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INTRODUCTION

Objectors are not against the operation of Eldora Mountain Resort (EMR). We recognize the

value of the recreation and economic benefit its operation provides to the residents of Boulder

County and others. However, from the start, a large group of people coordinated by The Middle

Boulder Creek Coalition (MBCC) have had many concerns about possible impacts from the

proposed expansion of EMR. We submitted scoping comments on August 31, 2012 and detailed

comments on the project’s Draft Environmental Impact Statement (DEIS) on April 10, 2014.

Some objectors also filed separate comments.

In total, we raised a large number of issues of concern. We believed then, as now, that EMR’s

needs can mostly or entirely be met with an alternative that would have much less of an adverse

impact on the natural and human environment. We detailed how that could be done. See DEIS

comments, especially Attachment 1; this entire letter and our scoping comments are hereby

incorporated by reference.

However, the Forest Service has gone out of its way to ignore our comments. In fact, the

proposed action in the Draft Record of Decision (DROD) combines the worst elements of both

action alternatives, and proposes a very bad Forest Plan amendment that was not proposed in the

DEIS. The agency could not have done a better job of effectively saying “we don’t care about

your concerns”.

The FEIS and DROD that the agency is currently leaning toward violates applicable law, fails to

respond to many of concerns raised in public comments, and falls short of adequately analyzing

several important issues. The Conservation Groups respectfully request that the Forest Service

either: 1) issue a new decision that blends components of the Infill Alternative with those

elements of Alternative 3 that minimize environmental impacts while still achieving the goals of

the project; or 2) remand the documents for issuance of a supplemental EIS that redresses the

legal violations and better addresses the intense public controversy set forth below and in other

objections to the current decision.

ARGUMENTS IN SUPPORT OF OBJECTION

I. THE DEIS AND FEIS FAILED TO CONSIDER AN ADEQUATE RANGE OF

ALTERNATIVES.

Objectors addressed this issue beginning on page 3 of our DEIS comments.

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A. The alternatives section is the heart of the EIS and the NEPA process.

Part of the purpose of NEPA is “to promote efforts which will prevent or eliminate damage to

the environment and biosphere”. 43 U. S. C. 4321.

Alternatives are “the heart of the [EIS]” 40 CFR 1502.14. The CEQ regulations require that, in

the alternatives section of the EIS, agencies shall “[r]igorously explore and objectively evaluate

all reasonable alternatives, and for alternatives which were eliminated from detailed study,

briefly discuss the reasons for their having been eliminated.” Id. at 1502.14(a).

The Conservation Groups’ NEPA claims are informed by our commitment to improving the

decision, consistent with the statutory intent of the nation’s bedrock environmental law as

defined by the Council of Environmental Quality:

The National Environmental Policy Act (NEPA) is our basic national charter for

protection of the environment. It establishes policy, sets goals (section 101), and provides

means (section 102) for carrying out the policy. Section 102(2) contains “action-forcing”

provisions to make sure that federal agencies act according to the letter and spirit of the

Act.

Ultimately, of course, it is not better documents but better decisions that count. NEPA's

purpose is not to generate paperwork—even excellent paperwork—but to foster excellent

action. The NEPA process is intended to help public officials make decisions that are

based on understanding of environmental consequences, and take actions that protect,

restore, and enhance the environment. These regulations provide the direction to achieve

this purpose.

40 CFR §§ 1500.1(a) and (c).

B. The FS decision to eliminate the Infill Alternative from full consideration violates

NEPA and applicable case law.

Many of the NEPA cases litigated in the natural resource agency context, including Forest

Service and Bureau of Land Management decisions in Colorado, involve claims challenging the

agency’s choice and treatment of alternatives. Applying those cases to this case conclusively

establishes that the FEIS violated NEPA by failing to analyze the Infill Alternative. The Forest

Service is not required to select any particular alternative, but precedent clearly provides that the

agency is required to analyze an Infill Alternative as one of four total alternatives and only three

action alternatives.

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The EMR DIES and FEIS both violated the NEPA range of alternatives requirement. Objectors

stated this issue beginning on p. 3 of our DEIS comments. We recommended consideration of an

“in-fill alternative” more fully described at Attachment 1 to those comments. Middle Boulder

Creek Coalition’s scoping comments of August 31, 2012 also discussed an in-fill alternative that

could meet EMR’s request for additional terrain. Id. at 3-4. This triggered the need for the Forest

Service to include the Infill Alternative to be included in the DEIS, consistent with the agency’s

statement in the scoping notice that issues and input raised during scoping “will be used to focus

the analysis of the EIS and generate additional action alternatives if needed.” Corrected Scoping

Letter, July 13, 2012, at 1. Despite broadly based and deeply rooted support for an infill

approach, our concerns were ignored to the point that the FEIS refused to even analyze the Infill

Alternative.

When courts review the range of alternatives:

Once the objective of the action is established, the agency may proceed to reject or

abandon alternatives that are too remote, speculative, impractical, or ineffective in

achieving the stated objective. The agency may also reject alternatives that are not

“significantly distinguishable from the alternatives already considered” or under

consideration. In reviewing an agency’s handling of alternatives, a court is guided by a

“rule of reason and practicality,” examining whether the discussion of alternatives in the

EIS is sufficient to permit a reasoned choice among options.

Colorado Environmental Coalition v Salazar, 875 F.Supp.2d 1233, 1245 (D. Colo. 2012)

(internal citations omitted).

The need for the FS to analyze the Infill Alternative here is further supported by a Vermont ski

area case, Dubois v. United States Dep't of Agriculture, 102 F.3d 1273, 1301 (1st Cir. 1996).

That decision held that the Forest Service violated NEPA because it had failed to adequately

consider the possibility of building on-site storage ponds as the challenged decision to use a rare

high-altitude pond (Loon Pond) on the White Mountain National Forest as a water source for

snowmaking. Dubois, 102 F.3d at 1289-90. In declining to consider the on-site option, the FS

had dismissed Dubois’ environmentally preferable alternative as a “practical impossibility.”

Another Colorado decision, Colorado Environmental Coalition v Dombeck, 185 F.3d 1162 (10th

Cir. 1999), considered claims challenging the range of alternatives selected by the Forest Service

in considering a proposed “Category III” expansion of Vail Mountain Resort on the White River

National Forest.

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As noted, the National Environmental Policy Act and Council on Environmental Quality

Regulations require the Forest Service to study in detail all "reasonable" alternatives. 42

U.S.C. § 4332(2)(C)(iii) and (E), 40 C.F.R. §§ 1502.1, 1502.14(a). The Seventh Circuit,

and other courts, have interpreted this requirement to preclude agencies from defining the

objectives of their actions in terms so unreasonably narrow they can be accomplished by

only one alternative (i.e., the applicant's proposed project). See, e.g., Simmons, 120 F.3d

at 669; c.f. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195-96 (D.C. Cir.),

cert. denied, 502 U.S. 994 (1991). Agencies also are precluded from completely ignoring

a private applicant's objectives. [. . . ] We do not perceive these authorities as mutually

exclusive or conflicting. They simply instruct agencies to take responsibility for defining

the objectives of an action and then provide legitimate consideration to alternatives that

fall between the obvious extremes. Beyond this, there are no hard and fast rules to guide

the alternatives analysis. Our task, then, is to determine whether the Forest Service

stepped outside the established parameters by declining to give more attention to the

Conservation Biology Alternative the Appellants prefer, or, stated differently, whether

the alternatives analysis provided satisfies the rule of reason.

185 F.3d at 1174-75 (emphasis added).

The court declined to remand the Category III FEIS for consideration of the environmental

plaintiffs’ Conservation Biology Alternative. That holding does not control here, where the FS is

attempting define and interpret the “purpose and need” so narrowly that only certain expansion

alternatives warrant analysis. Furthermore, the EMR EIS is distinguished by significant factual

differences between this case and the proposed Vail expansion:

The White River Forest Plan, itself subject to National Environmental Policy Act review,

previously prescribed additional winter recreation development on the Forest, and

designated the Category III area for that purpose. We hold the Forest Service was fully

authorized within this decision-making context to limit its consideration to expansion

alternatives designed to substantially meet the recreation development objectives of the

Forest Plan.

Id. at 1175

First, the Forest Service here recognizes that the proposed EMR expansion would violate the

existing ARP Forest Plan, which is why a plan amendment is necessary. Second, the ARP plan

does not prescribe additional development for winter recreation at Eldora. Third, the Infill

Alternative for EMR is markedly different than the Conservation Biology alternative put forward

for Vail. Overall, every skier in the state would agree that Eldora is on the opposite end of the

Colorado ski resort spectrum from Vail, which is one of the biggest and priciest destination

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resorts in North America, and far and away the biggest employer and economic engine in all of

Eagle County.

Fourth, all of the groups challenging the Vail expansion were either national environmental

groups or Colorado groups or individuals based in Denver or Boulder; none were based in Vail,

Eagle County, or the West slope. Here, the Middle Boulder Creek Coalition and Sierra Club

Indian Peaks Chapter are both based in Nederland and Boulder, respectively; and the leaders of

each group lives in Nederland near the EMR. In other words, Vail pitted outsiders against locals

as well as the local ski area. If any locals belonged to the plaintiff groups, they were not

mentioned in the decision. Here, the MBCC formed to protect the Middle Boulder Creek and

check EMR expansion plans that are largely out of step with local values.

Thus, backdrop, specifics, and context of the proposed EMR expansion are markedly different in

material ways than the Vail Category III case. The two cases share lynx and habitat issues.

Finally, the Vail case lacked both 1) issues involving pristine stream corridors, associated

transportation access or bridges, riparian areas, or adjacent wilderness lands; and 2) any local

government objections to the proposed Category III expansion. Here, all of the factors in 1) are

present; and several local, state, and federal government agencies have raised significant

concerns, and the two most interested local government bodies are expected to file objections.

CEC v Dombeck is not controlling. As argued below, CEC v. Salazar is.

C. The Infill Alternative is reasonable and warrants full analysis under governing law

and court decisions.

In CEC v Dombeck, “The three development alternatives varied primarily in the amount and

type of additional skiable terrain and related amenities to be developed, and, consequently, in the

type and degree of environmental impacts each would impose.” 185 F.3d at 1176. Here, we are

only asking for what the WRNF did in the original Vail Category III DEIS and FEIS: analyze

four total alternatives, including three development alternatives. Here, analysis of a third

development alternative would allow all proposed expansion of parking and on-mountain

amenities while presenting a slightly more modest but still significant increase in new trails and

terrain.

Courts have rejected EISs like this one where the agency unreasonably chooses to consider only

alternatives that involve substantial development of public lands. For instance, in The

Wilderness Society v. Wisely, 524 F. Supp. 2d 1285 (D. Colo. 2007), the Court ruled that a

decision to lease a wilderness-quality area for oil and gas development violated NEPA because

the BLM failed to consider an alternative that would have imposed no surface occupancy

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stipulations requiring that all drilling occur from outside the area’s boundaries. Id. at 1311-12.

The Court concluded that with a “mix of energy development and conservation characteristics,

the ‘no surface occupancy’ alternative presented a potentially appealing middle-ground

compromise between the absolutism of the outright leasing and no action alternatives.” Id. at

1312.

For the EMR project, the equivalent of the NSO alternative in Wisely (proposed by the

conservation group plaintiffs, and ignored by the agency until the Court ordered BLM to analyze

it on remand) is the Infill Alternative offered by the Conservation Groups. The FS failed here to

consider reasonable alternatives that offered an appealing “middle ground.” If litigated, the

result is likely to be the same as Wisely – remanding the agency decision to comply with NEPA.

Similarly, in NRDC v. U.S. Forest Service, 421 F.3d 797 (9th Cir. 2005), the EIS for a national

forest management plan failed to consider any alternative protecting most of the “currently

roadless areas” in the forest from development. Id. at 814. The Ninth Circuit found the EIS

inadequate because “the range of alternatives … omits the viable alternative of allocating less

unspoiled area to development . . . .” Id. See also California v. Block, 690 F.2d 753, 766-69

(9th Cir. 1982) (agency did not consider a reasonable range of alternatives where none of them

would have protected more than 33 percent of potential wilderness); Friends of the Bitterroot v.

U.S. Forest Serv., 900 F. Supp. 1368, 1373-74 (D. Mont. 1994) (agency violated NEPA by only

considering alternatives that included logging in a roadless area).

The Forest Service reasoning for eliminating the Infill Alternative here (see also subsection E

below) is no different than the arbitrary decision to eliminate the “Community Alternative” in the

Roan Plateau decision:

The Court further finds that the Community Alternative, at least as described in Rock the

Earth’s letter, was indeed a distinct and concrete “alternative” to the other courses of

action being contemplated by the BLM. The Community Alternative was consistent with

the BLM’s statement of the purposes of the action – most significantly, managing the

lands for multiple uses while also complying with the Transfer Act, insofar as the

Community Alternative would have made the top of the Plateau available for leasing

(albeit mostly unavailable for surface occupancy). Moreover, the Community

Alternative was sufficiently distinct from the other alternatives considered by the BLM,

in that none of the other alternatives proposed a combination of nearly full exploitation of

the resources under the Plateau while simultaneously preserving nearly all of the lands

atop the Plateau for environmental protection. Thus, the Community Alternative was

indeed an “alternative” subject to consideration under NEPA.

