Aspen entrance appeal lands in circuit court |

Aspen entrance appeal lands in circuit court

Allyn Harvey
Aspen Times Staff Writer

The long legal battle against the planned realignment of Highway 82 across the open meadows at the west edge of Aspen inched forward yesterday in federal appeals court.

The Friends of Marolt filed papers with the 10th U.S. Circuit Court of Appeals asserting that the U.S. Department of Transportation violated two federal laws – the Department of Transportation Act and the National Environmental Policy Act – in issuing the 1997 Record of Decision on the Entrance to Aspen. The Friends are appealing a ruling against their case in federal district court last summer.

In that ruling, U.S. District Court Judge Lewis T. Babcock found that the USDOT had not violated the law when it amended the record of decision to allow the possibility of dedicated bus lanes when and if Highway 82 is rerouted from the roundabout across the Marolt open space.

“The environmental documents constitute a good faith, objective and reasonable presentation of the subject areas mandated by NEPA,” Babcock wrote.

The so-called Entrance to Aspen calls for rerouting the highway with a dedicated transit corridor, either light rail or bus lanes, across the Thomas/Marolt open space immediately upvalley from the roundabout. There would be one lane of traffic in each direction and a dedicated transit corridor.

The rerouted highway would go into a 400-foot tunnel before crossing a new bridge and connecting directly with Main Street. The tunnel, which would be planted over with native vegetation, was part of the mitigation plan to minimize the loss of open space.

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The S-curves that currently snake traffic into town from the Castle Creek bridge to Main Street would be circumvented if the rerouting, which was approved by voters in 1996, ever occurs. The existing portion of highway from the roundabout to Cemetery Lane would be closed to traffic and replaced with a dirt road for emergency vehicle access only.

The Friends of Marolt have long opposed plans to reroute the highway, but in light of the legal process by which the rerouting was approved, including the 1996 vote, they maintain that the only legal way to carry out the plan is to include a light rail system. So far however, voters have shown no interest in funding such a system.

The Friends case against the USDOT and a handful of other defendants was originally filed in May 1999. The lawsuit originally named the city of Aspen, Pitkin County, Colorado Department of Transportation Director Tom Norton, and the U.S. Department of Transportation and its secretary as defendants.

Much of the case and most of the defendants have since been dismissed, leaving the USDOT as the only defendant named in the appeal.

The appeal claims that the USDOT violated the 1966 Department of Transportation Act by failing to select the most benign alternative for crossing public open space.

“USDOT found that a non-phased [rail only] alternative disrupted less land, cost less and involved less construction over time, but nonetheless approved a more harmful, phased [bus first, then rail] alternative,” Friends attorney Lori Potter writes in her appeal.

The appeal claims the USDOT violated the National Environmental Policy Act by ignoring its own finding that the rail-only alternative was superior to the phased, bus-to-rail alternative.

The Friends also maintain that the department violated the law by expanding the final record of decision, the authoritative and legally binding document that came out of the long process of environmental reviews and public hearings, without properly notifying the public.

The lawsuit says that the USDOT added the bus-to-rail alternative on the basis of a joint resolution from the elected bodies in Aspen, Snowmass Village and Pitkin County that stated the bus-to-rail alternative was acceptable. The legal issue for the Friends is that the joint resolution was issued after the public hearing process on the Entrance to Aspen had closed.

“The pertinent case law requires that the public have a chance to read, understand, and comment upon the basis for an agency’s proposed decision when the decision is still in the ‘proposed’ stage, not after the fact,” the brief states.

The 10th U.S. Circuit Court of Appeals may be as far as this case goes. If the Friends fail to win in appeals court, the only option left would be the U.S. Supreme Court.

Allyn Harvey’s e-mail address is