Working Paper 94-55 February 1994
By Fred R. Kucker
This paper was written in conjunction with the Fall 1993 Natural Resources and Environmental Policy Seminar of the University of Colorado Interdisciplinary Graduate Certificate Program in Environmental Policy. All ideas presented are those of the author and do not necessarily represent the views of the Consortium or the University. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: firstname.lastname@example.org.
© 1994. Fred. R. Kucker. Do not reprint without permission.
On June 28, 1993 the USDA Forest Service, White River National Forest, Aspen Ranger District (FS) published a Draft Environmental Impact Statement (DEIS) in response to a proposal by the Aspen Skiing Company (Skico) for the upgrading of existing lift facilities at the Snowmass ski area, and expansion of the current Snowmass ski area onto Burnt Mountain, the area immediately adjacent to the existing Snowmass ski area. In addition to the new ski trails and lifts on Burnt Mountain, the Skico's proposal includes adding a second access/egress portal at the base of Burnt Mountain in what will be known as the East Village. Finally, the Skico's proposal includes expansion of snowmaking capacity on both Snowmass and Burnt Mountain.
Related to, but independent of the Skico's proposal, is the proposed development by the Snowmass Land Company (SLC) of the East Village area on private land at the base of Burnt Mountain. The East Village development would include residential, commercial, and skier services. It would also include parking for between 400 and 800 cars.
As part of the lift facility expansion, the Skico proposes to install a gondola with a base in the existing Base Village, a mid- station at the Elk Camp restaurant in the existing Snowmass ski area, and the top at either the Elk Camp summit or the Burnt Mountain summit. The gondola has important economic consequences for the Town of Snowmass Village (TOSV) where both the Snowmass ski area and Burnt Mountain are located. The gondola would provide a significant winter and summer tourist attraction. An increase in summer tourism is particularly important for merchants within the TOSV.
(Exhibit A is an picture of the Upper Roaring Fork Valley where the Snowmass, Burnt Mountain, and Aspen Ski areas are located. Exhibit B is a map showing the Skico's preferred expansion plan. Exhibit C is a map showing the FS preferred expansion plan.)(1)
The Skico, through its predecessors in interest, has held a Forest Service permit to build ski facilities on Burnt Mountain since 1965.(2) The Skico also operates the Buttermilk and Aspen Mountain ski facilities under Forest Service permits and is negotiating to operate the Aspen Highlands ski facility in joint venture with another entity. (See Exhibit A) The Skico estimates that it will spend between $38 and $40 million dollars on the Burnt Mountain project.(3)
The SLC owns all the developable private land in the East Village Portal at the Base of Burnt Mountain. Under existing TOSV zoning ordinances SLC has the "technical" right to build approximately 1000 residential units on that land.(4) In addition, it is on SLC land that parking, skier services, and commercial space for the East Village Portal will be built.*
The FS is the federal land management agency having jurisdiction over the federal lands on which the existing Snowmass and proposed Burnt Mountain ski areas are or will be built. Under the 1984 White River National Forest Plan, Burnt Mountain is designated as "Priority 1" for development as a ski area. The FS Stakeholder Representative views it as the FS responsibility to implement the 1984 Forest Plan, while complying with the National Environmental Policy Act (NEPA) by preparing a DEIS, Final Environmental Impact Statement (FEIS) together with a Record of Decision.
The Snowmass and Burnt Mountain ski areas are located in the TOSV. (Although the ski facilities, existing and proposed, are on FS lands where its jurisdiction is exclusive, since the overall development will impact both public and private lands, both the Skico and the SLC are subject to TOSV jurisdiction.) The TOSV is, in the main, a resort community dependent on winter and summer tourism for its economic well-being. Yet, there are a number of TOSV residents who are opposed to further expansion of the Snowmass ski area even though such opposition may not be in their best economic interest.
