All court filings and arguments related to a lawsuit seeking to overturn the U.S. Forest Service’s decision to green-light the proposed Village at Wolf Creek are in the hands of Senior Judge Richard P. Matsch.
But Matsch will not have material that a coalition of conservation groups – which includes Rocky Mountain Wild and San Juan Citizens Alliance – were hoping to gain through a Freedom of Information Act request.
On Jan. 27, the coalition’s FOIA seeking correspondences between the U.S. Forest Service’s contracted companies and the developers of the Village at Wolf Creek was denied by a separate U.S. District Court Judge, William Martinez.
“This decision sets a really troubling result,” said Travis Stills, an attorney with Energy & Conservation Law. “It lets the Forest Service use contractors to create a black box around its real decision-making and the influence that project proponents have on private contractors carrying out federal responsibilities.”
Last year, the coalition obtained through a previous FOIA request tens of thousands of internal U.S. Forest Service emails, which the group said points to apparent collusion between the Forest Service and developer, Leavell-McCombs Joint Venture.
The emails showed U.S. Forest Service employees who were working on the project expressing anxiety over possible public information acts, the need to delete sensitive emails and concern over Texas billionaire B.J. “Red” McCombs’s influence on officials in Washington D.C.
This most recent FOIA sought to further expose undue influence, Stills said, by bringing to light conversations directly between the contractors the Forest Service hired to do work, such as an environmental analysis, and the developer.
The U.S. Forest Service and Leavell-McCombs Joint Venture have denied all such claims.
While Martinez acknowledged “an agency could employ a third-party contractor to insulate itself from FOIA obligations,” he ultimately sided with the U.S. Forest Service.
“The court agrees with the Forest Service that it has no duty, under the circumstances, to disclose third-party contractors’ records that it has never seen or relied upon,” the judge’s ruling said.
However, Stills and his colleagues say because the contractors are in charge of preparing and writing the Environmental Impact Statement, the U.S. Forest Service is beholden to provide all documents that went into that analysis.
“NEPA is a large process, and the Forest Service doesn’t have the person power to do all the work themselves, so they hire subcontractors,” said Jimbo Buickerood with San Juan Citizens Alliance. “It’s still a public process. They’re just doing the Forest Service’s work, and all that material should be available to the public.”
Both parties have until Feb. 28 to file settlement documents regarding the FOIA claim.
Otherwise, aside from a few procedural filings, the parties await Judge Matsch’s ruling on whether the U.S. Forest Service was in the right in 2014 when it approved a land exchange, effectively giving the Village at Wolf Creek the access to U.S. Highway 160 it has lacked since the 1980s. There is no deadline for the judge’s decision.
In its opening brief, the coalition argues the Forest Service unlawfully limited the scope of an environmental analysis and failed to serve the public interest when it approved the land exchange.
Dan Dallas, supervisor for the Rio Grande Forest Service, told The Durango Herald at the time, he would have preferred a “no action” option, which would have the least environmental impact.
“In the end, I concluded that Leavell-McCombs Joint Venture is entitled by federal statute to have granted to them by the Forest Service a right of way for access commensurate with the reasonable use and enjoyment of their properties,” Dallas said.
Leavell-McCombs Joint Venture, in response to the coalition’s opening brief, said its proposed project – an Aspen-sized resort with a capacity for about 10,000 people atop the remote area of Wolf Creek Pass – would have little impact.
“The land off Highway 160 in the vicinity of the ski area is neither a model of solitude, nor can it accurately be described as ‘pristine,’” Leavell-McCombs Joint Venture wrote. “Construction of the Village will not drastically change the area.”
Wolf Creek Ski Area is a small, family-owned operation at an elevation of about 10,300 feet. The nearest towns are Pagosa Springs, about 25 miles to the south, and South Fork, about 20 miles north.
It is considered critical habitat for the endangered lynx, as well as wildlife that migrate through the area, and is the furthest headwaters of the Rio Grande River.