“I really have a problem with that”
The Snodgrass situation is moving from just a Forest Service matter to a more political issue.
The November decision by Forest Supervisor Charlie Richmond to not allow Crested Butte Mountain Resort (CBMR) to expand ski lifts onto Snodgrass Mountain or even go through the NEPA (National Environmental Policy Act) review process ignited a firestorm of public protest.
That outcry has resulted in a flurry of protests, rallies and letters to political leaders. These in turn, are turning the heat up on the Forest Service.
United States Senator Mark Udall of Colorado wrote Richmond’s boss, Regional Forester Rick Cables, and asked him to reconsider Richmond’s decision and move the matter into NEPA.
The Gunnison Board of County Commissioners (BOCC) has instructed the county staff to draft a letter to the Forest Service to be reviewed at next week’s meeting. The letter will express the board’s frustration at being used as an excuse to deny the Snodgrass permit and will try to establish the facts of the case. The town of Crested Butte will hold a meeting on Monday, December 21 to revisit the town’s position on continuing the process into NEPA.
Down at the county, the commissioners want to set the record straight with the Forest Service.
The BOCC is considering sending a letter to Forest Supervisor Charlie Richmond at the request of CBMR Vice President of Real Estate and Development Michael Kraatz and a group of more than 20 CBMR supporters who filed into the commissioner’s meeting room for a work session on Tuesday, December 8.
Commission chairperson Paula Swenson told the crowd that the board had been looking at the steps the NEPA process has to take, as well as “what’s been happening, what’s going to happen and what didn’t happen so we can be more well informed before we make a final decision [about the letter] next week.”
To set the tone of its response to CBMR’s request, the county’s work session started with a NEPA tutorial from County Attorney David Baumgarten. The county’s letter was going to be all about the process.
After an overview of the NEPA legislation and the differences between the pre-NEPA screening process and the actual NEPA process, Baumgarten began to pick away at some of the rationale Richmond used in rejecting the Snodgrass proposal.
The first bullet point in Richmond’s letter announcing and rationalizing the dismissal of the Snodgrass proposal was “community support.” The report read in part, “…it is imperative that proposals such as the expansion onto Snodgrass Mountain have community and public support.”
On page eight of Baumgarten’s 29-page memo on the situation surrounding the proposal, he asks, “Does the ‘pre-NEPA’ evaluation have a mandatory component requiring public comment?” Baumgarten’s answer was a definitive no.
He pointed out several times when public comment is officially required during the NEPA review, but the screening process wasn’t one of them. And because the screening process wasn’t part of the official procedure, members of the public who did want to be heard had no formal way to comment.
That raised concern among the commissioners that the opponents to the proposal had taken more opportunity to state their position than the proponents. In that case, those opposing comments, commissioners said, shouldn’t have been considered, let alone used as a rationale for rejecting the proposal.
Richmond also used the county’s refusal to comment on the proposal in the reasoning for his decision, even though the county felt that it would be compromising any objectivity by “pre-judging” the proposal, which might be reviewed independently by the commissioners for a county permit.
A county review would be required under the Special Development Project Resolution only after the proposal entered the NEPA process. CBMR would eventually need permits from the Forest Service and the county to start the expansion as proposed.
“I do want everyone to understand that the county is in a different position from the municipalities,” commissioner Hap Channell said. “The municipalities will not in any way, shape, or form be sitting in a quasi-judicial capacity, to pass judgment on whether this is an effective project or not. We, however, could be in that very position.”
The commissioners, who have talked to Richmond on several occasions about the reason they couldn’t comment on the Snodgrass proposal, shared Channell’s concern about the perception of the county’s role in the Forest Service decision.
“My first problem with all of this is Mr. Richmond’s letter that calls out the county’s position and hinted that that might be part of the reason he came to his conclusion,” Channell said. “We had specifically told him not to do that. It was his decision independent of us and he ignored that. So I really have a problem with that.”
County Manager Matthew Birnie argued that the county’s process and the federal review process are completely separate and unrelated and should therefore take place independently of one another.
“The county process is still in place and whether it is the Forest Service or CBMR as the proponent, they still have to go through that county permitting process,” Birnie said. “It doesn’t seem to me that even if the proposal is in NEPA, it would mean you accept the Forest Service’s conclusions or the outcomes.”
Baumgarten advocated for the BOCC to take an active role in the process, if only to make the public feel like the commissioners were fulfilling their function of communication conduit to the upper levels of government.
“That may be a way that you maintain your community leadership role,” Baumgarten said. “You correct a misapprehension or a misleading statement and you don’t advocate a position—just point out that in the pre-NEPA process, there was significant opposition to the proposal as well as significant support.”
Baumgarten reminded the commissioners that the letter was just a matter of setting the record straight.
“[Richmond’s] statement that he has seen widespread opposition without acknowledging the apparent support for the proposal is not accurate. That is your experience,” Baumgarten said.
But Commissioner Jim Starr was still concerned with the public’s perception of such a letter and said, “It kind of sounds like we’re encouraging the Forest Service to accept the proposal for Snodgrass as its goal.”
He wanted to find a way to weigh in on the procedural errors in Richmond’s decision, while maintaining the objectivity the BOCC would need if it were ever forced to make a judgment about the proposal for its own process.
The commissioners also emphasized at the meeting that a proposal in the pre-NEPA was only an initiative by the proponent and not a statement by the Forest Service. However, when the proposal enters a NEPA review, it becomes a federal proposal, meaning Richmond would have to defend the project throughout the review.
But the concerns were not enough to stop the commissioners from directing Baumgarten to start drafting a letter that could be ready for review by the end of the week. The BOCC will make a decision on whether or not to sign and send the letter at their regular meeting on Tuesday, December 15.