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[T]he BLM’s response to such comments never consists of more than a statement that it

did not specifically consider the Community Alternative but that some parts of it (but,

notably, not the most salient feature) appeared in other alternatives.

[. . . ] For this reason, the Court finds that the BLM’s decision did not comply with

NEPA, which in turn renders it “contrary to law” under the APA. For this reason alone,

the BLM’s decision must be vacated and remanded for further consideration.

CEC v Salazar, 875 F.Supp.2d at 1249.

As in the Roan Plateau case, the FS here relied on inaccurate, conclusory statements that the

Infill Alternative was inconsistent with the agency objectives and little different than those

alternatives analyzed in the DEIS. As in that case, the agency is wrong here. Importantly, Roan

Plateau establishes just how much complying with the letter of the law regarding the choice of

alternatives (“the heart of NEPA”) matters: on remand to the agency, a settlement was reached

that is much closer to the Community Alternative that served as the basis for remand than the

original agency decision, which was much more favorable to the oil and gas lessees (the

equivalent of the project proponent in that case). Exhibit *. In Roan Plateau, it took four years

and commanded thousands of hours of attorney and staff time for all parties (environmental

plaintiffs, agencies, and industry proponents) after litigation was filed for the Settlement to be

negotiated – and the new EIS is still pending on remand. Here, the Forest Service still has the

opportunity to get it right before finalizing the ROD.

As detailed above, reviewing courts in Colorado and across the nation have rigorously

interpreted NEPA’s alternatives standard to require agencies to analyze a full range of

alternatives that provide appropriate levels of protection to highly sensitive public lands and

resources. The EMR FEIS failed to do so.

D. Prior Forest Service decisions denying proposed ski area expansions were

influenced by many factors that the ARP has ignored to date for the EMR

expansion proposal

Where public opinion, local government positions, and resource concerns mitigate against ski resort

expansion proposals, there is strong precedent for denying some or all of a given project.

Preliminary research by objectors found four other instances where proposed ski areas or permit

expansions on National Forest lands were denied by the agency. Counting Snodgrass, four of the

five denials were in Colorado: one on the Grand-Mesa-Uncompahgre-Gunnison National Forest

(Crested Butte Mountain Resort), two on the White River NF (Adams Rib and Keystone), and one on

the Arapaho NF (Winter Park Ski Area)

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A leading recent example in Colorado is the decision of the Grand Mesa, Uncompahgre and

Gunnison National Forests (GMUG) to reject “Crested Butte Mountain Resort’s (CBMR)

Master Development Plan submission which included a proposal to develop Snodgrass

Mountain for lift-served skiing. Exhibit * at 1. Like Eldora and unlike Vail Category III, the

interested environmental stakeholders were two locally based groups who helped organize

local opposition: Friends of Snodgrass Mountain, and Rocky Mountain Biological

Laboratory. Like Middle Boulder Creek Coalition, Friends of Snodgrass Mountain was

founded in response to the expansion proposal. Also like Eldora, there was a diversity of

public opinion on the Snodgrass Mountain proposal.

In 1998, the White River National Forest published a Federal Register Notice of Intent to

prepare an EIS for the proposed Jones Gulch expansion of Keystone Ski Resort. Among

other scoping comments, Summit County and the Colorado Division of Wildlife

(predecessor in interest to Colorado Parks and Wildlife) raised concerns about wildlife

movement corridors – analogous to the elk, moose, lynx, riparian, movement corridor and

other wildlife concerns for the Eldora project described below. The proposed Jones Gulch

expansion did not move forward, and the County eventually purchased private lands in the

area from Vail Resorts (owner of Keystone) to protect as a wildlife migration corridor,

assumedly in cooperative management with the Forest Service regarding adjacent federal

lands.

Lolo Peak, on the Bitterroot National Forest, was allocated by the Forest Plan for downhill

skiing. However, upon further consideration, a Forest Service Needs Assessment indicated

lack of demand and the proposal failed to pass the second level screening at 36 CFR 251.54.

Adams Rib, on the White River National Forest, was approved as a ski area in 1982 and a

ski area permit was issued in 1983. Upon review, subsequent to an MDP submitted in 1993,

numerous issues were raised regarding need, community impacts, wetlands, and “skiability”

of the proposal. The permit was terminated in 1998.

Winter Park Ski Resort, on the Arapaho-Roosevelt National Forest, proposed to expand into

the Zero Creek Basin. During the two-year pre-NEPA process, Zero Creek was removed

from the ski area’s proposal because the Forest Service would not have approved the Zero

Creek component of the proposal.

All of these examples are instructive with regard to factors the Forest Service should consider in

reviewing the Eldora proposal, how the analysis should be conducted, and what outcomes

warrant consideration. The Snodgrass and Jones Gulch decisions are especially relevant due to

striking parallels with the EMR proposal. They are discussed in more detail below.

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According to the original GMUG decision denying the proposed Snodgrass Mountain expansion

at Crested Butte, relevant factors include a divided community, lukewarm public support, and

local government opposition or lack of support.

In my letter of January 9, 2009, I expressed my view that public support for this proposal did

not exist.

At that time I did not see enough opposition to reject a proposal strictly based upon public

opposition. Since then; however, polarization in the community has increased and organized

opposition to development of Snodgrass has intensified. There is opposition from the Town

of Crested Butte. Gunnison County is unable to submit a letter of support or opposition. [. . .]

I continue to receive numerous letters from people with an interest in the Crested Butte area

who have diverse and heart-felt opinions about this special place where they live and

recreate.

Based on what I have heard and read, I am convinced that the community is deeply divided

over the proposed development of Snodgrass Mountain.

Letter of GMUG Forest Supervisor Charles S. Richmond to Crested Butte Ski Area owners,

November 5, 2009. Exhibit 1 at 1.

Whereas the EMR FEIS and DROD ignored local sentiment regarding land use issues raised by

the public, NGOs, and local government, the GMUG Snodgrass denial acknowledged that “shifts

in land use would generally be undesired by land owners or those who frequent these areas.” The

discussion of geologic hazards (id. at 3) reveals issues similar to those raised about the portion of the

proposed EMR Placer Lift that would extend beyond the current SUP boundary, raising concerns

from infrastructure and grading on resources including sensitive soils, wetlands, and riparian values.

See section V below.

Excerpts of the Forest Service decision denying the CBMR appeal of Mr. Richmond’s decision

provide that:

[T]he record clearly indicates that Forest Supervisor Richmond understood the issues of

public opinion and the role of local government as part and parcel of determining the

public interest. [. . .]

Also, while 36 CFR 251.54(e)(5) does not require Forest Supervisor Richmond to base

his Decision on the position of local government, the appeal record indicates he

considered the position of the Town of Crested Butte, the Town of Mt. Crested Butte, and

Gunnison County when making his Decision.

Exhibit 2 at 14.

Among the factors relied on by Supervisor Richmond in denying the Snodgrass Mountain

proposal were several that are present here, including community/social/economic, recreation, land

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use Issues, suitability in light of “geologic hazard, slope/terrain, avalanche, boundary management”

concerns, roadless, and lynx. Id. at 15-16.

Objectors and CPW expert comments detailed the significant concerns and threats to wildlife and

habitat from the proposed Eldora expansion.

According to CPW, ungulates such as the resident elk herd could be hard hit by the northern

Placer pod expansion.

There is no description or analysis of how increased noise pollution will affect wildlife

that use the MBC corridor and adjacent areas during fall and winter EMR operations.

Many wildlife species including terrestrial and avian fauna do not respond well to noise

pollution. This could potentially further displace wildlife from their habitats and

migration corridors. MBC drainage in this vicinity is designated as an elk summer

concentration area in the CPW Species Activity Mapping data base. Elk begin migrating

east from the MBC watershed in mid to late October when snow begins to accumulate at

higher elevations and snowmaking operations begin at EMR. The primary elk movement

corridors originate from the upper reaches of the MBC watershed and Chittenden

Mountain and progress east along Mineral Mountain and east along the slopes south of

MBC and along the MBC corridor. This could potentially interfere with or eliminate a

migration corridor due to the sensitivity of elk to artificial noise and human activity, not

to mention other new construction activities related to alternative 2 that could potentially

displace elk for many years.

CPW Comments at 4 (emphasis added).

Responses to Comments had little to say regarding the highly valued elk herd, beyond referring to the

DEIS (pp. 3-216 and 3-240) and acknowledging that “Alternative 2 would result in a loss of

approximately 64.8 acres of potential elk and mule deer habitat (DEIS p. 2-64).” However, the ROD

does not appear to address the concern stated by CPW expert biologists that the migration corridor

could be “eliminated” or “displace[d] for many years.”

On reconsideration, the Forest Service should explore the potential for an Eldora resolution

modeled on Jones Gulch and Keystone in Summit County, where private lands implicated by the

expansion were eventually conserved for wildlife purposes. This could involve lands both within

and outside EMR’s current permit boundary which many stakeholders consider more valuable

for habitat and migration corridor purposes than downhill skiing. These stakeholders would

include Boulder County, Nederland Parks, Recreation, and Open Space Advisory Board, MBBC,

other environmental and land protection NGOs, and numerous residents of Eldora and other

nearby communities. The Town of Nederland is also expected to submit and objection to the

proposed decision. Boulder County’s has earned an international reputation as a pioneer in Open

Space and land conservation for habitat and other purposes, and environmental ethic of its

citizens is unrivaled in Colorado.

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When hundreds of commenters and several key stakeholders request reconsideration of an

expansion request, the Forest Service has a duty to the public and other governmental bodies to

rigorously consider alternatives to the plans of a private party seeking to expand operations

beyond current permitted boundaries. That has not happened yet. Now is the time to seriously

explore viable options that might better reconcile EMR’s preferences with local values and

sentiment, and better meet the goals of NEPA, NFMA, and other governing law.

E. The Forest Service Organic Act, Multiple Use Sustained Yield Act, and NFMA all

support the need to analyze the Infill Alternative under relevant case law

In the Roan case, the District Court recognized BLM’s obligation to “manag[e] the lands for

multiple uses[.]” Of course, the multiple-use, sustained-yield is equally applicable to our

National Forests, often termed the “Lands of Many Uses”. Pursuant to the Multiple Use

Sustained Yield Act of 1960, 16 U.S.C. § 528, “It is the policy of the Congress that the national

forests are established and shall be administered for outdoor recreation, range, timber, watershed,

and wildlife and fish purposes.”

Three points must be considered in regard to the multiple-use, sustained-yield mandate.

First, the mandate in the Multiple Use Sustained Yield Act explicitly provides that the purposes

of national forest management include outdoor recreation, watershed, and wildlife and fish

purposes. 16 U. S. C. 528. The current decision has not analyzed how various alternatives would

achieve these purposes in this context; and certainly failed to evaluate whether the Infill

Alternative might best meet the Congressionally established purposes.

Second, the multiple-use sustained-yield mandate is reflected in the National Forest Management

Act (NFMA) of 1976. For instance, “(3) to serve the national interest, the renewable resource

program must be based on a comprehensive assessment of present and anticipated uses, demand

for, and supply of renewable resources from the Nation’s public and private forests and

rangelands, through analysis of environmental and economic impacts, coordination of multiple

use and sustained yield opportunities as provided in the Multiple-Use Sustained-Yield Act of

1960.” 16 U.S.C. § 1600(2). NMFA focuses on renewable resources, and it must be

acknowledged that unchecked ski area expansions conflict with healthy renewable resource

conditions.

Third, going back to the language of the Multiple Use Sustained Yield Act, the Infill Alternative

is almost surely superior to the current proposed decision for at least two of the five enumerated

resources: watershed, and wildlife and fish. Comments from the City of Boulder, Nederland

PROSAB, Boulder County, Colorado Parks and Wildlife, and the U.S. Environmental Protection

Agency all raise water quality concerns regarding the Middle Boulder Creek component of

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Alternative 2. Comments from Boulder County, CPW, and EPA all raise fish, wildlife, and

habitat concerns. Range and timber resources are not at issue. To the extent NFMA directs the

FS to assess renewable resources management “in cooperation with other agencies,” 16 U.S.C. §

1600(2), the Forest Service must recognize that most or all other agency comments oppose most

of the proposed expansion elements of the DROD.

Outdoor recreation cuts two ways. Expanding downhill skiing outside current permitted EMR

boundaries will significantly impact other forms of forest recreation, including: 1) the wilderness

experience in the adjacent Indian Peaks Wilderness; 2) non-EMR recreation in the vicinity of the

proposed Placer lift; and 3) Nordic skiing and backcountry winter sports use in the vicinity of the

proposed Jolly Jug lift in the Jenny Creek area and neighboring backcountry. From an objective

perspective, it can be argued that outdoor recreation is a wash when impacts to non-ski area users

are compared to the asserted benefits of expanding the Resort footprint at the expense of

backcountry and wilderness recreation.

While wilderness recreation and values are specifically referenced in NFMA, downhill skiing at

NF resorts are not. See 16 U.S.C. §1604(g)(3)(A) “(to provide for outdoor recreation (including

wilderness), range, timber, watershed, wildlife, and fish”)(emphasis added). In addition, the

Annual Evaluation Report section provides that “[p]rogram benefits shall include, but not be

limited to, environmental quality factors such as esthetics, public access, wildlife habitat,

recreational and wilderness use, and economic factors such as the excess of cost savings over the

value of foregoing benefits and the rate of return on renewable resources.” Id. at § 1606(d).

