What NEPA requires is that before taking any major action a federal agency must stop and take a careful look to determine the environmental impact of that decision, and listen to the public before taking action. The Forest Service failed to do that in the Record of Decision. The duty of this Court is to set it aside.
Wednesday, October 18, 2017
UPDATE Oct18th, they're baaack. Red appeals Judge Matsch's VWC decision.
So sad, nothing is ever learned.
The McCombs have turned a deft ear to all the reasoned arguments. Facts don’t seem to matter. Objectively speaking, considering the community, the Rio Grande River, the Alberta Park watershed, all would best be served by that Alberta Park parcel being left alone to continue fulfilling it’s biological and hydrological services as the keystone to the Wolf Creek watershed and wilderness and an integral part of the Rio Grande National Forest from which it was absconded through a 1980s game of shady land grab poker.
Only obsessive greed and some bizarre need to despoil land for the sake of proving one’s own mastery can explain such obsession. Here we go again.
For a look at Senior Judge Matsch’s Order May 21, 2017 see the end of this post.
Village at Wolf Creek appeals decision blocking access
Opponents say Forest Service skirted its duties
Leavell-McCombs Joint Venture – spearheaded by Texas billionaire B.J. “Red” McCombs – has filed an appeal with the next tier of the federal court system, challenging a previous federal judge’s decision that the massive development atop Wolf Creek Pass was approved “contrary to law.”
“The Joint-Venture believes strongly the project is a good project and the Forest Service did everything it needed to do to study the environmental impacts of that project,” said Bill Leone, an attorney representing the developers. The appeal was filed Friday. …
In May, Judge Richard P. Matsch, a senior U.S. district judge for the District of Colorado, in no uncertain terms, agreed.
“What NEPA (National Environmental Policy Act) requires is that before taking any major action, a federal agency must stop and take a careful look to determine the environmental impact of that decision, and listen to the public before taking action,” Matsch wrote in his decision. “The Forest Service failed to do that.”
In September, Matsch denied a request from Leavell-McCombs Joint Venture to reconsider the May decision.
“The Forest Service cannot abdicate its responsibility to protect the forest by making an attempt at an artful dodge,” Matsch wrote in that decision. …
“I still hold out hope for the Forest Service,” said Travis Stills, an attorney with Energy & Conservation Law. “Maybe they can finally take to heart what the public and two federal judges have said and look for resolutions to this whole thing that doesn’t involved LMJV calling the shots.”
For the full article link to the Durango Herald
Durango Herald Related Stories
Supplemental information to the following open letter to Red McCombs and others,
which was written June 17, 2017.
Dear Mr. McCombs and Marsha Shields,
We’ve met a couple times. Once was in Creede, at your 2005 Village at Wolf Creek presentation. I was passing out my No-VWC pamphlet and though we never got close, we did share a couple eye-to-eyes during the many speeches. Then at Congressman Salazar’s 2010 (Adam's State College) roundtable in Alamosa.
You walked up to me and accepted my flier, then you surprised me by extending your hand and I was honored to shake it. Not much was said, just two guys sizing each other up and walking away. I honestly cherish the memory since it made you a real person to me and not some distant cartoon.
Given Judge Matsch’s decision and the Village at Wolf Creek land trade being nullified, I feel it’s a good time to personally explain why I’ve been dogging your project and to ask that you and your daughter stop to consider Alberta Park as the irreplaceable biological treasure that it is.
Scattered throughout your parcel you have millennia old fens that are among the healthiest examples of such fens remaining in Colorado. The surrounding watershed, the complex underground hydrology provide a real service - lacing it with trenches and foundations and tainted runoff will destroy that, no way around it.
The Rio Grande River needs these sorts of wetlands for snow storage and water filtering chores and to help moderate water release. Thus helping summer flows last longer. All of this has created habitat for an extensive wildlife community including the elusive lynx. Alberta Park also provides a critically important wildlife corridor between the La Garita and Weminuche Wilderness Areas.
What’s important and needs stressing is what Federal Judge Matsch made clear: The land’s intrinsic value has standing and the public’s input is appropriate and must be heeded - and that valid issues must be resolved not sidestepped.
Beyond environmental concerns, it happens I lived in Silverton Colorado from ‘79 to ’86, elevation 9,318’. I know first hand that high altitude living has its challenges. It requires a hardy character and a healthy body. We are not built for extended living in thin air (70% compared to sea level’s 100%) and harsh cold conditions.
Some do fine, others find that with the years an assortment of minor aliments develop into major issues, the price for the pleasure of living in Silverton’s wonderfully unique yet unavoidably harsh environment - most leave.
