Judge orders Forest Service to release Village at Wolf Creek documents

Environmental groups say federal agency tried to hide information

By: Jonathan Romeo, The Durango Herald
Thursday, March 7, 2019

A Freedom of Information Act was filed nearly eight months ago by a coalition of environmental groups to obtain select U.S. Forest Service documents related to the controversial Village at Wolf Creek development atop Wolf Creek Pass. Two-hundred-and-thirty days later, and well past the Forest Service’s 20-day deadline, not a single file has been released.

But that should change Thursday after a U.S. magistrate judge ordered the Forest Service to start releasing documents asked for in the FOIA request. The order came in response to a lawsuit filed by opponents of the proposed housing and commercial development.

“The purpose of FOIA is to let the public know what the government is up to,” said Travis Stills, an attorney who represents a coalition of environmental groups known as the Friends of Wolf Creek. “And this agency (Forest Service) has been trying to be secretive all the way through.”

A spokesman with the Forest Service deferred all questions to the U.S. Department of Justice. An agency spokesman wrote in an email to The Durango Heraldthat, “In short, we are complying with the court order,” but declined to comment further.

For more than 30 years, the Leavell-McCombs Joint Venture – spearheaded by Texas billionaire B.J. “Red” McCombs – has sought to build a development of a hotel, chalets and cabins at the base of Wolf Creek Ski Area, at an elevation of about 10,000 feet and 20 miles from the nearest town.

From the beginning, Friends of Wolf Creek has argued McCombs’ political pressure has unduly influenced the Forest Service’s decision-making when weighing the environmental impacts a new development with the capacity for up to 10,000 people would have on the high mountain pass.

Leavell-McCombs Joint Venture has adamantly denied those claims over the years.

Stills said after the FOIA was submitted July 20, 2018, the Forest Service responded a few weeks later that the request would have to be narrowed in scope. The Friends of Wolf Creek refused. Since then, communication from the Forest Service has gone dark, Stills said.

Under federal law, government agencies have 20 days to fulfill a FOIA request, which would have required the Forest Service to release the requested documents by Aug. 17, 2018.

In November, Friends of Wolf Creek filed a lawsuit against the Forest Service, demanding the release of the documents. On Feb. 21, U.S. Magistrate Judge Michael Hegarty issued an order to the Forest Service to start fulfilling the FOIA request by Thursday.

The Forest Service said Wednesday the first round of documents would be released, and additional documents will be made available later.

Stills said this is the fourth time in the past few years Friends of Wolf Creek has filed litigation to obtain a FOIA request from the Forest Service. In each instance, he said the documents received reveal possible collusion between the Forest Service and Leavell-McCombs Joint Venture.

A FOIA submitted in 2014 that took two years for the Forest Service to release brought to light internal emails that showed staff was concerned about open records requests and actively tried to hide information, Stills said.

Thomas Malecek, a district ranger at the time, wrote on Aug. 24, 2012, to colleagues that Rio Grande National Forest Supervisor Dan Dallas was concerned about internal emails that “might be a little damaging in the event they are not all deleted in case we get a FOIA.”

“Remember we are swimming with sharks and need to keep the emails from even the remote appearance of whatever, so make sure you burn this once read!” Malecek wrote.

The emails also showed McCombs regularly threatened to influence the outcome of environmental studies in his project’s favor, opponents say. After McCombs’ attempt to bypass an environmental analysis failed, Maribeth Gustafson, a deputy forester, braced her colleagues for the impending fallout.

“Mr. McCombs was predictably upset and it is expected that he will use every political avenue open to him to encourage the FS to finalize its decision now,” Gustafson wrote in 2014. “The Forest has a call scheduled with Mr. McCombs for Thursday, March 27, and believes any major political push would come after that meeting. However, political contacts could begin at any time.”

Stills said none of this information would have come to light without FOIA.

He said Friends of Wolf Creek files open records requests to help the public know what’s happening behind the scenes of the proposed village. When the Forest Service refuses to release documents or use delay tactics, it hurts how the public can weigh in, he said.

The major hurdle for the Village at Wolf Creek is that the property is surrounded by National Forest land and has never had access to U.S. Highway 160. But recently, the Forest Service granted the developers road access, essentially giving the project the green light.

Stills said the public should have had the knowledge requested in the July 2018 FOIA before final decisions were made.

“I don’t know why (the Forest Service) … continues to go down this route,” he said. “The most obvious explanation is that unless they hide what they’re doing, there’s no way to lawfully get away with what they are doing.”

Read more, including the complaint at The Durango Herald.

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