSA. In 1986, the Forest Service correctly concluded that transfer of public land with limited access to support a much smaller development was not in the public interest. The current project proposal, construction of a small city known as the Village at Wolf Creek that will require a grade-separated interchange to access U.S. Highway 160, does not serve the public interest in maintaining the status quo of the relatively undeveloped and natural character of the WCSA and surrounding National Forest.

These objections address the failure to comply with the National Environmental Policy Act (NEPA) purposes that are implemented by specific procedures designed to minimize and eliminate environmental impacts.

The centerpiece of environmental regulation in the United States, NEPA requires federal agencies to pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives. See 42 U.S.C. § 4331(b) (congressional declaration of national environmental policy).

N.M. ex rel. Richardson v. BLM, 565 F.3d 683, 703 (10th Cir. 2009). The real project here is LMJV’s plan to construct and operate the proposed Village at Wolf Creek. The question of access to U.S. Highway 160 via federal land is a mere segment of the real project proposal.

The objections set forth the reasons the Final Environmental Impact Statement (FEIS) is deficient and why the Forest Service cannot adopt the Draft Record of Decision (DROD) that would grant access and other interest in federal lands to support construction of a project involving a small city of part time resort dwellings. Contrary to the LMJV-influenced NEPA document, the proposed project subject to NEPA analysis remains the same as it was in March 1986: “development of the lands by the proponent for uses compatible to the existing Wolf Creek Ski Area.” Draft ROD at 9. 

The FEIS wrongly excludes the LMJV development from rigorous analysis, a legal error that narrows the scope of analysis and taints the entire NEPA process. Extensive and direct LMJV influence over the NEPA analysis has led to the repetition of the same issues that plagued the last NEPA analysis, with the same difficult questions being swept under the rug without full disclosure and consideration. Colorado Wild, Inc. v. United States Forest Service, 523 F. Supp. 2d 1213, (D. Colo. 2007).

By limiting the scope of issues and alternatives under the review, the FEIS presents the public and decision makers with a seemingly foregone conclusion on the land exchange proposal. Where the FEIS minimizes the true scope of federal control and authority over all aspects of the Village at Wolf Creek, the public and relevant agency officials are presented with the false impression that the private developer can go forward with development without full NEPA analysis of the federally encumbered private lands. The attempt to manipulate the parcels and eliminate a federal nexus and NEPA review of the development via a land exchange is arbitrary, capricious, and contrary to law.

As set out below, and in the partial record the Forest Service has disclosed to Objectors, NEPA requires that the Forest Service begin anew by conducting scoping on a new EIS that analyzes the entire development proposal, alternatives, impacts, and mitigation measures in a single EIS. NEPA requires that an EIS must be prepared before committing resources to the LMJV proposal in the form of expanded access, easements, and approvals that ignore and sometimes eliminate important and valuable federal interests in the private lands. 

Then it get's into the details: http://friendsofwolfcreek.org/wp-content/uploads/2015/01/Wolf-Creek-Access-Project-Administrative-Objection.pdf

Matt Sandler, Attorney, Rocky Mountain Wild, 
matt@rockymountainwild.org, 303-579-5162 

Christine Canaly. Director SLVEC 
slvwater@fairpoint.net, 719-589-1518

Jimbo Buickerood, San Juan Citizens Alliance 
jimbo@sanjuancitizens.org, 970-560-1111 

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Then there's this...

Regional Policy on the Protection of Fens, resource category 1 

U.S. Fish and Wildlife Service Region 6 | Amended January 20, 1999  

From page two:  

"Because of their uniqueness and importance, Region 6 decided that all its functioning fens, which were identified on U.S. Geological Survey, National Wetlands Inventory, ... fall within Resource Category 1 of the Service's "Mitigation Policy" (Federal Register Vol.16, No.15, February4, 1981).   

The mitigation goal for Resource Category 1 is no loss of existing habitat value.  In other words, because of the irreplaceability of the type habitat, every reasonable effort should be made to avoid impacting that habitat type." 

http://no-villageatwolfcreek.blogspot.com/2015/01/fens-resource-category-1-usfws.html

Objection Filed on VWC Proposed Land Exchange At Wolf Creek Pass

Given the well timed release of the over two years in the making VWC Landswap EIS, (which I can well believe was not the RGNF's Superintendent's doing, but instead imagine it to be more of a bureaucratic set up, where power moves with more stealth) it took quite an effort for the big folks to put together their substantial objection and get it filed before Monday's deadline.

