VWC-EIS, Objection Issues and Responses #3, #4, #5, #6

TUESDAY, NOVEMBER 20, 2018

Index of VWC-EIS, Objection Issues and Responses. 33 issues addressed 

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

My post of the "Index of the VWC-EIS, Objection Issues and Responses" has been amazingly well visited.  Ironically, I also put together a series of posts of highlights from those 33 responses.  Then I ran out of steam and it didn't seem important, and other matters were, and I was gone, now I'm thinking perhaps it's more important than I thought and that it would be good to post them after all.

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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 

Contents 

Issue 3: The Forest Service has never made Leavell-McCombs Joint Venture’s proposal (ANILCA alternative) available for review by the public or other local, State, and Federal agencies with jurisdiction and control over the Wolf Creek Ski Area complex

Issue 4: The purpose and need and designation of the NEPA “Federal Action” are invalid

Issue 5: The FEIS perpetuates the same structural flaws addressed by the previous injunction and settlement

Issue 6: The range of alternatives considered is inappropriately narrow

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Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

Issue 3: The Forest Service has never made Leavell-McCombs Joint Venture’s proposal (ANILCA alternative) available for review by the public or other local, State, and Federal agencies with jurisdiction and control over the Wolf Creek Ski Area complex 

Objectors claim that the Forest Service violated NEPA by not making LMJV’s proposal available for public review. 

Analysis 

Some Objectors state that the letter from LMJV dated January 12, 2018, is a proposal or application for ANILCA access. The Forest Service treated this correspondence as a letter reflective of LMJV’s thoughts and opinions. The Draft ROD approves Alternative 3 as analyzed in the FEIS. 

Regulations at 40 CFR 1506.6(f) state “Make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552).” The public may submit a FOIA request for documents. Objectors sought LMJV correspondence from the Forest Service and were provided a copy of the January 12th letter and attachments on June 4, 2018. 

The January 12, 2018, letter from LMJV requested year-round access to the private inholding. A Supplemental Information Report was prepared on June 28, 2018, to determine whether any new information or changed circumstances would present a significantly different picture of the environmental effects warranting a supplement to the 2014 FEIS. The determination was made that a supplemental EIS was not required. The objector states that “LMJV’s January 12, 2018, ANILCA proposal, which deviates from the proposal considered in the FEIS by LMJV’s own admissions, was never considered in an FEIS.” That is true, but the Draft ROD approves the alternative analyzed in the 2014 FEIS (p. 8, section 4.2 of draft ROD and Chapter 2, p. 2-3, section 2.2.3 of the FEIS), not the LMJV January 12, 2018, letter. 

Conclusion 

Based on my review of the FEIS, Draft ROD, and project record, I find no violation of law, regulation, or policy with regards to the Forest Service not making the January 12, 2018, letter from LMJV available for public review. 

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Issue 4: The purpose and need and designation of the NEPA “Federal Action” are invalid 

The thrust of the objectors claim is that the real federal action here was the development of a year-round resort on private land adjacent to the ski area. They state that the purpose and need was narrowed to focus solely on access to the private parcel when it should have been expanded to using federal authorities to minimize environmental effects from the “federalized” resort development. 

Analysis 

While it is not completely clear, objectors appear to break their assertion of federal authority to control the private development into four categories: ANILCA; “additional” easements for the infiltration gallery, raw water pipeline, ski area access, etc.; scenic easement; and 36 CFR 254.3(h). 

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Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

ANILCA – Objectors claim that ANILCA empowers the Forest Service to determine the reasonable use and enjoyment of the private property and therefore the authority to impose development restrictions to ensure that the development does not exceed the level of development deemed reasonable by the Forest Service. Objectors cite a preliminary injunction order on a 2005 ROD authorizing access to the LMJV parcel. In that order, the judge emphasized that ANILCA requires the Forest Service to determine the reasonable use and enjoyment of the private parcel and that access is only required to allow that use. The Draft ROD clearly makes the determination that the reasonable use and enjoyment of the private parcel is as a year-round resort including commercial and residential properties. It notes that such a year-round resort can be operated using an at-grade access and finds that LMJV is not entitled to a grade-separated access. 

