On Friday, April 19, the U.S. Court of Appeals for the 10th Circut ruled that the U.S. Forest Service (USFS) is required to provide access to a 300-acre parcel on Wolf Creek Pass that is owned by Leavell-McCombs Joint Venture (LMJV) — the site of the proposed Village at Wolf Creek.
The case involves a 2019 record of decision (ROD) by the U.S. Forest Service granting LMJV a right of way of approximately 3.7 acres of national forest land in the Rio Grande National Forest for a year-round road, along with a 530-foot extension of Tranquility Road to allow for emergency access to the 300-acre parcel.
That decision was then challenged in court by Rocky Mountain Wild, the San Luis Valley Ecosystem Council, San Juan Citizens Alliance and Wilderness Workshop.
The challenge resulted in a U.S. District Court judge setting aside the USFS decision to provide road access in October 2022, with that order stating that LMJV’s “plans have been frustrated for thirty-five years by the fact that its parcel is fully surrounded by federal land, which limits Intervenor’s ability to access and develop its property.”
That order adds that, for the last 20 years, LMJV has been involved in litigation in state and federal trial and appellate courts over its plans to develop its property.
The judge in that matter decided the appropriate action was to vacate the USFS action, taking away the mandate for road access.
That decision was then appealed to the U.S. Court of Appeals for the 10th Circut, leading to the 65-page ruling filed on April 19.
The ruling affirms a 2018 biological opinion relating to lynx and the 2019 ROD.
The ruling, however, indicates that there may be more to be decided in court.
A concurring opinion by Judge Allison H. Eid states, “I agree that we must resolve this appeal as described in the Court’s opinion because of how the parties litigated this case. I therefore join the Court’s opinion in full. However, I write separately to clarify that for the purposes of this case we assume, but cannot here decide, that provisions of law such as [National Environmental Policy Act] and the [Endangered Species Act] may constrain the Secretary’s power to grant access to inholdings pursuant to ANILCA [the Alaska National Interest Lands Conservation Act]. We have not yet considered the effect of the ‘[n]otwithstanding any other provision of law’ clause contained in § 3210(a) of ANILCA. Nor did the parties raise its application in this case. Accordingly, the question of how ANILCA interacts with other, potentially conflicting statutes remains open to resolve in a future case.”
The suit names Dan Dallas in his capacity as Rio Grande National Forest supervisor; Brian Ferebee, regional forester; Anne Timberman, western Colorado supervisor; the U.S. Forest Service; and the U.S. Fish and Wildlife Service as respondents-appellants.
Tamara Whittington, deputy regional forester, is named as a respondent.
LMJV is listed as a respondent intervenor.
LMJV spokesman Clint Jones said LMJV is “obviously pleased with the ruling and feel like it was the correct ruling under the law.”
Jones indicated they are, “enjoying the chance to just soak it in” and evaluate what the next steps are.
“We’re definitely disappointed with the 10th Circuit,” Matt Sandler, legal director for Rocky Mountain Wild, said, adding the ruling is contrary to every other judge who has reviewed the decision.
Sandler noted the conservation organizations are assessing the next steps, noting that attorneys for the developer made it clear during oral arguments in the case that there are still many steps before any development begins and it becomes a reality.
“Certainly we’re going to be participating in any other steps or any other processes that may need to unfold from here,” he said.
Sandler indicated the “disappointing thing” is that the original 1987 land swap was based on a worst-case scenario of 208 units and that it “just feels like a bait and switch on the American people.”
He added that the land swap likely would not have been approved if the developers had divulged wanting to build more units and alleged there was political pressure involved with the initial land swap.
The U.S. Department of Justice could not be reached by press time Wednesday to comment on behalf of the USFS.