The TOSV is in Pitkin County. Under a 1984 Intergovernmental Agreement with Pitkin County the TOSV agreed:
[T]hat no development proposal subject to review under this Agreement [the expansion of the Snowmass ski area onto Burnt Mountain] shall be approved by the Town without affording the County an adequate opportunity to evaluate identifiable off-site impacts of any such development, to make findings relating to such impacts and to submit to the Town of (sic) a list of binding conditions for the mitigation of those impacts... The Town shall incorporate the County's list of binding conditions for the mitigation of impacts into the approval of any development proposal and shall enforce such conditions as Town conditions of such approval; provided only that the Town has determined that any findings or binding conditions for the mitigation of impacts required by the County which performance by the applicant [Skico or SLC], the Town, or some other party are reasonable, are supported by competent evidence and reliable findings and are, therefore, not in excess of the Town's jurisdiction or an abuse of the Town's discretion, as defined in Rule 106(a) (4), C.R.C.P.(5)
While the Burnt Mountain - East Village expansion project is not, legally, subject to Pitkin County's approval, clearly it will have a voice in what happens.
The City of Aspen is in Pitkin County, about 10 miles from TOSV. The Skico operates the Aspen Mountain ski area which is within the Aspen City limits. Skiers, vacationers, local residents, and workers travel between Aspen and TOSV frequently. According to the DEIS:
The Aspen Area is a nonattainment area for compliance with the air quality standards under the Colorado State Implementation Plan (SIP). The Clean Air Act Amendments of 1990 prevent any Federal Action which does not conform with the SIP...Although the Snowmass Ski Area is located outside the Aspen nonattainment area, the proposed expansion could potentially increase activity within the non-attainment area due to its proximity. As a consequence, compliance with the SIP must be demonstrated for any activities authorized.(6)
Although the City of Aspen has no jurisdiction over the proposed Snowmass - Burnt Mountain expansion, it has an interest in the traffic and air quality mitigation aspects of the project, and has submitted extensive comments on the DEIS. The Friends of Burnt Mountain(FOBM)
The FOBM is a grass-roots citizens group composed largely of TOSV permanent residents and second home owners. It has vigorously opposed the East Village development and has submitted extensive comments on the DEIS. Of particular concern to the FOBM is the proposed gondola to the top of Burnt Mountain. The FOBM is concerned that the increased summer tourism to the top of Burnt Mountain facilitated by the gondola, will cause deterioration of the wilderness area adjacent to Burnt Mountain and endanger the wildlife located there.(7)
The Sierra Club has submitted lengthy comments on the DEIS questioning, among other things, the fundamental assumption that there is any need for expansion of skiing onto Burnt Mountain. The Sierra Club, like other stakeholders critical of the proposed expansion, raises questions concerning the project's affect on air quality, wilderness, wildlife, biodiversity, and watersheds.(8)
The 1985 Environmental Impact Assessment (EA) and Finding of No Significant Impact (FONSI)
On August 7, 1985 the FS, White River National Forest issued an EA and FONSI with regard to the proposed expansion by the Skico of the Snowmass ski area onto Burnt Mountain. The background to this event is instructive:
The initial effort to review the Master Development Plan [for the Skico] started in 1979. However, due to various mutually agreed postponements between the Aspen Skiing Company and U.S. Forest Service, the environmental analysis of the plan proposal was not formalized until 1981. On November 6, 1981 the State Division of Local Affairs and other prospective Joint Review Committee (JRC) members were notified by Forest that the first committee meeting would convene November 19, 1981. Due to the complexity of issues, the environmental analysis was to be guided by the Joint Review Process (JRP) and committee which was formulated under the overview of a December 16, 1981, Memorandum of Understanding (MOU). Parties to that cooperative venture were the Town of Snowmass Village, State of Colorado, City of Aspen, Pitkin County, Aspen Skiing Company, and the U.S. Forest Service. The purpose of that MOU was'...to set forth the conditions and procedures to be followed for the simultaneous accomplishment of and compliance with the Joint Review Process; the NEPA Process; and preparation of an Environmental Assessment under the framework of CEQ Reg. 40 CFR 1506.5...
After three years of intense review and analysis by the Joint Review Committee, with several interim delays, a draft Environmental Assessment (EA) was prepared and circulated to cooperating agencies and selected publics for review and comment in January and February 1985.(9)
The 1985 EA was 200 pages long and evidenced "intense review and analysis". On August 7, 1985 Forest Supervisor Richard E. Woodrow issued a FONSI allowing for expansion of the existing Snowmass ski area onto Burnt Mountain.
