Next step could be Tidwell review and then…court and then NEPA?
It wasn’t a stake through the heart, but it was a stake in the project nonetheless. A forester in California upheld the decision by Forest Supervisor Charlie Richmond to not allow ski lifts on Snodgrass, giving Crested Butte Mountain Resort a huge setback in its efforts to expand the ski area to that mountain.
Forest Service appeal-deciding officer Jim Peña, the Deputy Regional Forester for California’s Region 5, released his decision last Friday, May 7. As part of the decision he instructed Richmond to either tell CBMR how to submit a plan that allows downhill skiing on the site or remove Snodgrass from the resort’s skiing permit boundary in the Forest Plan. Ironically, this might have to go through a NEPA (National Environmental Policy Act) process. Grand Mesa, Uncompahgre and Gunnison (GMUG) National Forest Supervisor Richmond says he feels validated by the Peña decision. Crested Butte Mountain Resort President Tim Mueller feels frustration and disappointment. Now, Chief of the Forest Service Tom Tidwell has until May 21 to decide whether or not he will review the appeal decision. And then it could be court-bound.
Peña says Richmond has the discretionary authority
In the decision notice, Peña states, “A simple reading of Forest Supervisor Richmond’s Decision shows it was based on information he determined necessary. Such a determination is within his broad discretionary authority, and I decline to reverse it, or to impose some higher standard on the level of evidence necessary than that found in the regulations… Although another authorized officer might have made a different decision, I find that Forest Supervisor Richmond’s Decision indicated that he thoroughly examined the relevant issues. His decision did not violate law, regulation, or agency policy nor was it arbitrary or capricious, and was fully within his broad discretionary authority.” Richmond welcomed the decision. “It feels good to have him [Peña] validate that all the necessary laws and regulations were followed when I made the decision,” Richmond said in an interview on Friday.
“As I’ve said, it was good to have someone else look at it. … It feels good to see this decision after some people have accused me of not following the rules. The Snodgrass decision was a tough decision, and a lot of folks in the community have differing opinions on the issue, so it was not unexpected that some people would be upset at the decision.” CBMR officials say they feel the appeal decision was not thorough enough. “Of course we are incredibly disappointed,” stated CBMR’s Tim Mueller in a press release. “We are still reviewing the decision but it is clear that Jim Peña ignored the problems and fundamentally unfair aspects of Charlie Richmond’s decision, which we identified in our appeal. Peña’s ruling does not state that Charlie made the best decision, the right decision, or even a fair decision. He only states that he did not exceed his discretionary authority.”
Peña says Forest Plan revision might be needed
In Peña’s decision, he states that Richmond must give guidance to CBMR on either how to allow downhill skiing on Snodgrass or take the mountain out of the resort’s permit area. “I am also requiring Forest Supervisor Richmond to provide guidance to the Appellant on how it should submit a proposal to provide downhill skiing in the context of LRMP direction that the authorized officer would find acceptable as required by 36 CFR 251.54(e)(3) Guidance and Information to Proponents. In the alternative, if any downhill skiing is no longer acceptable to the authorized officer, the GMUG NF is required to initiate a Forest Plan Revision, modifying the management prescription boundaries.” Asked if this meant that Peña was instructing him to outline a way that skiing could be accomplished on the public lands of Snodgrass with fewer or no lifts…say through backcountry gate access, helicopter skiing, a scaled down proposal, park-and-pipe development…or if he had to begin the process of removing Snodgrass from the ski area permit, Richmond said that was still an unknown. “I don’t know what we’re going to do with that,” Richmond said. “It looks like the two options there that you outlined but we haven’t even discussed that yet. You can come up with what might be allowed and we will talk to the ski area about it. Or you take Snodgrass out of the forest plan. We really haven’t discussed it. We’ll let the appeal go through the process and at this time that means letting Chief Tidwell decide whether or not he wants to review Mr. Peña’s decision.” CBMR’s Director of Resort Planning and Development Michael Kraatz said Richmond has already followed Peña’s direction. “The way we read that is if he is not going to allow any downhill skiing then he has to amend the Forest Plan, a plan, by the way, that went through NEPA with public input, which designates Snodgrass for downhill skiing and which ironically would require a NEPA process to alter or disallow downhill skiing,” Kraatz said. “The ironic part is Peña is directing Richmond to do what he already did – he provided us guidance on how to develop a plan that would be acceptable to him; this is contained in the 2005 MOU (Memorandum of Understanding)… We did what was asked and then in November 2009 Richmond says, well now I am going to turn you down because of these other issues, issues that he did not previously identify. He moved the goal line to justify denying the project.”
