Evidence of Red McCombs’
Undue and
Possibly Illegal Influence
on the Village atWolf Creek
March 10, 2006
Prepared by Colorado
Contacts:Jeff Berman,
970-422-2025, jberman@coloradowild.org
Ryan Bidwell, 970-385-9833, ryan@coloradowild.org
on the Village at
Contacts:
Ryan Bidwell, 970-385-9833, ryan@coloradowild.org
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Texas
billionaire developer "Red" McCombs
seeks to construct a city of up to 10,000 people just below the
Continental Divide at Wolf Creek
Ski Area, one of the snowiest spots in Colorado. The “Village” at Wolf Creek would
destroy
lush meadows, alpine creeks, unspoiled backcountry recreation
opportunities, and
one
of the most critical wildlife corridors in the Southern Rocky
Mountains, harm
already established businesses that service Wolf Creek visitors, and
dramatically increase traffic on a snowy mountain pass. To build
the "Village" though,
McCombs needs Forest Service access approval to the 287.5 acre
inholding – exchanged in 1987
out of
public hands under highly questionable circumstances – across federal
lands, as well as Mineral County approval.
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Contents
Background
Case #4: Mineral
County Conceals Collusion with Wolf Creek Developer
Background
Texas developer B.J. "Red" McCombs seeks
to construct a city at 10,300 feet just below the Continental Divide at
Wolf Creek Ski Area, one of the snowiest spots in Colorado’s Rocky
Mountains. Entirely surrounded by National Forest land and
located in an otherwise undeveloped area, the proposed Village at Wolf
Creek could threaten water supply and quality for downstream
agricultural communities, unspoiled backcountry recreation
opportunities, and one of the most critical wildlife corridors in the
Southern Rocky Mountains. It could also impact established businesses
that currently service Wolf Creek visitors, and increase traffic to
dangerous levels on a snowy mountain pass. Mr. McCombs seeks approval
for his plans for more than 2,000 units, to house as many as 10,000
people, 250,000 square feet of commercial space, and a luxury hotel on
a 287.5-acre parcel adjacent to the small family owned Wolf Creek Ski
Area. Local opposition culminated in an overwhelming percentage
of some 3,000 comments opposed to any Forest Service grant of access
across public lands in early 2005.
Background
Texas developer B.J. "Red" McCombs seeks
to construct a city at 10,300 feet just below the Continental Divide at
Wolf Creek Ski Area, one of the snowiest spots in Colorado’s Rocky
Mountains. Entirely surrounded by National Forest land and
located in an otherwise undeveloped area, the proposed Village at Wolf
Creek could threaten water supply and quality for downstream
agricultural communities, unspoiled backcountry recreation
opportunities, and one of the most critical wildlife corridors in the
Southern Rocky Mountains. It could also impact established businesses
that currently service Wolf Creek visitors, and increase traffic to
dangerous levels on a snowy mountain pass. Mr. McCombs seeks approval
for his plans for more than 2,000 units, to house as many as 10,000
people, 250,000 square feet of commercial space, and a luxury hotel on
a 287.5-acre parcel adjacent to the small family owned Wolf Creek Ski
Area. Local opposition culminated in an overwhelming percentage
of some 3,000 comments opposed to any Forest Service grant of access
across public lands in early 2005.The land proposed for development was publicly owned land. In 1986, Charles Leavell proposed a land exchange for 420 acres of relatively flat land within Wolf Creek ski area’s permit boundary. Mr. McCombs became involved shortly thereafter, forming the Leavell McCombs Joint Venture (LMJV). On February 20 1986, the Forest Service denied the land exchange, yet just two weeks later inexplicably reversed its decision with a promise by the developer to ensure compatibility with the family owned ski area. This promise became a binding contract known as the Scenic Easement between the Forest Service, Wolf Creek Ski Area, and LMJV. It prohibits industrial facilities, airports, the storage of hazardous materials, and other uses deemed incompatible with the surrounding ski area and National Forest. In September, 1986, without any analysis or public input required by the National Environmental Policy Act (NEPA), the Forest Service changed the land exchange boundary incorporating steeper areas utilized for downhill skiing.