The FONSI was appealed by the Colorado Wildlife Federation, the Colorado Division of Wildlife and the State Highway Department. The Appellants major contentions were that the EA failed to adequately consider the off-site and cumulative effects of the proposed expansion on "the human environment". The EA also failed to consider mitigation of those cumulative adverse effects.(10)
The Forest Service responded stating that the Appellants had reviewed the EA on several occasion, and mitigation measures they had suggested were in included. Also, the Forest Service relied heavily on the Division of Wildlife in making the analysis and documentation of matters contained in the EA. Finally:
The EA discloses the fact that alternative 2 [the one for which the FONSI was issued] will increase traffic volumes, air pollution, and will reduce safety on Highway 82...The Forest considers that it, along with the State and other participants in the JRP, have identified and disclosed the significant transportation and wildlife impacts and recommended mitigation in accordance with Forest Service authorities and policies. If the EA fails in this regard, and according the State appellants, 'is misleading, inaccurate, and incomplete', the burden of that shortcoming rests with those involved in the process.(11)
Despite almost 5 years of "intense" work with active participation by all interested parties, the Deputy Regional Forester found:
The Environmental Assessment and current record do not support a Finding of No Significant Impact decision by the Forest Supervisor. The process, regardless of all good intentions, was flawed in concluding the EA supported a FONSI decision. The appellant's claim for relief that the Forest Supervisor's approval of the August 7, 1985 decision concerning expansion of the Snowmass Ski Area be 'remanded' is granted.(12)
Rather than shortening and consolidating the review, permitting, and approval process by working through a Joint Committee of all interested parties for 5 years, the Skico had, unfortunately, lengthened and extended the process.
"Land Co. Suit Over East Village No Sure Thing, Lawyers Say."(13) That page one headline in the December 30, 1991 Aspen Daily News indicates how the Burnt Mountain expansion controversy had grown and spread. The 1993 DEIS was issued in response to a joint proposal by the Skico and SLC to expand the ski facilities to Burnt Mountain and develop the East Village. The headline concerns the later proposal.
For several years after the remand of the FONSI not much happened with regard to the Burnt Mountain proposals.
By early 1992 the TOSV had concluded that it favored the expansion of ski facilities to Burnt Mountain and the development of the East Village. In late 1991 and early 1992 the TOSV Town Council passed resolutions granting conceptual approval to both proposals.(14)
Meanwhile, the FOBM had been organized for the specific purpose of opposing both developments. In an unprecedented showing of local support, the FOBM collected enough signatures on a petition to require the TOSV Town Council to downzone the East Village from 1000 to 65 residential units. The proposed downzoning would prohibit any large scale parking facility as well as any commercial development. Such drastic downzoning measures would make the East Village significantly less desireable for development by the SLC, (thus the page one newspaper story with the implication of a regulatory "taking" of the SLC East Village property should such downzoning ever occur). Additionally, the downzoning would jeopardize the entire joint development of the project by the SLC and Skico.
The TOSV Town Council was faced with the choice of downzoning the East Village site based on the petition, which would be contrary to the Resolutions it had already passed, or placing the issue before the TOSV voters in the form of a Special Initiative. The later course was chosen.
The battle over the Initiative raged in TOSV Town Council meetings, the local newspapers, letters to the editor, and at the top of Burnt Mountain. "The debate over expanded skiing drew big flak...when a shouting match between Skico Vice President Bill Turnage and County Commissioner Wayne Ethridge erupted on the summit of Burnt Mountain during a site visit."(15) The FOMB was joined by the Sierra Club in working for adoption of the Initiative.
Perhaps the conflict was best summarized in a local newspaper feature article published just before the vote on the Initiative.
It has become 'de rigueur' in America for the citizenry to show disdain for the political status quo. Taking on the powers that be has become a popular grassroots movement, from coast to coast.
The Friends of Burnt Mountain in Snowmass could fit that national trend. They're fed up with what they say is a town government that serves the special interests of developers, rather than the needs of the people. The Friends are challenging the establishment and a land-use process they don't believe works for the long-term benefit of the community.
By casting themselves as dissidents, the Friends hope to score big in Tuesday's town election among citizens disillusioned with mainstream politics and the established 'process'.
