One Burnt Mountain suit settled as another begins

Scott Condon
The Aspen Times

The legal battle between an environmental organization and the U.S. Forest Service over Aspen Skiing Co.’s expansion onto Burnt Mountain is progressing with the speed of a Ping-Pong match.

Less than two weeks after the Ark Initiative filed a new lawsuit in U.S. District Court for the District of Columbia, the U.S. Court of Appeals in D.C. ruled Tuesday in favor of the Forest Service in a different lawsuit.

Ark Initiative has lost three court decisions over Burnt Mountain since 2006, but the fight isn’t over. One lawsuit has yet to be settled.

In the decision handed down Tuesday morning, a panel of three appellate judges ruled that the Forest Service adequately handled an administrative appeal by Ark Initiative.

The Forest Service adjusted its boundaries for designated roadless lands in Colorado in 2012. Ark Initiative, a nonprofit environmental group, filed an emergency petition two weeks later seeking reinstatement of roadless designation for 1,000 acres on Burnt Mountain, on the east side of Snowmass Ski Area.

Ark Initiative, based in Pinedale, Wyo., also wanted the Forest Service to prohibit Skico from thinning trees on about 250 acres that it was adding to its inventory of skiable terrain. It claimed the Forest Service didn’t thoroughly examine the impact tree cutting would have on the character of the land.

The Forest Service rejected the emergency petition in “brief letters” from the head of the White River National Forest and from the overall head of the agency, according to the lawsuit. Ark Initiative responded with a lawsuit.

A judge ruled against Ark Initiative in February 2013 and denied a motion for reconsideration. Ark appealed, but lost another ruling Tuesday.

“The Forest Service’s denial of Ark’s Emergency Petition was neither unexplained, unreasonable, nor unduly brief under the circumstances,” the three appellate judges said in their opinion.

Ark Initiative’s decision not to submit public comments during the creation of the 2012 Colorado Roadless Rule appeared to come back to haunt it. The judges noted that there was a substantial public outreach process that produced over 300,000 comments over six years.

“Given the recent promulgation of the final rule after extended review, the Service responded appropriately (to Ark Initiative) with a ‘brief statement’ resting on the final rule’s rationale,” the judges determined.

Their opinion concluded that Ark “fails to show an abuse of discretion.”

William Eubanks, the attorney for Ark Initiative, said the lawsuit involved in Tuesday’s ruling raised narrower issues than a different lawsuit filed April 16 by Ark Initiative and part-time Snowmass Village resident Scott Schlesinger.

The new lawsuit challenges the legality of one aspect of the 2012 Colorado Roadless Rule. That state-specific rule by the Forest Service created a “ski-area exclusion” that removed 8,260 acres within Colorado ski areas’ special-use permit boundaries from the roadless inventory.

The lawsuit argued that the Wilderness Act of 1964 established roadless areas with the intent that they be preserved until the Forest Service can evaluate them for possible inclusion as Wilderness. It also established rule for how inventoried roadless areas must be handled by the Forest Service.

Eubanks alleged that when the Forest Service created the ski-area exclusion, it might have violated the Wilderness Act by removing the lands from inventoried roadless.

“Congress’ laws trump the agency’s own rules,” he said.

Ark Initiative alleges in its lawsuit that the Forest Service didn’t pursue the proper environmental review to determine if the 8,260 acres of roadless lands, including land on Burnt Mountain, should be removed from the roadless inventory.

“The removal of these 8,260 IRA acres from the roadless inventory was not based on whether these parcels no longer satisfied — as a factual matter — the agency’s own roadless and potential wilderness criteria identified” in its management rule, the lawsuit said.

Eubanks contended that the appellate court ruling in one lawsuit on Tuesday would have no bearing on the other, active case.

If Ark Initiative prevails in the new case, it potentially could result in blocking Skico’s plan to build an egress route off Burnt Mountain. It also would raise questions about plans by other ski areas to expand into areas that were inventoried roadless prior to 2012.