In July 1999, Vail Resort finally commenced cutting lift alignments and trails in its Category III expansion area, now named Blue Sky Basin, portions of which will open this coming ski season. Located adjacent to Vail’s famous back bowls, the north-facing Category III slopes will provide additional glade and bowl skiing for intermediate and expert skiers and complete the original vision of the resort. Although reviled by opponents as “industrial tourism,” the project actually sets new standards for environmental protection and includes innovative measures to reduce peak day crowds and protect wildlife.
Category III is important not only because it represents one of the largest ski area expansions approved by the Forest Service in recent years, but also because of what that approval process indicates about a number of vital issues facing the ski industry today: the increasing scrutiny to which development projects are subjected; the proliferation of agencies that are involved; the need to address environmental and growth issues thoughtfully and proactively; the evolving relationship between the industry and its principal landlord, the Forest Service; and the expectations of the federal courts, which increasingly serve as the final arbiters of development projects. As such, Category III provides a number of useful lessons on what may be required to secure and defend development approvals during the new millennium.
More Official and Public Scrutiny
Nothing better illustrates the increasing regulatory and public scrutiny to which ski area projects are subjected than the fact that the federal government’s approval process for Category III, an expansion involving some 600 acres of ski terrain projected to increase visitation by about 100-200,000 skiers annually, eventually dwarfed that conducted for the Denver International Airport, a new airport covering more than 53 square miles and serving 100,000 passengers a day.
The Forest Service review process alone included 70 environmental studies, more than 40 public or agency meetings and the preparation of an environmental assessment (EA), environmental impact statement (EIS) and supplemental environmental impact statement (SEIS). When collected, those documents filled some 75 volumes. Other federal agencies conducted their own reviews, as did state and local authorities. It is perhaps only a slight exaggeration to suggest that Category III may be the first expansion for which the volume of timber consumed for environmental reports, agency correspondence, EISs and various other regulatory documentation approaches that cleared for lifts and trails.
This increase in regulatory scrutiny results from several factors. As our polls and politicians remind us, there is widespread interest in, and support for, environmental protection. At the same time, ski areas have become the victims of their own success: Communities have grown up around them and have a vested interest in ensuring that the local environment and quality of life is protected. Finally, the growth in environmental litigation under the National Environmental Policy Act (NEPA), National Forest Management Act (NFMA), Endangered Species Act (ESA) and their state counterparts has led agency officials to be increasingly conservative in evaluating issues and to redouble their efforts to ensure that all i’s are dotted and t’s are crossed.
Although few ski projects may face the scrutiny of a Category III, all are likely to face greater scrutiny and more exacting reviews than they would have five or 10 years ago. The issue will be whether this increasing scrutiny reaches a level that precludes otherwise appropriate recreational improvements.
Growing Agency Involvement
Category III, which is located entirely on national forest land, also illustrates the proliferation of agencies that are actively involved in reviewing and approving projects. Many of these reviews were intensive and time-consuming and each resulted in additional project refinements and mitigation measures.
At the federal level, the Forest Service addressed the issues of NEPA and NFMA compliance. The NFMA issues received particular attention, ultimately requiring the preparation of an SEIS. In addition, the U.S. Fish & Wildlife Service reviewed the potential effects on, and suggested mitigation for, various species that are protected under the Endangered Species Act, including the elusive Canada lynx, which was last confirmed in the Vail area more than 25 years ago.
At the state and local levels, the Colorado Division of Wildlife provided its own input on wildlife impacts, and the Colorado Department of Public Health and Environment reviewed and permitted potential impacts to air and water quality. The local County Commissioners also conducted their own review of potential environmental impacts.
Agencies are less and less willing to defer to each other’s conclusions and more and more willing to re-examine, if not re-invent, the regulatory wheel and establish their own, independent, resource protection requirements.
Proactive Problem Solving
Another issue illustrated by Category III is the value of proactively addressing potential environmental and growth issues. For example, before submitting its proposal to the Forest Service, Vail spent several years working co-operatively with the Forest Service and Division of Wildlife to develop a design that would preserve natural contours, avoid old-growth forest and protect potential habitat as much as possible. This substantially reduced the project’s potential environmental impacts.
In addition, Vail agreed to maintain the area’s existing capacity of 19,900 skiers at a time. To this end, Vail entered into an innovative agreement with the Town of Vail, which provides a framework for addressing peak impacts and includes provisions for monitoring and controlling visitation within the existing capacity. Vail also agreed to pay for transportation improvements, subsidize the local transportation system and work with the town to address employee housing. This enabled the town to conclude that off-site impacts to it had been adequately addressed without further study and the Forest Service to better focus its NEPA review.
