In 1986, Leavell Properties, Inc (later joined by Texas billionaire B.J. “Red” McCombs to form the Leavell-McCombs Joint Venture, or LMJV) swapped land with the United States Forest Service to obtain a property on top of Wolf Creek Pass, surrounded by Forest Service land.
McCombs, who now spearheads the project, expanded the original plan to a new “Village at Wolf Creek.” McCombs has spent more than 30 years attempting to circumvent legitimate public review of his proposed “Village” and to gain year-round highway access to the isolated property. His efforts have included attaching riders to unrelated legislation, lobbying for federal staff appointments favorable to his plans, and even writing local land use codes that would guide the development.
Since the beginning, the Friends of Wolf Creek – a coalition of environmental organizations from around the state – have fought to ensure the “Village” is never realized. The group was able to keep construction at bay, forced the Forest Service to properly complete Environmental Impact Statements (EISs), and to make their documents regarding the exchange and environmental studies public.
In May of 2017, Friends of Wolf Creek won a lawsuit that nullified the original land exchange on the grounds the Forest Service avoided a thorough analysis of the environmental impacts of development in their latest EIS and that they failed to meet independent review requirements. The judge agreed that the Forest Service shirked their responsibility by ignoring the immense impacts of building a city in this important wildlife corridor.
The Leavell-McCombs Joint Venture and the Forest Service have both filed appeals to this Order. We will see them in a Court of Appeals.
A Brief History
1986 – Original Land Exchange
- Forest Service Environmental Assessment anticipated 200 residential units
- Deemed “Not in the Public Interest”, denied Feb. 20, 1986
- Opposite decision issued March 6, 1986
- Scenic Easement attached to the property as condition of exchange
1999 – Wolf Creek Ski Area Alberta Lift and Parking Lot Approval
- Lift and parking lot approved by Forest Service in 1999
- Decision subject to administrative appeal by Colorado Wild summer 1999
- Appeal settlement agreement: EIS required prior to “commercial” access
2000 – Mineral County Preliminary Approval
- 2,172 units, 222k sq.ft. commercial, 4267 parking spaces, 12 restaurants, hotels, etc.
- Massive project proposal raises serious concerns: water quality, water quantity, wetlands, traffic, wildlife, economic impacts to existing businesses, employee housing, emergency services, fiscal impacts to Rio Grande and Archuleta County governments, etc.
2001 & 2002 – Attempts to Circumvent Public Review Requirements to Obtain Access
- Lobbied to have Mark Rey appointed to head US Forest Service.
- Riders to unrelated legislation introduced by Congressman Tom Delay to grant access to Village without public review or scrutiny of project’s impacts.
2004 – Mineral County Final Approval
- Documents show McCombs was writing Mineral County Land Use Code
- Oct 2005 – State District Judge Kuenhold throws out Mineral County’s development approval.
- Sept 2006 – State Court of Appeals affirms Kuenhold, Village Plan illegal for lack of access.
2004 – 2006 – McCombs Undertakes Illegal EIS Process
- 90%+ of 3,000 Public Comments Opposed to Village Access
- Sept 2005 – Documents show developer/Forest Service collusion, including developer authoring Forest Service access policies
- March 2006 – Colorado Wild uncovers developer’s influence over Forest Service EIS contractor
- April 2006 – Forest Service Grants Access based on “Bogus” EIS
- September 2006 – Colorado Wild sues Forest Service over faulty EIS
- February 2008 – Colorado Wild, Forest Service, McCombs settle lawsuit and agree to conduct new and complete EIS before granting access.
2008 – New Easements on McCombs Property Undermine 2000/2004 Land Use Approval
- Easements apparently stem for Wolf Creek Ski Area/McCombs lawsuit settlement
2008 – Forest Service begins, and then stops new EIS process based on original plan.
2009 – McCombs hires democratic lobbyist Michael Dino, Clint Jones to pursue legislative land exchange.
2010—Representative Salazar encourages Mr. McCombs to undertake a thorough Environmental Impact Statement (EIS) through the U.S. Forest Service.
- McCombs takes the advice of Congressman Salazar and applies for a land exchange from the Rio Grande National Forest through the Forest Service administrative review process.
2012—US Forest Service releases Draft Environmental Impact Statement (DEIS) analyzing the Leavell-McCombs Joint Venture (LMJV) land exchange, which seeks to provide access for building the “Village at Wolf Creek” project.
- Public comments accepted on the DEIS through October 16.
2014 – US Forest Service releases Final Environmental Impact Statement and Draft Record of Decision approving the land exchange that will give LMJV direct access to US Highway 160.
2015 – Friends of Wolf Creek responds to the Draft Record of Decision with a 96-page Objection.
- March 2015 – US Forest Service responds to Objections, and asks Forest Supervisor Dan Dallas to clarify issues regarding Lynx protections.
- May 2015 – Forest Service issues final Record of Decision approving the land exchange.
- June 2015 – Friends of Wolf Creek filed a lawsuit to stop the land exchange that paves the way for the construction of the village.
2017 – Judge Matsch Rules in Favor of Friends of Wolf Creek
- May 2017 – Judge Richard P. Matsch issued an Order in the 2015 case against the Forest Service, nullifying the land exchange that would have provided needed road access for the development to be built.
- June 2017 -The Leavell-McCombs Joint Venture filed a Motion to Reconsider asking Judge Matsch to reconsider his decision.