The forest planning section of NFMA requires additional assurances and coordination, which the

FS has not satisfactorily acknowledged or addressed:

(e) Required assurances In developing, maintaining, and revising plans for units of the

National Forest System pursuant to this section, the Secretary shall assure that such

plans— (1) provide for multiple use and sustained yield of the products and services

obtained therefrom in accordance with the Multiple-Use Sustained-Yield Act of 1960 [16

U.S.C. 528-531], and, in particular, include coordination of outdoor recreation, range,

timber, watershed, wildlife and fish, and wilderness[.]

Id. at § 1604(e).

The proposed decision appears inconsistent with the emphasis on multiple-use and sustained-

yield policies, renewable resources emphasis, and explicit references to watershed, wildlife, fish,

and wilderness resources and uses in the three main laws enacted by Congress in regard to the

National Forest System: the Organic Act, the Multiple Use and Sustained Yield Act, and NFMA.

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In Roan, the Lessee-Interveners relinquished and BLM cancelled 17 of 19 leases on the Upper

Plateau in the settlement, while increasing environmentally protective stipulations on the leases

at the Lower Plateau. See Exhibit 3, Roan Plateau Settlement. This outcome is highly analogous

to an ultimate resolution of the current case where a final decision would much more closely

track the Infill Alternative (allowing additional development subject to stronger environmental

protections and directing that development to appropriate, less environmentally sensitive

locations.)

NEPA does matter. That is why it is so important to reconsider the Eldora EIS and DROD.

F. The Forest Service rationale for eliminating the Infill Alternative does not pass

muster from either a legal or common-sense perspective.

The Forest Service inexplicably insisted on only analyzing action alternatives that would expand

the Resort’s footprints to new, environmentally sensitive lands outside the current permit

boundary and in violation of the existing Forest Plan. That is unreasonable and violates NEPA

because an Infill Alternative should have, but was not, analyzed. The lands, habitat, wildlife,

riparian areas, and other renewable resources that would be impacted by the expansion

alternatives are the equivalent of the roadless areas or potential wilderness in the cases cited

above.

The agency defends its choice not to consider the Infill Alternative in part by the following

response to comments:

[R]esource concerns related to the Placer Express chairlift and the Middle Boulder

Creek corridor (including wildlife impacts, slope stability, and water quality in

Middle Boulder Creek) were addressed through the creation of Alternative 3, which

does not include additional development to the north of the current SUP boundary.

Alternative 3 includes additional trails on the back-side of EMR within the current

SUP boundary.

FEIS at D-19, and see FEIS at 2-40.

However, the FS combined Alternatives 2 and 3 in the draft decision proposed for the first time

in the DROD. Alternative 3 addresses the issues concerning MBC only insofar as it does not

approach the Creek. In an effort to address issues, “Alternative 3 does not include the Placer

Express chairlift and terrain and the associated SUP boundary adjustment to Middle Boulder

Creek at the north side of EMR”. FEIS at 2-11, And as stated on FEIS p. 2-1, “the boundary

adjustment associated with each action alternative is a key point of contrast between Alternatives

2 and 3”.

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The DROD would combine Alternative 3 with Alternative 2’s authorization of the intensely

controversial expansion to Middle Boulder Creek. Nor did Alternative 3 provide a suitable

analysis of the potential for the Infill Alternative to meet the vast majority of the goals and

objectives reflected in the Purpose and Need while avoiding expansions outside the current

permit boundary. Analyzing Alternative 3 cannot excuse the agency’s decision to eliminate the

Infill Alternative from those carried forward for full analysis.

Another reason for rejecting the Infill Alternative was the assertion that an alternate location for

the Placer Chairlift, i.e., one further from MBC that would not cause strongly adverse impacts,

could not be found. FEIS at 2-40. The Infill Alternative did not contemplate installing a chairlift

in the Placer area. Rather, it proposed to upgrade the Corona and Indian Peak chairlifts and

creating new ski terrain within the area served by these lifts as a way of meting at least some of

the purported need for new terrain. See the objectors’ DEIS comments at Attachment 1.

In any case, Infill recognizes the need for a modern, better functioning chairlift to serve this part

of the mountain. The question of what to call it, and further questions going to design, location,

and configuration – are exactly what the EIS should be analyzing.

Replacing the Indian Peak chairlift could be readily accomplished and could avoid concerns

regarding impacts to Middle Boulder Creek. Upgrading Indian Peaks is worthy of analysis

because of the significant benefits including 1) avoiding the significant adverse environmental

impacts associated with extending the Placer Chairlift through old growth forest and vital habitat

to MBC; and 2) improving the user experience by providing modern chairlift facilities.

The Economic Impact Assessment annual compounded rates of skier-visit increases of 0.30% for

Alternative 1, 3.37% for Alternative 2, and 2.19% for Alternative 3 over ten years.

The Economics Impact Alternative 1 (No Action) – this Alternative will result in a

relatively low annual level of visitation increase. As a true “no action alternative,”

Alternative 1 (No Action) does not include any projects that would address the Purpose

and Need. Skier-visits are projected to increase at an annual compounded rate of 0.45

percent over the first five years and at an overall annual compounded rate of 0.30 percent

over ten years.

Alternative 2 - The Proposed Action (Alternative 2) includes projects that would meet the

Purpose and Need and result in increased skier-visits. Skier-visits are projected to

increase at an annual compounded rate of 4.39 percent over the first five years and at an

overall annual compounded rate of 3.37 percent over ten years.

15

Alternative 3 - Alternative 3 includes projects that would reasonably meet the purpose

and need, but would not address all issues. Skier-visits are projected to increase at an

annual compounded rate of 3.10 percent over the first five years and at an overall annual

compounded rate of 2.19 percent over ten years.

FEIS at 3-12.

However, the FEIS and DROD is uninformed by any estimates of skier-day increases under the

Infill Alternative. The number and rate would be expected to be significantly higher than No

Action because the lift upgrades, additional trails and terrain, on-mountain hospitality services,

and parking would all be significantly improved.

The in-fill alternative is reasonable because it could be implemented; in fact, it can be

accomplished much more easily than either of the action alternatives because extensive tree

removal and glading, and for the most part, expensive mitigation measures, would not have to be

done. See section IV B below. A potentially serious safety problem with the Jenny Creek Trail

would be avoided. See section V below. Making backside lifts more wind resistant would be

accomplished by upgrading the Corona and Indian Peaks Lifts, consistent with the Infill

Alternative, while avoiding the impacts to soils and wildlife that would occur with installation of

the Placer Lift and associated runs and glades.

The FEIS establishes that upgrading lifts will go a long way towards addressing wind-related

concerns:

Detachable chairlifts are heavier and less easily impacted by wind. The existing Indian

Peaks and Corona chairlifts are located in exposed alignments, and the old, lightweight

fixed-grip infrastructure is easily blown around (DEIS p. 3-5). [. . .]

Additionally, the replacement of the Corona and Challenge chairlifts, included in

Alternatives 2 and 3, would improve access and terrain availability during wind events.

The replaced chairlifts would be heavier, detachable chairlifts that would be less

susceptible to wind (DEIS p. 3-16).

FEIS at D-16.

What is missing is a recognition that the upper part of the proposed Placer pod can be configured

to 1) address wind concerns, 2) access new infill trails and terrain, and 3) enhance the visitor

experience without building the controversial lift and associated trails outside the existing

footprint and down to Middle Boulder Creek. In fact, such an alternative would almost surely be

paid off sooner than a more aggressive and expensive expansion alternative, and entirely possible

16

that it could provide a better return on investment in the long run than the current proposal,

notwithstanding the “analysis” in the Economic Impact Assessment.

The FEIS treatment of wind (see section V below) contrasts sharply with the treatment of similar

uncertainty and disagreement regarding avalanche danger in the GMUG decision on Snodgrass

Mountain. “There continues to be uncertainty over the potential for the increase of avalanche

frequency and severity along Gothic Road. Concerns persistently raised by knowledgeable locals

perpetuate the issue. Among three commissioned studies there is little agreement.” Exhibit 1 at 3.

NEPA requires formulating and fully analyzing reasonable alternatives that would minimize

impact consistent with the purpose and need, but the Forest Service is attempting to circumvent

the law by over-emphasizing the proponent’s interest in expansion of the footprint, contrary to

the Forest Plan.

Just because EMR has questions about the Infill Alternative does not mean it was properly

eliminated from analysis. Several of the cases discussed above required consideration of energy

development alternatives that were heatedly opposed by oil and gas operators who asserted legal

rights to develop their leases contrary to the conservation alternatives. Under NEPA

implementing regulations and case law, Infill clearly qualifies as a reasonable alternative

warranting full consideration.

Guidance from the Council on Environmental Quality definitively disposes of the FS rationale

attempting to discount infill simple because EMR is not enamored of an approach that would

achieve the vast majority of its stated goals without expanding the permit boundary or requiring

amendment of the ARP Forest Plan.

Q 2a. Alternatives Outside the Capability of Applicant or Jurisdiction of

Agency. If an EIS is prepared in connection with an application for a permit or other

federal approval, must the EIS rigorously analyze and discuss alternatives that are

outside the capability of the applicant or can it be limited to reasonable alternatives

that can be carried out by the applicant?

A. Section 1502.14 requires the EIS to examine all reasonable alternatives to the

proposal. In determining the scope of alternatives to be considered, the emphasis is

on what is "reasonable" rather than on whether the proponent or applicant likes or is

itself capable of carrying out a particular alternative. Reasonable alternatives include

those that are practical or feasible from the technical and economic standpoint and

using common sense, rather than simply desirable from the standpoint of the

applicant.

17

Questions and Answers about the NEPA Regulations, 46 Fed Reg 18026, March 23, 1981;

emphasis added.

The Infill Alternative must be fully considered in the EIS.

II. THE FOREST SERVICE IGNORED SIGNIFICANT CONCERNS REGARDING

BACKCOUNTRY USE, SENSITIVE ENVIRONMENTAL RESOURCES, AND

USER SAFETY IN REGARD TO THE PROPOSED JOLLY JUG POD.

The Forest Service asserts that it was justified in eliminating the Infill Alternative because it

analyzed Alternative 3, focused on the proposed Jolly Jug expansion. The agency seems to imply

that the so-called “southern expansion” raises no “key issues,” is uncontroversial, and that

analyzing it can somehow make up for dropping the Infill Alternative. None of these assertions

are correct.

Objectors discussed this issue in our DEIS comments at 14-15. MBCC comments (at 4) opposed

the Jolly Jug amendment because it would compromise backcountry recreation management

emphasis prescribed in the Forest Plan:

The amendment for the Jolly Jug portion would change 11 acres of management

prescription 1.3 to 8.22. DEIS at B-3. The 1.3 management area emphasizes backcountry

recreation. Plan at 337. This acreage should remain in management area 1.3.

DEIS comments (at 15) also stated that “The Jolly jug runs would face south to southeast,

making the reliability of this pod very questionable during sunny, warm periods, and in years

where snowfall is below normal.” This calls the justification for Jolly Jug into question, raising

doubts as to whether it makes sense for users, the proponent, or the federal land manager. Why

authorize a controversial expansion of dubious value that would degrade the backcountry

experience, raise safety issues, and impact sensitive environmental resources?

Page 1 of the MBCC Scoping Comments put the Forest Service on notice of serious concerns

associated with the proposed Jolly Jug Lift.

We also have concerns about the proposed Jolly Jug lift, as it will also necessitate an

expansion of the SUP Boundary and could have similar impacts to the environment. In

the text that follows, the wording “expansion” refers to the expansion beyond the Special

Use Permit Boundary, the proposed Placer Lift, bridge and associated ski runs, and the

planned Moose Glade Express Lift and associated ski runs as shown in the accepted

Master Development Plan.

MBCC Scoping Comments continued:

18

The proposed Jolly Jug expansion has some of the same impacts as the proposed

expansion on the backside: habitat fragmentation from top to bottom and potential

impacts to Jenny Creek and its riparian habitat. The proposed Jolly Jug expansion needs

a thorough environmental assessment in the EIS. It may also have impacts on the visitor

experience for those using the Jenny Creek trail.

Id. at 9.

Relevant to the fatal flaw in the EIS range of alternatives, scoping comments stated in bold type

at page 4:

At least one alternative needs to address the ski area meeting its perceived

deficiencies (lack of intermediate terrain, inadequate uphill capacity of lifts and

problems with wind) within their current permit boundary.

It is difficult to understand how the agency could conclude that no key issues were raised or

public controversy was lacking regarding this aspect of the project.

To state it simply: the Infill Alternative was designed to meet the purpose and need without

expanding outside the current SUP, by focusing upgrades, improvements, and additional runs

and terrain within the current permitted boundary. The Infill Alternative is reasonable, it differs

significantly from those alternatives the Forest Service chose to analyze, and it warrants full

consideration.

Contrary to the two action alternatives analyzed in the EIS, or the draft decision, MBCC

specifically called for analyzing an Infill Alternative that would offer additional intermediate

terrain in the Jolly Jug area without expanding beyond the current SUP boundary:

We note that the deficiency of Intermediate terrain can be largely rectified without any

expansion of the backside runs below their current elevation, nor any expansion outside

the current Special Use Permit (SUP) Boundary. Using other runs planned in the

Proposed Action (run 18, which is shown as intermediate in the Master Development

Plan, and run 19), combined with a slight redesign of Jolly Jug as shown in the Master

Development Plan (but staying within the current SUP Boundary) along with some of the

planned intermediate glades shown on the backside (or cutting runs where the glades are

currently planned), would largely meet the deficiency.

