By SLVEC Director Christine Canaly
On December 13th, 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 pretty much
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.
Unfortunately, several rounds of briefings and additional actions were required to force the
Forest Service and LMJV to clarify/document/confirm 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 there
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 (Byrne 1998). Criteria investigated in these 5 areas for comparison were (1) relative snowshoe hare densities-primary food source for Lynx (Reed at al., unpublished data), (2) road density, (3) size of area, (4) juxtaposition of habitats within the area, (5) historical records of lynx observations, and (6) public issues.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”.
Reference Quoted Document Here.
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, trading denuded land from 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 2000’s, 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 challenged this land exchange decision in Federal Court.
A history of circumvented regulations
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.
The agencies involved have admitted that they don’t have an accurate number of lynx killed
based on traffic on Wolf Creek Pass as it exists today. There have been no active monitoring
programs. The agencies acknowledged that a number would be hard to estimate since lynx
injured by cars wander off the road to die.
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.”
Regardless of Judge Arguello’s ruling, Stills explains that the courts do not hold all the
power in deciding development outcome. McCombs faces huge infrastructural hurdles,
such as installing power lines along the high elevation pass, getting water to the
development, and building municipal wastewater treatment plants. These details have
never been seriously addressed, with the Forest Service accepting “to be determined,”
vague descriptions, and fanciful plans such as engineering a methane-fired generating
station on site. Not to mention, the developer has to gain approval from Mineral County, the
Environmental Protection Agency, and the Army Corps of Engineers, to name a few.
Developers should have to prove that the project will have minimal impact on the region’s
streams and wetlands. Based on the immense challenges that would need to be overcome,
Stills describes the project as being “somewhere between fantasy and insanity.” Even if
McCombs gets legal footing to proceed with the Village, a project of this scale in this place is
unlikely to succeed in the long-term. It is Stills fear through, that in the process of trying
and failing, repeatedly, pristine wilderness will be irreversibly destroyed.
A Beloved Landscape
While the battle to protect Wolf Creek Pass has been long and tedious, Friends of Wolf
Creek partners and allies remain committed to protecting this special piece of Southern
Colorado. Some advocates have been following and participating in this case for over thirty
years and continue to fight for the vital ecosystems and wildlife that make Wolf Creek Pass
extraordinary. SLVEC Director Christine Canaly shares that the Wolf Creek Pass case is very
close to her heart, as it was the first campaign she worked on as the Council’s Director.
Since 2000, she has strived to represent the public’s interest, as well as all the non-human
life that thrives in the Wolf Creek Pass area. A shared love for Wolf Creek Pass ensures that
the fight to protect it will continue regardless of the court’s ruling. SLVEC, and its partners
at Friends of Wolf Creek, will continue to fight for the long-term protection of this pristine
landscape for future generations to enjoy.
Take Action
Want to help protect Wolf Creek Pass? Your voice matters, and so do your actions! Support
the cause:
-Discuss what you have learned in this article and related resources with your friends!
-Pass on educational materials found in our newsletters and blogs to those in your circle.
-Share information on social media; use #NoPillage.
-Make a monetary contribution to Friends of Wolf Creek or SLV Ecosystem Council:
-Stay informed. We will be posting the court verdict once it is released!
-Know a member of the Forest Service or other local, state, or federal agency? Discuss the case with them; be a moral guide.