Consider your VWC business plan: to build a happy residential village for rich people of leisure. At Alberta Park? Basically on the Continental Divide. How much time have any of your developers and boosters actually spent at Alberta Park? How many days and nights have they lived up there to get a sense for the appropriateness of inviting families and retirees to invest savings and lives into that location which earns a “Continental Subarctic Climate” rating?
I’m not saying it isn’t wonderful. Remember the adage “there’s no such thing as bad weather, only bad clothing” and you’re good to go. I arrived at Alberta Park yesterday mid June, sunny ‘warm’ day and had a nice walk, yet the wind made it impossible to sit outside to read a book in any sort of comfort.
A camp fire to stare at before going to sleep was likewise out of the question. Rather than the stars I chose my camper shell for the night’s canopy. This morning I did take a few minutes to burn some Spruce bark beetle dead-fall out of curiosity. Yipes, for the next few years, least till all those twigs and most of those trees fall, it’s going to be a firestorm tinder box throughout the bark beetle ravaged RGNF.
I took a walk through some, it’s creepy seeing the many fallen trees and watching standing dead swaying in the frequent wind gusts and knowing one could snap in an instant. No place I’d want to spend much time in.
From other visits and another camp-over my impression is that the wind blows incessantly. Go figure, that slope above Alberta Park goes right up to the Continental Divide at over eleven thousand feet. Why would we expect calm afternoons, or evenings, or mornings, or days?
Mr. McCombs, not even considering the construction challenges, there’s law enforcement, fire protection, medical services, power and fuel and IT and sewer infrastructure. Everyone demanding tremendous outlays of cash just to adequately study and plan for, let alone implement. For a residential/vacation real estate speculation in subarctic weather conditions?
It’s not the ‘80s and ‘90s anymore, no sir. There is no pot of gold behind this Village at Wolf Creek dream, only more financial losses along with human and ecological misery.
Speaking of human costs, what about your legacy Mr. McCombs? Right now, thanks to this decades long Alberta Park struggle, with its political intrigues and lost court battles, many see you as little more than a development fixated Texan wheeler dealer land robber out to despoil a valuable natural (some would say national) resource come what may.
Please step back to look at the bigger picture. Think of the Rio Grande River that flows through your beloved Texas. If the health of that river matters to you than geophysical reality makes preserving the purity of its source waters a major priority. Your LMJV holds and endangers a keystone parcel of that source-watershed.
Pursuing a land preservation option for your Alberta Park parcel of heartaches, headaches and self-pilfering would transform your LMJV problem into a positive contribution to society and to your memory. Please give it some consideration.
June 17, 2017
Where an agency action is found to be arbitrary and capricious, an abuse of discretion, or 39 otherwise not in accordance with law,
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the Court must “hold [it] unlawful and set [it] aside.” 5 U.S.C. § 706(2). The Court finds and concludes that Defendants‟ actions violated the APA in the respects specified in this decision.
Accordingly, it is ORDERED that the Record of Decision dated May 21, 2015, is SET ASIDE.
DATED: May 19, 2017
BY THE COURT:
s/Richard P. Matsch
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This limited scope of analysis was based on the premise that the “Forest Service has no authority to regulate the degree or density of development on private land” FEIS, W10761; see also id., 10752 (“The Rio Grande NF has no jurisdiction on private lands.”). The Forest Service further reasoned that “Mineral County has the authority to regulate the use and development of the LMJV‟s private land in the future”; while the Forest Service stated that its own “legal obligation is to accommodate the private landowner with access considered to be adequate with respect to reasonable use and enjoyment of the property.” Id., W10761.
Accordingly, the Forest Service analyzed potential future development “concepts” as an “indirect effect” of the proposed land exchange, while disclaiming again that “the Forest Service will not, and cannot, approve a specific level of development on private lands, the range of development concepts is simply included to provide estimates of potential indirect effects.” Id. (emphasis in original).
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Indeed, LMJV asserts that the 1987 land exchange was instigated by the Forest Service, not LMJV, to further the agency‟s own goals in establishing a base camp development to complement the Wolf Creek Ski Area. Intervenor‟s Response (Doc. 57) at 2-4. In any event, given its knowledge of LMJV‟s development intentions, the Forest Service conditioned the 1987 exchange on the Scenic Easement, which remains in place and substantially limits the uses and development of the federal property conveyed to LMJV in 1987.
In light of this prior history on the very same property, there is no legal or logical basis for Defendants‟ position in the FEIS and ROD 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.