To build the 10,000 person “Village”, McCombs needs approval from the U.S. Forest Service in order to access the 287.5 acre inholding. In 1999 the Forest Service agreed to conduct an Environmental Impact Statement (EIS) should the developer request access over National Forest System lands for the development. Rather than go through the EIS process required for access, for years McCombs sought the assistance of U.S. Congressman Tom Delay (R – TX) and others in attempts to pass riders to circumvent NEPA’s environmental analysis and public participation processes. Having failed to obtain a possible “legislative fix” that would have excluded public input, the developer signed a MOU with the Forest Service in December 2003 initiating an EIS process under NEPA.
Throughout this process, evidence continually mounts showing that McCombs’ development team has had inordinate and possibly illegal influence over Forest Service policies and decisions regarding the NEPA process. Numerous other reviews, permits and approvals for impacts to roads, water, wetlands, Rio Grande cutthroat trout, and lynx are also required, but are being minimized by the Forest Service in the current NEPA process. Further, newly acquired information demonstrates that the developer has also had influence in Mineral County. Four specific cases of such influence at the federal and local levels are detailed below.
On June 14, 2004 , Mr.
Bob Honts, an agent for the Village at Wolf Creek Mineral County Colorado Clark ’s access letter purports
to allow
immediate access over Forest Service lands for development purposes. According to the proponent and Mineral County
Through
partial responses to Freedom of Information Act (FOIA) requests, it was
disclosed that Supervisor Clark’s access letter to Mr. Honts was
actually ghost-written
for the Forest Service by the developers’ attorney and lobbyist Steve
Quarles,
with Crowell & Moring in Washington D.C.
The ghost
written letter predetermined and constrained the Forest Service’s
analysis in
the Wolf Creek EIS’s “No Action” Alternative.
Importantly, the agency uses this “legal position” to arbitrarily confine its environmental and
socioeconomic impact analysis in the Wolf Creek EIS to consider only
the
impacts from the construction of the access road, and without regard
to
the full impacts associated with the ensuing development itself. In other words, the access letter was written
behind closed doors by the developer and the Forest Service in May,
2003, two
years after the application was submitted in June, 2004 seeking access
via FSR
391. The letter purportedly allows the
developer full-build out of 2,172 units regardless of whether
the
developer is granted the access and utility corridors that are the
subject of
the Wolf Creek EIS.
As stated
in the Draft EIS, and based on Supervisor Clark’s access letter written
by the
developer’s attorney,
Nor does any future
development depend upon the USFS
granting additional Federal access road and utility corridors. Development of the Applicant’s private
property could be accomplished more readily if the Applicant were
granted the
access and utility corridors that are the subject of the Wolf Creek EIS. Even without the additional access and
utility corridors, future development of the private property could
proceed
using summer access on FSR 391 and potential use of helicopters or
over-the-snow vehicles. In any
scenario, it is reasonably
foreseeable that the development of the Applicant’s private property
will
result in full build-out of 2,172 units.
Draft EIS
at 1-11 (emphasis provided). Thus, it also
appears that the Forest Service, under pressure from the developer, has
attempted
to “fix the books” so that the developer can gain access and initiate
Village
construction regardless of the Forest Service’s decision on the
application,
impacts revealed in the EIS, or any subsequent litigation over that
decision.
In sum, the
Forest Services’ behind-closed door grant of access to the developer
via FSR
391 set at the behest of and in careful coordination with the
developer’s
attorney and during the Wolf Creek EIS process necessitates
investigation by the
United States Department of Agriculture Inspector General.
At a minimum, these actions call into
question the impartiality of the agency during the Wolf Creek EIS
process and
warrant further investigation.
