An environmental group and a part-time Snowmass Village homeowner filed a lawsuit in federal court this month to prevent construction of an egress trail for skiers and snowboarders off Burnt Mountain.
The Ark Initiative, based in Pinedale, Wyo., and homeowner Scott Schlesinger, of Ft. Lauderdale, Fla., and Two Creeks subdivision in Snowmass Village, filed the lawsuit after exhausting their administrative appeals with the U.S. Forest Service. The agency has repeatedly rejected the plaintiffs’ claims that the egress trail violates the Colorado Roadless Rule. The lawsuit is against Thomas Tidwell, the head of the Forest Service, Maribeth Gustafson, deputy regional forester for the Rocky Mountain Region, and White River National Forest Supervisor Scott Fitzwilliams.
Ark Initiative and Schlesinger asked a judge to take injunctive action to prevent the White River National Forest supervisor’s office from allowing Aspen Skiing Co. to cut the egress trail. They also want a review of the trail under the National Policy remanded back to the Forest Service.
The lawsuit said Schlesinger is an avid outdoorsman who enjoys the land on Burnt Mountain for “recreational, scientific, spiritual, educational, aesthetic and other purposes.” As a backcountry skier, he opposed Skico’s decision to encourage increased use of the area.
The Forest Service allowed Skico to open 250 acres of terrain on Burnt Mountain to skiers and snowboarders prior to the 2012-13 season. Skico coveted the terrain because it adds a backcountry feel within the ski area. Users must undertake a short uphill hike to access the terrain, which is swept by ski patrol and marked, but otherwise is left natural.
However, the agency ruled internally that more environmental review was necessary on the impact of an egress route, which crosses an 80-acre sliver of land previously designated roadless. That meant the egress couldn’t be built.
The egress to the slopes of Two Creeks was a nightmare during the low-snow season of 2012-13. The narrow route was a minefield, pocked with rocks and exposed tree roots. It was better this season because of above-average snowfall and cover.
Skico initially wanted to widen the egress to an average of 35 feet for about 3,200 linear feet. The route was necessary to get skiers and snowboarders off Burnt Mountain and onto the lift-served terrain of Two Creeks, and to create a safe route for ski patrol to haul out injured customers.
The proposal faced staunch opposition in the Forest Service’s public scoping process. Fitzwilliams selected a compromise in September that allows Skico to widen the egress to 10 feet for the upper 500 linear feet. Below that point, where the slope gets steeper, Skico could widen the egress route to 250 feet for about 700 linear feet. That would allow full clearing of trees on 0.8 acre and thinning on another 4 acres, according to his decision.
Ark Initiative and Schlesinger filed an administrative appeal of Fitzwilliams’ decision. Gustafson, a former White River supervisor, upheld Fitzwilliams’ decision while acting as the appeal deciding officer.
Now, Art Initiative and Schlesinger are pursuing litigation to get the Forest Service to reconsider its decision. The trail “is tantamount to a road” in an area that is supposed to be roadless, the plaintiffs’ claim said.
The Forest Service removed 8,260 acres that were within the Snowmass ski area boundary out of the roadless inventory. The justification was the Colorado Roadless Rule, crated specifically for the state’s federal lands, exempts land from ski areas from roadless inventory. The lawsuit contends that was “arbitrary and capricious decision making.”
“Taken together, these agency actions are harming and degrading a unique natural area that as a factual matter is unroaded and which is of enormous value to Plaintiffs and other members of the public,” the lawsuit said. “Because the USFS actions at issue are arbitrary, capricious, and contrary to law — including because the decision allowing the construction of the skier egress trail was issued in violation of NEPA — they should be set aside and remanded to the Service.”
In its prior administrative rulings, the Forest Service said Ark Initiative needed to fight the battler over the egress route while the Colorado Roadless Rule was being created. In addition, it said the Roadless Rule doesn’t prohibit construction of trails, so the argument is moot.
The Forest Service has a policy of not commenting on litigation. However, the lawsuit comes as no surprise. Fitzwilliams said in September that an administrative appeal and litigation were expected.
“Taken together, these agency actions are harming and degrading a unique natural area that as a factual matter is unroaded, and which is of enormous value to Plaintiffs and other members of the public.”
Lawsuit by environmental group and Snowmass Village second homeowner