Sunday, January 17, 2016

McCombs' political arm-twisting, the ugly details start coming out

I so want to believe in the integrity of the Rio Grande National Forest administrators and their Environmental Impact Study staff, but the more information comes forward the harder it gets.  
Wish I could ask Rio Grande National Forest's District Ranger Dan Dallas, when will the public's best interest receive an objective hearing?
Development of what is rightfully a part of the Rio Grande National Forest, namely Alberta Park (the virtually pristine biologically productive wetlands/watershed for the interstate, international Rio Grande River) is not some god given right for a pushy, self-interest blinded billionaire!
For further information see the Durango Herald article
Group says collusion apparent in Village at Wolf Creek development project 
Documents suggest Forest Service concealed and deleted information, allowed undue influence 
By Jonathan Romeo
Highlights, from a release by the Friends of Wolf Creek coalition.
I added the shaded highlighting.
Forest Service “Village at Wolf Creek” Records Confirm Active Document Concealment/Destruction and Improper Influence
Documents obtained by Friends of Wolf Creek organizations (Rocky Mountain Wild, San Luis Valley Ecosystem Council, San Juan Citizens Alliance and outside legal counsel Energy and Conservation Law) confirm that Forest Service personnel in the Rio Grande National Forest, Denver Regional Office, and Washington D.C. have:
  1. Actively concealed and destroyed information involving the Village at Wolf Creek proposal 
  2. Allowed Red McCombs to threaten Forest Service staff and influence the analysis 
  3. Refused to conduct a search for relevant documents that should be available for public scrutiny unless and until compelled by a Court order 
Through our review of documents revealed as part of the APA Administrative Record filing and two separate Freedom of Information Act (FOIA) lawsuits,1 it is becoming clear that the Forest Service did not provide the transparent and lawful NEPA Process promised when the Forest Service abandoned an earlier 2006 decisions to grant expanded access for a 8,000 person development project at the base of Wolf Creek Ski area.2 In the most recent Forest Service decision, many of the same Forest Service and project proponents engaged in the same prohibited tactics that lead the agency to abandon the last analysis and start anew.
The Forest Service actively concealed and destroyed information
Confirming evidence was recently revealed by District Ranger Tom Malecek’s email instruction to destroy emails to avoid FOIA scrutiny. “Dan [Dallas’] main concern wasn’t the letter, but the emails around the letter that might be a little damaging in the event they are not all deleted in case we get a foia....remember we are swimming with sharks and need to keep emails from even the remote appearance of whatever, so make sure you burn this once read!” (Exh. 19 at Page #1) (emphasis supplied).
o District Ranger Malecek’s email provides a rare insight into the open contempt for public review and judicial oversight by key Forest Service personnel who pushed for approval of expanded access sought by the developer.
o District Ranger Malecek’s unlawful “burn this once read” email was unlawfully withheld from the public and from 2 FOIA requests until released on November 13, 2015, as part of the APA Administrative Record filing.
An email between Forest Service employees confirmed a practice of conspiring to keep documents insulated from FOIA by sending them in “hardcopy so it would not be subject to FOIA.” Exh. 10 at Page #3.
  • Emails also reveal a practice of improperly using the attorney-client privilege by proposing, “I’ll have Rick send it electronically through an email with [Solicitor] Ken [Capps] as a cc so it will remain attorney-client privilege and not subject to FOIA from what I understand.” Exh. 10 at Page #3. 
  • These are a few of the examples picked to shine a light on the Forest Service’s practice of shielding documents from public scrutiny. More documents are available within the record.
    Documents confirm that McCombs’ lobbyists influenced officials 
  • Information about the project analysis was released to Red McCombs, his staff, and his attorneys during regular phone conversations involving Government decision makers, Government counsel, and the project proponent. Exh 16 especially Page #2. (Examples of agency phone calls with Proponent). 
  • The incomplete set of records confirms that many of these phone calls contained threats aimed at influencing the process and decision. 
o Red McCombs is getting “frustrated” and may “begin making calls to his friends in Washington.” Exh. 16 at Page #2
o “Red will do what Red will do” in terms of political contacts. Exh. 16 at Page #3
o McCombs is rattling cages. Exh. 16 at Page #6