Exhibits:
1. April 24, 2004 Tenny fax to Cables
2. May 7, 2003 fax from Steve Quarles to Jim Snow at USDA OGC
3. May 21, 2003 Snow email to Kyru
4. May 27, 2003 Snow fax to District Ranger Randy Burgess
5. May 29, 2003 Snow fax to Quarles
6. June 9, 2003 Snow fax to Quarles
7. August 27, 2003 Snow email to Tenny
8. March 11, 2004 Ryberg/Clark emails
9. March 11, 2004 Clark letter to Honts
10. August 31, 1999 Forest Service letter to Colorado Wild
11. September 6, 2000 John Booth email to Randall Burgess, et al.
1. April 24, 2004 Tenny fax to Cables
2. May 7, 2003 fax from Steve Quarles to Jim Snow at USDA OGC
3. May 21, 2003 Snow email to Kyru
4. May 27, 2003 Snow fax to District Ranger Randy Burgess
5. May 29, 2003 Snow fax to Quarles
6. June 9, 2003 Snow fax to Quarles
7. August 27, 2003 Snow email to Tenny
8. March 11, 2004 Ryberg/Clark emails
9. March 11, 2004 Clark letter to Honts
10. August 31, 1999 Forest Service letter to Colorado Wild
11. September 6, 2000 John Booth email to Randall Burgess, et al.
On December 23, 2003 ,
Mr. Honts signed a Memorandum of Understanding (MOU) with the Forest
Service
initiating the Wolf Creek EIS process. The
Forest Service frequently hires contractors to prepare NEPA analyses
(such as the
Wolf Creek EIS) of proponent driven projects, with the proponent paying
the
bill for the analysis process. For these
instances, the agency has established mechanisms to prevent the proponent from unduly influencing the analysis
in their favor. To ensure the legal
adequacy, impartiality, objectivity, and integrity of the EIS process,
standard
MOUs reflect federal law and Forest Service policy requiring that the
proponent
only communicate with the Prime Consultant when information is
specifically
requested by the consultant (in this case, Tetra Tech).
Standard MOU’s require that proponents
communicate through the Forest Service project coordinator and limit
discussions with the Prime Consultant to pre-determined points in the
process –
with the Forest Service present. Consistent
with this policy, Attachment A to the Village EIS MOU prohibits the
developer
from directly contacting the third party contractor, gaining access to
pre-decisional analysis otherwise unavailable to the public, or having
input opportunities
otherwise unavailable to the public.
Based on
partial document releases under FOIA, numerous of these provisions
appear to
have been violated. On May 3, 2004 for
instance, the Forest Service provided the developer with a copy of one Comprehensive Issues Document, to which
the developer responded on May 14, 2004 with a 6 page letter entitled Proponent Comments and Factual Submissions
Regarding USFS Response dated May 3, 2004 To Tetra Tech’s Comprehensive
Issues
Document. Even though Comprehensive Issues
Document was stamped “Official Use Only –
Predecisional Information Exempt from Disclosure Pursuant to FOIA”, it
was
released to Colorado Wild by Court order in September 2005, as it had
already
been provided to Mr. Honts over 16 months prior. The
public, unlike the developer, had no
input into this critical “comprehensive issues” phase of the EIS
process. Further, and noteworthy, it was
at this stage
that the developer influenced the Forest Service to adopt the legal
interpretation of the “No Action” Alternative in the EIS.
Furthermore,
a series of e-mail communications between Mr. Honts and current
TetraTech Village
Project Manager Mark Blauer reveal a pattern of direct communication
over the
scope of the Wolf Creek EIS analysis.[2] These communications occurred
directly between
the developer and the EIS contractor, rather than being directed
through the
Forest Service as required by the MOU, standard Forest Service policy,
the
Federal Advisory Committee Act (FACA), and the National Environmental
Policy
Act (NEPA). The communications strongly
suggest that the EIS contractors’ impartiality has been violated, and
that
TetraTech is now advocating for the developer’s project. For
example, Mr.
Blauer sent an e-mail to Mr. Honts on June 28 2005 stating:
"Like you, we would like this project to be over
and for you to start construction of your village. Although we're still
not
certain that anyone can control any Government agency and their review
process,
we see a light at the end of the tunnel…” Additional
communications reveal TetraTech’s
intent to promote the developer’s interests in the design of a “No
Action
Alternative” that limits the extent of the EIS Analysis to an access
road only,
rather than investigate the impacts of the development as a whole.
