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.
In May 2017, a federal judge ruled the Forest Service skirted its responsibilities when it approved a land swap that would give access to the proposed massive development near the Wolf Creek Ski Area.
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 were not returned.
Travis Stills, an attorney with Energy & Conservation Law, which represents several environmental groups opposing the project, said the Forest Service’s inaction should effectively put an end to a multi-year battle.
“When the government doesn’t defend a decision it made that a federal judge has struck down, that should be the end of things, and we’re hoping this puts an end to this land exchange,” Stills said.
“For all practical purposes, by not filing a brief yesterday (Wednesday), they’ve let us know they don’t intend to go forward.”
For about 30 years, the would-be developers – Leavell-McCombs Joint Venture, led by Texas billionaire B.J. “Red” McCombs – has tried to build a resort with the capacity for up to 10,000 people at the base of Wolf Creek Ski Area.
The property, however, has always lacked access to a major road, U.S. Highway 160. The proposed “Village at Wolf Creek” would be located on the top of a remote mountain pass at 10,000 feet in elevation, more than 20 miles from the nearest town.
Three years ago, the Forest Service approved a land swap with Leavell-McCombs Joint Venture, which in effect gave the developers the access to Highway 160 the project had lacked.
The Forest Service’s decision, however, was challenged by environmental groups that said the Forest Service didn’t take into account environmental concerns and was influenced by McCombs and his political pressure.
In May 2017, Judge Richard P. Match, a senior U.S. district judge for the District of Colorado, agreed, calling the Forest Service’s actions throughout the process an “artful dodge” to skirt its responsibility to protect public lands.
“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.”
The Forest Service and the developers were left with two choices: challenge the decision with the 10th Circuit Court of Appeals or restart the environmental analysis for the land swap.
Leavell-McCombs Joint Venture filed an appeal in October, arguing the Forest Service did everything it needed to do to study the environmental impacts of the project.
But the Forest Service has remained silent on the issue. Even now, it’s a little unclear how the process will play out.
Leavell-McCombs Joint Venture was granted an “intervenor” status in the lawsuit.
Stills believes because of that, Leavell-McCombs Joint Venture can’t proceed with the appeals process.
Bill Leone, an attorney for Leavell-McCombs Joint Venture, disagrees. He said intervenors are allowed to carry out the appeals process.
“From our standpoint, (the Forest Service not appealing) doesn’t change anything,” Leone said.
The developers did file an appeal Wednesday, arguing the environmental review was done according to the law and the land swap should be approved.
“We are entitled access to the property to develop it for the Village,” Leone said. “We believe we’re going to get that one way or the other.”
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, Leone said.
Stills said it is likely the Forest Service will file a motion that explains 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.
“At the end of the day, LMJV never got a clean private development possibility,” Stills said. “As long as they keep putting ridiculous proposals out there, we will continue to oppose them. If there was a reasonable proposal, that might change things, but they’ve never come in with a reasonable proposal.”