But Snowmass is not the nation.
The Town, created as a ski resort in 1967, represents a dichotomy. In Snowmass, the status quo offers the promise of jobs, prosperity, and progress as defined by growth. It is the establishment that wants to expand and improve Snowmass Mountain, arguing it must be competitive as one of the top ski and summer resorts in the U.S. The Snowmass status quo desires a pragmatic use of public and private lands for marketable amenities in an era when competition for tourism has reached an all-time high.
The Friends of Burnt Mountain say they want to give democracy back to the people and let citizens vote on what could be the Town's most critical development package - East Village and the proposed Burnt Mountain base area...
The Friends' initiative, placed on the ballot by petition has challenged the very power base of Snowmass Village by attempting to take the decision out of the hands of the town council. In response, politicians, developers, and pro- development citizens are fighting back with vehemence, and a widening rift is dividing the community.(16)
On April 14, 1992, after the largest voter turnout in the history of TOSV (68% of the registered voters), the Initiative was defeated by 99 votes, 425 to 326.
An interesting epilogue to the vote was that by June, 1992 the SLC had revised the development plan which had already received the Town Council's conceptual approval by:
While the changes didn't represent the radical downzoning proposed by the FOMB, a message had been sent and heard.
Since promulgating the DEIS in June, 1993 the FS has received enough public comments to fill 12 four inch thick loose-leaf notebooks. The comments range from hundreds of form letters solicited by the Skico endorsing the Project to numerous short to one line letters saying, in effect, "Don't do it!". The most thoughtful comments, however, come from the Stakeholders and other governmental (both federal and local) agencies. Comments were received from such federal agencies as the EPA and the Army Corps of Engineers. Comments were received from such local agencies as the Roaring Fork Transit Agency, the Aspen/Pitkin County Planning Office, and the Snowmass Water and Sanitation District. Finally, comments were submitted by neighborhood organizations such as the Fox Run Homeowners Association (the residential subdivision immediately adjacent to Burnt Mountain) and individual residents such as The Zieglers, who claim to "be the longest continuous owner of land...contiguous to the Snowmass Ski Area [having] acquired my initial tract of 160 acres in 1958..."(18)
The major issues raised by the comments fall into the following broad categories: the underlying assumption that expansion of the ski area is needed; the effect the expansion will have on traffic, transportation, and air quality, the effect the expansion will have on wildlife and wilderness areas, and, finally, the effect the expansion will have on the "quality of life" in Aspen, the TOSV, and Pitkin County.
The DEIS states:
This action is needed to improve the overall quality of the recreational experience within the permit area for winter and summer visitors... Providing a variety of outdoor recreational opportunities is one of the important roles of the Forest Service...
The addition of high-quality terrain, expansion of snowmaking coverage to enhance earlier openings, replacement of outdated lift equipment, and renovation and/or addition of restaurant and support facilities would measurably improve the overall recreational experience at the ski area. The economy of TOSV is highly dependent on the recreational opportunities provided by the ski area. In the past, the community has had to cope with the instability and fiscal problems associated with the seasonality of skiing. Now, with the steadily increasing demand for summertime activities in the local area, there is great potential to enhance the recreational opportunities being provided within the permit area, thus creating a more seasonally balanced resort industry.(19)
The DEIS suggests skiing works on the "Field of Dreams" principle that "If you build it they will come":
A unique aspect to the ski industry is that, under favorable market conditions demand normally follows supply, rather than preceding it. Ski areas have historically witnessed their most substantial increases in skier visitation (demand) following expansion of mountain capacity.(20)
The DEIS argues that just to maintain its existing market share, the Skico needs to upgrade and expand the ski facilities. Therefore, the interests of the Forest Service, the Skico, SLC, the TOSV, and its business sector are all furthered by the proposed project.