Bait and Switch?
In his decision, Peña goes on to write, “The evidence in the appeal record indicates that Forest Supervisor Richmond made his Decision with full access and understanding of the issues surrounding the public’s view of the Proposal. Forest Service Exhibit 34 contains hundreds of correspondences from the public received prior to the November 5, 2009 Decision to deny, and that these correspondences represent a range of public opinion. I agree with Forest Supervisor Richmond that 36 CFR 251.54 does not establish a level of evidence or conviction by which he was obligated to accept a proposal other than that which he determines necessary.” According to the CBMR press release, Mueller feels he and his advocates were duped. “Charlie Richmond played a bait-and-switch game with CBMR and Peña’s decision completely ignores all of that,” he stated. According to CBMR’s press release, “During a four-year ‘pre-NEPA’ review process, the Forest Service communicated to CBMR and the public repeatedly that if CBMR addressed two threshold questions—geologic suitability and public support—it would commence a public review under NEPA.” Forest Supervisor Richmond communicated to CBMR in writing in January 2009 that those questions had been addressed. Internal Forest Service documents reveal that Richmond made the decision that CBMR has a valid need to expand, that each threshold issue had been resolved, and that he had decided to begin the NEPA process. Richmond sent his decision to the Forest Service Regional Office in Lakewood, Colo. for approval in July 2009. The Peña decision notice addresses that charge by stating “at no time, did Forest Supervisor Richmond accept the Proposal as an application prior to his November 5, 2009 Decision to deny. Further, such an understanding was communicated to the Appellant, and at no time prior to the appeal was it suggested that this interpretation was incorrect…. Furthermore, even if CBMR had submitted their Proposal as a modification of their existing special use permit under 36 CFR 251.61 Modifications, Forest Supervisor Richmond still had the broad discretionary authority to make the decision to deny, and could do so without resorting to a NEPA analysis.” Can’t we all just look to the future?
Richmond knows he will have to work with people in the Crested Butte community on future projects and wants to make sure the relationship is not too strained as a result of his Snodgrass decision. “I want to sit down with people from Crested Butte and strengthen the relationship and look to the future,” Richmond said. “We all need to work together. I welcome the opportunity to continue to meet with community members and leaders in the coming months to discuss how we can work toward the future for the Gunnison Valley, economically and environmentally.” CBMR is not ready to give up on the Snodgrass issue just yet. In the company’s press release, it is made clear CBMR wants to go to the next step. “CBMR plans to ask Chief Tidwell to review this decision and set it aside based upon the issues identified in CBMR’s original appeal: that the Forest Service did not follow its own regulations, and Forest Supervisor Richmond made a fundamentally unfair decision in a private process that violated federal law and excluded the public from a watershed public lands decision that determined the future of the ski area and the community,” the press release states. Tidwell must make a decision on whether to take up the review before May 21. “We will send a request to him asking that he review the decision which he has the discretion to do,” explained CBMR’s Kraatz. “We expect Chief Tidwell to reverse the decision because the decision reached, and the process followed, were fundamentally unfair and violated federal law.” And if Tidwell doesn’t side with CBMR, the whole issue could head to the courts. “Once the Forest Service reaches its final decision, CBMR may request a federal court to review the final Forest Service decision, by filing a complaint for judicial review of agency action under the Administrative Procedures Act,” said Kraatz. Peña declined to comment beyond what was written in the decision notice.