The Draft ROD also rejects over-the-snow and seasonal access and finds that year-round snowplowed access is required. Objectors contend that the district court rejected the “false premise” of the purpose and need, which assumes that there is a duty to provide additional access beyond what was granted in the 1987 land exchange. This is a mischaracterization of the district court’s May 19, 2017, ruling which recognized the Forest Service had made the determination that the reasonable use of the private property was as a year-round resort and the court assumed ANILCA required the Forest Service to grant all-season access. The court did not rule that no additional access was required by ANILCA. The Draft ROD also emphasizes that the Forest Service has, since 1991, interpreted ANILCA as not allowing it to tell a landowner what use may be made of private land. Thus, the Draft ROD clearly establishes that ANILCA does not give the Forest Service the authority that objectors assert. 

Additional Easements – Objectors claim that additional easements were ignored in the purpose and need that might have provided additional federal control over the private development. Objectors specifically mention the Village Ditch Infiltration Gallery and the raw water pipeline, which are located on the private property and would have been reserved in the land exchange alternative but remain located on private land in Alternative 3. Objectors also mention the ski area access road, the easement underlying Highway 160, and allude to some potential easement regarding the benzene plume. It is not clear how the infiltration gallery and raw water pipeline, which exist on private land, or the CDOT easement for Highway 160, or the existence of a benzene plume on federal land outside the federal exchange parcel could provide federal control over the private inholding. Objectors do not make the case for how a permit allowing access from the private land to the ski area parking lot or allowing placement of utilities within the road corridor would “federalize” the private development. Presumably, objectors suggest that the permit be used as a bargaining chip to get LMJV to grant development restrictions on the private land. However, Forest Service statutory authorities do not grant it the authority to regulate private property. Therefore, it would be a violation of the Administrative Procedure Act for the Forest Service to make a decision based on factors Congress did not intend for it to consider and the Forest Service would be forbidden to rely on the effects of private development as a justification for denying a permit. Sierra Club v. FERC, 2017 WL 3597014 (D.C. Cir. 2017). 

Scenic Easement – Objectors claim that the scenic easement empowers the Forest Service to impose terms and conditions in order to reduce environmental impacts. The Draft ROD clearly rejects this argument showing that the scenic easement defers general land use regulation to Mineral County, allows uses “typical to an all-season resort village” (which the FEIS determined would allow a resort with more than 1,900 units), and allows the Forest Service to object to certain non-conforming uses of the private property. The scenic easement only allows the Forest Service to object to development plans based on “non-compliance with the terms of this easement” and the easement provides no authority to impose terms and conditions in order to reduce environmental impacts. Moreover, any 

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Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

objection goes to mandatory arbitration and the Forest Service does not have final veto power, only the arbitrators have that authority. 

36 CFR 254.3(h) – Objectors claim that this regulation granted the Forest Service the “power to impose ‘reservations and restrictions’ . . . as are needed to protect the public interest . . . or otherwise . . . as appropriate.” The Draft ROD agrees that the Forest Service would have the authority to propose such deed restrictions but has no power to impose such restrictions because land exchanges are voluntary transactions and LMJV could simply decline the land exchange and insist on access pursuant to ANILCA. 

Conclusion 

Review of the Draft ROD and project record demonstrates that the Forest Service lacked the actual authority to control the private development and therefore did not “federalize” the private development. The real federal action was not the development of the private resort but the authorization of access pursuant to ANILCA, and the purpose and need remains valid. 

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Issue 5: The FEIS perpetuates the same structural flaws addressed by the previous injunction and settlement 

In addition to “structural flaws,” objectors allege “bias” and failure to maintain an adequate administrative record. 

Analysis 

The district court found that the Forest Service erred in its decision but did not attribute that failure to bias or influence from LMJV. The district court attributed the failure to a misunderstanding by the Forest Service of its authority. Accordingly, the Draft ROD directly addresses Forest Service authority. The court did not invalidate the central legal determinations underlying the Draft ROD. 

The Forest Service determined that the reasonable use and enjoyment of the private parcel is use as a winter resort and therefore ANILCA requires year-round snowplowed access. The district court assumed this was correct but made no finding that it was correct or incorrect. The Forest Service also determined that neither ANILCA, the scenic easement, nor 36 CFR 254.3(h), give the Forest Service the actual power to control the private development. The district court did not directly address whether ANILCA provides authority to control private development. The district court assumed that the scenic easement and 36 CFR 254.3(h) do grant authority to control private development. The Draft ROD explains why the scenic easement does not grant authority to control the private development and explains that, while 36 CFR 254.3(h) does grant the authority to request deed restrictions, land exchanges remain consensual transactions and LMJV can simply turn down any land exchange with a deed restriction that LMJV is unwilling to accept. The Draft ROD provides the rationale that the prior ROD was missing and allows for judicial review. 

