Sunday, April 7, 2019

VWC-EIS, Objection Issues and Responses #1, #2

United States Department of Agriculture Forest Service
Rocky Mountain Regional Office 
Response to Objections on the Village at Wolf Creek Access Project, Rio Grande National Forest 
November 2018 
Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 
Issue 1: The village proposal expands impacts of the federally permitted ski area development
Issue 2: Judicial orders preclude reliance on FEIS
Issue 1: The village proposal expands impacts of the federally permitted ski area development 
Objectors allege that the Forest Service violated the National Environmental Policy Act (NEPA) and that the analysis in the Final Environmental Impact Statement (FEIS) is deficient because it failed to include the potential development of the Village at Wolf Creek as a direct effect. 
The agency decision is to determine how to provide the landowner with their statutory right of access, and what, if any, conditions would apply to that access. The intent of the applicant is to develop the Village at Wolf Creek. However, the future development of the Village at Wolf Creek is not a part of the purpose and need or the federal proposed action; it is a potential private action. NEPA regulations (40 C.F.R. 1508.23) define a proposal subject to NEPA as when an agency has a goal and is actively preparing to make a decision to accomplish that goal. The Village at Wolf Creek is not an agency goal nor will the agency actively prepare a decision to accomplish the proposed development. Further, as indicated in Section 2.4 of the FEIS (p. 2-6) and the Draft Record of Decision (Draft ROD), the Forest Service lacks sufficient authority to approve or deny a specific level of development on private lands. 
Objectors contend the agency failed to take a hard look at the direct impacts of the development. However, development of the private lands by the applicant is considered a “connected action,” and is analyzed as an indirect effect of approving either action alternative (FEIS p. 1-29). As defined in 40 CFR 1508.8, environmental effects include: 1) direct effects, which are caused by the action and occur at the same time and place; and (2) indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Chapter 4 of the DEIS and FEIS includes detailed analysis of the direct, indirect, and cumulative environmental effects of Alternatives 1, 2, and 3, including conceptual Low, Moderate, and Maximum development scenarios for the Village at Wolf Creek under Alternatives 2 and 3 (action alternatives). Maximum development represents the “full development” scenario, and was thoroughly analyzed in the FEIS for each action alternative. Most of the analysis deals with “indirect effects,” including development of the Village at Wolf Creek. Thus, the argument that those effects were not considered, or were scrutinized less because they were considered indirect effects, is not supported by the record. 
As stated in the draft ROD (p. 15), the “analysis would not have been different if the EIS treated the Village as part of the federal action and therefore classified its impacts as direct effects rather than indirect effects.” The draft ROD goes on to state “We would have still used the same reasonable range of development scenarios to capture the impacts of the Village (p. 16).” 
Furthermore, Forest Service Manual (FSM) direction “concerning the granting of rights-of-ways for roads and trails across National Forest System lands is to provide access as promptly as feasible to requesters, consistent with Forest land and resource management plans and applicable laws and regulations” and to “avoid regulation of private lands when considering and authorizing access to those private lands” (FSM 2730.3). Forest Service Manual direction for private property rights states “except as authorized by law, order, or regulation, Forest Service policies, practices, and procedures shall avoid regulating private property use” (FSM 5403.3). 
Based on my review of the FEIS, Draft ROD, and project record, I find that the responsible official described and analyzed direct, indirect, and cumulative effects appropriately as required by NEPA. 
page 3 
Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 
However, even if the private land effects are properly described as “direct” effects, the FEIS took a hard look at those effects and informed the public and the decision-maker of the likely significant environmental impacts. NEPA requires no more. 40 C.F.R. 1500.3. 
Issue 2: Judicial orders preclude reliance on FEIS 
Objectors claim that the Forest Service cannot make a new decision based on the FEIS, as it has been ruled unlawful. 
  • a)  Objectors allege that, because the Forest Service withdrew from the pending appeal, the land exchange must be unwound and there must be a new analysis on a clean slate.
  • b)  Objectors allege that the Draft ROD relies on an invalidated ROD, FEIS, and Endangered Species Act (ESA) consultation and that the Forest Service did not participate in the Circuit mediation.
  • c)  Objectors allege that the court’s ruling invalidated the land exchange alternative for purposes of comparison with the Alaska National Interest Lands Conservation Act (ANILCA) alternative and that a host of other alternatives must now be considered even though the court made no ruling regarding the range of alternatives.
  • d)  Finally, objectors allege the draft ROD “knowingly and willfully” ignored a judicial order.
  • a)  Objectors misunderstood the status quo during the appeal. The land exchange was consummated subject to being unwound by judicial order, or with the agreement of Leavell- McCombs Joint Venture (LMJV). LMJV is pursuing its appeal rather than unwinding the land exchange. The Forest Service does not currently own the land where the access would be granted and this is why the Draft ROD is contingent on the land exchange being unwound.