Id. at 3.

The Sierra Club Indian Peaks Group comments signed by Bill Ikler commented that the southern

expansion would negatively impact backcountry use in the Jenny Creek area, stating that the

project “should be measured not against the total acreage of the National Forest but its impacts

19

on the quality of the acreage and experience of the Hessie, 4th of July and Jenny Creek areas in

particular.” Id. at 4.

MBCC coordinator Dave Hallock’s DEIS comments (at 2 and 8) raised concerns about 1) “three

trout species found in Middle Boulder Creek and Jenny Creek (Greenback cutthroat hybrid,

brook and brown)”; and wetlands “along Jenny Creek (DEIS at page 3-294).”

The FEIS incorrectly asserts that “No key issues were identified associated with the Jolly Jug

area, and thus these projects, and the associated SUP boundary adjustment, were carried forward

into detailed analysis (DEIS p. 2-41)[,]” and “As discussed above, there were no resource issues

identified regarding the proposed Jolly Jug pod and the southern SUP boundary adjustment

warranting the development of a strictly infill alternative.” FEIS at D-19.

This is incorrect. The Jolly Jug Lift is also controversial and the Conservation Groups and

numerous other commenters identified serious resource concerns, user conflicts, and safety

issues associated with the proposed southern expansion.

The proposed Jolly Jug pod would cross a sizable area now traversed by the Jenny Creek Trail,

which provides backcountry access to the Arestua Hut, Yankee Doodle Lake, and other

destinations. “Under the Proposed Action, users of the Jenny Creek Trail would encounter ski

trails, a chairlift, and tree and gladed skiing terrain while on property owned by EMR.” FEIS at

3-21. DEIS Figure 4 shows the Trail would intersect four ski trails, the Jolly Jug Glades, and the

chairlift corridor. Figure 4 depicts Alternative 3, the full Jolly Jug component which has been

incorporated into the proposed action described in the DROD at 2.

Though most of the area where alpine skiers would cross the trail is on private land (see (D)ROD

Figure 1), the Forest Service proposes to permit the expansion into the Jolly Jug area, which

includes construction of the runs and lift corridor that would intercept the Jenny Creek Trail.

Therefore, the EIS for the expansion of EMR must address this issue.

It is easy to imagine how the intersection of alpine runs with the backcountry trail could present

a potentially serious safety problem. Apparently, all the new terrain in the Jolly Jug pod would

be intermediate. See FEIS at 3-17. Thus at least some of the snowriders in this pod would be

moving fairly fast as they approached the intersection with the Jenny Creek Trail at

approximately a right angle with the Trail, where winter backcountry travelers would be moving

much more slowly. Alpine and backcountry users might not see each other in time to avoid

colliding. Collisions would thus be inevitable.

20

For recreational forest visitors, collisions will ruin one’s day or worse, and “mere” near-misses

would considerably degrade the recreational experience for both backcountry users and downhill

skiers.1 The agency has an obligation to provide for the safety of all users.

The Forest Service refuses to see an obvious issue here: “[t]he ID Team did not identify key

issues associated with the Jolly Jug area.” FEIS at 2-41. Rather, the final documents insist that

the potential safety problem can be addressed through signage and the designation of “uphill

travel corridors” (FEIS at 3-21); or “potentially an ‘uphill lane’ where necessary” (PDC under

Recreation, DROD at A-1). See also FEIS at 2-43 and D-68.

However, the project documents never say what an “uphill lane” or “uphill travel corridor” are,

nor how this type of facility and signage would protect the safety of Trail users. They never say

how or why the proposed measures would be effective. Such conclusory statements, without

supporting rationale, do not comply with NEPA. Agencies must analyze mitigation measures in

detail and explain how effective the measures would be. Northwest Indian Cemetery Protective

Ass'n v. Peterson, 795 F.2d 688, 697 (9th Cir.1986), rev'd on other grounds, Lyng v. Northwest

Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988). “A mere listing of mitigation measures

is insufficient to qualify as the reasoned discussion required by NEPA.” Id. Instead, mitigation

measures should be supported by analytical data, Idaho Sporting Congress v. Thomas, 137 F.3d

1146, 1151 (9th Cir. 1998), even if that data is not based on the best scientific methodology

available. Greenpeace Action v. Franklin, 14 F.3d 1324, 1332-33 (9th Cir.1992).

Looking to comparable situations on city streets might be instructive. On icy days, transit

planners recognize that it might be difficult if not impossible for cars to stop at a traffic light at

the bottom of a hill. Accordingly, on such days, these lights are configured to: 1) slow but not

stop downhill traffic, and 2) flash yellow or red to alert drivers on the cross streets to the danger

that downhill traffic is not stopping. For streets in residential neighborhoods that are prone to

unsafe speeds, traffic planners utilize tools such as speed bumps or traffic circles to slow drivers.

For the Jolly Jug danger zone, the Forest Service has not even considered this level of preventive

management, let along required anything beyond standard caution signs that are routinely

ignored or given short shrift by a significant proportion of downhill skiers.

An EIS is not complete unless it contains “a reasonably complete discussion of possible

mitigation measures.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989).

(“…omission of a reasonably complete discussion of possible mitigation measures would

undermine the “action-forcing” function of NEPA. Without such a discussion, neither the agency

nor other interested groups and individuals can properly evaluate the severity of the adverse

1 FEIS D-68 states that “The presence of ski area infrastructure would detract from the experience of remoteness and

solitude.” This is certainly true, but on busy days, the experience for backcountry travelers would be even worse,

with the possibility of collisions and serious injuries making for a very stressful crossing of the Jolly Jug Pod.

21

effects.”) That requirement is implicit in NEPA's demand that an EIS must discuss “ ‘any

adverse environmental effects which cannot be avoided should the proposal be implemented.’ ”

Id. at 351-52, (quoting NEPA, 42 U.S.C. § 4332(C)(ii)); see also 40 C.F.R. § 1502.16(h) (stating

that an EIS must contain “[m]eans to mitigate adverse environmental impacts”).

One way to address the conflict might be to reroute the Jenny Creek Trail. But the Forest Service

refuses to consider this option:

This design is eliminated from detailed analysis because the user conflict can be

minimized and/or avoided through appropriate signage and specification of an uphill

lane where necessary.

FEIS at 2-43. Two other options for eliminating or reducing the conflict were eliminated for the

same reason. Id. at 2-43, 2-44.

How can safety of backcountry skiers and snowshoers, as well as alpine skiers in the Jolly Jug

pod not be a key issue when part of the purpose and need for the project is to address skier safety

during wind events? (See FEIS at 1-3, 1-4.) Stated another way, how can skier safety during

wind events be addressed, but serious danger to long-time users of a backcountry ski trail from

the southern proposed expansion be ignored?

The southern expansion and proposed Jolly Jug lift presents serious user conflict and safety

issues which the existing analysis has not addressed.

III. THE AGENCY VIOLATED NEPA’S PUBLIC INVOLVEMENT

REQUIREMENTS AND AGENCY DIRECTION BY AMENDING THE PLAN

TO INVALIDATE FOREST PLAN STANDARD 99 IN THE FEIS AND ROD.

The DEIS did not propose to amend or alter standard 99. This decision appeared for the first time

in the DROD and FEIS, after the last opportunity for public comment. Accordingly, qualifying

parties may object on this issue pursuant to 36 CFR § 219.54(c)(7). Additionally, objectors’

comments stated concerns about maintaining the integrity of the wildlife movement corridor

along Middle Boulder Creek (MBC). MBCC DEIS comments at 11-12. See also id. at 5, where

standard 99 is mentioned. Also, Rocky Smith’s scoping comments, dated August 28, 2012,

expressed concern about compliance with standard 99. Id. at 2.

Under the proposed decision, the Forest Plan would be amended to remove standard 99. The

DROD “decision approves the amendment to Forest Plan Standard 99 by removing the

applicability of this standard specifically to the component of the decision at the Middle Boulder

Creek area on the proposed northern SUP boundary.” DROD at ROD-3.

22

Standard 99 states:

In riparian areas, cover that provides wildlife travel corridors will be maintained

along the entire length of riparian zones on at least one side of the drainage. New

corridor interruptions affecting both sides of the drainage will be of minimum

width needed and no more than 60 feet.

Forest Plan at 30.

Amending the Forest Plan to waive this standard is a major decision that is intended to allow

significant environmental impacts that are otherwise prohibited under the Forest Plan pursuant to

Standard 99. It is inappropriate and a violation of NEPA to

A. Requirements for Protecting Riparian Areas.

The Forest Service’s Watershed Conservation Practices Handbook (WCPH) requires the

following:

Allow no action that will cause long-term change away from desired condition in any

riparian or wetland vegetation community. Consider management of stream

temperature and large woody debris recruitment when determining desired

vegetation community.

FSH 2509.25, section 12.1 (Management Measure 2), design criterion 1b.

According to a Forest Plan goal, the desired condition is to maintain riparian areas:

Activities that have the ability to affect the continuity of structure, composition, and

function within riparian ecosystems shall be managed to sustain riparian areas.

Goal 6, Forest Plan at 13.

A Plan guideline states that plan implementation should “[m]aintain the function of key or

unique habitats such as…riparian habitat,…migration corridors,…and riparian areas”. Guideline

103, id. at 30.

Another Plan goal is to “[r]etain the integrity of effective habitat”. Goal 93, id at 30.

B. The project would not maintain the Middle Boulder Creek riparian area as required.

23

It is well known that riparian areas are extremely important for wildlife, which Plan standard 99

recognizes. Standard 99 and various other standards and guidelines in the Forest Plan are

designed to protect the riparian resource and meet the agency’s requirements for protecting them.

However, the current proposed action includes an amendment that would waive standard 99 for

about 200 feet along MBC. FEIS at B-9. Access to this area would be for construction of the

Placer Lift bottom terminal and associated ski runs. This would require a crossing of Middle

Boulder Creek (MBC), and removal of vegetation for the lift and associated ski trails, creating a

sizable breach in the vegetation cover within the riparian corridor along the creek. This would in

turn violate the existing Plan standard 99, which allows interruptions of no more than 60 feet.

And by removing standard 99 for MBC, there would be no standard protecting the riparian areas

associated with the section of MBC through the project area.

The riparian/upland corridor along MBC through the project area, which is now nearly 100

percent effective because there is very little human use (id. at 3-221), would become impaired

under the proposed action. Id. at 3-222. This would be a permanent impact, as vegetation in the

corridor that is removed for access to the bottom terminal of the Placer Lift and its associated

collector trail would not be allowed to regrow. The ecological integrity and continuity of the

riparian area and its habitat would not be maintained. This violates the Forest Plan.

The Colorado Division of Parks and Wildlife (CPW) expressed concern about impacts in all

seasons to wildlife in the MBC corridor if alternative 2 was implemented. The CPW’s comments

on the DEIS, dated April 13, 2014, observes that:

It should be noted that if implemented impacts to this site will not be seasonal and limited

to winter, but will likely occur throughout the year. This is important in that, topography

at the location along MBC results in q natural corridor which funnels wildlife through the

[MBC] drainage. There is also a unique, well functioning riparian complex consisting of

beaver ponds, wetlands, and creek which has many benefits to wildlife resources and

hydrologic processes.

CPW letter at 2.

FEIS mitigation measures are so vague or imprecise that it is impossible to evaluate whether they

will be effective in preserving habitat. Moreover, the decision does not ensure that those

measures will be implemented to achieve the intended results. In National Audubon

Society v. Hoffman, 132 F.3d 7, 16-17 (2d Cir. 1997), the court overturned a Forest Service

logging project where the record lacked data showing that mitigation measures for migratory

bird habitat would be effective.

By statute and regulation, an EIS must include a discussion of possible mitigation measures to

avoid adverse environmental impacts. See 42 U.S.C. § 4332(C)(ii); 40 C.F.R. §§ 1502.14(f),

1502.16(h), 1508.14, 1508.25(b)(3); see also Methow Valley, 490 U.S. at 351-52. Such

discussion must be "reasonably complete" in order to "properly evaluate the severity of the

24

adverse effects" of a proposed project prior to making a final decision. 490 U.S. at 352; see also

Holy Cross, 960 F.2d at 1523. It is not enough to merely list possible mitigation measures. See

Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1380 (9th Cir.

1998).

Here, the project design criteria (PDC) designed “to maximize the vegetative buffer between the

collector ski trail and Middle Boulder Creek” (ibid.) reads as follows:

Along the Middle Boulder Creek corridor, maximize the vegetative buffer between

the proposed collector trail and Middle Boulder Creek. Minimize the collector trail

width while maintaining adequate width for ski trail effectiveness. Minimize tree

thinning in Placer Glades II near Middle Boulder Creek while achieving ski area

gladed skiing goals.

DROD at A-4; emphasis added. Clearly this PDC is designed to ensure that collector ski trail is

sufficiently wide. It would only “maximize” the vegetative buffer insofar as it would not

interfere with skiing. In other words, the needs of skiing will take precedence over the need to

retain ecological integrity of the riparian area. This is not mitigation for impacts to the riparian

area.

Similarly, other mitigation measures designed to reduce impacts to the riparian corridor are

conditional:

Where practicable, do not allow skiing within Middle Boulder Creek’s WIZ outside

of designated ski trails (i.e., skier’s left of traverse to Placer chairlift bottom

terminal). This measure would maximize vegetative growth in the riparian areas.

