DENVER – U.S. Forest Service officials were dealt a blow this week when a federal court ruled that the agency unjustifiably withheld documents related to the proposed Village at Wolf Creek development.
A Colorado U.S. District Court on Wednesday found that the Forest Service violated the Freedom of Information Act by failing to conduct an adequate search of documents and did not properly explain its decision to withhold thousands of pages of documents from the public.
Senior Judge Wiley Y. Daniel stopped short of ordering immediate disclosure of the documents but gave the Forest Service until Oct. 30 to conduct a new, more complete search.
The judge also ordered officials to provide “sufficient explanation” of any withheld pages by the same date. It’s likely that additional documents would be released at that time.
“The court has verified what we have been saying throughout this decision-making process,” said Matt Sandler, staff attorney for Rocky Mountain Wild.
“The Forest Service has failed to be transparent, has withheld documents and has committed resources to approving this irresponsible development while failing to keep the public informed.”
A spokesman for the U.S. Forest Service’s Rio Grande National Forest Office referred comment to the Colorado U.S. Attorney’s Office. A spokesman for that office pointed out that the agency has already released more than 25,000 pages of documents.
“The Forest Service intends to carry out the steps ordered by the court,” said Jeff Dorschner, spokesman for the Colorado U.S. Attorney’s Office.
Texas billionaire B.J. “Red” McCombs has been trying since 1986 to build the Village at Wolf Creek at the base of Wolf Creek Ski Area. His proposal is to swap private land in a large meadow below the ski area for Forest Service land abutting U.S. Highway 160.
The project would create hotels, townhouses, condominiums and restaurants within the remote area.
Developers would offer 177 acres of private land to the Forest Service in the Rio Grande National Forest in exchange for about 205 acres of federal land.
Environmental groups had requested records concerning communications between the Forest Service and other agencies, developers, third-party interests and the public.
But the court – in its 20-page ruling – found that the Forest Service inappropriately limited its search and redacted documents without a valid explanation.
Officials had claimed an attorney-client privilege exemption. But for many of the documents, the court found that the “justification does not offer sufficient detail as to the contents of the documents and why the attorney/client privilege should be applied in such a broad manner.”
In some cases, however, the court found there was an appropriate application of attorney-client privilege.
Developers thought they had crossed a major hurdle in May when the U.S. Forest Service gave the land swap the go-ahead. But additional lawsuits have again slowed progress. At least two lawsuits remain in limbo.
Environmental interests and the developers behind the proposed development signed an agreement in July to prohibit construction until the legal hurdles are crossed. That agreement remains in place.