- September 2017 – Judge Matsch denied this Motion.
- October 2017 – The Leavell-McCombs Joint Venture filed an appeal to Judge Matsch’s decision.
2018 – Leavell-McCombs Joint Venture appeals but the US Forest Service Does Not
- April 2018 – The Department of Justice (DOJ) requested a 30-day extension to file its opening appellate brief. We did not oppose and the Court approved.
- May 2018 – The Leavell-McCombs Joint Venture filed its opening brief on the May 9 deadline, but the US Forest Service did not.
Friends of Wolf Creek partner, San Juan Citizens Alliance created a video that explains the fight against the “village” at Wolf Creek:
A Detailed Recent History
In January 2016, a federal judge ruled that the Forest Service needed to do a more thorough search of the records in response to Friend’s of Wolf Creek’s Freedom of Information Act lawsuit, including high-level employees’ records and previously withheld documents.
In March 2016, we filed a motion in the U.S. District Court to have records in the possession of the contractors that the Forest Service hired to prepare the environmental analysis of the land exchange disclosed and potentially added to the Administrative Record. While these records legally belong to the Forest Service, they have refused to ask the contractors to supply all of them. The attorneys for the Forest Service and the Leavell-McCombs Joint Venture responded to the court arguing that the Administrative Record was complete without these additional records. In the first week of May, we filed a 23-page Reply brief.
On January 27, 2017 in a related Freedom of Information Act (FOIA) case, Judge Martinez ruled that the Forest Service did not have to collect and disclose records in the possession of the contractors who prepared the environmental analysis underlying the Forest Service’s land transfer decision. Although we already succeeded in obtaining thousands of government records in this case, the Court’s decision on this issue insulated the private contractor records leaving unanswered questions as to whether or not the developer exerted undue influence over the private contractors and what information was before the contractors that didn’t make it into analysis provided to the public.
On February 28, 2017, Rocky Mountain Wild submitted the Reply brief for the Wolf Creek case. The brief detailed how the Forest Service unlawfully limited the scope of the environmental analysis and used the process to benefit a private business over the good of the public. Despite the site of the proposed development being located in crucial habitat for the endangered Canada lynx, a wildlife corridor linking two major Wilderness areas, and containing rare fen wetlands, the Forest Service did not properly analyze protections or demand mitigation as part of the land transfer.
On April 19, 2017, Friends of Wolf Creek spent the day in court answering questions and clarifications Judge Matsch had about the case. Travis Stills, one of the attorneys representing Friends of Wolf Creek explained how the Environmental Impact Statement did not investigate in full the effects of the project, especially for the threatened Canada lynx, and how the US Forest Service claimed it did not have the authority to control the development, which had jumped from a 208 unit development to nearly 1,200.
Barclay Samford, an attorney for the Department of Justice, claimed that the Forest Service stated that the land exchange was considered a better option than easements it would have had to manage and maintain. “It’s actually better for the public interest to use the land exchange,” he said.
Judge Matsch responded: “I understand the public interest but there is also the natural environment’s interest, which is what this is all about.”
On May 19, 2017, Judge Matsch found that the Forest Service “failed to consider important aspects of the issues before them, offered an explanation for their decision that runs counter to the evidence, failed to base their decision on consideration of the relevant factors, and based their decision on an analysis that is contrary to law.”
The Court rejected the Forest Service conclusion that it lacked any control over the use of the private parcel. The Court explained that “there is no legal or logical basis for Defendants‟ position that the Forest Service had no power or jurisdiction to limit or regulate development on the federal lands being conveyed to LMJV in the present exchange.” The Court was troubled by the fact that the Forest Service previously conditioned use of the original parcel created in 1986 “with a scenic easement that limited development.”
Judge Matsch was also concerned with the fact that “development resulting from the Forest Service’s approval of the land exchange will adversely impact an endangered species, yet fails to comply with the statutory requirements for the protection of that species.” The species the Court was referring to is the Federally listed Canada lynx which would have been harmed had the Village construction and operation commenced.
On June 16, 2017, The Leavell-McCombs Joint Venture filed a Motion to Reconsider asking Judge Matsch to reconsider his decision, alleging that Judge Matsch suffered from “a misapprehension of controlling law and facts.”
On September 14, 2017, Judge Matsch denied this Motion describing the Forest Service’s Wolf Creek Decision as “a patent effort to circumvent [the agencies] obligations to protect the natural environment of the Forest.” Judge Matsch again reiterated that the Forest Service’s decision was unlawful and an “attempt at an artful dodge of its responsibility.”
On October 16, 2017, the Leavell-McCombs Joint Venture filed an appeal to Judge Matsch’s decision that the Village at Wolf Creek development was approved “contrary to law.”
On May 9, 2018, the Leavell-McCombs Joint Venture filed the appellate opening brief, but the US Forest Service declined to appeal the Order issued by Judge Matsch. Since the Leavell-McCombs Joint Venture was an intervenor in the lawsuit, there’s a chance that it can’t proceed with the appeals process.
We will continue to monitor and report back everything we hear, and we vow to continue defending Wolf Creek Pass against continued and future threats.
The Administrative Record
The administrative record is the paper trail that documents an agency’s decision-making process and the basis for the agency’s decision. Here is a link to the administrative record provided by the Forest Service on their decision to approve the land exchange with Red McCombs.