Legal Updates

After Years of Planning, the Forest Service Approves Arapahoe Basin’s Ski Area Expansion (WAHOOOO!)

On March 3rd, the attorneys of Welborn Sullivan Meck & Tooley will embark on our annual ski trip to Arapahoe Basin in the White River National Forest.  We look forward to the trip as a highlight of each winter season and, if we’re being honest with ourselves, a highlight of the year when all the hustle of firm life is exchanged for the exhilaration of a ski day in the Colorado mountains.  It is not too often that we lawyers get outside for an entire day to rip runs and bask in the sun.  

This year we will miss our fearless leader on the slopes and winter’s biggest fan, Chelsey Russell.

Arapahoe Basin (a/k/a “A-Basin,” “A Bay” or “The Basin”) began on June 10, 1946, when Laurance “Larry” Jump, a Dartmouth grad and a veteran of the famed World War II 10th Mountain Division, and Frederick “Sandy” Schauffler teamed up with Olympic medalist Richard “Dick” Durrance to submit an application for a special use permit to the United States Forest Service (the “Forest Service” or “USFS”).  A short eleven days later, the Forest Service approved the plan to develop a ski area.  Wilfred “Slim” David, a Forest Service ranger, designed the original trail layout. 

Daily lift tickets sold for a jaw dropping $1.25. 

Flash forward to 2017.  As announced this year, A-Basin is finally moving forward with its long anticipated expansion—incorporating The Beavers and The Steep Gullies into the Ski Area.  The White River National Forest Service’s Record of Decision also allows Arapahoe Basin to add a new surface lift accessing Montezuma Bowl, replace both the Molly Hogan and Pallavicini chairlifts, remove the Norway lift and build ziplines for an aerial adventure tour and challenge course.  A-Basin has been planning the 468 acre project since 2012 when the USFS accepted its Master Development Plan.  The 21st century USFS approval process for ski areas is not so simple as it was in 1946.  Applicants have to comply with Forest Service plans, laws and regulations, and the myriad of environmental laws enacted in the decades following the 1940’s.

Once accepted by the Forest Service, the A Basin Master Development Plan set the stage for the resort to begin the National Environmental Policy Act (“NEPA”) process.  NEPA is the nation’s basic environmental law that applies to almost all actions taken by, funded or approved by, federal agencies.  NEPA is a procedural law that requires an agency to take a “hard look” at the environmental impacts of its proposed action before making a decision. When considering a proposed federal action that it anticipates will have “significant impacts,” like a ski area expansion, an agency will generally bypass an environmental assessment (“EA”), which can be a brief document analyzing environmental impacts that allows the agency to decide if its proposal would have significant impacts1 and go straight to preparation of an environmental impact statement (“EIS”).  The full NEPA process is much more lengthy and complex, and requires the agency to seek public comment at various stages.

An EIS is the often lengthy document that a federal agency uses to explain the environmental impacts of its proposed major projects.  The process begins with “scoping,” where the agency seeks public comment on what impacts the EIS should cover and what alternatives should be considered.  A team of experts (including experts from other federal and state agencies) prepares a Draft EIS (“DEIS”) that includes:

•    A description of the proposed action and why it is necessary;
•    The environment that would be affected; and
•    A comparison of alternatives to the proposal.

When the agency publishes a DEIS, it requests comments from the public. At the end of that comment period, the agency evaluates the comments and revises the EIS in response to issues raised by the comments.  The agency then issues a final EIS (“FEIS”), followed by a Record of Decision (“ROD”) in which the agency notifies the public of its decision by:

•    Stating the decisions it has made;
•    Identifying all the alternatives considered in making the decision;
•    Identifying which alternative it considers to be “environmentally preferable,” even if it has not chosen that particular alternative;
•    Discussing the factors it balanced in making its decision; and
•    Discussing whether it has adopted all practical mitigation measures (actions to minimize environmental impacts) for the alternative that it selected.

For A-Basin, the NEPA process included completion of an EIS.  After release of the DEIS on February 5, 2016, the White River National Forest held public meetings and sought comments.  Almost a year later, the Forest Service announced its ROD approving the project in a multi-year FEIS issued November 2016.  The final plan emerged after a two-year snow survey by Arapahoe Basin’s snow safety team and vetting by the White River National Forest in a four-year, 250-page Environmental Impact Statement.  

A-Basin worked hard to address challenges and impacts of the expansion.   Their holistic approach and significant efforts set an example for applicants of all kind working through the NEPA process.

At a time when most of the state’s recent terrain expansions have generated a blizzard of opposition, with lawsuits and environmentalists citing impacts to wildlife and habitat as well as the encroaching growth of ski resorts, A-Basin drew a mere six objections, including two requests for clarification and one objection that was ultimately rescinded.  Compared to Crested Butte and Eldora, resorts that saw expansion plans denied by the Forest Service after passionate opposition, Arapahoe Basin’s expansion generated little angst and much excitement.

The White River National Forest’s 2002 management plan outlines support for ski area expansions where demand warrants that growth.  A-Basin easily met that requirement with record visitation in recent years.  Now, with the expansion into the Steep Gullies and the Beavers, including steep chutes, glades and a couple intermediate runs, A-Basin will join the legends of steep skiing, including expert destinations like Alta, Jackson Hole, Crested Butte and Silverton Mountain.

Although the Steep Gullies and the Beavers can be accessed legally through backcountry access points located along the western extent of A-Basin’s operational boundary, the expansion seeks to improve the safety of recreating in that area. 

The culmination of the NEPA process is exciting news for A-Basin and its loyal skiers and riders.  For a timeline of the expansion, check out Chief Operating Officer Alan Henceroth’s February 8, 2017 Blog Post.

1 If the Agency decides that the proposal will not have significant impacts, then the agency can end the process by issuing a “finding of no significant impact” (“FONSI”) 

The Beavers & The Steep Gullies