Judge’s decision clears way for Burnt Mountain egress at Snowmass Ski Area
August 26, 2014
Aspen Skiing Co. will be able to cut an egress route off of Burnt Mountain at Snowmass Ski Area for the coming ski season due to a federal judge's decision this week.
U.S. District Judge James Boasberg signed an order Monday that said the White River National Forest supervisor's office followed the law in February 2006 when it gave Skico a green light on the project.
Two environmental groups, Pinedale, Wyoming-based Ark Initiative and Denver-based Rocky Mountain Wild, sued to try to prevent clearing of trees for a route off Burnt Mountain, which provides hike-to terrain with a backcountry feel. The judge for the U.S. District Court for the District of Columbia dismissed their complaint in a summary judgment for the Forest Service and Aspen Skiing Co., as an intervenor in the case.
"The court does not intend its decision in this case to minimize the natural beauty of Colorado's mountainsides, nor the imperative of conserving them for future generations," Boasberg wrote in his order. "Instead, what the court holds here is that, as a steward of these lands, the Forest Service has ultimately arrived at a well-considered and lawful decision."
“Plaintiffs may have good policy arguments against removing environmental protections from the land in question or approving Aspen’s ski trail, but this court cannot overturn the service’s decisions unless they were unlawful.”
U.S. District Judge James Boasberg
Latest of three lawsuits
The Ark Initiative has filed three lawsuits and one appeal to try to stop the clearing of trees for skiing on Burnt Mountain. The Forest Service has prevailed in all cases.
"We're pleased we're finally going to move ahead," said White River National Forest Supervisor Scott Fitzwilliams. He said Skico was given the green light this week to remove the trees necessary for creating the egress route out of Burnt Mountain onto the Long Shot ski trail.
"I'd be shocked if it wasn't done already," he said.
The project was needed for the safety of skiers and snowboarders, he said. The egress connects 250 acres of terrain that was opened on Burnt Mountain prior to the 2012-13 winter to lift-served terrain on the Two Creeks section of the mountain. Skiers and snowboarders hike to the terrain from the Elk Camp section of the ski area. The Burnt Mountain terrain is swept by the ski patrol, and the boundaries are marked with ropes. A few trees were removed, but the terrain offers a backcountry experience of skiing in the trees.
Some backcountry travelers opposed the expansion because they feared it would draw too many resort customers onto the Burnt Mountain slopes.
Compromise sought on egress
After seven years of legal wrangling over the egress, Fitzwilliams approved a compromise last year. He allowed Skico to widen the trail to 10 feet for the upper 500 linear feet and then increase it to 250 feet for about 700 linear feet where the slope gets steeper. That's less of an egress route than originally proposed.
The plaintiffs in the lawsuit, which included part-time Snowmass Village resident Scott Schlessinger and Ark Initiative executive director Donald Duerr, claimed building the egress route would be like building a road in a roadless area.
The lawsuit challenged the 2012 Colorado Roadless Rule decision to remove roadless designation for 8,300 acres of land in the state that was also within permitted ski areas. That includes 80 acres on Burnt Mountain.
The environmental groups claimed that the Forest Service should have undertaken a detailed environmental-impact statement on Skico's project to see if it altered the roadless characteristics. The environmental assessment that was performed wasn't thorough enough, they claimed.
Boasberg rejected the claims. The environmental assessment was "sufficient to satisfy the service's obligations under the law," his decision said, and no greater study was required.
Test case on broader battle
The Ark Initiative also lost the broader battle to challenge the exclusion of lands in ski areas from the roadless inventory. Burnt Mountain was the test case for that legal battle.
After making a thorough examination of the arguments in his order, Boasberg wrote, "Wrapping up, none of plaintiffs' arguments concerning the arbitrary and capricious nature of the ski-area exclusion hits the mark."
He also said the Forest Service took "impressive efforts" to get the public involved "as it worked out the contours" of the Colorado Roadless Rule. The Ark Initiative had ample opportunity to get involved in that process and object to the exclusion of ski area lands, he said.
Boasberg wrote in more than one section of the order that he wasn't ruling on whether the environmental groups were making a strong case for preservation of lands on Burnt Mountain and elsewhere. His scope was the legality of the Forest Service actions.
"Plaintiffs may have good policy arguments against removing environmental protections from the land in question or approving Aspen's ski trail, but this court cannot overturn the service's decisions unless they were unlawful," the order said.
An attorney for the plaintiffs couldn't be contacted by The Aspen Times on Thursday to see if the case will be appealed.