With gratitude I congratulate Matt Sandler, Christine Canaly, Jimbo Buickerood and their team for pulling off this difficult challenge.

Let the games continue.


For Immediate Release:
January 6, 2015
{I added the highlights}

Matt Sandler, Attorney, Rocky Mountain Wild, matt@rockymountainwild.org, 
303-579-5162 
Christine Canaly. Director SLVEC slvwater@fairpoint.net, 719-589-1518
Jimbo Buickerood, San Juan Citizens Alliance jimbo@sanjuancitizens.org, 
970-560-1111

Objection Filed on Proposed Land Exchange At Wolf Creek Pass

Monte Vista, CO - Today a coalition of conservation organizations announce the filing of a 96-page Objection with the Forest Service concerning a proposed land exchange near Wolf Creek Pass. The land exchange would allow construction of a city in a high-altitude location that receives an average of 428 inches of snow annually, and is an important wildlife corridor for many species. The development, called the Village at Wolf Creek, has been at the center of controversy since 1986.

The Forest Service proposal would trade approximately 205 federal acres for 177 acres of private land within the boundaries of the Rio Grande National Forest. As a part of this exchange, the U.S. Government is also paying Texas Billionaire Red McComb $70,000 as a “cash equalization payment.” The land exchange would connect the private land to U.S. Highway 160, thus securing the ability for a larger population to access to the developer’s private inholding.

"Our Objection makes clear that the Forest Service has added insult to injury by proposing to give away more land with valuable resources to a rich private interest", said Matt Sandler, staff attorney for Rocky Mountain Wild who led the preparation of the Objection. "Instead, the agency should consider protecting a biologically rich and important portion of the National Forest and represent the best interests of the American public.", stated Sandler.

RGNF Village at Wolf Creek Access Project

Although the RGNF-EIS comment period ends today, this issue isn't going away, it's just changing venue - and since information is important I thought it would be good to copy the Rio Grande National Forest's VWC-Access Project webpage over here, to save folks the searching.  I figure some of the comments will be applicable to future phases of this seemingly never-ending struggle to save the Alberta Park watershed from destructive development.

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Village at Wolf Creek Access Project 

The Rio Grande National Forest is preparing an Environmental Impact Statement to analyze the effects of the proposed Village at Wolf Creek land exchange.

Location Summary

The federal and non-federal parcels to be considered are entirely within Mineral County, Colorado

District: Divide Ranger District

Project Documents

1. Analysis

1. August 2012 DEIS Village at Wolf Creek Access Project -Bookmark Version (PDF 24943kb)
2. The Draft Environmental Impact Statement is now available for comment.
3. FEIS VWC Access Project_FEIS_Vol_1 (PDF 28335kb)
4. FEIS VWC Access Project_FEIS_Vol_2 (PDF 8661kb) 
5. COMMENTS PROCESS   p.51
   Comments Summaries and Responses   p.69
   Agency and Public Official Comments   p.191

FENS Resource Category 1 USFWS "Mitigation Policy"

In support of my previous claims I submit

Regional Policy on the Protection of Fens, resource category 1, as amended

U.S. Fish and Wildlife Service Region 6 

January 20, 1999 

From page two: 

"Because of their uniqueness and importance, Region 6 decided that all its functioning fens, which were identified on U.S. Geological Survey, National Wetlands Inventory, ... fall within Resource Category 1 of the Service's "Mitigation Policy" (Federal Register Vol.16, No.15, February4, 1981).  

The mitigation goal for Resource Category 1 is no loss of existing habitat value.  In other words, because of the irreplaceability of the type habitat, every reasonable effort should be made to avoid impacting that habitat type."

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

I appreciate that at this point it's beyond the US Forest Service's hands, still I request these thoughts to made part of the record.

Going ahead with this Village at Wolf Creek development, or any mini-me, cannot avoid mutilating a thousands year old wetlands, with it's nearly pristine highland, shrubs, woods, wetlands, meadows and Fens, peat bogs, snow storage, water filtration.  It's serving a vitally important community function as the biological keystone for that side of the mountain, with it's waters flowing into the Rio Grande River.  Alberta park is best able to serve its keystone function by being left alone.  It really is that simple.