To the extent practicable, water bars must be designed and constructed to discharge

surface runoff originating within the proposed ski trails away from the WIZ and into

well vegetated areas, effectively disconnecting disturbed areas from the stream

network.

DROD at A-10, emphasis added. Implementation of these PDCs is too conditional to be

dependable, effective mitigation for impacts to the riparian corridor along MBC.

Amending away standard 99 for a portion of Eldora Ski Area expansion would set a dangerous

precedent: any time a Forest Plan provision designed to protect important resources stands in the

way of a project desired by a profit-making proponent, amend the plan rather than the project.

The purpose of a Forest Plan is to protect resources owned collectively by all American citizens.

It is not to protect the interests of a commercial proponent at the expense of those resources.

25

But even with Standard 99 eliminated, the proposed project would still violate the Forest Plan

and the WCPH. Under the National Forest Management Act,

Resource plans and permits, contracts, and other instruments for use and occupancy

of National Forest System lands shall be consistent with the land management plans.

16 U. S. C. 1604(i).

The proposed expansion of EMR is illegal and cannot be approved.

IV. THE PROPOSED ACTION WOULD VIOLATE WILDLIFE, RIPARIAN,

WATERSHED, SOILS, WATER QUALITY, AND HABITAT PROVISIONS OF

THE FOREST PLAN.

A. THE PROJECT VIOLATES THE FOREST PLAN REQUIREMENTS FOR

LYNX.

Objectors raised concerns about possible effects to lynx on pp. 12-14 of our DEIS comments.

In 2008, the Regional Forester approved the Record of Decision for the Southern Rockies Lynx

Management Direction (better known as the Southern Rockies Lynx Amendment or SRLA).

This amended most of the forest plans in Region 2, including the one for the Arapaho-Roosevelt

National Forest, on which EMR lies. As shown below, the proposed expansion of EMR would

not comply with some provisions of SRLA, and thus would violate the forest plan.

1. Maintaining intertrail islands and hare habitat.

Human Use Guideline 1 from the SRLA reads as follows:

HU G1

When developing or expanding ski areas, provisions should be made for adequately

sized inter-trail islands that include coarse woody debris, so winter snowshoe hare

habitat is maintained.

SRLA ROD at Attachment 1-7.

Currently, sizable intertrail islands and areas outside of the developed portion of EMR (within

and just to the west of the special use permit boundary) provide lynx winter foraging and

denning habitat. See Biological Assessment (BA) Figure 6-4 at 92. Lynx winter foraging habitat

is, by definition, snowshoe hare habitat.

26

The project would fragment this habitat, as the Biological Assessment (BA) describes:

Alternative 2 would further fragment some of the largest, highest quality, remaining

intertrail islands within the existing SUP boundary with conventional ski trails (C-1

to C-3), the proposed Placer Lift, and new glades (Placer Glades, Bryan Glades II,

and Salto Glades; Fig. 2-2). Alternative 2 would also fragment undeveloped and

unskied terrain outside of the existing development area boundary supporting

snowshoe hares with conventional ski trails (P-4 to P-6), a new glade (Placer Glades

II), the bottom of the proposed Placer Lift. Down CWD would no longer occur on

conventional trails and within the new lift corridors. … These permanent proposed

habitat modifications will degrade hare habitat values and skiing activity will

degrade hare habitat effectiveness, likely leading to the reduced abundance of hares

in the affected terrain.

Id. at 142.

Analysis of winter tracking found that

[H]ares were several times more common outside of developed and active terrain

than within developed and active terrain in all lynx habitat types and in winter

foraging and “other” lynx habitats.

Id. at 102; see Table 6-6, ibid. This result was consistent with similar surveys “at 20 other

existing and proposed Colorado ski areas”. Ibid.

Obviously, hare habitat would be degraded and not be maintained, and intertrail islands would

become much smaller. This violates the SRLA guideline and the forest plan.

2. Snow Compaction.

It is well known that lynx have an advantage over other predators in deep snow because they

have large feet, enabling them to travel efficiently where other animals would sink into the snow.

However, when snow is compacted from human use, such as skiing, lynx lose this advantage.

Thus the SRLA contains the following objective:

Objective HU O1

Maintain the lynx’s natural competitive advantage over other predators in deep

snow, by discouraging the expansion of snow-compacting activities in lynx habitat

27

SRLA ROD at Attachment 1-6. The BA admits that alternative 2 would not be consistent with

HU O1. Id. at 141. Note that unlike HU G10, HU O1 does not have an exception for areas inside

permitted ski areas. We note that some of the new compaction would occur in areas outside the

current EMR SUP boundary. New ski runs and glades in expanded ski area boundaries cannot be

allowed in lynx habitat because doing so contradicts the intent of the SRLA to prevent any

increase in snow compaction in said habitat. If this were allowed, ski areas could be expanded

indefinitely and compact more snow, to the detriment of lynx.

The proposed EMR expansion obviously does nothing to discourage additional snow

compaction; rather it would cause additional compaction, especially in the Placer Pod and the

associated and adjacent glades on the north side of EMR. In addition, there would be new

compaction from the access road to the Placer Lift’s bottom terminal and the bridge over Middle

Boulder Creek. BA at 143.

With additional snow compaction, alternative 2 would not be consistent with HU O1 or with HU

G10. See BA, ibid.

B. THE ACTION ALTERNATIVES WOULD NOT PROTECT RIPARIAN

AND WATERSHED INTEGRITY, SOIL STABILITY, OR WATER

QUALITY, AND THE FEIS FAILS TO SUFFICIENTLY ANALYZE

WETLAND AVOIDANCE AND MITIGATION.

Objectors discussed this issue on pp. 6-8 of our DEIS comments.

Implementing alternative 2 would require soil disturbance on 156.6 acres, 25 of which would

involve grading. FEIS at 3-316. Within the water influence zone (WIZ), 12 acres would be

cleared and 1.3 acres would be graded. Id. at 3-309. Constructing the bottom terminal of the

Placer Lift would require 0.6 acres of grading within the Indian Peaks/Middle Boulder Creek

WIZ. Id. at 3-310.

This violates the Watershed Conservation Practices Handbook (WCPH) at section 12.1

(Management Measure 3):

In the water influence zone next to perennial and intermittent streams, lakes,

and wetlands, allow only those actions that maintain or improve long-term

stream health and riparian ecosystem condition. …

1. Design Criteria.

28

e. Locate new concentrated-use sites outside the WIZ if practicable and outside

riparian areas and wetlands. Armor or reclaim existing sites in the WIZ to prevent

detrimental soil and bank erosion.

m. Do not excavate earth material from, or store excavated earth material in, any

stream, swale, lake, wetland, or WIZ.

Because these measures are incorporated into the Forest Plan (Plan at 13, fn 1), a violation of the

WCPH is also a violation of the Forest Plan.

The Placer Lift bottom terminal, and the area immediately adjacent to it where skiers would

congregate, is obviously an area of concentrated use and would be located within the WIZ.

Material would be excavated from this area within the WIZ to create the base for the bottom lift

terminal. Cutting trees is likely to be inconsistent with WCPH standards. Grading would be a

glaring violation of the requirement that actions “maintain or improve stream health or the

riparian ecosystem condition.”

Grading by use of heavy machinery would create severe and long-term impacts to

the soil by removing the protective vegetation cover, displacing the organic-rich

surface layer, degrading soil structure, altering the soil profile, and increasing soil

compaction resulting in reduced water infiltration and increase in runoff. All of these

impacts lead to an increase risk in erosion and sedimentation and reduction in soil

productivity. …

There would be severe and long-term impacts to the soil profile, soil structure, soil

hydrologic functions, and soil productivity in reclaimed areas following grading

activities. The extent of these areas is small compared to overall project disturbances.

The length of time to re-establish the soil profile and structure may take decades.

FEIS at 3-317.

The soils at the base of the proposed lift have severe limitations for revegetation following

disturbances. Geology and Soils Technical Report (GSTR) at 12. Revegetating these soils is not

easily accomplished, as “[t]ypically, revegetation establishment takes three to five years but

potentially can take up to ten years.” FEIS at 3-317. With snowmaking coverage on the new

runs, snow would be retained longer there. As a result, the growing season and soil temperature

would likely be reduced (see FEIS at 3-315), making vegetation re-establishment even more

difficult.

29

The soils in the project area also have severe to very severe water erosion hazard. GSTR at 12. In

areas rated “very severe”, “significant erosion is expected, loss of soil productivity and off-site

damage are likely, and erosion-control measures are costly and generally impractical.” GSTR at

8.

The proposed decision would allow grading on 10.4 acres of soils with severe or very severe

water erosion hazard. FEIS at 3-319. 2.7 acres of soils with moderate landslide potential would

be graded. Id. This would occur on ski trails above Middle Boulder Creek, where some slopes

include areas that are saturated and have flowing water seasonally. Id. at 3-320. Some of these

slopes are up to 55 percent. Id. at 3-319.

Wetlands surround the bottom terminal of the Corona Lift. See FEIS Figure 12. Grading would

be done as part of reconstruction of this bottom terminal, as the terminal base would be raised six

feet, purportedly to “minimize the footprint necessary for this larger terminal structure”. Id. at 3-

315. Grading would presumably occur in the surrounding area, which could involve grading in

these wetlands, or adverse effects from concentrating runoff into the wetlands. This would

violate the WCPH: “Do not excavate earth material from, or store excavated earth material in,

any stream, swale, lake, wetland, or WIZ”. Id. at section 12.1 (Management Measure 3), design

criterion 1m.

Alternatively, if soil for the raised terminal base was hauled in from outside the immediate area,

additional truck trips would cause soil damage by damage or removal of vegetation and

compaction.

The project would affect 0.11 acres of the Corona fen via removal of forest overstory. FEIS at 3-

314. Presumably this is for a ski run or a lift. Both facilities are concentrated use areas. This

violates the WCPH section 12.1 (Management Measure 3), design criterion 1e. The loss of fen

wetland function would also violate section 12.4 (Management Measure 6), design criterion 1e :

“[a]void any loss of rare wetlands such as fens and springs”, as “[t]hese wetlands cannot be

replaced in kind” (ibid.).

According to EPA’s DEIS comment letter (at 5),

Additionally, due to the slow rate of accumulation of peat in fens, these ecosystems are

generally considered to be irreplaceable (Draft EIS, p. 3-295). Because of the irreplaceable

nature and rarity of montane fen wetland ecosystems, compensation for these wetland

impacts is extremely difficult. The EPA therefore strongly recommends avoidance of these

highly valued resources.

FEIS Appendices at 47.

30

Given the ecological importance of rare fen wetlands, the Forest Service needs to heed EPA’s

avoidance recommendation. The Draft ROD fails to explain why Alternative 3 apparently avoids

the fen despite disturbing more acreage overall than Alternative 2. In any case, even if the initial

impacts are due to overstory trimming, it would seem that such trimming is proposed because

trails or infrastructure are located within or adjacent to the fen.

However, these impacts are avoidable. EPA wrote that “Alternative 3 by design largely avoids

and minimizes adverse impacts to special aquatic sites, including wetlands and fens.” Id.

Avoidance is warranted to the potential loss of irreplaceable fen wetlands. Under regulations

implementing section 404 of the Clean Water act:

Except as provided under section 404(b)(2), no discharge of dredged or fill material

shall be permitted if there is a practicable alternative to the proposed discharge which

would have less adverse impact on the aquatic ecosystem, so long as the alternative

does not have other significant adverse environmental consequences.

40 CFR 230.10(a).

Furthermore, for actions or projects affecting special aquatic sites that are not water dependent,

there is presumed to be a less damaging alternative outside of the special aquatic sites.

Where the activity associated with a discharge which is proposed for a special

aquatic site … does not require access or proximity to or siting within the special

aquatic site in question to fulfill its basic purpose (i.e., is not ‘‘water dependent’’),

practicable alternatives that do not involve special aquatic sites are presumed to be

available, unless clearly demonstrated otherwise. In addition, where a discharge is

proposed for a special aquatic site, all practicable alternatives to the proposed

discharge which do not involve a discharge into a special aquatic site are presumed

to have less adverse impact on the aquatic ecosystem, unless clearly demonstrated

otherwise.

40 CFR 230.10(a)(3).

Ski lifts, runs and other facilities are very clearly not “water dependent”, and thus cannot be sited

in a special aquatic site like a wetland or fen wetland, absent an analysis showing there is no

practicable alternative. No such analysis has been performed in the EIS.

Section 1502.2(d) of the CEQ regulations states that environmental impact statements shall state

how alternatives considered and decisions made will or will not achieve the requirements of

other environmental laws and policies. These other environmental laws and policies would, of

31

course, include Section 404 of the Clean Water Act and the Guidelines for implementation of

Section 404 beginning at 40 CFR 230.1.

The CEQ regulations make it clear that the Forest Service cannot avoid these Guidelines and

their implications for the Forest Service’s decisions in this matter simply because Section 404

permits are outside the Forest Service’s jurisdiction. Compliance with these Guidelines may, in

fact, be the most important factor in the Forest Service’s ultimate decision on both the forest plan

amendments and the site-specific projects proposed by EMR.