  • b)  The Draft ROD does not rely on the invalidated Final ROD but states its own rationale responding to concerns raised in the district court’s two rulings. The Draft ROD does not simply rely on the existing FEIS. A Supplemental Information Report was conducted and concluded that the existing FEIS need not be supplemented. The Draft ROD does not rely on the prior ESA consultation but has begun a new consultation with a new Biological Assessment. The district court’s May 19, 2017, ruling at page 21 notes that the ROD and Biological Opinion require relief under the Administrative Procedures Act. The opinion goes on at page 40 to set aside only the Final ROD. The district court ruling was based on three points that were not clear in the Final ROD, which was set aside. First, that the Forest Service misunderstood and underestimated its own authority to regulate the private development. Second, that the scenic easement and the history of the 1987 land exchange demonstrate that the Forest Service does have actual power to control the private development. Third, that the Forest Service refused to even consider imposing deed restrictions under 36 CFR 254.3(h) because it concluded that ANILCA prevented it from doing so.
    The Draft ROD clarifies all of these points. First, the Forest Service used an unfortunate turn of phrase in stating that it had no authority to regulate the “degree or density” of development on private land and in stating that it had no “jurisdiction” on private land. A better statement would have been that the Forest Service lacks sufficient authority to regulate the “degree or density” of development on private land, but some authority to veto uses was reserved in the scenic
page 4 
Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 
easement and some authority to negotiate for authority to regulate private land exists in the land exchange regulations. However, neither the FEIS nor Final ROD went so far as to say that the Forest Service has no authority to enforce the scenic easement or to seek other deed restrictions in a land exchange. Second, the Draft ROD clarifies that the Forest Service holds a scenic easement which gives it limited authority to disapprove specific aspects of a proposed private development. But the scenic easement does not give the Forest Service actual control of the private development and a very substantial all-season resort can be built and remain compatible with the scenic easement. Third, the draft ROD clarifies that the Forest Service did not interpret ANILCA as preventing it from asserting its authority to impose deed restrictions on the federal exchange parcel by the authority of 36 CFR 254.3(h). On the contrary, the Forest Service recognized that it had this authority and made specific findings in the objection response that deed restrictions were neither needed to protect the public interest nor appropriate. Unfortunately, neither the Final ROD nor the FEIS clearly stated this interpretation and the court did not address the objection response. 
Finally, the Forest Service did participate in the first mediation call on Friday, November 17, 2017, at 2:00 p.m. where the mediator had all parties on separate lines. The Forest Service made clear that its participation was in the capacity of enabling any mediated settlement that could be achieved between Rocky Mountain Wild and LMJV. The mediator advised the Forest Service that it need not be involved in subsequent negotiations unless a deal was reached. The Forest Service participation in mediation is a matter of record in the court’s files. 
c) With regard to alternatives, the court did not state that the range of alternatives was inadequate or that the land exchange alternative, without deed restrictions, was not a “lawful” alternative. The rationale for selecting the alternative failed to pass judicial muster but that does not render the alternative itself “unlawful.” 
Courts apply a “rule of reason” to consideration of alternatives. That rule specifically takes into account the objectives of a private applicant and recognizes that an alternative that would be unacceptable to the applicant is not a feasible alternative. While the court found the original rationale for selecting the land exchange alternative unconvincing, the alternative remains part of the reasonable range of alternatives. The comparison between the land exchange without deed restrictions and the ANILCA alternative with deed restrictions presents the decision-maker with the opportunity to select a hybrid alterative within the range analyzed – a land exchange with deed restrictions. 
While the Draft ROD makes the policy choice to select the ANILCA alternative due to a statutory obligation to grant access, the land exchange is still the desired outcome in the future. The Forest Service selected the land exchange alternative after determining that it was in the public interest and finding that deed restrictions were not needed to protect the public interest. If Rocky Mountain Wild and LMJV could agree on a set of deed restrictions, the Forest Supervisor could select a deed restricted alternative in the Final ROD. Nevertheless, the “rule of reason” does not require the Forest Service to analyze a speculative set of alternative land exchanges with a variety of deed restrictions absent any indication LMJV would accept those restrictions. No “rule of reason” would require the Forest Service to consider a variety of “deed restriction” alternatives when it has already determined that the land exchange without any deed restrictions is in the public interest and that no additional deed restrictions are “appropriate” or needed to “protect” the public interest in the language of 36 CFR 254.3(h). 
page 5 
Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 
Objectors assert that ANILCA does not require access sufficient for a year-round resort. The Forest Service determined that ANILCA does require access which will enable a year-round resort to be developed on the existing parcel. The Forest Service expressly found the land exchange to be in the public interest compared to substantial development on the existing parcel. The district court did not reach the question of whether the land exchange alternative was in the public interest without deed restrictions but assumed the Forest Service failed to even consider whether deed restrictions were needed to protect the public interest. Based on the Forest Service determination that a year-round resort can be built on the existing parcel, its determination that the land exchange is in the public interest is imminently reasonable. The district court assumed ANILCA requires the Forest Service to grant all-season access sufficient to a year-round resort (May 1, 2017 decision at page 26). If objectors are correct that ANILCA requires no additional access, then the Forest Service will go back to the drawing board and determine what NEPA’s “rule of reason” requires. 