Objectors also allege that the administrative record is defective. However, the district court rejected that claim. The new documents added to the record at this point are the Supplemental Information Report, the new Biological Assessment, and the Draft ROD. The January 12, 2018, letter from LMJV was also considered, but the Draft ROD clearly states that the LMJV proposal was rejected because the Forest Service cannot grant an ANILCA easement until the existing land exchange is unwound. Therefore the Draft ROD selected Alternative 3 as analyzed in the FEIS. Neither LMJV nor any contractor had input on the SIR, the BA, or the Draft ROD. 

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Conclusion 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

The objectors’ claim of bias is not supported by the project record. I find the legal interpretations in the Draft ROD to be well supported and the administrative record to be adequate. 

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Issue 6: The range of alternatives considered is inappropriately narrow 

Objectors include several points under this section that apply to specific alternatives considered in the FEIS but not to the broader range of alternatives challenge. These are detailed below. 

Analysis 

Issue 6 (a): Objectors state that the Forest Service violated NEPA (40 C.F.R. § 1502.14(a)) by dismissing an alternative addressing acquisition (or “fee purchase”) of the private land. A purchase alternative would require a willing buyer (the United States Government) and a willing seller (LMJV). These types of land transactions are generally initiated by a proponent. LMJV, as the project proponent, requested year-round access to their property, not a willingness to sell their property. The FEIS states, “Historically, the Forest Service has acquired critical non-Federal parcels through a congressional appropriation from the Land and Water Conservation Fund (LWCF)” and goes on to say, “This alternative was rejected because it does not meet the Purpose and Need, LMJV is not willing to sell, and there would not likely be funding available for the purchase of the inholding.” (FEIS, vol. 1, p. 2-5) 

Recognition of LMJV’s objectives is consistent with Council on Environmental Quality (CEQ) guidance, which states there is “no need to disregard the Applicant's purposes and needs and the common sense realities of a given situation . . .” (48 FR 34263). The Forest Service is analyzing action alternatives that would allow LMJV year-round access to their private property (FEIS, vol. 1, pp. 1-2 to 1-3, FEIS, vol. 1, Section 2.2). An alternative that ignores a statutory right of access is not the same as analyzing a reasonable alternative that is outside the jurisdiction of the lead agency. A reasonable alternative must meet the purpose and need (40 CFR 1502.13, 1502.14(c)). The purpose and need stated in the FEIS is “...to allow the non-Federal party to access its property to secure reasonable use and enjoyment thereof as provided in ANILCA and Forest Service regulations, while minimizing environmental effects to natural resources within the project area.” (FEIS, vol. 1, p. 1-3). 

Purchase of the private property does not meet the purpose and need. The responsible official did consider and dismissed the objector’s fee purchase alternative and cited the reasons why it was not being considered (FEIS, vol. 1, p. 2-5) in compliance with the requirements of NEPA (40 CFR 1502.14(a)). There is no requirement in NEPA to analyze alternatives in detail that do not meet the purpose and need of a project other than a no-action alternative. 

Issue 6 (b): Objectors allege that the Forest Service violated NEPA (40 CFR 1502.14(a)) by not analyzing construction and operations limited to the existing access. 

The purpose and need for the action is to grant LMJV access to their private land for “reasonable use and enjoyment” under ANILCA (FEIS, vol. 1, pp. 1-27, 1-29). The responsible official evaluated the project in the context of Section 3210 of ANILCA, and determined that existing, seasonal access was inadequate (FEIS, vol. 1, Section 1.10; Draft ROD Section 5.0). Winter access on National Forest System Road 391 is further constrained by the ski area operations (FEIS, vol. 1, p. 2-5 within Section 2.3.3). Objectors takes the position that the effects of a status quo access alternative would differ from the effects of the no-action alternative because some limited development could occur. The Forest 

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Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

Service analyzed the no-action alternative as a no-development alternative. Because a status quo access alternative does not meet the purpose and need, it was appropriate under NEPA (40 CFR 1502.13) for the Forest Supervisor not to analyze this alternative. 

Conclusion 

The acquisition alternative was appropriately dismissed from detailed consideration because it does not meet the purpose and need. The status quo access alternative (to the extent that it may differ from the no-action alternative) need not be analyzed for the same reason. The range of alternatives is judged by a “rule of reason” and the choice not to analyze these alternatives did not unreasonably narrow the range of alternatives. See responses to Issues 2 and 4.