Finally,
the developer has linked the start of development with the payment of
bonuses
and financial penalties. In an e-mail
released by the Forest Service in response to litigation, Mr. Honts
summarized
the matter for Mark Bauer, “All hands go to work to achieve EIS
Schedule so
Tetra Tech can earn bonus and LMJV can get started on development.” The
contract guiding the preparation of the EIS provides the developer with
considerable oversight of Tetra Tech’s work by establishing a complex
set of
interim deadlines. Tetra Tech reports to
LMJV regarding the deadlines – sometimes as tight as 5 days. Based on LMJV review of Tetra Tech’s work, a
series of bonuses and penalties, sometimes as much as $4000 per day,
may be
assessed. The developer’s short financial
leash calls into question the impartiality of the NEPA analysis that is
supposed to inform the public of the impacts of the development
proposal.
As
for the Forest Service, Mr. Honts had apparently secured commitments
from the
Forest Service to push his project from the inside -- public opposition
notwithstanding. In a letter to Mr.
McCombs
dated September
21, 2004 , Mr. Honts
boasts that
“we are slowly winning. I met yesterday
with Tom Malecek and he is pushing on this from the USFS side almost as
hard as
I am.” As for public opposition, Mr.
Malecek makes clear in May 2004 that “I don’t know whether the public
believes
they can influence the USFS decision.
But we have led them to believe in the NEPA process and that
their
participation greatly matters. That
is what we tell them, that is what they
hope their participation effects to some degree.”
Major
questions remain unanswered by the Forest Service:
- Why did the Forest Service release the Comprehensive Scoping Issues Document to Mr. Honts, allowing him to provide comments on it directly to Tetra-Tech in violation of the MOU?
- How many other times have Mr. Honts, Mr. Quarles, or other LMJV agents been provided with details of internal deliberations?
- Why has the Forest Service permitted the developer to be in direct, day-to-day communication with the EIS contractor, in direct breach of the provisions set forth in the Agency’s MOU and guiding policy on 3rd party EIS contractors?
- How can the Forest Service legitimately contend that the soon-to-be-released EIS completed by TetraTech is an objective scientific analysis, when they seemingly have not been party to extensive communication between the developer and the EIS contractor, and said communications show that the contractor is advocating for the project’s approval?
Exhibits:
12. May 3, 2004, District Ranger Tom Malecek Comments on Comprehensive Issues Document
13. May 14, 2004 Proponent Comments and Factual Submissions Regarding USFS Response dated May 3, 2004 To Tetra Tech’s Comprehensive Issues Document
14. May 25, 2004, Letter from Tom Malecek to Mr. Honts
15. June 29, 2004 Malecek email to Randy Karstaedt, et al.
16. August 10, 2004 Malecek letter to Mark Blauer, TetraTech
17. Series of e-mail communications made in 2005 -2006 between Mr. Honts and current TetraTech Village EIS Project Manager Mark Blauer
18. September 21, 2004, Bob Honts letter to Red McCombs
19. December 15, 2003 MOU between LMJV and Forest Service initiating EIS process, including Attachment A spelling out key provisions
20. October 15, 1999 Forest Service MOU Template and White Paper
21. June 16, 2004 Bob Honts email to Blauer
22. June 25, 2004 Third-Party Contract
12. May 3, 2004, District Ranger Tom Malecek Comments on Comprehensive Issues Document
13. May 14, 2004 Proponent Comments and Factual Submissions Regarding USFS Response dated May 3, 2004 To Tetra Tech’s Comprehensive Issues Document
14. May 25, 2004, Letter from Tom Malecek to Mr. Honts
15. June 29, 2004 Malecek email to Randy Karstaedt, et al.
16. August 10, 2004 Malecek letter to Mark Blauer, TetraTech
17. Series of e-mail communications made in 2005 -2006 between Mr. Honts and current TetraTech Village EIS Project Manager Mark Blauer
18. September 21, 2004, Bob Honts letter to Red McCombs
19. December 15, 2003 MOU between LMJV and Forest Service initiating EIS process, including Attachment A spelling out key provisions
20. October 15, 1999 Forest Service MOU Template and White Paper
21. June 16, 2004 Bob Honts email to Blauer
22. June 25, 2004 Third-Party Contract
Since a
partial FOIA response in September 2005 revealed that McCombs’ lobbyist
ghost
wrote a Forest Service access letter as outlined above, the Forest
Service has
since stonewalled release of other documents regarding the Village at
Wolf
Creek EIS process that should have been made available when requested
in May
2005. At a January 17, 2006 Federal District Court hearing, the Forest
Service agreed it would provide a list of: (1) communications with the
Village
at Wolf Creek developer; and, (2) “ghost writing” of Forest Service
policies
related to the proposed development.
