The Crestone Eagle • February, 2022

Wolf Creek: ‘The results could come any day now’

by Christine Canaly, SLVEC Director

On December 13, 2021 in Colorado’s US District Court, Senior Judge John Kane ordered annulling the Wolf Creek land exchange land patent and also verifying “the unwinding of the land exchange” that the Forest Service had officially proposed, and put into motion, through their final Environmental Impact Statement (EIS) Record of Decision, back in 2014.

This current Order was necessary, because it removes ambiguity and formalizes the result of Judge John Matsch’s decision back in 2017, that set aside the land exchange, which Leavell McCombs Joint Venture (LMJV), had filed to dismiss. This second proposed land exchange would have connected the developers’ inholding to Hwy. 160, providing the legal road access requirement that the developers need to begin the permit process. Unfortunately, several rounds of briefings and additional actions were required to force the Forest Service and LMJV to document actual compliance with Judge Matsch’s orders.

Judge Kane’s ruling confirms a major decision sought by San Luis Valley Ecosystem Council (SLVEC) and our Friends of Wolf Creek (FWC) partners, who have focused efforts to protect Wolf Creek Pass, including the south fork of the Rio Grande headwaters. SLVEC and partners have worked for over two decades to prevent construction of a proposed 1,722-unit “Village at Wolf Creek” development that creates the potential of concentrating 8,000 people adjacent to the remote Wolf Creek Ski Area.

Wolf Creek Pass is surrounded by the South San Juan and Weminuche Wilderness areas which contains some of the wildest, most ecologically sensitive core habitat and remote wilderness left in the southern Rockies. A large population of human beings living up at the pass would be devastating to the nearby ecological landscape.

Quick history of lynx reintroduction

Colorado Division of Wildlife, now Colorado Parks and Wildlife (CPW) took a bold step and reintroduced 96 Canadian Lynx in 1999 and 2000. This was an effort to establish a viable population of lynx into the Southern Rockies.

Five areas throughout Colorado were evaluated as potential lynx habitat.

Criteria investigated in these 5 areas for comparison were (1) relative snowshoe hare densities— primary food source for Lynx, (2) road density, (3) size of area, (4) juxtaposition of habitats within the area, (5) historical records of lynx observations, and (6) public issues.*

Based on results from this analysis, the San Juan Mountains of southwestern Colorado were selected as the release area for reintroducing lynx. Ten release sites within the San Juan Mountains were selected based on land ownership and accessibility during time of release for the 41 animals released in 1999. Of the 55 lynx released in spring 2000, 45 were released at Rio Grande Reservoir and 10 lynx were released at 3 sites west of the Continental Divide. Based on current locations of the majority of the released lynx, the core research area remains in the southern San Juan Mountains.

Refresh brief history of “Village at Wolf Creek”

Leavell Properties Inc. originally received the 300-acre parcel of land in 1986, through a controversial land exchange, by swapping denuded private land in Saguache County. Under political pressure, the Forest Service reversed its original “no action” decision, and Leavell acquired the inholding near the Wolf Creek ski area. The original plan for the parcel was a 208-unit development, but this changed over time and by the early 2000s, when Texas Billionaire Red McCombs acquired controlling interest, it metastasized to a “village” with 1,711 units that could accommodate up to 8,000 people. Increased access requires Forest Service approval that must comply with many legal requirements.

Friends of Wolf Creek (FWC) was formed as a response. FWC is an alliance of concerned non-profit organizations, including San Luis Valley Ecosystem Council (SLVEC), Rocky Mountain Wild, San Juan Citizens Alliance, and Wilderness Workshop, who have sought to challenge this “Village at Wolf Creek” proposal in Federal District Court.

McCombs’ “Village” at Wolf Creek is a proposed development that would build roads, homes, condos, hotels, retail stores, restaurants, and energy infrastructure to support up to 8,000 people at the top of Wolf Creek Pass. The “village” related traffic would cut through an important wildlife movement corridor connecting the Weminuche and San Juan Wilderness areas. The traffic generated by this development would rise to levels shown to deter lynx from attempting to cross Hwy. 160—isolating the population to the south and creating potential for vehicular wildlife collisions.

In 2014, the Forest Service supported McCombs’ massive development plans by approving a land exchange that would have given him another parcel adjacent to Highway 160—an action that would have been disastrous for local lynx populations if “the Village” were to have been built. This recent 2021 court decision from Judge John Kane basically annulled and put to rest this proposed land exchange idea to Hwy. 160.

The current ANILCA case

Since McCombs’s property is situated between two significant wilderness areas, developing “the Village” requires that the USFS allows for an access road to cut through their lands. The road would connect the McCombs property to Highway 160 and be instrumental to future utility infrastructure and development. In July 2018, the Forest Service announced that they would be granting expanded access in the form of a road and utility corridor through the National Forest and wetlands, to McCombs’s property. The agency justified their decision by claiming that it is their legal responsibility, under the Alaska National Interest Lands Conservation Act (ANILCA), to permit whatever access the developer requests. FWC attorney Stills explains, however, that ANILCA represents law specific to the state of Alaska and does not bind the USFS to provide whatever access agreement the Wolf Creek developers demands. Instead, Stills asserts that the Forest Service is using ANILCA to falsely represent themselves as a powerless entity. In briefing, even the Forest Service admitted that ANILCA does not provide authority to create a corridor to provide water, electricity, gas, and other utilities required for the sprawling development proposal.

FWC lawyers claim that the Forest Service’s reasoning is flawed because they indeed do have the power to reject McComb’s proposal if they deemed the project as unreasonable, contrary to law, or oppositional to public interest. In fact, previous judges have already dismissed the Forest Service’s ANILCA argument. Past federal courts dubbed the excuse as an “artful dodge” that abdicates the power Congress gave the Forest Service to manage the National Forest.

In 2019, FWC filed another lawsuit to refute the Forest Service’s decision to permit transportation and utility access through federally managed lands. In 2020, the case was reassigned to Judge Christine Arguello in federal district court. After over 30 years of legal battles, FWC is awaiting Judge Arguello’s verdict. The outcome of this ruling will either grant or decline developer access to Forest Service lands that connect the site to Hwy. 160. Without approved commercial access, development cannot commence. “The results could come any day now”, reports Stills. Meanwhile, McCombs enjoys access to the property for non-commercial uses via Forest Road 391, pursuant to the controversial 1986 Land Exchange.

The desired outcome

Stills relays that a variety of case outcomes would be welcomed, as long as the integrity of Wolf Creek Pass ecology is maintained. FWC envisions several scenarios whereby McCombs’s property could be returned to federal ownership and oversite, so to prevent future development. This transaction could transpire through either a monetary or property exchange. Or, if the property remains in private holding, McCombs could settle for building a much smaller and less destructive development like the base area that was initially agreed upon in the 1986 land exchange. Lastly, all reasonable scenarios must be fully examined by the USFS and other agencies with jurisdiction and expertise. They should conduct a thorough environmental impact analysis that provides a full examination of impacts and restrictions imposed by the Endangered Species Act (Canada Lynx, Rio Grande Cutthroat Trout, American Pika, etc.), Clean Air Act (power plant, road emissions, etc.), Clean Water Act (wetlands, sewer plant discharges, stormwater, etc.), and other laws that protect the fragile environment atop Wolf Creek Pass. Stills is confident that if the Forest Service took the time to do this, they would come to the “inescapable conclusion that nothing is reasonable to be built there,” and therefore, the property “should not be held by private entities.”

* Lynx were reintroduced two decades ago, and efforts continue to study their progress.