o Mr. McCombs was predictably upset and it is expected that he will use every political avenue open to him to encourage the Forest Service to finalize its decision now. Exh. 16 at Page #9
  • Recently disclosed records confirm an ongoing series of discussions between the USDA Forest Service, USDA Office of General Counsel, and the project proponent during the preparation of the Environmental Impact Statement and Record of Decision. Exh. 16 (emails confirming agency phone calls with Red McCombs, Adam Poe, Clint Jones, Steve Quarrels). 
  • The Colorado District Court filings that lead to the invalidation of the 2008 FEIS and access decisions confirm a similar cast of attorneys and staff that exerted undue influence on the Forest Service. [Colorado Wild v. Clark, 06-cv-02089 (FOIA litigation addressing, inter alia, records involving the ghost drafting of government documents) discussed at ECF No. 38 at 21-22] 
  • Despite active concealment and destruction of agency records, a partial set of agency records documenting telephone and text communications were identified by the recent searches. ECF No. 34 at 14. 
  • Some of the agency records documenting the coordination between the Forest Service and the McCombs Team are still being withheld. Among the most egregious examples is the Government’s claim of attorney/client privilege to redact an email sent by Adam Poe identifying similarly situated properties. Exh. 22. The Forest Service continues to withhold an October 25, 2015 email from Forest Wildlife Biologist Randy Ghormley “summarizing the key questions raised by the attorney for the VWC applicant yesterday...” Exh. 22 at Page #5.
The open FOIA lawsuit continues to seek a district court order for the Forest Service to provide public access to public records
o The recent searches have not satisfied FOIA where the Courts require agencies to conduct a records search based on what the agency knew at the completion, not the beginning of the search.
o The Government proffers absolutely no evidence supporting any method used to identify Washington, D.C. Office personnel who were called directly by Red McCombs or his staff and attorneys.
o The searches were not designed to identify agency records, including emails, phone records, texts, faxes, or other records of communications, involving Steve Quarles or other project proponents who repeatedly called USDA Forest Service to apply political pressure on the persons carrying out the NEPA process. See e.g Exh. 16 at Page #1, (08/18/2014 Kenneth Capps email describing “call from Steve Quarles (partner at Crowell & Moring in DC) saying Dan [Dallas] promised Red [McCombs] a decision on the 29th”), Exh.18 at Page #1 (Contact Undersecretary Sherman).
o Outsourcing Forest Service analysis to private contractors paid by the developer is a notorious source of undue influence and bias. However, the contractors and subcontractors who “engaged in preparing the EIS or portions thereof” were not asked to search for and provide their records. ECF No. 36-2.
o Although the Forest Service did not request contractor records or conduct search for agency records created or obtained on the agency’s behalf by the third-party contractors, the federal government claims that agency records created by private third-party contractors are protected by the agency’s attorney/client privilege, as applied through FOIA Exemption 5. ECF No. 46 at 22 (“information exchanged between and generated by non-governmental third parties” are “agency records” subject to FOIA).
o The Forest Service filings have made it clear that it will take a federal court order to obtain a FOIA search and release of records from the Chief, Undersecretary, and all Forest Service offices involved in the Village at Wolf Creek.

1 Three lawsuits have been filed in this campaign since 2014. The first two lawsuits separately address Freedom of Information Act requests filed in February 2014 and November 2014. The third suit (APA Administrative Record filing) challenges the lawfulness of the narrow analysis and approvals from the Forest Service and Fish and Wildlife Service in granting a land exchange designed to facilitate the year round resort development proposal.

2 As the result of previous litigation, previous Forest Service approvals facilitating the developer’s desire for expanded site access were withdrawn and relinquished in a 2008 settlement agreement whereby the Forest Service promised to initiate a new analysis of the expanded access sought by the developers.

For a look at those documents, visit:

Also visit:

1 comment:

  1. I've sent an email to RGNF's District Ranger Tom Malecek asking:

    When will the public's best interest receive an objective hearing?

    Or does that have nothing to do with Mr. McCombs' perceived right to develop that important watershed?

    If I get a response I'll share it.