Aspen’s Burnt Mountain suit puts Forest Service’s review process under scrutiny
ASPEN, Colorado ” Environmentalists and the ski industry are awaiting a federal judge’s decision on a lawsuit over an Aspen Skiing Co. expansion because it will likely have implications for how projects get reviewed.
An environmental organization known as The Ark Initiative filed a lawsuit against the U.S. Forest Service in 2006 over its approval of a Skico proposal to cut a new trail and bigger egress route on Burnt Mountain.
The environmental group claims the proposed project was altered enough since initial approval was granted in 1994 that a new study should have been performed under the National Environmental Policy Act and Endangered Species Act.
Judith Brawer, the attorney for The Ark Initiative, said the lawsuit isn’t trying to make the Forest Service subject the Skico to extra or unwarranted scrutiny. She said it is just trying to make the Forest Service play by federal rules. If the Forest Service isn’t required to conduct greater environmental scrutiny, it could change the way the agency reviews some ski area projects, she said.
“The concern is other ski areas would be able to forego environmental reviews,” Brawer said.
The Forest Service, through the U.S. Department of Justice, insists the Burnt Mountain project proposed by the Skico didn’t stray far enough from 1994 approvals to trigger another environmental analysis. The agency said it was following established procedures in the case.
Beverly Li, the attorney handling the case for the Natural Resources Section of the U.S. Department of Justice, said she wasn’t authorized to discuss the case. Department spokesman Andrew Ames said in an e-mail, “This is a matter of litigation therefore we decline comment.”
An official familiar with the case said it will add substantial red tape to the Forest Service’s review of some ski area projects if The Ark Initiative prevails in the case. Environmental reviews can require a lot of time and money. For that reason, the ski industry is watching the outcome closely, said the source, who didn’t want to be identified.
Officials from Colorado Ski Country USA and the National Ski Areas Association could not be reached for comment Friday.
The Skico’s expansion onto Burnt Mountain has been opposed by environmentalists for years. Burnt Mountain is on the east edge of Snowmass’ Elk Camp area. The “sidecountry area” has been used for years by skiers and riders. The Skico wanted to add trails to provide its customers with the “semi-backcountry” experience that has become popular.
The Skico abandoned the plan in the late 1980s. The proposal was revived in 1991 and a land-use master plan for Snowmass Ski Area was approved three years later.
The Skico added the Long Shot trail to Burnt Mountain by thinning trees. Long Shot is more of a general route through the woods rather than a distinct trail. The Skico wanted to create another trail like that east of Long Shot and turn a small egress path into a wider route off Burnt Mountain and into the Two Creeks area of Snowmass. With that egress, the Skico would avoid a chairlift on Burnt Mountain for the foreseeable future. Skiers and riders are required to take a short, steep hike from Elk Camp to access Burnt Mountain.
Skico applied to the Forest Service for an amendment to its master plan in 2003 so it could undertake work on another trail and the egress. The supervisor’s office of the White River National Forest ruled that the proposal created no significant impact.
The Ark Initiative appealed the ruling to the Forest Service’s regional office. The nonprofit organization, based in Wyoming, cited concerns over the project’s potential impact to roadless areas.
The Forest Service ruled that more environmental analysis was necessary only for a short section of the proposed egress trail. The Ark Initiative filed a lawsuit in 2006.
The two sides are so far apart that they are even bickering over whether the Forest Service approved the Skico project. The feds claim the court doesn’t have jurisdiction because the Skico’s master plan amendment was “accepted” but not approved.
Brawer argued that the Forest Service could call it what it wanted. Either way it allowed the project to proceed. “Accept and approve ” what’s the difference?” she asked.
Ark’s lawsuit contends that the Skico’s master plan amendment should have triggered studies on effects on roadless areas and on elk. The initial approval and environmental studies were performed in the early 1990s, so conditions might have changed, the group contended. As an example, it wanted a new study on the work’s potential impact on elk.
“If it’s a minor amendment, it might not need NEPA analysis,” Brawer said. “This wasn’t minor and [the initial approval] was old.”
Ark contends that the Forest Service analysis has been piecemeal and it has lost sight of the cumulative impacts on Burnt Mountain. It wants the ski area project blocked “until and unless” full-blown environmental studies are performed on Skico’s amendment to its master plan.
The Forest Service’s arguments essentially flip all the claims made by Ark. The agency said its review was cumulative and satisfied NEPA requirements. The project has no significant effect on elk or endangered species like lynx, the agency said. It wants the review to stand.
The two sides argued the case in Denver earlier this year before U.S. District Judge Walker Miller. It is unknown when a ruling will be made.
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