For 30 years conservation groups, outdoor enthusiasts, and local residents have fought to protect Wolf Creek Pass in southwestern Colorado. At over 10,000 feet in elevation, the pass connects two wilderness areas and is a hot spot for biodiversity. Wildlife, including black bear, elk, and the rare Canada lynx use this area to move between large undeveloped swaths of forest. Irreplaceable fen wetlands are the home to hundreds of plant and bird species. And, the deep winter snowpack provides much-needed water to downstream communities and agriculture.
The pass is also the home of Wolf Creek Pass Ski Area, one of Colorado’s last remaining family-owned ski areas. Wolf Creek is cherished for providing a nostalgic ski experience. Free from traffic, long lines, condos, nightclubs and chain restaurants, skiers at Wolf Creek are treated to deep powder at affordable prices.
Unfortunately, a questionable land exchange in 1987 gave Texas billionaire B.J. “Red” McCombs a private parcel at the base of the ski area. Mr. McCombs and his business partners have repeatedly tried to develop a massive “village” for 10,000 people on this site. They have been stopped by the Courts, who have consistently found that the developers have not conducted a complete environmental analysis of their scheme.
The Land Exchange
On December 11, 2018, a federal appeals court dismissed the latest attempt from the would-be developers of the Village at Wolf Creek to reinstate a land exchange rejected by a federal judge on Endangered Species Day in May 2017. The 10th U.S. Circuit Court of Appeals in Denver dismissed the developer’s appeal, based on a lack of appellate jurisdiction. The dismissal leaves in place the District Court’s findings, as well as its invalidation of the land exchange.
In May 2017, Senior Federal Judge Richard Matsch found that the Forest Service’s environmental analysis violated federal law, and set aside the Forest Service’s approval of a land exchange that would have facilitated the construction of a large scale resort.
The Road Access Project
The Leavell-McCombs Joint Venture sent a letter to the Forest Service on January 12, 2018, demanding immediate increased access to their inholding so they could “begin development of the private land immediately.” On July 19, 2018, the Rio Grande National Forest announced its intention to circumvent Judge Matsch’s May 2017 federal court ruling that invalidated prior approvals for the controversial Village at Wolf Creek real estate development and grant their demand.
Friends of Wolf Creek began a letter writing and petition campaign, but the Forest Service tried to severely limit who could protest this action by limiting objections to those who “previously submitted specific written comments regarding the proposed project during scoping or comments on the draft EIS” in 2012.
On October 17, 2018, supporters who did not have standing to object by the Forest Service’s definition began to receive rejections to their objections. However, so did people who should have had standing.
On November 20, 2018, the Forest Service issued a Response to Objections on the Village at Wolf Creek Access Project, rejecting all objections to the project.
On May 19, 2017, Judge Matsch found that the Forest Service “failed to consider important aspects of the issues before them, offered an explanation for their decision that runs counter to the evidence, failed to base their decision on consideration of the relevant factors, and based their decision on an analysis that is contrary to law.”
The Court rejected the Forest Service conclusion that it lacked any control over the use of the private parcel. The Court explained that “there is no legal or logical basis for Defendants‟ position that the Forest Service had no power or jurisdiction to limit or regulate development on the federal lands being conveyed to LMJV in the present exchange.” The Court was troubled by the fact that the Forest Service previously conditioned use of the original parcel created in 1986 “with a scenic easement that limited development.”
Judge Matsch was also concerned with the fact that “development resulting from the Forest Service’s approval of the land exchange will adversely impact an endangered species, yet fails to comply with the statutory requirements for the protection of that species.” The species the Court was referring to is the Federally listed Canada lynx which would have been harmed had the Village construction and operation commenced.
On June 16, 2017, the Leavell-McCombs Joint Venture filed a Motion to Reconsider asking Judge Matsch to reconsider his decision, alleging that Judge Matsch suffered from “a misapprehension of controlling law and facts.”
On September 14, 2017, Judge Matsch denied this Motion describing the Forest Service’s Wolf Creek Decision as “a patent effort to circumvent [the agencies] obligations to protect the natural environment of the Forest.” Judge Matsch again reiterated that the Forest Service’s decision was unlawful and an “attempt at an artful dodge of its responsibility.”
On October 16, 2017, the Leavell-McCombs Joint Venture filed an appeal to Judge Matsch’s decision that the Village at Wolf Creek development was approved “contrary to law.”
On May 9, 2018, the Leavell-McCombs Joint Venture filed the appellate opening brief, but the US Forest Service declined to appeal the Order issued by Judge Matsch.
On December 11, 2018, a federal appeals court dismissed the appeal, based on a lack of appellate jurisdiction. The dismissal leaves in place the District Court’s findings, as well as its invalidation of the land exchange. Read the full press release and court opinion.
However, in June 2018, we learned of a January 12, 2018 letter sent to the Forest Service by the Leavell-McCombs Joint Venture where they demanded that the Forest Service ignore recent court decisions and instead approve road construction to begin the proposed real estate development.
On July 19, the Rio Grande National Forest announced its intention to circumvent a federal court ruling that invalidated prior approvals for the controversial Village at Wolf Creek real estate development and grant their demand!
To make matters worse, the Forest Service tried to severely limit who can comment on this action by limiting objections to those who “previously submitted specific written comments regarding the proposed project during scoping or comments on the draft EIS” in 2012. We believe that everyone should have the opportunity to comment on changes to their public lands and encouraged everyone to submit their objection to the proposal.
As was expected, supporters who did not have standing to object by the Forest Service’s definition began to receive rejections to their objections on October 17, 2018. However, people who had submitted comments in the past and therefore would have standing began to receive the letters as well. If you have received a rejection letter but believe you have standing, please follow the directions laid out in the second paragraph by contacting Olga Troxel so that your objection will not be set aside.
We are collecting these rejections from people and our litigating groups and counsel will chart a course on how to approach these generic denials. Please email your rejection letter with the approximate date you sent your objection (if known), a copy of your objection (if you feel comfortable sending it), if you submitted comments in the past, and approximate date you sent comments in the past if you can remember (years are also helpful if you can’t remember exact dates). We will track those and provide them to our lawyers.
We will continue to monitor and report back everything we hear, and we vow to continue defending Wolf Creek Pass against continued and future threats. Together, we can stop the bulldozers of Wolf Creek Pass.
For an in-depth, chronological history of this case, visit the Friends of Wolf Creek Background page.
The Administrative Record is the paper trail that documents an agency’s decision-making process and the basis for the agency’s decision. Here is a link to the administrative record provided by the Forest Service on their decision to approve the land exchange with Red McCombs.
Donate to the Cause
Court battles like these aren’t cheap. If you’d like to support our battle to keep Wolf Creek Pass wild, please donate on our GivingFuel page. Select “Friends of Wolf Creek” under “Direct My Donation.”