It was also legally erroneous and an abuse of discretion for the Forest Service to reject objections to the Draft ROD on the ground that the proposed development was necessarily “not a federal action” because LMJV is not an agency and the proposed Village at Wolf Creek is not an agency goal. A major federal action requiring NEPA analysis is one which is potentially subject to federal control or responsibility, or one over which a federal agency has actual power or control. Ross, 162 F.3d at 1051. The 1987 Scenic Easement demonstrates the Forest Service‟s actual power to control development.
In addition, Defendants‟ own argument on a separate issue in this litigation contradicts their position in the FEIS and ROD that they had no power to impose development controls. See Federal Defendants‟ Response Brief (Doc. 55) at 56 (acknowledging that Forest Service land exchange regulations grant discretion to the Forest Service to place restrictions on land conveyed out of federal ownership).
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Indeed, those regulations require the agency to “reserve such rights or retain such interests as are needed to protect the public interest or shall otherwise restrict the use of federal lands to be exchanged, as appropriate.” 36 C.F.R. § 254.3(h). Defendants abdicated this duty by disclaiming that they had the power. For example, neither the FEIS nor the ROD provide the reasoning or public interest analysis for failing to consider conditioning the land exchange on extension of the Scenic Easement to the federal lands being conveyed, or taking other restrictive steps.
The Forest Service‟s explanation that development would be subject to regulation by Mineral County and other state and local authorities is also inadequate to justify a refusal even to consider possible federal restrictions. The Forest Service is specially charged with unique duties to consider the public interest specifically with regard to private activities affecting National Forest System lands. Mineral County has its own interests with regard to permitting or regulating development. It cannot be assumed that those interests coincide.
The Forest Service‟s express refusal—based on a perceived lack of jurisdiction—even to consider any limitations, restrictions, controls, or other measures designed to ensure compatibility of development with surrounding National Forest System lands was arbitrary and capricious, an abuse of discretion, and contrary to law. The Forest Service entirely failed to consider an important aspect of the problem, offered explanations for its decision that run counter to the evidence before the agency, failed to base its decision on consideration of all relevant factors, and was wrong as a matter of law.
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First, as discussed above, Forest Service land exchange regulations expressly require the Forest Service to consider reserving or retaining such interests in federal lands being exchanged as may be required to protect the public interest. 36 C.F.R. § 254.3(h). These regulations establish the power the Forest Service disclaimed, and the Forest Service‟s previous use of it in the required 1987 Scenic Easement demonstrated its exercise of that power.
Second, ANILCA does not revoke or limit that power in connection with the land exchange. LMJV invoked ANILCA to seek access to its existing property by way of an easement across federal land. The ANILCA proposal was an alternative to the land exchange. As LMJV itself points out, ANILCA regulations “encourage the Forest Service to exchange land with an Case ANILCA applicant if possible to eliminate the need to use NFS lands for access purposes.”
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based on a legally-erroneous determination that the Forest Service had no power or jurisdiction to do so, was a separate abuse of discretion that violated these regulations as well as undermining the agency‟s ability to do the thorough analysis of all possible impacts required by NEPA.
The upshot of this determination was that, on one hand, LMJV avoided more scrupulous federal review of its development plans under NEPA by virtue of the Forest Service‟s narrow definition of the scope of federal action as not including the development; while, on the other hand, LMJV also avoided the onus of Endangered Species Act Section 10 compliance by virtue of the determination that there was a sufficient federal nexus to the development for that purpose.
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Defendants and Intervenor have not cited, nor has the Court located, any precedent for this use of Section 7 to, in effect, circumvent Section 10 compliance with Section 7 by a non-federal party.
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Endangered Species Act legislative history strongly suggests that Section 10 compliance should have been required. Section 10 was enacted specifically to provide a means by which private parties could obtain approval of incidental take resulting from non-federal development activities not covered by Section 7. A recent article reviewed the legislative history of the Endangered Species Act and the 1982 amendment that added Section 10, and concluded:
Accordingly, as made plain by Congress in amending the ESA, an ITP [under Section 10] was created because it is the only mechanism for authorizing take where the underlying purpose of the project at issue is private development. As such, what defines ITP eligibility is the purpose of the activity at issue. Thus, in Congress’ eyes, the only means by which a private development project lacking a federal nexus—or by the same token, a State or local development project or management scheme lacking a federal nexus—may proceed, despite the fact that the project will incidentally take listed species, is by first obtaining an ITP.
Wm. S. Eubanks II, Subverting Congress’ Intent: The Recent Misapplication of Section 10 of the Endangered Species Act and Its Consequential Impacts on Sensitive Wildlife and Habitat, 42 B. C. Envtl. Aff. L. Rev. 259, 280 (2015),
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In short, the conservation strategy provided by the Biological Opinion and incorporated into the FEIS and ROD expressly recognizes 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. That is an abuse of discretion and contrary to law.