Section 230.1(d) of these Guidelines provides that:

From a national perspective, the degradation or destruction of special aquatic sites,

such as filling operations in wetlands, is considered to be among the most severe

environmental impacts covered by these Guidelines. The guiding principle should

be that degradation or destruction of special sites may represent an irreversible loss

of valuable aquatic resources.

Ripple and pool complexes are also special aquatic sites. 40 CFR 230.45. These special aquatic

sites could also be impacted by additional water diversions from Jenny Creek at critical low-flow

periods in the winter for snow-making and the bridge across Middle Boulder Creek.

The Forest Service cannot brush these issues aside by simply stating that they can be resolved by

“mitigation.” The mitigation measures and their effectiveness should be discussed in the FEIS

and the DROD. The discussion should be consistent with the provisions in the Guidelines

Subpart J-Compensatory Mitigation (40 CFR 230.91 et seq.) for Losses of Aquatic Resources.

The Forest Service had in its possession, when preparing the DEIS, an Army Corps of Engineers

Preliminary Wetlands Delineation letter dated April 25, 2013 stating: “[r]egarding your request

for a Preliminary Jurisdictional Determination of the wetlands and other waters to include

Boulder Creek and Jenny Creek; these aquatic sites are preliminary considered to be waters of

the U.S .” See Exhibit 4. Section 1502.25(b) of the CEQ regulations requires that the draft

environmental impact statement list federal permits which must be obtained or indicate that there

is uncertainty as to whether a permit must be obtained.

The Forest Service has had plenty of time to determine whether a Clean Water Act Section 404

permit will be needed for the preferred alternative. Any doubt should be resolved by now.

Failure to resolve this issue by now simply indicates that the Forest Service would prefer to not

take a hard look at impacts to wetlands as they relate to Clean Water Act policies and

regulations, and avoid issues which might interfere with any decisions to allow EMR expansion.

32

Section 1502.16(c) of the CEQ regulations states that the environmental consequences section or

chapter of the EIS shall include discussions of possible conflicts between the proposed action

and the objectives of federal policies and controls for the area concerned. The objectives of the

federal policies discussed above should have been discussed in both the FEIS and the DROD

even if had been determined that the wetlands and streams were not “jurisdictional.”

A categorical exclusion, or Army Corps of Engineers Nationwide Permit, is not available to

EMR. While the actual fill areas may be small, a categorical exclusion is a category of actions

which do not individually or cumulatively have a significant effect on the human environment.

40 CFR 1508.4. When taking into account past and reasonably foreseeable future wetlands fills

in the affected environment, it becomes immediately obvious that a Nationwide Permit is not

available. The Eldora Ski Area has filled a large area of wetlands, one of the largest in Boulder

County over time. See: Hallock, D., N. Lederer, and M. Figgs. 1986. Ecology, Status and

Avifauna of Willow Carrs in Boulder County. Boulder County Nature Association Publication

No. 4. 38 pp.

Finally, Executive Orders 11988 and 11990 direct federal agencies to evaluate the effects of

proposed actions on floodplains and wetlands, and to avoid taking action affecting such areas

unless there are no "practicable alternatives." They also require agencies to provide an

opportunity to the public and interested agencies to comment on proposed projects. Sierra Club

v. Hassell, 636 F.2d 1095, 1100 (5th Cir. 1981).

It is not acceptable under NEPA to defer these important considerations to decisions which will

be made in subsequent proceedings by the Army Corps of Engineers or other federal agencies.

Such a move can only be seen as an attempt to allow these decisions to be made outside the

public’s view and outside the NEPA process, or at least only after the decision to approve an

EMR expansion has been made. The fundamental purposes of NEPA include insuring public

involvement and scrutiny, and availability of information to the public. See CEQ regulations

Sections 1500.1(b) and 1500.2(d).

Section 1500.2(c) of the CEQ regulations states that federal agencies shall to the fullest extent

possible integrate the requirements of NEPA with other planning and environmental review

procedures required by law or agency practice, including the requirements of the Clean Water

Act. The purpose of this regulation is to insure that all these procedures run concurrently and

not consecutively so that federal agencies cannot avoid public disclosure of the basis for their

actions and decisions by deferring environmental reviews to a later time.

By definition, the Army Corps of Engineers was a cooperating agency in this NEPA process

because it had both expertise and probable jurisdiction under the Clean Water Act. 40 CFR

1508.5 Under Section 1501.6(a) and (b) of the CEQ regulations, the Army Corps was required

33

to provide analysis on these important Clean Water Act Section 404 issues, and the Forest

Service was required to use this analysis “to the maximum extent possible.” The unexplained

absence of the Army Corps as a cooperating agency, and the absence of Army Corps analysis

relevant to the Section 404 Guidelines, leads one to think that both agencies prefer to deal with

these issues outside the NEPA process.

The Forest Service asserts that applying project design criteria to minimize impacts would make

the project consistent with the WCPH. DEIS at 3-320. However, even in a best-case scenario,

“frequent maintenance and costly erosion control measures would be required” to sufficiently

reduce impact. GSTR at 12. In addition, the expert report establishes that areas that have been

previously disturbed have not been fully rehabilitated, especially where grading occurred. Id. at

13. This refutes the reliance on design criteria to adequately mitigate impacts or achieve WCPH

compliance.

It has been almost 15 years since the last ski area expansion that could cause these significant

soil disturbances was implemented. See FEIS at 3-122. But frequent maintenance of erosion

control structures, needed to ensure their continued effectiveness, as well as the need for other

maintenance (see below), may themselves cause impacts to soils if heavy equipment is used.

Thus the soils may not have a chance to recover and revegetate.

Indeed, even without the proposed expansion of ski facilities at EMR, it appears that a

considerable amount of work is needed every year to maintain the existing infrastructure. See

DEIS at A-2 through A-5, which summarizes the work done under annual operating plans from

2000 through 2012. In the two most recent years “glade maintenance” and “road maintenance

with grading” were done. In most of the previous years, “[n]ormal snowmaking infrastructure

and trail maintenance” were performed. In at least four years “clean up [of] Corona Pod Glades”

was done. (See also FEIS at 3-123, 3-126.) It is likely that heavy equipment, which would

adversely affect soils and revegetation, was used for some of this work.2 It is thus reasonable to

expect that even more maintenance, some of it requiring the use of heavy equipment and

resulting in subsequent adverse impacts to soils, would be done if the proposed action is

implemented.

With less than full recovery from previous disturbances, it is questionable whether areas with

disturbances caused by the proposed project in areas of quite erodible and potentially unstable

soils would ever recover, especially given the need for frequent maintenance.

2 The FEIS states (p. 3-122):

Construction activities typically involve the use of heavy equipment such as backhoes, excavators and bulldozers;… Construction of new ski trails typically requires equipment such as chain saws, log skidders, wood chippers,

bulldozers, etc.

34

In the Placer pod, “limited rock blasting through the use of dynamite” would occur. FEIS at 3-

128. This passage appears in the section on noise, but there is no analysis of what effects on soil

movement might occur from this activity.

The GSTR states that “Better application and maintenance of BMPs are needed to further reduce

existing erosion.” Id. at 13. But under a future “erosion-control monitoring and maintenance

plan”, EMR would do the inspections to see if erosion was being properly controlled. Id. at 3-

319. In other words, EMR would get to decide the effectiveness of mitigation measures it would

be required to implement. This is not acceptable.

Also, under this plan, only erosion control structures would be evaluated. That is important, but

under the WCPH the Forest Service is required to monitor the following:

Monitor integrity of organic ground cover and organic soil layers, plant community

composition and structure, soil structure, water levels, and drainage patterns.

Id. at section 12-4 (Management Measure 6), Monitoring.

Since design criteria and constant maintenance may not provide the required level of protection

to these sensitive soil resources, avoidance is the preferred mitigation measure. Proceeding with

the proposed action to construct the Placer Lift down to Middle Boulder Creek would

impermissibly violate the WCPH and Forest Plan.

C. THE PROPOSAL VIOLATES THE FOREST PLAN BY NOT

COMPLYING WITH HABITAT GUIDELINES.

Objectors discussed additional areas where the proposed decision appears not to comply with

various Forest Plan measures in our DEIS comments at 12 and elsewhere.

The Forest Plan describes the role of guidelines:

Guidelines are defined as preferred or advisable courses of action or levels of

attainment designed to achieve the goals and objectives. When deviation from a

guideline is necessary, it will be documented during the project-level analysis. Under

those circumstances, the responsible official should recognize the purpose(s) for

which the guideline was developed and assure interested individuals that any

subsequently approved actions are not in conflict with the purposes for which the

guideline was developed. Guidelines are developed in the following circumstances:

(1) when they contribute to achievement of goals[.]

35

Plan at 11.

Goal 94 in the Forest Plan is “[m]aintain or improve habitat capability for terrestrial wildlife”.

Forest Plan at 29. Goal 95 is “[r]etain the integrity of effective habitat areas.” Id. at 30. The

following guidelines contribute to meeting these goals:

107. … Avoid disconnecting or severing intact areas of effective habitat with new

open roads and trails. Favor seasonal use during noncritical times for wildlife when

this cannot be avoided.

108. … When developing new open roads and trails, do not reduce contiguous areas

of effective habitat to less than 250 acres or further reduce effective habitat of 20 to

250 acres in size, except where access is required by law. …

Plan at 31.

120. … Maintain or increase habitat effectiveness within identified old growth areas

and all old growth sites that are not planned for harvest.

Id. at 32.

The FEIS establishes that the proposed project would not comply with these guidelines. Habitat

effectiveness would decrease in an old growth development area, violating Guideline 120. The

reduction in areas of effective habitat would violate Guideline 108. New ski trails would

disconnect areas of effective habitat, contrary to Guideline 107. Forest Plan at 3-218 to 3-220.

Expert comments from CPW stated:

Old growth and late successional forest types provide habitat for a variety of species and

should be left intact to the extent that they can still provide the ecological services required

by wildlife that inhabit these areas. Such areas do not lend themselves to thinning or other

treatments that open the forest in a manner conducive to maintain or improve habitat quality.

Alternative 2 would not be consistent with guideline 120 because "new and conventional

trails would not maintain or increase habitat effectiveness within ARP-designated old growth

development area or ARP-designated old growth inventory." Specifically; alternative 2

would significantly impact high elevation old growth development habitat south of MBC,

which would adversely affect wildlife associated with these forest stands.

CPW DEIS Comments at 5.

CPW also stated that “Alternative 2 does not seem consistent with guidelines 107 and 108.” Id.

36

Old growth designations should be observed, not waived. Boulder County and most public comments

agree that the lands south of Middle Boulder Creek are more valuable for habitat than ski runs and

lift corridors. The decision’s willingness to violate guidelines and standards are out of touch with

local and expert opinion respecting the importance of our remaining roadless forests. The Forest

Service needs to reconsider the Forest Plan Amendments to waive old growth and wildlife

protections.

These guidelines appear to have been placed in the Forest Plan to meet the goals quoted above.

The project would not comply, but would instead make it more difficult to meet the stated goals.

The Forest Service has failed to establish that the project would not conflict with the purposes

underlying these guidelines.

V. THE ANALYSIS DID NOT ATTEMPT TO DETERMINE IF THE PROPOSED

NEW LIFT LOCATIONS WOULD BE LESS SUSCEPTIBLE TO HIGH WINDS.

Objectors’ DEIS comments (at 2) questioned whether the proposed new lifts would be any less

susceptible to high winds that plague EMR, and in during extreme wind events, necessitate shut-

downs of some lifts. MBCC Scoping Comments addressed wind at page 4.

We do not find any data indicating the new lifts would experience less wind, and we noted that

some observations of wind speed from a nearby location could have been used to determine the

wind susceptibility of the proposed new lifts.

However, the Forest Service deliberately ignored this issue, as shown by its response to our

comment:

The Forest Service determined that there is not a need for wind data to validate the

Purpose and Need because EMR proposed the project locations based on an

operational understanding. EMR understands the prevailing wind direction and the

wind speeds in the area. EMR operates the ski area with these factors in mind and

used this knowledge to develop their proposed project locations.

FEIS at D-16, and see FEIS at 1-17.

This is another example of the Forest Service violating NEPA’s public participation mandate by

giving the ski area what it wants without gathering, analyzing, and considering relevant

information. The Forest Service may believe that the ski area knows where and how hard the

wind blows. But when the proposed project is inconsistent with the Forest Plan and would

impact sensitive environmental resources, it is incumbent on the agency to make a reasoned,

informed decision that considers public comments other than the proponents’ preference.

37

The Council on Environmental Quality Regulations implementing the National Environmental

Policy Act state:

NEPA procedures must insure that environmental information is available to public

officials and citizens before decisions are made and before actions are taken. The

information must be of high quality. Accurate scientific analysis, expert agency

comments, and public scrutiny are essential to implementing NEPA.

40 CFR 1500.1(b).

The CEQ Regulations direct the agency to request needed information and verify its accuracy:

If an agency requires an applicant to submit environmental information for possible

use by the agency in preparing an environmental impact statement, then the agency

should assist the applicant by outlining the types of information required. The agency

shall independently evaluate the information submitted and shall be responsible for

its accuracy.

Id. at 1505.6(a); emphasis added.

Furthermore:

If the document is prepared by contract, the responsible Federal official shall furnish

guidance and participate in the preparation and shall independently evaluate the

statement prior to its approval and take responsibility for its scope and contents.

Id. at 1506.5(c).

