Court says it doesn’t have jurisdiction to rule on denial of land swap

By: Jonathan Romeo, The Durango Herald
December 11, 2018, 4:27 pm

An appeals court Tuesday dismissed the latest attempt from the would-be developers of the Village at Wolf Creek to throw out a federal judge’s ruling that a land exchange to give the proposed resort village access was done in violation of federal law.

The 10th U.S. Circuit Court of Appeals ruled it does not have jurisdiction to hear the appeal and dismissed it.

In May 2015, the U.S. Forest Service’s Rio Grande office approved a land exchange with Leavell-McCombs Joint Venture, which gave the developers the access they have lacked for nearly 30 years to build a new resort village atop Wolf Creek Pass.

But the decision was immediately challenged by a coalition of environmental groups, known as the Friends of Wolf Creek, which said the Forest Service violated the National Environmental Policy Act and other federal regulations in its decision-making.

In May 2017, a federal court judge agreed, saying the Forest Service skirted its “responsibility to protect the forest by making an attempt at an artful dodge” when it approved the land swap.

A first appeal of the federal court judge’s ruling by the Forest Service and Leavell-McCombs Joint Venture in September 2017 was denied. In October 2017, Leavell-McCombs Joint Venture filed an appeal with the next tier of the federal court system, the 10th U.S. Circuit Court of Appeals. The Forest Service chose not to join this appeal attempt.

In July, the Rio Grande National Forest granted Leavell-McCombs Joint Venture access to its property through another method, known as ANILCA (Alaska National Interest Lands Conservation Act), a conservation bill that settled land disputes in Alaska. The Forest Service says the bill promises landowners with property surrounded by national forest access to their land, even in the Lower 48.

A final decision on that matter is expected early 2019.

Bill Leone, an attorney for Leavell-McCombs Joint Venture, said Tuesday the land exchange was the preferred option because it has less of an environmental impact than the ANILCA route.

“People are going to be unhappy about that road,” Leone said. “And it’s because the environmentalists forced it to happen.”

Travis Stills, an attorney representing the environmental groups, said the federal court judge’s ruling in May 2017 that the Forest Service violated NEPA in its decision for the land swap should also apply to access granted through ANILCA.

“(The judge’s ruling) applies to the entire analysis,” Still said. “The whole thing is poison … and you can’t separate one piece out of it and rescue it.”

Stills said the coalition of environmental groups would like to see the Forest Service go back and conduct a new environmental analysis that follows law and is not influenced by the developer before making any final decisions.

“How do you make an agency obey federal law?” Still said. “Usually through a court order. But for whatever reasons, the (Forest Service) has shown an open contempt for (these court rulings).”

The U.S. Forest Service’s Rio Grande declined comment since the appeal was made by the developers.

Read more, including the ruling, at The Durango Herald.

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