Magistrate Court Judge David West consecrated the agency’s
agreement that
day in an order giving the agency three weeks – until February 7, 2006 – to
provide the list of documents.
Rather than
comply with the Court’s order, the agency again defied open government
requirements of the FOIA by claiming their agreements did not obligate
them to
identify these documents. No index of
communications between the federal agencies and the developer was
provided. Additionally, no response was
provided
identifying documents in the possession of Undersecretary Rey or his
Deputy,
Dave Tenny, both political appointees with Forest Service oversight
authority. However, and in contradiction
to the Forest Service’s response, a February 5, 2006 Denver Post
article
entitled Wolf Creek Development Tangled
With Political Ties noted documents
revealing
Rey met repeatedly with Village proponents, while Tenny has kept tabs
on the
process. By virtue of their response to
Magistrate West’s Order, the agency refuses to acknowledge the
existence
of these documents –- possibly indicating the level of power and
influence
being brought to bear by the developer (who is also part-owner of Clear Channel Communications). Colorado
Wild has been continually forced to
file additional motions in an effort to compel the agency to comply
with FOIA
and live up to its commitments and orders of the Court.
Major questions
remain unanswered:
- What communications has Mr. Rey had with Mr. McCombs or his agents regarding the proposed Village?
- Has Mr. Rey’s office, including but not limited to Mr. Tenny, inquired into or in any way directed the Forest Service EIS process for the Village at Wolf Creek?
- Will the USDA Forest Service, including Mr. Rey’s office, identify by index and make public all records of communications with the developer since 2001?
While many
of these issues may or may not be resolved by ongoing litigation, the
Forest
Service’s stonewalling indicates, at a minimum, an unbridled
willingness by the
agency to keep their interactions and communications with the developer
(and
thus revelations of the developer’s influence on the EIS process) under
wraps. Again, and at a minimum, an
investigation by the United States
Exhibits:
24. February 7, 2006 USFS Response to Court Order
25. February 21, 2006 Colorado Wild Motion for Clarification
26. Denver Post Article Wolf Creek Development Tangled With Political Ties, Feb. 5, 2006.
A series of
recently uncovered communications between McCombs’ attorneys and Mineral County Mineral County
- September 24, 2004 and November 22, 2004Colorado Open Records Act (CORA) requests made by Colorado Wild,
- The administrative record in Colorado Wild’s lawsuit against Mineral County.
These
documents relate to the Mineral County land use approval process and
reveal
that the developer was intimately involved in the County actions
related to the
approval process – not only providing legal advice to County attorneys
on
“implementing” county regulations, but even drafting critical approval
documents,
possibly even without the Board of County Commissioners’ knowledge.
Major
questions remain unanswered relating to Mineral County
In this
case, Colorado Representative Mark Larson’s (R – Cortez) in a - Why did Mineral County conceal communications with the developer from the public against a CORA request and from the court record?
- Were these communications deliberately concealed, and if so, what parties influenced this potentially illegal activity?
- In what other instances has the developer drafted Mineral County policies, procedures or resolutions, later to be signed by County staff?
- How many other instances of communications between the developer and Mineral County staff have been concealed from the public?
Exhibits:
<>
[1] The first four pages of this fax have
been inexplicably redacted by the Forest Service, thus it is unknown if
this document went directly to Tetra-Tech, or first to the Forest
Service. Regardless, the developer should not have had the
ability to provide input on the EIS process when the public had no
similar opportunity.
[2] Mr. Blauer is the third Tetra-Tech Village EIS project manager, the previous two being relieved of their duties for reasons yet undisclosed.
[2] Mr. Blauer is the third Tetra-Tech Village EIS project manager, the previous two being relieved of their duties for reasons yet undisclosed.
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| Jeff
Berman, Colorado Wild 970-385-9833 jberman@coloradowild.org Howard Cox, San Luis Valley Ecosystem Council 719-580-5564 howage@hotmail.com |
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Last
updated March 16, 2006
© Friends of Wolf Creek, 2006
© Friends of Wolf Creek, 2006