The greatest flaw in the DEIS is not what is in it, but what is not in it. Entirely absent from the DEIS is any evaluation of the purpose and eed for the proposed action based on the conditions and needs of the communities in which it takes place...It cannot be said often enough, or loud enough - the entire structure of the DEIS constitutes an inherent bias towards approval of the proposed action.(21)
The rationale of the need for expansion at Snowmass is never clearly stated. The DEIS begins with the broad statement that 'upgrading and expansion of existing facilities may be needed to maintain the economic viability and competitive standing of the ski area operations'...Thereafter, the DEIS simply asserts that such upgrading and expansion will improve the competitive position of Snowmass, without ever analyzing the connection between new ski terrain and economic viability in the future ski market.(22)
The foregoing is typical of the comments questioning the underlying assumption that there is a "need" to expand the Snowmass ski area to Burnt Mountain. In response, the FS Stakeholder Representative indicated that in addition to the expansion of skiing onto Burnt Mountain being "Priority One" in the Forest Service 1984 Master Development Plan for the White River National Forest, one of the FS's major missions is to improve and facilitate recreational use of the national forests. Given these FS policies and mandates, the Burnt Mountain expansion seems sound and logical from the FS's perspective.
The Skico is anticipating spending between $38 and $40 million dollars on the Snowmass upgrade and Burnt Mountain expansion. If, as a private, for profit corporation, the Skico is willing to make such a commitment of its capital, why should anyone question its rationale? If the Skico is right it will reap the economic rewards; if it's wrong, it will suffer the economic consequences. Perhaps if the only issue was the need for the expansion there would or should be little controversy. Of course "need" is not the only nor most controversial issue.
Each of the above factors received extensive study and analysis in the DEIS and each was the subject of numerous comments. They are analyzed together here for reasons of logic and space limitation.
Since 1984, and probably well before, Highway 82 (the major and only through highway in Pitkin County) has been a problem.
The Colorado Department of Highways considers Highway 82 to be very congested and dangerous, and the Department does not believe the attempts of the City of Aspen and Pitkin County to limit or reduce traffic on Highway 82 have been successful. Rather, the Department points out, since the 1960's traffic has continued to increase producing very poor levels of service and increased the length of congestion periods during peak usage.(23)
Unfortunately, not much changed in 9 years. The 1993 DEIS states:
Traffic conditions in the assessment area would be expected to continue to deteriorate during the planning period regardless of the levels of on-site and off-site development actually implemented, simply due to increased visitation... Crowding conditions on SH 82 at peak hours would continue to worsen in all alternatives.(24)
Pitkin County's answer to the projected increase in traffic is simple, "[T]he Board of Directors of RFTA and Pitkin County wishes to reiterate its long-standing policy that any increased skier capacity should be 100% 'transit dependent.' This means that the local surface transportation needs of every additional day skier (and additional non-skiers, guests and additional employee demands generated by the increased capacity) should be carried exclusively by mass transit, with the resulting increased capital and operating costs to be fully funded by the applicant/developer."(25)
It is interesting that Pitkin County maintains this position even though traffic conditions have deteriorated steadly from 1984 to 1993 with no expansion of the ski area, and that traffic conditions are projected to continue to deteriorate in the future even if no expansion of the ski area takes place. One has to question the rationale of making the Skico wholly responsible for mitigating a traffic problem that has existed, and will continue to exist and worsen regardless of what the Skico does.
As noted earlier, the Aspen Area is a nonattainment area for compliance with the air quality standards under the Colorado State Implementation Plan (SIP). The City of Aspen maintains, therefore, that, "The Forest Service is required to ensure that both on-site and the connected off-site actions do not cause or contribute to any new violation of any National Ambient Air Quality Standards, increase of the frequency of existing violations or delay timely attainment. All the alternatives [including the no action alternative] result in additional pollution in the nonattainment area and the Final EIS must prove that mitigation measures are committed to which ensure full mitigation of all such increases, specifically PM-10."(26)
One again wonders at the rationale of imposing a duty on the Forest Service and/or the Skico to solve what is clearly a preexisting problem which will continue to exist and worsen even if the "No Action" DEIS alternative were chosen.
Burnt Mountain, along with the other four ski areas located in Aspen/Snowmass, borders on the Maroon Bells - Snowmass Wilderness area. The DEIS notes, "All action alternatives would increase summer visitation to the permit area through gondola programs, additional hiking and mountain biking trails, interpretive programs, and on-mountain dining."(27) All the environmental interest group Stakeholders have taken exception to the increased wilderness access which will be afforded by the gondola to the top of Burnt Mountain, especially during the summer.
