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Judge: Forest Service must provide more Wolf Creek documents

On Friday, a U.S. District Court judge ordered the Forest Service to provide more documents in response to a Freedom of Information Act request from the Friends of Wolf Creek Coalition about a controversial land swap near the base of Wolf Creek Ski Area. B.J. “Red” McCombs would trade a portion of his land, seen here leading from the ski area in the lower left to the center of the picture. In return, he would gain access and land from a stretch of U.S. Highway 160 in the center of the picture.

The saga of the proposed Village at Wolf Creek took another turn Friday as a federal judge ordered the Forest Service to expand the scope of documents it must provide in response to a Freedom of Information Act request by environmental groups.

“The court sees no reason to excuse the Forest Service from its duty to perform a proper search,” U.S. District Court of Colorado Judge William Martinez wrote in his ruling.

The information requested is in regard to Rio Grande National Forest Supervisor Dan Dallas’ controversial decision to approve a land exchange in May 2015 between the Forest Service and Texas billionaire B.J. “Red” McCombs. The exchange is critical to the development because it provides access to U.S. Highway 160 for the village site. McCombs has been trying since 1986 to build the village for 8,000 tourists complete with condos, restaurants and shops adjoining Wolf Creek Ski Area.

The judge found the Forest Service’s search was unlawfully narrow, it neglected to search high-level employees’ records, including the chief of the Forest Service and undersecretary of the Department of Agriculture in Washington, D.C., and did not provide adequate justification for withholding documents from public disclosure. The Forest Service has until March 31 to comply with the ruling.

“It’s supposed to be when we open a case and make a FOIA request, they give us the evidence we ask for,” said Matt Sandler, co-counsel for Rocky Mountain Wild, a member of the Friends of Wolf Creek Coalition. “We’re relying on their transparency and honesty. This case has undercut that trust somewhat.”

The first FOIA request was made in February 2014 and a second request was made in November 2014. The second FOIA request expanded the request, but the Forest Service did not provide additional documents, according to the complaint.

“We asked for all records, including administrative records,” Sandler said, “but they provided communications, which was not what we asked for. The government was saying we were being hyper-technical by wanting what we requested in the original request, which had us scratching our heads wondering what was so technical about this.”

This is the second time a U.S. District Court judge has ordered the Forest Service to release documents under the FOIA requests on the Village at Wolf Creek project.

In October, U.S. District Judge Wiley Y. Daniel told the Forest Service to comply with a request to deliver communications between the Forest Service and other agencies, developers, third-party interests and the public. The Forest Service delivered tens of thousands of documents, and earlier this month an analysis by the coalition, including Rocky Mountain Wild and the Durango-based San Juan Citizens Alliance, showed that emails indicated Forest Service staff had purposefully not emailed correspondence so it would not be subject to a FOIA request and claimed too broad a level of protection under attorney-client privilege.

Because there are two cases overlapping, Sandler said, Daniel moved the date for the Friends of Wolf Creek to submit its initial brief in the second case from Feb. 7 to March 18. That may have to move again, Sandler said, depending on what is discovered from documents provided after Friday’s ruling.

Forest Service could not be reached late Friday for comment on the ruling.

abutler@durangoherald.com

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