Ski Development Defeats Environmental Protest

DENVER (CN) - A nonprofit environmental group failed to support its bid to stop a Colorado ski company from developing 1,000 tree-lined acres, the D.C. Circuit ruled.

For nearly two decades, Aspen Skiing Co. has slated a square-mile plot of land in the Burnt Mountains for additional ski run development.

That plan faced an obstacle in 2001, however, when the U.S. Forest Service designated a small portion of Burnt Mountain as "roadless."

To preserve tracts of land for long-term stewardship and conservation, such designations prohibit road construction, reconstruction and timber harvest in inventoried roadless areas.

The Forest Service nevertheless authorized Aspen Skiing to clear some runs in 2006 by selectively removing trees and brush.

Ark Initiative failed to challenge that decision, and a 2012 redraw of the roadless area boundaries did not include the disputed portion of Burnt Mountain, which is also within the permitted ski area.

Ark claimed in an emergency petition that the parcel had been left out in error, but the Forest Service denied the petition based on its finding that the Burnt Mountain parcel was licensed as a ski area.

When Ark and its founder Donald Duerr sued the Forest Service, a federal judge awarded the agency summary judgment and the ski business carried out its planned project.

A three-judge panel of the D.C. Circuit affirmed last week, noting that the developers may also carry out further activities in the future pursuant to the 2006 authorization.

Ultimately Ark does not have a case under the Administrative Procedures Act because it cannot classify the denial of its emergency petition as a "major federal action" subject to National Environmental Policy Act (NEPA), according to the ruling,

"Ark's contention fails because its premise is flawed," Judge Judith Rogers wrote for a three-member panel. "In denying the emergency petition, the service did not rely on a categorical rule that ski areas could never be designated as roadless; rather, the chief refused to revisit the boundary purposefully draws to exclude the Snowmass Ski Area just two weeks before, and rejected the emergency petition as tardy and repetitive of Ark's unsuccessful earlier challenge. Consequently, the service cannot be faulted for failing to conduct a NEPA analysis of a 'categorical rule' that it did not adopt."

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