With a tip of my hat to Jimbo Buickerood, at the San Juan Citizens Alliance, for alerting me to Jonathan Romeo's report in the May 10th Durango Herald on the latest Village at Wolf Creek development. Namely, as the time limit ran out the USFS appears to have decided not to appeal Judge Matsch's decision of last May.
Leavell-McCombs Joint Venture's Attorney Bill Leone defiantly announced that it doesn't matter to them what the USFS does. They have gone ahead on their own and filed an appeal on Wednesday, arguing that "the environmental review was done according to the law and the land swap should be approved."
May 14th Update - USDA/USAF filed an "Unopposed Motion to Dismiss Appeal by Appellant United States"
But Judge Matsch sets this lawyerly 'misrepresentation' straight, when he clearly explained in his decision:
(Page 21 of 40)
ANALYSIS
The following aspects of the Record of Decision and the Biological Opinion that forms part of the basis for the ROD require relief under the APA. Defendants failed to consider important aspects of the issues before them, offered an explanation for their decision that runs counter to the evidence, failed to base their decision on consideration of the relevant factors, and based their decision on an analysis that is contrary to law.
(Page 39 of 40)
The 900 public comments in the record show this heightened public awareness of the effects of human disruption of the native environment. The Rio Grande National Forest has two designated wilderness areas near the area involved in this action. It has unique features.
Notably, responses to the public comments were prepared by the contractors who did the work.
They would not be expected to find that work to be flawed.
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.
VII. ORDER
Where an agency action is found to be arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law,
(Page 40 of 40)
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
(Senior Federal Judge)
Attorney Leone suggests, “We are entitled access to the property to develop it for the Village.”
Only in your pipe-dreams Mr. Leone, you, McCombs', and LMJV are not entitled to access that property in order to build a destructive boondoggle in the middle of our Rio Grande National Forest at the headwaters of the Rio Grande River!
This has been a shady deal from the gitgo and We The People certainly have a right to stand in your way and to stop the destructive travesty Red and his daughter are trying to get away with up in those mountains.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Developers dealt a blow in
‘Village at Wolf Creek’ battle
The U.S. Forest Service has decided not to appeal a federal judge’s ruling to nix the controversial Village at Wolf Creek – a significant win for opponents of the proposed development and a possible major blow to developers. ...
A series of court filings and attempts to reverse the decision over the ensuing months ultimately failed. In November, the Forest Service filed a notice that it intended to challenge the judge’s decision in a higher appeals court.
The Forest Service had a final deadline to file the official appeal on Wednesday. And according to court records, the Forest Service has not filed any sort of appeal.
Requests from The Durango Herald for comment from the Forest Service and the U.S. Department of Justice for comment were not received. ...
“For all practical purposes, by not filing a brief yesterday (Wednesday), they’ve let us know they don’t intend to go forward.” ...
If the developers are indeed allowed to carry out the appeals process, briefings would be filed over the summer. Oral arguments would likely begin sometime in September, Bill Leone said.
Travis Stills, (attorney with Energy & Conservation Law), said it is likely the Forest Service will file a motion that explain its decision not to file an appeal. In the meantime, Stills said it appears as if this part of the 30-year battle is over, he said. ...
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Further background:
Open Letter to Mr. McCombs and Marsha Shields, please reconsider your intentions.
I believe it is appropriate to personally petition Mr. McCombs and his daughter Marsha M. Shields, asking them to completely reconsider their out of date plans for a mountain village at Alberta Park. I encourage others to send their own thoughtful and constructive petitions on behalf of yourself, Alberta Park and all the wildlife and biology going on that can’t speak for itself.
Supplemental information supporting my claims in the above letter.
Village At Wolf Creek developments - collection of news stories.
UPDATE - VWC-RGNF deal tossed out! Judge Rejects Flawed Process - RockyMtnWild Press Release
Judge Has Ruled - Red McCombs and LMJV land swap nullified. Text of Ruling.
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
Appellate Case: 17-1408 Document: 01019990930
Date Filed: 05/14/2018
Nos. 17-1366, 17-1408, 17-1413
In the United States Court of Appeals for the Tenth Circuit
_______________________________________________________________________________________________
Rocky Mountain Wild; San Luis Valley Ecosystem Council; San Juan Citizens Alliance; Wilderness Workshop, Plaintiffs - Appellants,
v.
Dan Dallas, in his official capacity as Forest Supervisor; Maribeth Gustafson, in her official capacity as Deputy Regional Forester; United States Forest Service; United States Fish and Wildlife Service, Defendants - Appellees.
_______________________________________________________________________________________________
On appeal from the United States District Court for the District of Colorado, Case No. 1:15-cv-1342-RPM
Unopposed Motion to Dismiss Appeal by Appellant United States
_______________________________________________________________________________________________
Appellate Case: 17-1408 Document: 01019990930 Date Filed: 05/14/2018 Page: 3
Pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, Defendants-Appellants, Dan Dallas, in his official capacity as Forest Supervisor; Maribeth Gustafson, in her official capacity as Deputy Regional Forester; the United States Forest Service; and the United States Fish and Wildlife Service respectfully move this Court for voluntary dismissal of Appeal No. 17-1408, with each party to bear its own costs on appeal. Fed. R. App. P. 39. Plaintiffs’ claims to statutory attorney’s fees and costs will be addressed separately.
Counsel for the United States has conferred with counsel for the other parties in this matter. Counsel for both Appellees Rocky Mountain Wild; San Luis Valley Ecosystem Council; San Juan Citizens Alliance; and Wilderness Workshop do not oppose the relief sought by this motion. Intervenor Leavell- McCombs Joint Venture takes no position on the motion.
JEFFREY H. WOOD
Acting Assistant Attorney General
ERIC GRANT
Deputy Assistant Attorney General
/s/ James A. Maysonett
_____________________
JAMES A. MAYSONETT
Attorney, U.S. Department of Justice Environment & Nat. Res. Division
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