The would-be developers of the controversial Village at Wolf Creek are not ready to give up.
Leavell-McCombs Joint Venture – spearheaded by Texas billionaire B.J. “Red” McCombs – has filed an appeal with the next tier of the federal court system, challenging a previous federal judge’s decision that the massive development atop Wolf Creek Pass was approved “contrary to law.”
“The Joint-Venture believes strongly the project is a good project and the Forest Service did everything it needed to do to study the environmental impacts of that project,” said Bill Leone, an attorney representing the developers. The appeal was filed Friday.
Although the timeline of the proposed Village at Wolf Creek dates back more than 30 years, this most recent spat concerns a 2015 decision by the Forest Service, in which the service approved a land swap that effectively gave the developers the access to U.S. Highway 160 it has always lacked.
For nearly three decades, the developers have sought to build a resort at the base of Wolf Creek Ski area with the capacity for anywhere from 8,000 to 10,000 people on the mountain pass, which sits at an elevation of 10,000 feet and is more than 20 miles from the nearest town.
Yet the parcel did not have access to a major road until the Forest Service decision to approve the land swap two years ago.
The Forest Service’s decision, however, was challenged by a coalition of environmental groups that say environmental impacts to the remote mountain pass were not taken into account, and that the process all along has been unduly influenced by McCombs and his political pressure.
In May, Judge Richard P. Matsch, a senior U.S. district judge for the District of Colorado, in no uncertain terms, agreed.
“What NEPA (National Environmental Policy Act) 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,” Matsch wrote in his decision. “The Forest Service failed to do that.”
In September, Matsch denied a request from Leavell-McCombs Joint Venture to reconsider the May decision.
“The Forest Service cannot abdicate its responsibility to protect the forest by making an attempt at an artful dodge,” Matsch wrote in that decision.
For the developers, there were two choices: challenge the decision with the 10th Circuit Court of Appeals or restart the environmental analysis regarding a land swap with the Forest Service for access to the highway.
The appeal filed Friday now enters a briefing schedule that probably won’t start for another 30 days or so, Leavell-McCombs Joint Venture’s attorney Leone said.
The environmental coalition – known as “Friends of Wolf Creek,” comprised of Rocky Mountain Wild, San Luis Valley Ecosystem Council, San Juan Citizens Alliance and Wilderness Workshop, will also file counter-briefs.
“While we aren’t surprised that developers with such deep pockets and a decades-long desire to create a massive development atop Wolf Creek Pass would not back down now, we do feel confident that Judge Matsch’s ruling that the Forest Service violated the law and failed to act in the public interest will be upheld in appeals court,” said Jimbo Buickerood with the Durango-based SJCA.
Matt Sandler, an attorney for Rocky Mountain Wild, said the developer’s appeal is a continued attempt to avoid an environmental analysis. He said since the 1980s the entire process has been riddled with evidence of collusion between the developer and Forest Service.
“From the beginning, we’ve wanted an honest analysis of the impacts of this giant development,” Sandler said. “And instead of going back and doing that, we’ve got the developer continuing to fight and fight and fight.”
The Forest Service, for its part, has remained silent in recent months. Lawrence Lujan, a spokesman for the Forest Service, said the agency does not comment on pending litigation and directed all inquires to the Department of Justice.
A spokesman with the Department of Justice declined to comment.
“I still hold out hope for the Forest Service,” said Travis Stills, an attorney with Energy & Conservation Law. “Maybe they can finally take to heart what the public and two federal judges have said and look for resolutions to this whole thing that doesn’t involved LMJV calling the shots.”