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Wolf Creek Update March 2024

Travis Stills (Energy and Conservation Law) and Matt Sandler (Rocky Mountain Wild), attorneys representing "Friends of Wolf Creek" (FWC) provided oral testimony before the 10th Circuit Court of Appeals in Denver, CO on January 16th. This Appeal was filed by "Village at Wolf Creek" Developers and the Forest Service in December, 2022.  

Their Appeal has sought to challenge Judge Christine Arguello's October 2022 decision, which vacated Forest Service (road) access approval. The three Circuit Court Judges asked 30 minutes of questions, directed at Travis, who provided oral testimony on our (FWC) behalf. The Judges focused on Section 7 and section 10 consultation under the Endangered Species Act (ESA) and whether the Forest Service did its due diligence in that regard. [Both Section 7 and Section 10 allow for incidental take-(regarding the Canadian Lynx), and how that was addressed in the 2012 Forest Service Environmental Impact Statement (EIS). The major difference between Section 7 and Section 10 is who is involved - federal agencies vs. private, state and local landowners - and the process of how incidental take is dealt with]. 

The Judge’s also directed questions regarding the relevancy of the 2012 EIS as it applied to the Forest Service’s 2nd choice of "range of alternatives", and the application of ANILCA (Alaska National Interest Lands Conservation Act). The Forest Service and “Village at Wolf Creek” (VWC) developers lost Judge Matsch's decision in 2019, when he denied a land exchange to provide developer access next to Hwy 160. 

The Forest Service used the same EIS (from 2012) basically, to apply to both Records of Decision, (the land exchange and ANILCA access). The argument from the Forest Service has been "we have to provide access to a private inholding." The (VWC) developers and Forest Service tried to tie both (Colorado Supreme Court Judge's) decisions together with this Appeal. Friends of Wolf Creek (FWC) believes the 2012 EIS did not analyze either of these alternatives accurately to protect public interest. So much has changed on Wolf Creek Pass, beetle kill, a forest fire, which means so has lynx habitat, which include other sensitive areas. The 2012 EIS is not currently reflecting the altered landscape conditions and does not consider the reduction of habitat that exists on Wolf Creek Pass today. The 10th Circuit Court of Appeals may provide a decision within the next six months. Stay tuned.

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