Judge blocks new Wolf Creek roads

Ruling delays billionaire's plan to develop at ski area's base in threatened Canada lynx habitat.

A federal judge dealt another blow to developers of the proposed Village at Wolf Creek on Thursday by blocking the construction of two roads that would lead to the resort.

U.S. District Judge John Kane issued an injunction that prevents any work on the roads while he is hearing a lawsuit against the Forest Service brought by Colorado Wild, a Durango environmental group.

The case could take all winter, said Geoff Hickcox, the lawyer handling the case for Colorado Wild.

Kane's decision is the second setback for the village in two weeks. On Sept. 20, the state Court of Appeals upheld a ruling that threw out the Mineral County permit to build the village. The appeals court said developers will have to reapply for the permit once they can prove they have sufficient road access.

Kane's ruling on Thursday effectively prevents the developers from getting road access as long as the federal lawsuit is still alive.

"Judge Kane's order clears the way for the public's concerns to be heard by the court before any construction begins," said Ryan Demmy Bidwell, director of Colorado Wild. "Although it has been a long road to get here, the court's impartial review is a breath of fresh air after the Forest Service's tainted analysis and decision."

The Village at Wolf Creek has been a longtime dream of Texas billionaire B.J. "Red" McCombs and his business partner, Bob Honts. If fully built, it would have homes, condos and hotel rooms for 10,000 people at the base of Wolf Creek Ski Area.

The village would be on private property, but it is surrounded by National Forest land, and the developers need Forest Service approval to build roads to their property.

In March 2006, the Forest Service approved two roads - a new route called Snowshed Road and a 250-foot extension of the existing Tranquility Road, which serves the ski area's lower parking lot. Former Forest Supervisor Peter Clark said both roads are required to ensure public safety.

But in August 2006, Clark told the developers they could use Tranquility Road for some preliminary work before they started building Snowshed Road.

Colorado Wild and other groups objected and filed the lawsuit. They claim the Forest Service broke environmental laws by not considering the "connected action" of construction of the village when it approved the roads.

The Forest Service argued that it did analyze the effects of the village in a lengthy appendix to the environmental impact statement. But foresters said they cannot tell the developers what to do with their private land - that's a matter for the county commissioners.

Leavell-McCombs Joint Venture - the partnership backed by McCombs and Honts - said it would build the village with or without the new roads, because it would use an existing dirt road called Forest Service Road 391.  Colorado Wild said this assumption made the environmental impact statement biased. It's also at odds with Leavell-McCombs' attempts to get Tranquility Road extended, lawyers said. Kane appeared to agree with that argument on Thursday.

"I am also at a loss to understand how (Leavell-McCombs) could represent to the Forest Service during the EIS process that it could and would construct the Village utilizing only FSR 391 and now contend that it cannot even conduct preliminary survey, baseline engineering and design work for the Village unless it has vehicular access to the property via an extended Tranquility Road," Kane wrote.

Kane offered a preview of Thursday's ruling in late June, when he granted - but quickly retracted - the injunction, mistakenly believing the developers had missed their deadline to object. Honts and the Forest Service did fight the injunction, and Kane didn't rule on their arguments until Thursday.

"I'd just have to say I don't think there's a huge surprise here," Honts said.

He said he has the option to appeal Kane's decision, but he doesn't know if he will.

"Obviously, we're headed into winter, and we can't build anyway," Honts said.

Kane did allow the developers to use FSR 391 while it's open to take investors to their property and do engineering work, surveys, wetland monitoring and other activities that don't disturb the ground. The Forest Service and the developers also are allowed to meet with the Colorado Department of Transportation to discuss a permit to build a highway interchange, although they can't formally apply for a permit.

The plaintiffs and the Forest Service are still arguing over how many documents should be included in the case. Once they agree on the documents, Kane will hear arguments from both sides. He has not set a schedule for the rest of the case.