Objectors request consideration of 10 additional alternatives. That range of alternatives is not reasonable if LMJV has a statutory right to develop a year-round resort on its existing parcel. The Supreme Court has established that no rule of reason “worthy of the name” would require an analysis that cannot inform a decision the agency has the discretion to make. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2004). The federal district court in Colorado recently observed that a remand “would put [an agency] in the awkward position of evaluating the impacts of and developing alternatives to [an action] that it has no ability to influence or stop.” Zeppelin v. Federal Highway Administration, 305 F.Supp.3d 1189, 1202 (2018). So, the ANILCA question must be settled in order to determine whether a new NEPA analysis is needed under the “rule of reason.” 
The 10 alternatives objectors assert “must be examined” would not inform the choice of how to meet the statutory requirement to grant year-round access to the inholding. 
  • Objectors request consideration of using shared access on National Forest System Road 391 for a 208 unit base lodge, but the Forest Service has no authority to limit the development to 208 units, state law requires year-round access for a planned unit development (PUD), and the FEIS eliminated National Forest System Road 391 from detailed consideration due to impacts to the ski area if it is plowed.
  • Objectors request consideration of only LMJV being given access via National Forest System Road 391 for minimal development, but the Forest Service has previously determined that such access does not meet the ANILCA statutory obligation.
  • Objectors request consideration of “enhanced” shared use of National Forest System Road 391 and over-the-snow commercial access, but the Forest Service has previously determined that over-the-snow access does not meet the ANILCA statutory obligation.
  • Objectors request consideration of a single grade-separated interchange shared by LMJV, the Forest Service, and the Ski Area, but the Colorado Department of Transportation has found that an at-grade access is acceptable and the Draft ROD clarified that ANILCA does not guarantee unlimited access or require a grade-separated interchange. LMJV has not sought a grade-separated access, and if such an access becomes necessary, it will be discretionary and could be denied. 
page 6 
Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 
  • Objectors request consideration of the Snowshed Road and one other access. Objectors do not clarify whether they mean to distinguish the alignment of Alternative 3 from the alignment that was denominated the “Snowshed Road” in the 2005 FEIS. If objectors seek the same alignment as Alternative 3, that was covered in the 2015 FEIS. If objectors seek the 2005 alignment, that was covered in the 2005 FEIS.
  • Objectors request consideration of Tranquility Road and one other access. This is Alternative 3, and scoping did not identify any other route for the access that would reduce environmental effects. Failure to identify such a route is likely because the environmental effects of any reasonable access route are minor and the FEIS reasonably focused on the significant effects of the private development.
  • Objectors request consideration of extension of only Tranquility Road but, as they note, this alternative was eliminated from detailed consideration.
  • Objectors request consideration of access based on “the undisclosed terms of the 2008” settlement agreement, but the district court rejected getting into that settlement.
  • Objectors request consideration of exchanging the LMJV parcel for Forest Service lands elsewhere, but LMJV has rejected that alternative.
  • Objectors request consideration of purchasing or condemning LMJV’s parcel, but LMJV will not sell and the parcel does not meet the criteria for condemnation.
  • Finally, objectors appear to request consideration of imposing “terms and conditions” that would “scale” the development, but the Draft ROD explains that the Forest Service does not have that authority under ANILCA, the scenic easement, or the land exchange regulations (because land exchanges are consensual transactions and LMJV does not have to accept any “terms and conditions”).
d) From the foregoing discussion, and the discussion of the district court’s rulings in the Draft ROD itself, it is clear that the Draft ROD did not “knowingly and willfully” ignore a judicial order. Quite to the contrary, the Draft ROD was crafted to respond to the judicial order by addressing the statutory and regulatory framework with the intention of more clearly explaining the “path” the agency took in making the new decision. The Forest Supervisor attempted to be very clear about what the extent of his authority is and to express his hope that a future land exchange can be approved. But, right now, ANILCA demands that access be granted, not a land exchange. 

Based on my review of the two district court rulings, the responsible official reasonably chose to: 1) evaluate the FEIS to see if it needed to be supplemented; 2) craft a Draft ROD explaining his authority, the fact that a land exchange is a discretionary transaction, and his decision to move to the ANILCA alternative in the interim while remaining open to a future land exchange; and 3) reinitiate consultation based on a new Biological Assessment. I emphasize that the Forest Supervisor did not ignore a judicial order and the judicial orders do not preclude relying on the FEIS. 

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