Litigation that started over Aspen Skiing Co.’s expansion onto Burnt Mountain has evolved into a fight with much bigger stakes for the Colorado ski industry.
Two environmental groups and two individuals have asked a federal court of appeals to declare 8,300 acres of federal lands within ski-area boundaries were improperly excluded from the roadless-lands inventory in 2012. The parties contend the U.S. Forest Service should have denied the “ski-area exclusion” in the Colorado Roadless Rule.
A federal district court rejected the request last year. The Ark Initiative of Pinedale, Wyoming; its executive director Donald Duerr; part-time Snowmass Village resident Scott Schlesinger; and Rocky Mountain Wild of Denver appealed that decision.
Forest Service chief Thomas Tidwell and White River National Forest supervisor Scott Fitzwilliams of Glenwood Springs are among the defendants. Attorneys for the two sides presented oral arguments last month to the judges in the U.S. Court of Appeals for the District of Columbia Circuit. No decision has been made yet.
If the appeal were successful, ski-resort operators would have a harder time utilizing the 8,300 acres of roadless lands. The legal battle started over Skico’s application to the Forest Service to widen an egress route off of Burnt Mountain into the Two Creeks part of Snowmass Ski Area. The plaintiffs said that equated to building a road in a roadless area. About 80 acres of land on Burnt Mountain were removed from the federal roadless inventory through the Colorado Roadless Rule, according to the litigation. Skico added about 250 acres of gladed terrain on Burnt Mountain to its ski operations in the 2012-13 season. That terrain remains in use, but improvements to the egress are on hold.
In its appeal, the environmental groups dropped arguments that the Burnt Mountain egress shouldn’t be approved by the Forest Service and focused on the bigger picture: the exclusion of roadless lands within ski area permits.
The state of Colorado recommended the exclusion. The federal government endorsed the state’s suggestions in the Colorado Roadless Rule.
The environmental groups contend the Forest Service’s acceptance of the ski-area exclusion is arbitrary because such action conflicts with the agency’s handbook and past practices and procedures. It also was arbitrary to remove land for ski areas but not for the oil and gas industry, according to the appeal.
The government responded that it approved the ski-area exclusion “because it was important to the state of Colorado and because it will promote recreational skiing, which generates nearly $2.6 billion each year in Colorado,” according to the Forest Service response to the lawsuit. In addition, some of the 8,300 acres excluded were degrades and no longer roadless, the reply said.
The 8,300 acres is less than 0.2 percent of the 4.2 million acres of roadless areas in Colorado and “thus will not harm efforts to preserve Colorado’s roadless areas.”
Roadless designation prevents additional roads but doesn’t offer as much protection as wilderness designation.
The Forest Service said its handbook is not legally binding on the agency, and that there is nothing in the handbook that specifically prevented it from accepting the exclusion.
In addition, the state government petitioned for the ski-area exclusion, but not one for oil and gas exploration. Leases allow oil companies to access some roadless lands.
The government noted that the Colorado Roadless Rule places tighter restrictions on road construction and tree cutting on 1 million acres of “upper tier” lands in Colorado.
“But the rule does strike a balance between conservation and economic activity, and it did require some ‘concessions from environmentalists,’ including the modest concession at issue in this case, known as the ‘ski-area exclusion,’” the government’s reply said.
The government is asking the appeals court to affirm the district court’s decision to allow the ski-area exclusion.