Typical of the concerns expressed is the following from the FOBM comment letter:
Wildlife impacts from human summer use would be significant because we have no reliance in closures, restricted use, enforcement and education(sic). Only natural barriers are effective. We concur with the...recommendation to keep a gondola off Burnt Mountain... Because the MB/SW is considered prime summer range [for elk], human intrusion in wilderness would have significant impact on wildlife viability... [A]ny additional human intrusion on wildlife can have long-term consequences on the viability of the [elk] herd. We have no reliance or faith in mitigation measures as related to wilderness access."(28)
Similar impassioned pleas are contained in letters from the Aspen Wilderness Workshop and the Mount Sopris Group of the Sierra Club. As the DEIS esplains, "In the long-run, increased pressure or demand for wilderness recreation would be expected in all alternatives as a result of local and regional population growth, offsite development at TOSV and elsewhere, and increased visitation to the Aspen-Snowmass area."(29)
There is a certain sad but inevitable logic to the foregoing observation. As more people seek relief and escape from increasingly congested urban and suburban areas, the wilderness beckons. While one may empathize with the environmental interest group Stakeholders on this issue, one is hard pressed to understand how the elemental human desire for the majesty, beauty, and tranquillity found in the wilderness will be stopped whether or not a gondola runs to the top of Burnt Mountain.
The DEIS details how, economically, the TOSV, City of Aspen, and Pitkin County will be enhanced by the Burnt Mountain development. Employment opportunities, tax revenues, property values, personal income, would all increase.(30) Coupled with economic growth is the inevitable population growth and increased demand and stress on the built and natural resources. It is this factor, arguably, that underlies much of the concern expressed regarding the other issues discussed. As one environmental interest group pleaded:
The socioeconomic impacts on local communities (with the possible exception of TOSV) will be degrading. There is absolutely no need for more job creation, particularly the kind of resort and construction jobs associated with the proposed action, in the Roaring Fork Valley. The greatest burden on the local communities is already housing, transporting and servicing of its service workers - the proposed action will only exacerbate an already difficult problem and perhaps make it unmanageable. The prospect of visitors enjoying an increasingly luxurious ski experience while the quality of life of those serving them continues to decline is one that an agency of the federal government, whatever its mission, should not contemplate.(31)
The foregoing plea from the Mt. Sopris Group of the Sierra Club poignantly articulates an underlying theme in the Burnt Mountain dispute, and one that, while not environmental in nature, is perhaps the most important of all. In many ways, Aspen is a victim of its own success. It is one of the most naturally beautiful and scenic mountain communities in the country, if not the world. Its natural resources have become a source of pleasure and play for growing numbers of people. In summer it is a cultural and intellectual Mecca unrivaled by any mountain community in the western United States.
As result of these factors and with the advent of fax machines, modems, and Federal Express, more people can and do spend more time in Aspen. Aspen and TOSV have always had strict and limiting building and growth codes. The confluence of all these factors in the upper Roaring Fork Valley means that the law of supply and demand has preordained certain inevitable consequences. Since housing supply is limited and demand great, the price of housing is extraordinarily high. It is difficult to find a single family residence in the City of Aspen for less than $1,000,000. At the same time Aspen and TOSV offer the greatest employment opportunities in the area. Unless one can afford the housing, one has to commute to work in the upper Roaring Fork Valley. For many the commute is from distances as great as 60 miles.
When I told various Stakeholder Representatives I interviewed I was writing a case study of the Burnt Mountain environmental dispute, more often than not corners of mouths turned up, eyes and heads rolled back, and a slight chuckle was to be heard. I was told more apt terms to describe the study might be "soap opera", "saga", or "tragedy". An "Environmental Dispute" was not, I was assured, what was going on. To paraphrase one Stakeholder Representative's observation, "What's going on here has to do with things like money, ego, power, and greed in all varieties and from all sides. It has little or nothing, however, to do with the environment."