And finally:

When an agency is evaluating reasonably foreseeable significant adverse effects on

the human environment in an environmental impact statement and there is

incomplete or unavailable information, the agency shall always make clear that such

information is lacking.

(a) If the incomplete information relevant to reasonably foreseeable significant

adverse impacts is essential to a reasoned choice among alternatives and the overall

costs of obtaining it are not exorbitant, the agency shall include the information in

the environmental impact statement.

38

40 CFR 1502.22.

Here, the record fails to establish that the agency independently evaluated assertions by the

proponent and/or consultant that were relied on to support the proposed decision, or made a

reasonable effort to either obtain relevant data, or consider the relevance of information

submitted by knowledgeable commenters. Nearby residents and skiers have collected data on

wind conditions in and around the resort, and some of it was formally submitted to the agency.

The Forest Service has a duty to consider such local expertise and any other relevant

information, and make efforts to obtain additional data where it is lacking.

Wind data is important to making “a reasoned choice among alternatives” because skier safety in

times of high winds is a major part of the purpose and need for the project. See FEIS at 1-3, 1-4.

Currently, there is substantial uncertainty and attendant public controversy as to whether the

proposed new lifts would be significantly less susceptible to high winds, and/or if existing lifts

could be made more wind resistant. For instance, design, location, and other factors considered

when upgrading existing lifts could reasonably be expected to address wind concerns as

effectively as the proposed Placer Lift, while avoiding the most controversial impacts of the

expansion.

If true, this would undermine the justification building the Placer Lift. Then a less damaging

alternative that upgraded existing lifts and did not include the Placer Lift or the runs near Middle

Boulder Creek could be selected in fulfillment of the purpose and need. At a minimum, the

Forest Service needs to make an informed decision based on good science and after considering

all relevant information – even in submissions that did not come from the project proponent.

The intent of NEPA is to ensure that accurate information is available to the decision-maker and

for public comment before projects are approved. Meaningful public involvement is central to

the NEPA process. Here, the Forest Service lacked objective data on which to base its decision,

failed to obtain important information, and ignored information submitted by the public.

The agency cannot discount the possibility that EMR’s assertions regarding tricky and

challenging wind conditions in these mountain settings might not be entirely accurate, especially

given the lack of actual data or science. The agency can consider information from the project

proponent, but is required to verify the information presented and ascertain its accuracy before

relying on it to support a final decision. If wind conditions are used to justify the agency

decision, the underlying information and analysis must comply with NEPA. As it stands, the

agency’s dereliction of duty here violates NEPA.

39

VI. THE EIS AND PROPOSED PROJECT DOES NOT COMPLY WITH THE NHPA

BECAUSE A PROPER SURVEY FOR HISTORIC AND ARCHAEOLOGICAL

RESOURCES HAS NOT BEEN CONDUCTED.

This section was prepared by Payson Sheets, PhD, Professor of Anthropology, specializing in

Archaeology, University of Colorado, Boulder. Dr. Sheets addressed the issue of archaeology in

his comment letter on the DEIS dated March 31, 2014. It was also addressed at page 23 of the

DEIS comment letter submitted by Rocky Smith and MBCC, et al dated April 10, 2014.

References cited in this section are listed in Exhibit 5.

The Legal Context and Archaeological Research Obligations. The National Historic Preservation

Act went into effect in 1966. That was followed by the Archaeological Resources Protection Act

(ARPA) in 1979, and subsequently amended four times. Under ARPA:

No person may excavate, remove, damage, or otherwise alter or deface or attempt to

excavate, remove, damage, or otherwise alter or deface any archaeological resource

located on public lands or Indian lands unless such activity is pursuant to a permit

issued under section 4 of this Act…

16 U. S. C. 470ee (a); see also 36 CFR 296.4.

To ensure compliance with the legal requirements, the first step is to conduct the research to

know the full range of cultural, historic, and prehistoric features within the area of potential

impact (Banning 2002; Sullivan et al. 2007). Knowledge of the time span of human occupation

of the area is essential, followed by knowledge of how people utilized their environment, and the

anticipated tangible material remains of those activities. The design of the historic-

archaeological survey of the area is based upon knowledge of the nature of human environmental

impacts in the past (Schiffer et al. 1978; Banning et al. 2006).

A crucial element in designing the survey is a knowledge of the scale (length, width, and depth)

of anticipated features, and the materials composing them, that could be discovered. That is

done by extrapolation from nearby areas where features are known. The design incorporates

pedestrian survey of the area with the researchers’ transects spaced no farther apart than the

physical scale of the anticipated features. If only large-scale features are anticipated, the people

surveying can be spread widely apart, for example 20 meters apart. If moderate-sized features

are anticipated, transects must be 5-10 meters apart, and if smaller features are anticipated, the

transects must be closer than that.

Where sediment or vegetative matter has accumulated after human utilization of the area,

subsurface testing is required. That is done routinely by many means, including augers, posthole

40

diggers, shovel testing, and a wide range of geophysical instrumentation (resistivity,

electromagnetic induction, ground-penetrating radar, magnetometers, and seismometers).

A thorough professional survey results in the factual database, a complete inventory of features

of past human utilization of the environment over the full span of time that it occurred. Once the

database is complete, evaluation can commence. The most highly significant features can be

nominated for inclusion in the National Register of Historic Places. Less significant features can

be protected by relocating the planned activity, or by careful excavation and publication of the

features that must be destroyed by the planned activity.

The Archaeological Context. Human utilization of what is now Colorado began over 12,000

years ago (Noel et al. 1994), and most scholars now recognize the time span is about twice that

long (Cassells 1997). Hunting and gathering bands utilized the full range of habitats from the

plains to the high mountains at least to 11,000 feet (3353 meters) (Cassells 1997, Cassells 2000).

In the mountains the riparian habitats were particularly favored, as they provided rich floral and

faunal resources. Campsites were occupied for short or longer timespans, and small shelters

were constructed, firepits were built and used, foods were processed and consumed, animals

hunted and butchered and their hides utilized, and lithic artifacts were manufactured and

resharpened (Cassells 2000). The scale of the features remaining from archaeological (Ancient

Native American) land use is often sub-meter in diameter, and a few centimeters in depth.

The EIS Survey: Design, Discoveries, Results, and Inadequacies. The survey for past cultural

resources covered about 175 acres using pedestrian transects spaced 20 meters (over 65 feet)

apart (FEIS 3-92). Such spacing is appropriate for discovering large features such as the more

extensive or deep historic mining pits and their talus mounds. Most smaller historic features will

be overlooked and thus not be a part of the inventory. Only the smaller ones that happen to be

covered by a transect will be discovered, and Appendix D (p. 87) mentions such a discovery.

Therefore the historic component is complete only for larger scale historic features, and is still

incomplete for smaller historic features.

The survey design is woefully inadequate to even begin to discover prehistoric features left

behind by the thousands of years of occupation by Native Americans prior to the historic period.

That is because the transect spacing is far too great, and no subsurface exploration of any sort

was conducted. Therefore, the legal obligation to conduct the research to create an inventory of

ancient land use has yet to be fulfilled.

A major failure of the survey design and accomplishment can be stated in terms of relative

timespans of human occupation. Native American occupation spanned well over 12,000 years,

while the mining activities spanned less than 50 years. The survey therefore provides data

covering less than ½ of one percent of the span of human activities in the area. Or if the more

41

common 20,000-year Native American occupation time span, the survey has covered cultural

remains from an even more miniscule 0.25 % of one percent of the legally required time span.

To complete the archaeological research, surveys covering the remaining 99.75 % of the time

that people lived in and utilized the area must be accomplished. That must be done by close

spacing of transects, less than 2 meters apart, and include properly designed subsurface testing.

The February 8, 2013 Forest Service letter to the State Historic Preservation Office states that

pedestrian surveys will not be conducted for several project components. This decision is

unacceptable. Comprehensive, detailed Class III surveys cultural resources surveyed are needed

for all lands impacted by the proposed decision.

Conclusion. Clearly a decision was made prior to conducting the archaeological survey that only

large-scale features would be sought. Given knowledge of the history and prehistory of the

general area, that can mean a decision to search only for large features such as mining tests. And

the adage “you find what you look for” is appropriate, as that is what was encountered. Survey

transects separated by 20 meters cannot possibly discover smaller scale historic features from the

mining era, so one conclusion is that the historical portion of the survey is still incomplete.

Considerably more drastic is the fact that very wide transect spacing will miss small-scale

features, and those are what predominate in the at-least 12,000 years of Native Americans

utilizing the area. Such spacing will at best encounter a tiny proportion of them. And that

proportion is even farther reduced where visibility is obscured by pine duff, leaves, and some

alluvial sedimentation that characterizes the riparian habitat along Middle Boulder Creek. The

archaeological survey for ancient Native American features has yet to be properly designed,

carried out, and reported.

A list of references for this section is attached as Exhibit 11.

VII. PROPOSED PROJECT DESIGN CRITERIA ARE CONDITIONAL AND MAY

NOT MINIMIZE IMPACTS AS STATED.

Objectors discussed this issue in our DEIS Comments at 14.

CEQ regulations state the environmental impact statement “shall provide full and fair discussion

of significant environmental impacts and shall inform decisionmakers and the public of the

reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality

of the human environment. 40 CFR 1502.1. Furthermore, Sec. 1508.20 defines mitigation to

include (a) [a]voiding the impact altogether by not taking a certain action or parts of an action;

and (b) [m]inimizing impacts by limiting the degree or magnitude of the action and its

implementation.

42

In the 10th Circuit, the court has stated NEPA “places upon an agency the obligation to consider

every significant aspect of the environmental impact of a proposed action. Second, it ensures that

the agency will inform the public that it has indeed considered environmental concerns in its

decisionmaking process." Forest Guardians v. U.S. Fish and Wildlife, 611 F.3d 692, 711 (10th

Cir. 2010) (citing Balt. Gas Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983). Thus, NEPA mandates a

process for federal agencies to make informed decisions by making both the agency and the

public aware of “the environmental effects of proposed actions.” New Mexico ex rel. Richardson

v. BLM, 565 F.3d 683, 703 (10th Cir. 2009) (ref. Marsh v. Or. Natural Res. Council, 490 U.S.

360, 371 (1989) and Balt. Gas Elec. Co. v. Natural Res. Defense Council, 462 U.S. 87, 97

(1983).

In discussing impacts to various species, the FEIS repeatedly states that project design criteria

(PDC) will “avoid or minimize” impacts to various wildlife species. Id. at 3-206 et seq.

However, a fair reading of the FEIS shows the implementation of several applicable project

design criteria are not required.

For example, with respect to several avian and mammalian species, tree removal would only be

conducted outside of the nesting or denning period “to the extent possible”. See DROD at A-3. It

would not be difficult to completely avoid cutting in the nesting or denning periods, as the

longest of them lasts only three and a half months. Id. Also, the nesting and denning periods are

in the spring and early summer when snow is melting and soils are usually wet, which limits

vegetation cutting and any use of heavy equipment to protect soils. Yet prohibiting activities

during these periods is not required.

As written, the PDCs do not require implementation. The Forest Service even acknowledged this

issue in FEIS (D-102, 103), but neither responded to the comment, nor changed the language to

provide additional certainty. Therefore, there is no assurance that the species or habitat will be

protected. If the agency relies on these PDCs to minimize impacts, they must be mandatory. But

because they are conditioned on language such as “to the extent possible,” there is no certainty

that impacts will be minimized. This plainly violates NEPA’s mandate that federal agencies

avoid and minimize adverse impacts to the environment.

The CEQ recently issued new guidance on Mitigation and Monitoring. This guidance

recommends that “[f]ederal agencies should take steps to ensure mitigation commitments are

actually implemented.” Memorandum for Heads of Federal Departments and Agencies,

Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated

Findings of No Significant Impact (hereafter Memorandum) at 8. “[T]he guidance affirms that

agencies should commit to mitigation in decision documents when they have based

environmental analysis upon such mitigation (by including appropriate conditions on grants,

43

permits, or other agency approvals, and making funding or approvals for implementing the

proposed action contingent on implementation of the mitigation commitments).” White House

Council on Environmental Quality Issues Mitigation Monitoring Guidance under NEPA, Press

Release, January 14, 2011, at 2,

https://ceq.doe.gov/current_developments/docs/NEPA_Mitigation_Monitoring_Press_Release_1

4Jan2011.pdf.

Tenth Circuit case law applying NEPA and CEQ regulations requires that agencies provide a full

and fair discussion of the potential adverse impacts of this project. Here, the Forest Service failed

to meaningfully discuss the limitations of voluntary or conditional mitigation measures. This

frustrates informed public participation in decision-making, and falls short of fully disclosing the

impacts of the project.

VIII. THE SOCIO- PROPOSAL MAY VIOLATE THE FOREST PLAN AND AN

AGREEMENT WITH THE COUNTY BY INCREASING THE CAPACITY OF

THE SKI AREA.

Objectors addressed this issue on page 6 of our comments on the DEIS.

For the Boulder Creeks Geographic Area, the Forest Plan states the following under

“Management Area 8.22 (Eldora Ski Area))”:

It is anticipated that actual use levels will increase. There will, however, be no

increase, in the established maximum daily capacity.

Plan at 54.

The FEIS notes correctly that this prohibition on an increase in daily capacity is part of an

agreement with Boulder County that limits daily lift ticket sales to 5000. Id. at D-30.

The comfortable carrying capacity (CCC) under alternative 2 would increase to 5580 people per

day.3 FEIS at 3-15. It is currently 4250. Id. at 3-4.

