Recently I asked Dan Dallas a couple questions which he kindly answered. I reprinted Supervisor Dallas's complete response July 23rd. Today I was able to review Rocky Mountain Wilds' writeup at http://www.friendsofwolfcreek.org/background/ and I must say the information contradicts the supervisor's simple response and the Friends of Wolf Creek produced the supporting quotes from Judge Matsch's decision which I share in this post.
I understand that officials do follow 'The letter of the law' - but what's left unsaid is, which letters of the law have they chosen to follow. I don't have the answers, that's for the lawyers to spend yet more months and years haggling over.
In the end, for me, all I know is down to Earth physical reality, and if you take that into account everything screams for Red McCombs' 80s Pipe Dream to once and for all be laid to rest. Leave Alberta Park alone!
A Detailed Recent History VWC
In January 2016, a federal judge ruled that the Forest Service needed to do a more thorough search of the records in response to Friend’s of Wolf Creek’s Freedom of Information Act lawsuit, including high-level employees’ records and previously withheld documents.
In March 2016, we filed a motion in the U.S. District Court to have records in the possession of the contractors that the Forest Service hired to prepare the environmental analysis of the land exchange disclosed and potentially added to the Administrative Record. While these records legally belong to the Forest Service, they have refused to ask the contractors to supply all of them. The attorneys for the Forest Service and the Leavell-McCombs Joint Venture responded to the court arguing that the Administrative Record was complete without these additional records. In the first week of May, we filed a 23-page Reply brief.
On January 27, 2017 in a related Freedom of Information Act (FOIA) case, Judge Martinez ruled that the Forest Service did not have to collect and disclose records in the possession of the contractors who prepared the environmental analysis underlying the Forest Service’s land transfer decision. Although we already succeeded in obtaining thousands of government records in this case, the Court’s decision on this issue insulated the private contractor records leaving unanswered questions as to whether or not the developer exerted undue influence over the private contractors and what information was before the contractors that didn’t make it into analysis provided to the public.
On February 28, 2017, Rocky Mountain Wild submitted the Reply brief for the Wolf Creek case. The brief detailed how the Forest Service unlawfully limited the scope of the environmental analysis and used the process to benefit a private business over the good of the public. Despite the site of the proposed development being located in crucial habitat for the endangered Canada lynx, a wildlife corridor linking two major Wilderness areas, and containing rare fen wetlands, the Forest Service did not properly analyze protections or demand mitigation as part of the land transfer.
On April 19, 2017, Friends of Wolf Creek spent the day in court answering questions and clarifications Judge Matsch had about the case. Travis Stills, one of the attorneys representing Friends of Wolf Creek explained how the Environmental Impact Statement did not investigate in full the effects of the project, especially for the threatened Canada lynx, and how the US Forest Service claimed it did not have the authority to control the development, which had jumped from a 208 unit development to nearly 1,200.
Barclay Samford, an attorney for the Department of Justice, claimed that the Forest Service stated that the land exchange was considered a better option than easements it would have had to manage and maintain. “It’s actually better for the public interest to use the land exchange,” he said.
Judge Matsch responded: “I understand the public interest but there is also the natural environment’s interest, which is what this is all about.”
On May 19, 2017, Judge Matsch found that the Forest Service “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.”
The Court rejected the Forest Service conclusion that it lacked any control over the use of the private parcel. The Court explained that “there is no legal or logical basis for Defendants position 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.”
The Court was troubled by the fact that the Forest Service previously conditioned use of the original parcel created in 1986 “with a scenic easement that limited development.”
Judge Matsch was also concerned with the fact 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.”
The species the Court was referring to is the Federally listed Canada lynx which would have been harmed had the Village construction and operation commenced.
On June 16, 2017, The Leavell-McCombs Joint Venture filed a Motion to Reconsider asking Judge Matsch to reconsider his decision, alleging that Judge Matsch suffered from “a misapprehension of controlling law and facts.”
On September 14, 2017, Judge Matsch denied this Motion describing the Forest Service’s Wolf Creek Decision as “a patent effort to circumvent [the agencies] obligations to protect the natural environment of the Forest.” Judge Matsch again reiterated that the Forest Service’s decision was unlawful and an “attempt at an artful dodge of its responsibility.”
On October 16, 2017, the Leavell-McCombs Joint Venture filed an appeal to Judge Matsch’s decision that the Village at Wolf Creek development was approved “contrary to law.”
On May 9, 2018, the Leavell-McCombs Joint Venture filed the appellate opening brief, but the US Forest Service declined to appeal the Order issued by Judge Matsch. Since the Leavell-McCombs Joint Venture was an intervenor in the lawsuit, there’s a chance that it can’t proceed with the appeals process.
In early June 2018, Friends of Wolf Creek learn of a letter that Leavell-McCombs Joint Venture sent to the Forest Service in January demanding that the Forest Service simply ignore recent court decisions and instead approve road construction to begin the proposed real estate development. (Guess this is the age of trump)
In response, Friends of Wolf Creek started a petition urging Rio Grande National Forest Supervisor Dan Dallas to uphold Federal Court Orders and stand up to back channel pressures.
Despite over 2,300 signatures gathered in a little over a month, on July 19, the Rio Grande National Forest announced its intention to circumvent a federal court ruling that invalidated prior approvals for the controversial Village at Wolf Creek real estate development.
To make matters worse, the Forest Service is trying to severely limit who can comment on this action by limiting objections to those who “previously submitted specific written comments regarding the proposed project during scoping or comments on the draft EIS” in 2012. We believe that everyone should have the opportunity to comment on changes to their public lands. Please continue to follow this activity on our website or sign up for our action alerts to be notified when actions are available. ...
Regarding commenting on the new Draft Decision:
Village at Wolf Creek Environmental Impact Statement and draft Record Of Decision
are available on-line at:
Comments are to be sent to before September 4th to:
Reviewing Officer, Tammy Whittington,
Deputy Regional Forester,
USDA Forest Service, Region 2,
1617 Cole Blvd., Building 17,
Lakewood, Colorado 80401
or email r02admin_review@fs.fed.us.
________________________
For some helpful tips see:
Submitting Your Objection to the Village at Wolf Creek Pass Road Access Project
Posted on July 27, 2018 by Chris at Rocky Mountain Wild
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