When one considers the "Aspen" factor, the Stakeholder Representative's insight is prophetic. Many who live or wish to live in Aspen or TOSV are, obviously, among the financially fortunate. On the other hand, many who have lived in Aspen or TOSV for a long period of time or who work there are not as financially fortunate. Yet both factions want to be there, either out of choice, need, or some combination of the two. People from both factions have strong opinions as to how Aspen and TOSV should or shouldn't grow, change, or remain the same. Yet, whichever faction one belongs to, individual members differ markedly in their views about and goals for the community. Because these opinions and views are so strongly held, members of both factions will use whatever resources are available to them, including economic, social and political power to achieve their ends. With such a diversity of means, ends, and power, it is no wonder that "saga", "soap opera", or "tragedy", might better describe the Burnt Mountain situation.
The Final Environmental Impact Statement (FEIS) will probably be issued in early 1994. Undoubtedly, many of the issues raised in the comment letters will be addressed in the FEIS, and changes will be made. Nevertheless, a crucial and controversial element, the gondola to the top of Burnt Mountain, will probably remain in the project. The Skico, SLC, TOSV, and the Forest Service all want it. The FOBM and other environmental interest groups oppose it. Litigation has been openly threatened should the gondola go to the top of Burnt Mountain.
The FS believes that any such litigation will have little merit and less chance of success. The FS relies on the recent Supreme Court decision in Robertson v. Methow Valley Citizens Group.(32) The issues addressed by the Court in that case were whether NEPA requires federal agencies to include in each EIS a fully developed plan to mitigate environmental harm if relevant information concerning significant environmental effect is unavailable or too costly to obtain. In addition the Court decided whether the FS may issue a special use permit for a ski area on national forest land in the absence of a fully developed plan to mitigate environmental harm.*
The case involved a challenge to a ski area EIS which allowed the development of the project even though the EIS acknowledged that two species of birds would be eliminated completely from the project area and a deer herd would be reduced by 15 percent.(33) In addition, there was acknowledgment that off-site air quality would be adversely effected by the project, but no complete mitigation measures were required although several alternatives were discussed.
In reversing the Circuit Court and writing for a unanimous Supreme Court (both rare events), Justice Stevens made a number of observations and findings relevant to the Burnt Mountain dispute:
If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs...In this case, for example, it would not have violated NEPA if the Forest Service, after complying with the Act's procedural prerequisites, had decided that the benefits to be derived from downhill skiing at Sandy Butte [the project site] justified the issuance of a special use permit, notwithstanding the loss of 15 percent, 50 percent, or even 100 percent of the mule deer herd. Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed - rather than unwise - agency action.(34)
With regard to mitigation of adverse off-site air quality and other adverse environmental impacts, the Court said:
There is a fundamental distinction, however, between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated, on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted on the other. In this case, the off-site effects on air quality and on the mule deer herd cannot be mitigated unless nonfederal government agencies take appropriate action. Since it is those state and local governmental bodies that have jurisdiction over the area in which the adverse effects need be addressed and since they have the authority to mitigate them, it would be incongruous to conclude that the Forest Service has no power to act until local agencies have reached a final conclusion on what mitigating measures they consider necessary.(35)
Against this background framed by a unanimous U.S. Supreme Court, it is hard to envision a successful legal challenge to the FEIS from the issues raised, so far, by those Stakeholders adverse to the Project. Nevertheless, Forest Service Administrative appeals and challenges in the Federal Courts may well be forthcoming once the FEIS is issued.
Not only does hope generally spring eternal from those adverse Stakeholders with the resources to challenge unfavorable decisions, time is always the ally of opponents to a project. Over time, local regulations change, state and federal laws change, species get added to the "Endangered Species" list, Forest Service Master Plans get revised, and local, state, and federal personnel change. Any legal or personnel change is a source of hope for a project's opponents.
Equally as important, time is money. By the FS's own estimate, the average Administrative Appeal, if carried on to the end of the process, can last for 250 days.(36) If the final decision is still adverse, an opposing Stakeholder can then commence suit in the Federal Courts where additional delays can be assumed. Do the projects proponents start the project with legal challenges pending? Does waiting cost or save money, gain or lose market share, increase or decrease the commitment to the project? Decisions on these and a host of other issues raised by the prospect of administrative appeals and litigation face the project proponents.
