Village at Wolf Creek appeal denied

DENVER — On September 14, a federal court again rejected pleas by the Leavell-McCombs Joint Venture and the Forest Service to allow the controversial Village at Wolf Creek to go forward.

The Village at Wolf Creek is a proposed development of more than 1,700 units housing on Wolf Creek Pass. Judge Richard P. Matsch denied a motion by the Leavell-McCombs Joint Venture to reconsider his earlier decision from May that overturned the Forest Service’s approval of a land exchange to make possible the proposed development.

In this latest decision, Matsch described 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.”

Developers have attempted to gain approval for a large residential and commercial development on Wolf Creek Pass for more than 30 years. The development would be adjacent to the existing ski area but not part of it. The proposal has generated significant public opposition from many concerned about the impacts to wildlife, the natural environment, and the unique character of the existing ski area.

On May 19, Judge Matsch ruled 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.” Attorneys for the Leavell-McCombs Joint Venture a month later asked Judge Matsch to reconsider that decision, and alleged that Judge Matsch suffered from “a misapprehension of controlling law and facts.”

The court thoroughly rejected those claims and denied this new bid by Red McCombs and his development team to gain approval for the project.

“It is clear that Leavell-McCombs Joint Venture is frustrated by the court’s insistence on following the rule of law,” said Matt Sandler, staff attorney for Rocky Mountain Wild. “This is an example of the checks and balances in our system working. The honorable Judge Matsch reasonably and lawfully set aside the Wolf Creek Land Exchange decision in May and we are glad he is standing by that order with his latest decision.” 

The court again concluded that the Forest Service’s land exchange decision violated the National Environmental Policy Act and the Endangered Species Act. The court found that the Forest Service failed to exercise its legal authority and that the Forest Service had abdicated its responsibility to protect the forest. It further repeated that proposed conservation measures to protect lynx were deficient and could not be “cured by arguments and explanations of counsel after the fact.”

“Wolf Creek Pass is one of the wildlife corridors most critical to the future success of lynx in the San Juan Mountains,” said Jimbo Buickerood, lands program manager for San Juan Citizens Alliance. “Judge Matsch’s order once again reiterates that it found plans by the developers and the Forest Service insufficient to assure lynx will continue to thrive in this important corridor.”

“We are grateful for the court’s careful consideration of the public’s interest and the natural environment,” said Christine Canaly, director of the San Luis Valley Ecosystem Council. “NEPA is the law that creates a public nexus to our public lands, provides access to a transparent process that is crucial to evaluating a project’s pros and cons, and identifies possible alternatives that reduce a project’s impact. As the court has repeatedly stated, the analysis around the proposed Village at Wolf Creek failed to consider reasonable protections of the environment and wildlife atop Wolf Creek Pass.”

Travis Stills of Energy & Conservancy Law and Matt Sandler of Rocky Mountain Wild handled litigation for Friends of Wolf Creek – a coalition of organizations including Rocky Mountain Wild, San Luis Ecosystem Council, San Juan Citizens Alliance, and Wilderness Workshop.