Think about the bulldozing, trenching, moving dirt and making piles.  The roads, first the cutting and dirt moving, compressing, then the weight of the road, then the traffic, trash and oil and disregard seeping through that entire area.  Then the buildings and homes with there deep footings and foundations.  Save a slice of the bogs and meadows a few hundred yards away and it's still robbed of huge chunks of it's circulatory system and indeed body.  Add to that all the people who are going to want to walk out into and around it, bringing along all their stuff, disrupting and impacting what's left out there.

It's important for our local, state, national representatives, regulatory and other involved agencies, plus the various monied interests chomping at the bite for one last roll of the dice, one more bonanza just like the good old days, to stop for a moment and consider the destruction they are willing to inflict, win or loss financially. 

It's not the good old days anymore, we need to change our priorities.  

Here and now is as good a place to start as any.

Learning about the complexity of wetlands and fens being good place to start.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

U.S. Fish and Wildlife Service Region 6
Peatland Mitigation Policy Considerations
Ecology Offices
Colorado Field Office
Lakewood, Colorado
December 1997
Revised January 1999

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

{I have quoted some key sections and added the bold highlights.}  

http://www.fws.gov/mountain-prairie/es/fen/FWSRegion6FenPolicy1999.pdf

Memorandum

To:     Project Leaders for Ecological Services, Refuges and Wildlife, and Fish and Wildlife 

What is "Reasonable Use" of Alberta Park at Wolf Creek, Colorado?

I do appreciate that Rio Grande National Forest Administrators must work within narrowly defined legal guidelines.  I imagine Dan Dallas has dutifully carrying out his mission, no more, no less.  Considering his hands were tied, I can't even "object" to his decision, though I will certainly complain about it.

My "objections" are reserved for that singled-minded developer's obsession with ripping up that watershed for his silly, doomed, luxury village, who's construction will destroy yet another chunk of the resources our children are depending on for their increasingly tough future.

In reading through the "Record of Decision VWC Access Project Final" I noticed the term "reasonable use" was employed 28 times.  The bottom-line comes down to this: "Hey, the dude swapped/bought Alberta Park to develop it.  He couldn't develop the parcel he bought, but since the RGNF owes it to him to facilitate him developing land, they must now swap parcels of land to accommodate the guy's wild (disconnected even) 1980s pipe-dream.  

What can be more "reasonable" than that?  Develop he can; develop he must; no matter how destructive or unrealistic the speculation is!  It's his American Right, if not duty.

What I find unreasonable about the RGNF VWC Decision, is that Alberta Park and its biologically vibrant and productive wetlands barely makes it into the discussion. It's just another one of those unmentionable externalities we've become so adept at side-stepping. 

http://friendsofwolfcreek.org

Still, the fact remains Alberta Park is a pretty near pristine complex hydrologic system, supporting folds within folds of unseen but productive organic complexity, along with the plants and wildlife that depend on such healthy systems... bulldozing will destroy that.  

You can't purchase a better water filtering system.  You can only degrade its current biologic productivity.

Speaking of 'current', another thing I find unreasonable about this RGNF VWC Decision is how deftly it avoids the realities of the times we are living in.  

Ignore it all you want, global warming is producing increasing and disruptive climate change.  Ignoring it, as too many do, will not make it go away no matter how hard you believe. [check out the footnotes]

I sit here, wondering what good is all this fixation on the Rear View Mirror and moldy pipe-dreams of endlessly increasing profits, when we know damned well that serious, hard changes are coming at us? When are we going to start protecting the natural resources we and especially our children depend on?

With that preamble I want to share excerpts from a 2012 study of Rio Grande National Forest's wetlands.  Being a private inholding, LMVJ's parcel was not delineated.  But, the study does convey the value of such land - just as it is!  A first step in becoming aware of this valuable, irreplaceable  "externality" called the Alberta Park watershed.

Assessment of Wetland Condition 

on the Rio Grande National Forest

http://www.cnhp.colostate.edu/download/documents/2012/RGNFWetlandAssessmentReportFINAL.pdf