ASPEN - A six-year legal battle to try to prevent Aspen Skiing Co. from expanding onto Burnt Mountain is being waged by an environmental nonprofit group from Pinedale, Wyo., which unsuccessfully tried to enlist allies in Colorado.
The Ark Initiative filed its first lawsuit against the U.S. Forest Service in 2006 to stop Skico from thinning trees to add skiing and riding with a backcountry feel on Burnt Mountain. Skico has long coveted expanding onto the area east of the Elk Camp and Two Creeks sections of the Snowmass ski area.
White River National Forest Supervisor Scott Fitzwilliams gave the company final approval this summer to cut roughly 800 trees so it could link naturally open areas for skiing covering about 230 acres. Skico trails crews started the work the week of Aug. 27 but shut down in September after the latest legal salvo from the Ark Initiative. A judge is scheduled to hear a request for a preliminary and permanent injunction blocking the work later this month.
What exactly is the Ark Initiative, and why is it interested in Burnt Mountain? It's largely a one-person operation run by environmental consultant Donald "D.J." Duerr, who helped found the organization and serves as its president and director. Duerr is a veteran of the conservation movement who has a reputation of being very capable but also very difficult to work with. One source, who asked not to be quoted by name, said Duerr isn't a team player and often thinks his approach is the only approach to an issue.
Duerr created the Ark Initiative in the late 1990s. The organization's website, http://ark.savelifenow.org, says it is "dedicated to protecting life, including human life. Our highest priority is halting the global mass extinction."
The website says the Ark Initiative works on a "wide variety of life preservation issues," but none are cited. The organization's finances are also closely guarded - more so than many other environmental nonprofits. Nonprofits are required by the Internal Revenue Service to fill out a Form 990 on their finances. The website Guide Star posts the forms, with the cooperation of the nonprofits, so it provides reporters, prospective donors and interested members of the public with a glimpse at an organization's operations. The Ark Initiative's financial forms aren't available through Guide Star. Duerr didn't respond to a request by The Aspen Times on Monday to provide Ark Initiative's latest annual report, nor did he respond to repeated requests for an interview.
So far, it's been impossible to tell from public records where the Ark Initiative's money is coming from for the Burnt Mountain fight.
A limited amount of information is available about Ark Initiative at the Wyoming secretary of state's website. In addition to listing Duerr as president and director, Leila Bruno, of Laramie, Wyo., is the treasurer and director. Sylvia Callaway, whose mailing address is in care of an Austin, Texas, residence, is listed as vice president and director.
The extent of the Ark Initiative's environmental activism is difficult to gauge. Public records indicate Duerr submitted comments to the Forest Service to oppose two timber sales: one in Wyoming in 2009 and the other in South Dakota in 2010.
His submitted comments to the Forest Service regarding the Wyoming timber sale provide a glimpse into his tenacity and conviction of his positions.
"I am submitting these comments on the proposed Rattlesnake Timber Sale. I have no expectation that the U.S. Forest Service will respond meaningfully to any of these comments," Duerr wrote. "Since 1990 I have submitted over a thousand pages of detailed comments and administrative appeals to the Black Hills National Forest."
He has displayed the same doggedness in his opposition to the Burnt Mountain expansion. Duerr has submitted hundreds of pages of documents to the Forest Service in administrative appeals. In addition, losing decisions in a prior lawsuit over Burnt Mountain didn't deter him from filing a new lawsuit this month.
The Ark Initiative teamed in 2006 with backcountry skiers Paul Smith, of Snowmass Village, and Alex Forsythe, of Florida, in an administrative appeal of a Forest Service decision granting approval for expansion onto Burnt Mountain. A deputy regional forester denied all claims except that further analysis was necessary on Skico's plan to widen an egress off Burnt Mountain to the Two Creeks base area and chairlift. Part of that egress crosses the Burnt Mountain roadless area.
Ark Initiative and the skiers filed a federal lawsuit that claimed, among other things, that the Forest Service review of Skico's proposal wasn't thorough enough. A District Court judge ruled in the Forest Service's favor. The decision was affirmed by the U.S. Court of Appeals, 10th Circuit in November.
Beyond the legalese of the fight, the Ark Initiative's core argument in the dispute is that the 230 acres where Skico wants to expand on Burnt Mountain are really roadless lands that should be protected. Duerr contends that section of Burnt Mountain was taken out of the roadless inventory through an administrative error by the Forest Service in 2002.
Early in the battle over Burnt Mountain, the Ark Initiative tried to recruit Colorado Wild, now known as Rocky Mountain Wild, onto its side, according to Colorado Wild's former director, Rocky Smith. Rocky Mountain Wild pursues numerous projects to protect and preserve wild lands in the West.
Smith said Colorado Wild's research into the Burnt Mountain issue didn't reach the same conclusion as the Ark Initiative's.
"We looked at our roadless maps and didn't think it was," Smith said, adding that the egress to Two Creeks was the exception. Duerr was "upset" that Colorado Wild wouldn't joint the fight, he said.
Smith said he was surprised to see a news story recently that the Ark Initiative has renewed its legal challenge by contending that the 230 acres of upper Burnt Mountain lands are roadless.
"I'm surprised we missed it, if we did," he said of Colorado Wild's roadless inventory.
Wilderness Workshop, the Aspen area's oldest conservation group, also has avoided the Burnt Mountain question, although the organization has proven tenacity on issues involving wilderness and roadless lands.
"Our take on it is the whole battle on Burnt Mountain was fought a long time ago and lost," said Sloan Shoemaker, executive director of Wilderness Workshop. The battle heated up in the 1980s. Skico gave up seeking Forest Service and Pitkin County approvals for a while, then renewed the request and ultimately prevailed.
Skico won the right to build chairlifts and to clear trails, but the company has agreed to pursue an option that is less expensive, more "eco-sensitive" and more appealing to skiers and snowboarders, Shoemaker said. The result is a "minimum-footprint approach," he said.
"The egress is a lot lower-impact than they've been granted approval to do," he said.
For that reason, Wilderness Workshop - which is dedicated to protecting wilderness and roadless lands - hasn't opposed Skico's glading plan for Burnt Mountain. Shoemaker said he couldn't comment without research on whether Ark Initiative is correct that upper Burnt Mountain is really roadless land that was removed from the inventory because of a clerical error. Wilderness Workshop has argued over the years that roadless lands in Colorado were excluded erroneously from the Forest Service inventory, so anything is possible, according to Shoemaker.
"If it is roadless on the ground, it should be roadless on the map," he said.
However, even if Duerr is correct, Ark Initiative wouldn't necessarily prevail in its litigation, Shoemaker said. The national roadless rule approved by former President Clinton prohibited road construction and commercial timber harvesting, but Skico's glading for skiing is allowed, he said.