In addition to potential legal challenges, the Stakeholder proponents of the project face local regulatory issues. While the TOSV has issued its "Conceptual Approval" to both the Skico and SLC development plans, final approval still needs to be obtained. hile the TOSV is in favor of the project, Pitkin County has a voice in the final decision. Its interests, in many respects, are adverse to those of the TOSV. How big a voice Pitkin County has, how "reasonable" the "binding conditions for mitigation" Pitkin County makes will be, and what "reasonable" means, are all questions and issues that have yet to be determined.
Finally, how the "Aspen Factor", in all its convolutions and permutations, will ultimately affect the Project is a guess no one would hazard.
One Stakeholder Representative I interviewed suggested that a study of the Burnt Mountain Project was more appropriate as a lead article in "The New Yorker" Magazine rather than the subject of a graduate seminar term paper. I think this paper bears certain witness to the accuracy of that observation. When nature, law, people, egos, and money come into conflict, the result may well be a "soap opera", a "saga", or a "tragedy", rather than an environmental dispute.
(1) All maps from the Forest Service June 23, 1993 DEIS.
(2) DEIS, Chap.I, p.3.
(3) Much of the information for this paper came from personal interviews with various Stakeholder Representatives. In order to obtain as much information with as much candor as possible, I assured all Stakeholder Representatives interviewed that nothing they said would be for direct attribution. Hereafter, any information obtained from a Stakeholder Representative will be indicated by an *.
(4) For historical reasons the land owned by SLC had this expansive zoning. The TOSV representative I interviewed indicated that as practical matter, no development that large would ultimately be permitted.
(5) August 2nd, 1984 Intergovernmental Agreement between Pitkin County, Colorado and the Town of Snowmass Village Colorado, pp 7, 8.
(6) DEIS, Chap. II, p.55
(7) Friends of Burnt Mountain comment letter of July 13, 1993 to Carmine Lockwood, Project Manager, White River National Forest Ranger District.
(8) Sierra Club Legal Defense Fund, Inc. comment letter dated July 13, 1993 to Carmine Lockwood, Project Manager, White River National Forest Ranger District.
(9) April 21, 1986 letter from S. H. Hanks, Deputy Regional Forester, to Thomas D. Lustig, Attorney, Colorado Wildelife Federation reversing the FONSI of August 7, 1985.
(13) Aspen Daily News, December 30, 1991, p. 1
(14) Town of Snowmass Village Resolution No. 43, Series of 1991, and Resolution No. 35A, Series of 1992.
(15) The Aspen Daily Times, April 11, 1992 p. 3-A.
(17) Aspen Daily News, June 3, 1993, p. 1.
(18) Letter dated July 2, 1993 from the Zieglers to Sonny LaSalle, Forest Supervisor.
(19) DEIS, Chap I, p. 9.
(20) Ibid, Chap IV, p. 158
(21) Letter dated July 13, 1993 from Mt. Sopris Group of the Sierra Club to Carmine Lockwoood, Aspen Ranger District.
(22) Letter dated July 13, 1993 from Sierra Club Legal Defense Fund, Inc. to Carmine Lockwood Snowmass EIS Project Manager.
(23) 1984 U.S. Forest Service Environmental Assessment for Expansion of Snowmass Ski Area to Burnt Mountain, p. 74.
(24) DEIS, Chap IV, p. 291.
(25) Letter dated July 12, 1993 from Pitkin County Board of County Commissioners to Veto LaSalle, Forest Supervisor, pp. 27,28.
(26) Letter dated July 13, 1993 from John Bennett, Mayor, City of Aspen to Veto LaSalle, Forest Supervisor.
(27) DEIS, Chap. IV, p. 152.
(28) Letter dated July 13, 1993 from Friends of Burnt Mountain to Carmine Lockwood, Snowmass DEIS project Manager, p.10.
(29) DEIS, Chap IV. p. 152.
(30) DEIS, Chap IV.
(31) July 13, 1993 letter from Mt. Sopris Group of the Sierra Club to Carmine Lockwood, Aspen Ranger District.
(32) Robertson v. Methow Valley Citizens Group, Case No.87-1703, decided May 1, 1989.
(33) Ibid. Original Opinion, pp. 7, 8.
(34) Ibid. p. 16.
(35) Ibid. p. 15.
(36) Timeline of 217 Appeals of Forest Supervisor Decisions, prepared by U.S. Forest Service.