Then, as the NEPA process unfolded, potential impacts to lynx and other wildlife attracted increasing concern. In response, Vail entered into an agreement with the Colorado Division of Wildlife to undertake 36 special mitigation measures, including restricting summer use, providing wildlife education, maximizing glading in place of conventional trails and enhancing potential habitat both on- and off-site. Vail also entered into a second agreement with the Fish & Wildlife Service and Forest Service to undertake another 11 mitigation measures for lynx alone, including limiting construction to daylight hours, restricting trail grooming in certain areas and blocking access into potential nearby habitat. These agreements enabled the Division of Wildlife and Fish & Wildlife Service to conclude that the potential impacts to lynx and other wildlife had been adequately addressed.
This type of proactive problem solving materially strengthens the administrative record and can eliminate potential obstacles to project approval. This can both increase the likelihood of obtaining approval and help expedite the process. It can also help to maintain a positive and cooperative atmosphere, which will become increasingly vital as projects receive ever greater scrutiny and the complexity of the process increases.
Forest Service Support
Approved in one form or another by three Forest Supervisors during the past three years, Category III also demonstrates the importance of consistent Forest Service support for those projects located on national forest system land. Support is meant not merely the approval for a particular project, which is a prerequisite for it to proceed, but also institutional recognition that improving the quality of the skiing experience furthers the public interest and is an appropriate use of national forest system land.
This type of institutional support will become even more vital as the regulatory process becomes more complex and as project opponents become more aggressive. Whether it will continue, given the vagaries of the political process and the evolution of the Forest Service as an agency, remains to be seen.
Judicial Review
Like a growing number of ski area projects across the United States, Category III was subjected to both administrative appeals and federal court litigation. Two separate administrative appeals were denied by the deputy regional forester in 1996 and 1997. A lawsuit seeking to overturn the Forest Service’s approval on NFMA and NEPA grounds was dismissed by the United States District Court for the District of Colorado in 1998, and that dismissal was recently affirmed by the United States Court of Appeals for the Tenth Circuit (see box on page 53).
Best and Worst Results
Category III reflects both the best and worst of our current regulatory process. The best in that the process ultimately led to a rational result whereby both sides win: recreation and the environment. The approved project is also consistent with the Forest Service’s stated institutional objectives and Vail’s own long-term vision. The worst was that the process itself was long, tortuous, costly and, at times, redundant.
Hopefully, Category III will come to represent not the end of an era of collaboration between the industry and the Forest Service to upgrade recreation on national forest system land in ways that are sensitive to environmental values, but act as a signpost on the road to a more rational, efficient and effective process for reaching such results.
A Valuable Precedent
The Tenth Circuit’s decision upholding the Forest Service’s approval of the Category III expansion provides valuable precedent for the ski industry on a range of issues under the NFMA and NEPA statutes:
NFMA Statute: NFMA requires that the Forest Service (FS) manage habitat to maintain viable populations of certain species. Opposition groups attempted to turn this requirement into a barrier against expansion by arguing that the FS had to collect additional population data on the elusive lynx. The court ruled in the Forest Service’s favor essentially saying that the FS had done all that was necessary. More specifically:
1) The court held that the FS can rely upon a “habitat analysis,” and need not “compile hard population data” in satisfying its population viability requirement, at least for species which have not been designated as management indicators and where such data is not reasonably available;
2) Ruled that a FS habitat analysis may rely upon habitat information collected by other agencies or in other regions if it constitutes the best available scientific information;
3) Indicated that it is sufficient for a habitat analysis to identify habitat parameters, estimate the amount of suitable habitat in and around the project area and determine the project’s effect on each type of habitat; and
4) Recognized that NFMA should be construed consistent with the agency’s (FS) “overall multiple use objectives” [read “recreation”] and contains “inherent flexibility.”
NEPA Statute: Provides the structure for the FS’s environmental review of a proposed action and certain alternatives. Opposition groups sought to use this statute to hamstring the FS by arguing that the agency should have analyzed additional alternatives that would not have significantly improved skiing and compiled additional documentation on indirect and cumulative impacts. These claims, too, were rejected by the court. More specifically:
1) The court held that the Forest Service may rely upon the Forest Plan’s recreational development objectives, as well as the ski area’s expressed needs and goals, in determining the project purpose and defining the scope of environmental review;
2) Ruled that where the project purpose is to respond to specific ski area needs, e.g., increasing intermediate terrain, the FS need not analyze in detail those alternatives which do not substantially address those needs;
4) Held that in evaluating indirect and cumulative impacts, the FS may rely upon the capacity limitations in the ski area’s permit; and
5) Noted that NEPA is not intended to “generate paperwork or impose rigid documentary specifications” and that it should be applied in a “pragmatic” manner.
On this final point, the court recognized that opposition was trying to turn both the NFMA and NEPA statutes into obstacles and responded by ruling that these statutes should have flexibility. The court maintained that it will defer to the agency’s good faith effort to handle, review and approve a project proposal. —DN
