Showdown at Wolf Creek Pass

FRISCO, Colo. — Colorado’s ski resort development wars may have died down when the real estate bubble burst in 2008, but there was never much doubt  they’d flare back up once the state economy rebounded. After all, the boom-bust mentality is deeply woven into the state’s cultural, historic and economic fabric, and the resort development industry is no exception.

The romantic storybook version of Colorado’s ski industry highlights the visionary 10th Mountain Division vets who scoured Colorado for the best ski slopes in the Post-WWII boom. But the back story has always been subdividing raw land and slinging condos and luxury McMansions, much to the dismay of conservationists and resort-town NIMBYs.

The lull is over. Bulldozers are rumbling in the high country, and speculators, once again fueled with questionable Wall Street credit, are poised to try and catch the next wave, which will likely include a new resort boom in the Colorado mountains, leading to a renewed showdown between developers and environmentalists.

This time, the bullseye isn’t Vail or Aspen. It’s a remote 200-acre plot of private forest land high in southwest Colorado’s San Juan Mountains, near Wolf Creek Pass. The land is close to some of Colorado’s biggest reaches of wilderness, full of wildlife and important for rare lynx, still federally listed as a threatened species, with full protection of the Endangered Species Act. And if wolves are ever to roam again in Colorado, those same South San Juan wilderness areas would provide some of the best habitat. In recent years, spruce-killing beetles buzzed through the region, killing millions of trees; in 2013, the West Fork fire complex burned about 110,000 acres around Wolf Creek Pass.

It’s here that — after a twisted, quarter century history of land trades, legislative schmoozing and some political arm-twisting — Texas real estate and media tycoon Red McCombs is nearly set to build a luxury resort village astride the Continental Divide, right next to Wolf Creek Ski Area, which itself is seeking to expand.

In November, McCombs moved a big step closer toward that goal when the U.S. Forest Service approved a land swap that sets the stage for the development of as many as 1,700 residential units, plus commercial space, to be developed in phases, responding to market demand, according to Austin-based Clint Johnson, McCombs’ talkative project manager.

The trade would convey 205 acres of public national forest land to private ownership, while 177 acres of private land in the Rio Grande National Forest would become public acreage. The deal would reshape a parcel of private land adjacent to Wolf Creek Ski Area that’s been eyed for development since the mid-1980s. In this iteration, the development would be kept out of sensitive wetlands and farther away from Wolf Creek’s ski trails, Johnson said, calling it a compromise that benefits the public and the ski area.

But lynx lovers and tree huggers don’t see much room for compromise on a project they have in the past characterized as the “Pillage at Wolf Creek.” This week, wildlife advocates at Rocky Mountain Wild and allies filed a formal objection to the land trade, asking regional Forest Service officials to overturn the decision by Rio Grande National Forest Supervisor Dan Dallas. Critics of the plan previously said they’ll go to court if the agency’s higher-ups back the approval — and they weren’t shy about expressing their disdain for the plan.

“Our objection makes clear that the Forest Service has added insult to injury by proposing to give away more land with valuable resources to a rich private interest”, said Matt Sandler, staff attorney for Rocky Mountain Wild, a group with a history watch-dogging the ski resort development industry. “Instead, the agency should consider protecting a biologically rich and important portion of the National Forest and represent the best interests of the American public.”

The Forest Service has no legal obligation to enable a massive resort development, Sandler added. Instead, the agency could stick to the vision of the original land trade, which was to develop a set of small, dispersed units with some seasonally limited access, fitting into the existing scale and scope of recreation activities at Wolf Creek Ski Area.

Other alternatives to the massive development could include federal purchase of the land, or  exerting federal control to limit the development proposal to several single-family units on 35 acre parcels under existing seasonal access, environmentalists say.

“We’re open to talking about another location, but it has to be off the pass,” said Jimbo Buickerood, of the San Juan Citizens Alliance, a collection of community based environmental advocates in the southwestern part of Colorado.

Buickerood said the Forest Service could show a strong hand in the poker game by telling the developer that the Wolf Creek parcel is not suitable for that scale of development, given its natural resource values, but that tthe agency could open the door for another swap that would give McCombs land to develop in a less sensitive area, perhaps even in another part of the state.

