A ruling by a U.S. District Court judge has brought to an end a yearslong legal battle between environmental groups and developers for the future of a Wolf Creek Ski Area ski resort.
District of Colorado Judge John L. Kane officially unwound the 2015 land exchange between Rio Grande National Forest and Leavell-McCombs Joint Venture this week, ending one of the paths forward for the development of the “Village at Wolf Creek.”
The ruling confirms a major victory for environmental groups in Southwest Colorado that have fought to stop the 1,700-unit development that would have served 8,000 to 10,000 people adjacent to the remote Wolf Creek Ski Area.
“It really just ties up the bow,” said Jimbo Buickerood, the lands and forest protection program manager with the nonprofit San Juan Citizens Alliance.
“The question in my mind is: Why did that take so long? And why did we have to go to court to make sure that it was done completely?” he said. “As we see it, the joint venture was just dragging their feet on it and the Forest Service was, too, which really calls into question their commitment to following through.”
Clint Jones, project lead for the Village at Wolf Creek, said the ruling was a legal reflection that Leavell-McCombs Joint Venture had reversed the exchange.
“Judge Kane ruled that it had been properly unwound and so that’s a done deal,” Jones said.
Kane’s order annulled the land patent that gave 205 acres of National Forest Service land to developers Leavell-McCombs Joint Venture, led by Texas billionaire B.J. “Red” McCombs and daughter Marsha McCombs Shields.
The decision comes after a federal judge found the U.S. Forest Service violated federal law and failed to uphold its responsibilities issuing the land exchange in a May 2017 ruling.
Judge Richard Matsch took issue with the Forest Service’s environmental impact assessment for the project, identifying multiple failures of the agency.
In response to a motion to reconsider the decision in September 2017, Matsch wrote, “The Forest Service cannot abdicate its responsibility to protect the forest by making an attempt at an artful dodge.”
Multiple failed appeals by Leavell-McCombs Joint Venture and the Forest Service made Kane’s ruling a formality.
“In one way, it's a formality. But on the other hand, it was a formality that the Forest Service and Leavell-McCombs Joint Venture attempted to circumvent when the case was essentially over,” said Travis Stills, a lawyer for San Juan Citizens Alliance and other environmental groups opposing the project.
“They left it in a ‘Trust us, we'll do what we need to do’ posture and with the long history of the Wolf Creek village proposal and land exchange, ‘trust us’ was certainly not a reasonable request,” Stills said.
The Village at Wolf Creek dates back to 1987 when Leavell Properties Inc., the predecessor to Leavell-McCombs Joint Venture, swapped land with the Forest Service, gaining a 300-acre holding within the bounds of the Rio Grande National Forest.
The previous year, the Forest Service prepared an environmental assessment that decided against the land exchange. However, two weeks later the agency reversed that decision.
In his 2017 ruling, Matsch referenced an email between Forest Service staff members that said McCombs exerted political influence to push the move through.
Recent court battles have centered on road access.
Though the development group has land to build the project, the 300 acres it owns are entirely surrounded by Rio Grande National Forest.
Under Colorado law, a new residential development cannot be approved unless it has “at least year-round wheeled vehicular access.”
The 2015 land exchange that both Matsch and Kane ruled void was a continuation of two decades of effort by Leavell-McCombs Joint Venture to build a significant road to U.S. Highway 160.
Without that connection, the project remains on hold.
After Matsch’s ruling, it was unclear if and how the developers would proceed.
But in 2019, Dan Dallas, forest supervisor for the Rio Grande National Forest, granted the project road access citing the Alaska National Interest Lands Conservation Act.
The federal law allows landowners with property surrounded by national forests the right to “reasonable access.”
Dallas’ decision would pave the way for the project, which would still need to go through the permitting process.
The move upset environmental groups that argued that it still relied on the faulty environmental impact statement that Matsch threw out.
“Judge Matsch set aside the whole environmental impact statement for numerous reasons and he basically said it wasn’t a valid process,” Buickerood said.
“Why could you just switch to another alternative and say, ‘Oh, that’s OK,’ even though it’s based on the same environmental impact statement?” he said.
San Juan Citizens Alliance, Rocky Mountain Wild and other environmental groups sued the Forest Service over the decision to build the 1,610-foot-long and 100-foot-wide road in 2019.
“Our view is that for the same reasons that the land exchange was invalid, because of deficient analysis and the agency trying to disavow its own duties, we think that the special-use permit will have to be invalid, as well,” Stills said.
Both environmental groups and developers have briefed Judge Christine Arguello, who has yet to make a decision on the case.
If Leavell-McCombs Joint Venture receives a favorable ruling, the group will begin working on more concrete engineering plans for the access road and utilities for the resort, Jones said.
“There’s a lot still to do before we’re even shovel ready,” he said.
Environmental groups see no acceptable way forward for the development.
“I think all the paths forward are foreclosed by the real and substantial damage that that massive proposal would do to the wetlands, the lynx, the wildlife and the ski area itself,” Stills said.
“If the Forest Service ever does release a full environmental impact statement, it will reveal that (the Village at Wolf Creek) is just a developer's fantasy. It’s not a real proposal,” he said.
ahannon@durangoherald.com
