Court upholds fed’s decision on Snowmass’ Burnt Mtn |

Court upholds fed’s decision on Snowmass’ Burnt Mtn

Scott Condon | The Aspen Times
The isolated terrain of the Burnt Mountain Glades includes about 80 acres of national forest once in the roadless inventory. A federal appeals court ruled Tuesday the U.S. Forest Service could grant 8,300 acres in Colorado a ski area exclusion from the inventory.
Scott Condon/The Aspen Times |

A federal appeals court Tuesday upheld the U.S. Forest Service’s decision to exempt lands within ski areas from the Colorado roadless inventory.

The decision by the U.S. Court of Appeals for the District of Columbia Circuit means that Aspen Skiing Co. can continue to work on an egress that connects the tree skiing on Burnt Mountain to the lift-served portion of Snowmass Ski Area. The White River National Forest approved the work but halted it when the litigation challenged the “ski-area exclusion” of the Colorado Roadless Rule, according to Forest Supervisor Scott Fitzwilliams.

In the bigger picture, the decision means the agency properly determined that 8,300 acres in 13 ski areas that were designated for ski area use should be removed from the roadless inventory.

“It’s significant across the whole state, related to ski areas,” Fitzwilliams said of the decision.

Burnt Mountain test case

The battle over the ski area exclusion arose over work on Burnt Mountain. Skico sought permission from the Forest Service in the mid-2000s to improve access off Burnt Mountain — terrain that skiers and snowboarders access after a short hike. The terrain provides a low-angle mix of tree skiing and open meadows. Skico added it to its mix to provide a backcountry feel in a safe setting.

When Burnt Mountain was the exclusive domain of backcountry skiers, a narrow route called the Gene Taylor Traverse was used to exit the mountain and avoid thick woods lower down the slope. Skico wanted to widen that route to up to 35 feet along 3,000 linear feet. The work was proposed on 80 acres that was designated as roadless.

A Pinedale, Wyoming, conservation group called The Ark Initiative challenged the Forest Service’s Environmental Assessment allowing the Burnt Mountain egress project. The environmental group said there should be a more thorough environmental analysis before that land was excluded from the roadless inventory.

The latest lawsuit was filed in 2013 when Rocky Mountain Wild and two individuals who ski Burnt Mountain joined The Ark Initiative. The Burnt Mountain egress project became the test project because it was the first time the ski-area exclusion was implemented in a Colorado forest.

Fitzwilliams said the legal fight stretches back more than 6½ years, when he became forest supervisor. “That’s why I am delighted we can put that behind us,” he said.

Skico entered the fray

Aspen Skiing Co. intervened in the court dispute on the side of the Forest Service. Colorado Ski Country USA, a state trade association, filed a brief as a friend of the court on the side of the Forest Service and Skico.

“It’s really an important decision for several resorts in Colorado,” said Melanie Mills, president of Colorado Ski Country USA. The decision was important to resolve because designations for roadless and ski area use “conflict on their face,” she said. This gives certainty to how those lands are to be managed.

Skico released a statement saying it was pleased with the decision. “The court’s decision strongly reinforces the framework which the U.S. Forest Service uses when working with ski areas to enable appropriate, environmentally sound expansion and development within ski-area boundaries in the state of Colorado,” it said.

Prior to the creation of the Colorado Roadless Rule in 2012, the federal government designated 4.2 million acres in the state as roadless. Colorado was one of only two states that were allowed to advise the feds on how to manage those lands. Mills was part of the committee that drafted the proposal.

The Colorado Roadless Plan added 409,500 acres and removed 459,100 acres as “substantially altered.” The state also asked the feds to remove the 8,300 acres designated for ski-area management.

“Most of these are not large amounts of acreage,” Mills said.

The Forest Service approved the request, noting that 22 ski areas in Colorado logged about 11.7 million skier visits in 2010-11 and the skiers pump about $2.6 billion annually into the economy.

Direction ‘reshaped management’

William Eubanks, a partner in the prominent environmental law firm of Meyer Glitzenstein & Eubanks, declined comment because he didn’t have permission from his clients to speak about Tuesday’s decision or their direction. He noted that a brief filed in August 2015 contained the core argument of the case.

The Ark Initiative and other plaintiffs claimed the Forest Service “fundamentally reshaped the agency’s longstanding roadless management policy and practice and discarded, without any explanation, the service’s own established procedures for inventorying and managing roadless areas.”

In other words, the ski industry was given a break based on alleged economic benefits. Its methods “lay the groundwork for special interests of any kind to seek exclusions of roadless-in-fact national forest lands from the nation’s roadless inventory for economic or other rationales.”

The conservationists have argued that the oil and gas industry could apply for exclusions and point to the ski-area exclusion as a precedent. There are about 58 million roadless acres on national forests across the country.

Fitzwilliams said the Colorado Roadless Rule specifically targeted the 8,300 acres to be redesignated for the ski industry. “We have no plans to provide exclusions to other industries,” he said. “It would require reopening the Colorado Roadless Rule.”

Mills said she felt the decision was “pretty narrow” and didn’t set a precedent for other exclusions.

The three appellate judges upheld a lower court’s finding that that the ski area exclusion was not arbitrary or capricious. The Ark Initiative can file for a rehearing or try to have a case heard by the U.S. Supreme Court.