But instead of putting those options on the table, the record shows that Forest Service officials are quashing information about about the extent of the agency’s control over the land. So far, the agency hasn’t delivered the transparent process required by federal environmental laws, to the point of not responding to Freedom of Information Act requests, Buickerood said.

History

A quick Google search on the Wolf Creek development controversy turns up articles starting in about 2005, but the story goes back pre-internet, to 1987, when the Forest Service traded about 300 acres of private land near Wolf Creek Ski Area to a company owned by McCombs, in partnership with Kingsbury Pitcher, then the owner of Wolf Creek Ski Area. It goes without saying that the goal was some sort of development connected to the ski lifts. In return, the Forest Service got some parcels in Saquache County.

Development plans languished until the early 2000s, when McCombs started to press the Forest Service for access to his land, some of which is directly adjacent to Wolf Creek Ski Area — in fact some of the area’s skiing terrain is on the privately owned land.

Under the Alaska National Interest Lands Conservation Act, federal land agencies are mandated to provide reasonable access to private parcels surrounded by public lands, so the Forest Service started a review process. As always, the crux is the definition of “reasonable.”

Almost inevitably, the agency’s sometimes Kafka-esque, pre-destined  process led to approval of a road, but the decision was immediately challenged by conservation groups who claimed the process was tainted, with lobbyists for the developer contacting Forest Service officials from the forest level on up to Washington D.C. The paper trail shows the lobbyists pushed for approval with cabinet-level officials, as well with the Forest Service’s legal branch.

In 2008, Colorado Wild, the Forest Service and the developers settled out of court. The federal agency withdrew its approval for road access and committed to a full new environmental review. In 2012, McCombs formally proposed the land trade, leading to the latest Forest Service study and the green light for the swap in November.

Rio Grande forest supervisor Dallas stands by the agency’s environmental study and said that, given the circumstances, the swap is the best the public can get out of the situation. Dallas — knowing he was going to get sued no matter what — wasn’t exactly enthusiastic about approving the trade.

“Frankly, this is something we didn’t want to do,” Dallas said, making it clear that the swap was driven by the developers and that, one way or another, he had to find a way to meet his legal obligation to ensure legal access to the private inholding.

“I have to balance that by statute. I have to provide that access, otherwise, this wouldn’t be in the public interest,” Dallas said candidly in a November interview with Summit Voice.

What happens now?

The objection filed this week is the next step in the Kabuki-like ritual of Forest Service reviews, and it’s rare that regional Forest Service brass will reverse decisions by a forest supervisor. The conservation groups who are challenging the development are hoping that they can get a fair hearing for their 96-page objection from a Forest Service official who will recognize that the fate of the parcel must be determined under a fair legal process, even as the trade’s paper trail suggests a long history of political meddling.

By laying out a legal rationale for their arguments in the objections, conservation groups set the stage for a lawsuit, and may convince the agency’s higher-ups that the decision won’t withstand a court challenge.

Ultimately, any legal challenge to the land swap approval faces high hurdles. Judges give federal agencies a lot of discretion, requiring plaintiffs to show that a decision is arbitrary and capricious, or that there was a clear-cut violation of the laws guiding environmental reviews.

The developers are ready for a legal battle. Johnson, McCombs’ proxy at Wolf Creek, said that, as he understands it, environmental groups won’t settle for anything less than full withdrawal.

“I met with them, and they just want us out,” he said, noting that the Forest Service environmental studies show that the village could be built without destroying the environment around Wolf Creek Pass. “We spent months during the environmental review process, so there is a biological opinion with conservation measures directly to address those concerns. But there’s no room for compromise on the other side.”

And there’s almost no chance that McCombs will walk away from the project unless it’s completely shot down by the courts. According to Johnson, the Texas octogenarian is fully committed to the Village at Wolf Creek, and believes it will bring economic benefits to tiny Mineral County.

Johnson warned that opponents of the development shouldn’t underestimate McCombs’ staying power.

[ Photo of Wolf Creek Pass by Zach Discner]