The agency insists that the CCC “is a planning figure only and does not represent a regulatory

cap on visitation”. Id. at 3-3. However, the 5000 people per day limit in the agreement with the

County is a regulatory cap on daily use. Since the CCC is a use level “that facilitates a pleasant

recreational experience without overburdening the resort’s infrastructure” (ibid.), it will likely be

reached or exceeded on weekends and holidays during the peak ski season if EMR’s expansion is

3 In the alternative described in the DROD, the CCC might be higher, since it includes a larger Jolly Jug Pod than

was proposed for alternative 2.

44

approved as proposed. Certainly, EMR will try to get at least that many people to visit the ski

area as often as possible.

Since the 5000 lift ticket sale limit does not include season passes (id. at D-30), it is possible

EMR could reach the new CCC and not violate the County agreement and the Forest Plan.

However, there is no information presented in the FEIS or other documents that we know of

indicating that the prescribed limit on the sale of lift tickets will not be exceeded. Notably, there

is no project design criterion limiting the sale of lift tickets. See DROD at A-1 through A-16.

IX. SUPPLEMENTAL NEPA IS REQUIRED BECAUSE THE FEIS FAILED

TO DISCLOSE THE COMBINED IMPACTS OF ALTERNATIVES 2 AND

3, AND NEWLY AVAILABLE INFORMATION INDICATES THE

RESPONSIBLE OFFICIAL PRE-DETERMINED THE OUTCOME OF

THE PUBLIC PROCESS .

Objectors did not specifically raise this issue in previous comments because there was no

indication that the two action alternatives analyzed in the DEIS would be combined into a final

proposed action. Therefore, we are entitled to raise this issue in the objection, per 36 CFR

218.8(c).

NEPA requires that alternatives, including the proposed action, should be presented in

“comparative form, thus sharply defining the issues and providing a clear basis for choice among

options by the decisionmaker and the public.” 40 CFR 1502.14. The regulations further state that

agencies shall “(b) [d]evote substantial treatment to each alternative considered in detail.” Id.

The regulations also govern preparation of supplements to EISs:

(c) Agencies: (1) Shall prepare supplements to either draft or final environmental impact

statements if: (i) The agency makes substantial changes in the proposed action that are

relevant to environmental concerns; or (ii) There are significant new circumstances or

information relevant to environmental concerns and bearing on the proposed action or its

impacts.

(2) May also prepare supplements when the agency determines that the purposes of the

Act will be furthered by doing so.

40 CFR 1502.9(c)

Here, 1) the proposed action includes substantial changes relevant to impacts; 2) new

information undermines the agency’s rationale for the proposed decision; and 3) the agency

45

failed to analyze an action alternative that complied with the Forest Plan, although a viable

action alternative was proposed that would do just that while allowing the majority of the

proposed improvements to proceed.

In preparing the DEIS, the Forest Service developed two action alternatives. Alternative 2 would

add the Placer Lift and associated terrain, expanding the special use permit boundary down to

very near Middle Boulder Creek, and adding a lift and terrain in the Jolly Jug Area. Alternative 3

would not expand into the Placer area, but would provide a larger area in the Jolly Jug pod than

would Alternative 2. It would also create larger gladed/tree skiing areas in the Bryan II and Salto

areas compared to Alternative 2, and create the Moose Glades. Compare FEIS Figures 2 and 4.

Alternative 3:

includes several projects included in the Proposed Action; however, to respond to

identified issues raised during scoping, Alternative 3 does not include the Placer

Express chairlift and terrain and the associated SUP boundary adjustment to Middle

Boulder Creek at the north side of EMR

Draft EIS at 2-11, FEIS at 2-11.

The DROD at 2 and 3 describes the proposed approved alternative, combining some elements of

alternative 3 with alternative 2. There is no indication in either the DEIS or FEIS that the two

alternatives would be combined, especially since Alternative 3 was specifically formulated to

address some of the issues with the then-proposed action, alternative 2:

Alternative 3 includes several projects included in the Proposed Action; however, to

respond to identified issues raised during scoping, Alternative 3 does not include the

Placer Express chairlift and terrain and the associated SUP boundary adjustment to

Middle Boulder Creek at the north side of EMR. Alternative 3 includes additional

trails and tree and gladed skiing areas within the current SUP boundary.

FEIS at 2-11.

Since the alternative presented in the DROD is not one the public could have reasonably

expected based on the alternatives presented in the DEIS, it violates NEPA. See California v.

Block, 13 ELR 20099, 9th Cir, 1982.

Starting even before scoping for the current EIS, the Forest Service appears to have committed to

the course of approving Forest Plan Amendments related to EMR expansions. In a favorable

light, the agency seems to have pre-determined the process. In a less favorable light, some

actions could be perceived as misleading the public by misrepresenting: 1) the extent to which

46

the new master plan is inconsistent with the existing Forest Plan, and 2) how proposed

expansions would violate the existing Plan as well as local plans and policies including Boulder

County’s Comprehensive Plan.

The ARP Evaluation of the Eldora Master Plan and Proposed Projects (February 18, 2011) is

attached as Exhibit 6. This document discusses the suite of potential projects included in the

Draft 2010 Master Development Plan developed for EMR by the SE Group.

Initial Screening Criteria 2 asks whether "[u]se consistent or can be made consistent with

FLRMP’s.” Id. The response states “Yes, the existing use is a ski area within the Forest Plan

MA-8.22 (Ski Based resorts) and most of the proposed use is consistent with the Forest Plan, and

some of the potential projects (expansion of permit boundary area) can be made consistent with a

Forest Plan amendment via a NEPA assessment and affirmative decision.”

This appears to be the only acknowledgement that the expansions are inconsistent with the Forest

Plan. It supports consideration of the Infill Alternative by affirming what Objectors have long

argued: most of the proposed improvements can be approved and implemented within the

existing SUP without amending the Forest Plan.

Initial Screening Criteria 5 goes to “other scheduled or existing authorized uses, or adjacent non-

NFS lands.” Id. The response asserts: “There are adjacent Boulder County Open Space and

private lands. There is no foreseen conflict or interference with FS administrative use or other

scheduled or existing authorized uses, or adjacent non-NFS lands.” Id.

The response is incorrect. The proposed Placer pod expansion to Middle Boulder Creek, and

bridge across the creek, directly conflict with the Boulder County Comprehensive Plan, and the

County management goals stated in its DEIS comment letter. As to County Open Space, in 2006

the County accepted a conservation easement from a private landowner of a property described

as a “mix of forest, open meadows and rock outcroppings” that “offers pristine wildlife habitat

that connects nicely with the surrounding Forest Service land.” Exhibits 7 and 8, Boulder

County Board of Commissioners November 9, 2006 letter to Kathleen Lawler and Laurence

Tasaday, and map of easement, respectively.

The proposed ski area expansion in this area would adversely impact wildlife as established by

CPW, MBCC and other comments; contrary to the purpose of the easement intended “to

preserve natural lands and habitat and [] expand the currently protected area in the mountains

around Eldora.” Id.

Second Level Screening Criteria 1 at page 3 asserts that “the existing ski area and the MDP

proposed projects do not appear to be inconsistent or incompatible with purposes for which lands

are managed in the area or with other uses.” Id. This is false. Here, the Forest Service was

required to acknowledge that the new master plan was inconsistent with the Forest Plan. It

appears that the agency was either unaware of this key fact, or attempted to avoid stating that

expansions were inconsistent and incompatible with the Plan. It leaves the impression that the

responsible official was determined to deliver whatever Forest Plan Amendments might be

necessary to fully implement EMR’s desired expansions, notwithstanding the need for the future

NEPA process to be independent and objective.

47

Second Level Screening Criteria 2 considers the public interest. The entire discussion addresses

the so-called public interest in expanding downhill resort skiing opportunities on public lands. It

lacks any mention of the public interest in following Forest Plan standards that protect wildlife,

habitat, soils, riparian areas, and other sensitive resources that are prized by all forest users,

skiers and non-skiers alike. Is it too much to ask that the Forest Service acknowledge the public

interest in respecting and implementing Plan standards that protect the environment? When the

agency decision maker only appeared to consider one side of the issue from the outset, how can

the EIS and Forest Amendment processes be considered independent and objective?

This Evaluation seems to expose an end-run around NEPA’s public involvement requirements

that permeated the NEPA process leading up to the DROD. The deciding officer might genuinely

believe that authorizing an expansion even more aggressive than those considered in the action

alternatives is in the public interest (Second Level Criteria 2 at 3, id.). However, this document

raises serious issues as to the objectivity and independence of the process.

The rationale for combining the most aggressive expansion aspects of the two action alternatives

was stated as follows in the DROD at 12:

Therefore while I acknowledge that the Alternative 3 version of Jolly Jug will have

greater impacts, I have included it in my decision because: 1) the benefits to the

recreation experience will be substantial, 2) the impacts on NFS lands are nearly the same

between the two configurations, and 3) the private lands that will be minimally impacted.

This rationale fails both logically and legally. First, it again shows that the decisionmaker

appears to be solely concerned with the “recreational experience” at the expense of other uses

and values, and only one aspect of recreation at that (downhill skiing at EMR). Second, absent

supplemental NEPA analysis on the alleged cumulative impacts being “nearly the same,” this

assertion is unsupported by the current record. If the Forest Service wants to choose and

implement a “Maximum Expansion Alternative,” it first needs to fully analyze it. Here, no effort

has been made to determine the full direct, indirect, and cumulative impacts of such a decision

(outside a few conclusory statements in the DROD), and the public has not been allowed to

comment or offer expertise on the new proposal. Because the new proposed action would have

greater environmental impacts than either action alternative considered in the DEIS, it cannot be

justified as coming within the range of impacts already analyzed.

Third, the existing decision fails to adequately weigh the environmental, socio-economic, and

other costs of the proposed expansion proposed for the first time in the DROD against the

purported benefits to the Resort and its customers.

The differences between Alternatives 2 and 3 in regard to the Jolly Jug pod are substantial. The

DROD acknowledges that “[t]he Alternative 3 Jolly Jug project adds approximately 62 acres of

48

intermediate terrain, compared to approximately 35 acres in the Alternative 2 version.” The total

expansion proposed by the DROD would encompass “66 acres of ski trails, the creation of

approximately 77 acres of tree and gladed skiing areas and modifications to approximately 42

acres of existing tree and gladed skiing[.]” DROD at 3. The fact that the SUP adjustment for the

combined alternative proposed in the DROD is only 2 acres greater than under Alternative 2

does not nullify the fact that the 27 additional acres of additional terrain is more than a third of

the 85 total acres of intermediate terrain under consideration, and better than 40% of the 66 acres

of new trails.

The FEIS does not analyze cumulative impacts to elk, deer, and other wildlife from the

combined impacts of potentially losing the migration corridor and 64.8 acres of elk and deer

habitat under Alternative 2, and that “Alternative 3 would result in a loss of approximately 58.9

acres of potential elk and mule deer habitat.” DEIS at 2-64 and CPW DEIS comment.

In any case, the impacts of a proposed action that encompasses the combined action alternatives

have not been fully disclosed. For example, we do not see disclosure of use projections for the

combined action in FEIS section 3A. Usage affects the magnitude of the impacts, and it could

affect compliance with the limit on daily lift ticket sales, which is discussed in section VIII

above. It is also difficult to discern the effects on soils, vegetation, and wildlife because only

parts of alternative 3 are included in the alternative proposed for approval, and the disclosure of

effects for alternatives 2 and 3 does not accurately disclose the impacts for the proposed

approved alternative.

X. THE PUBLIC NEVER HAD A MEANINGFUL OPPORTUNITY TO COMMENT

ON THE PROPOSED PERMIT BOUNDARY ADJUSTMENT NEAR MIDDLE

BOULDER CREEK.

Objectors addressed this issue in their April 10, 2014 comments beginning at 5.

Under the current Forest Plan, expansion outside of the “boundaries currently specified in the

Master Development Plan” is prohibited. Plan at 54. It was the clear understanding of the Eldora

Civic Association at the time of Forest Plan development (1997) that there would be no

expansion of EMR outside the SUP. Just a few years before the revised Forest Plan was

finalized, EMR had expanded by constructing the Indian Peaks pod. The quoted Plan language

was thus clearly intended to limit the size of EMR on its north side.

The Forest Service believes such expansion is acceptable because the Master Plan was revised in

2011, and this newer version allows the proposed expansion. DEIS at 2-40, DROD at 13-14.

Specifically, “My decision is consistent with this statement because the projects contained in my

decision are included in the EMR’s 2011 Master Plan.” DROD at 14.

49

The Forest Plan does not say “current master plan”, but rather “currently specified in the Master

Development Plan” (emphasis added). This clearly refers to the EMR master plan that existed

when the final revised Forest Plan was issued. That master plan did not include the expansion

now being proposed.

The current master plan also does not include part of the expansion now proposed. The 2011

Master Plan, Figure 5, shows the Jolly Jug Lift bottom terminal north of the Boulder/Gilpin

County Line. The proposed approved Jolly Jug Lift goes well south of the county line. See

Figure (D) ROD-1. Alternative 3, with the larger Jolly Jug pod, is now part of the proposed

action, as described at DROD-2. Thus the statement quoted above from the DROD is not true, as

the Forest Service admits:

Because Alternative 3 in this EIS includes a SUP boundary adjustment that differs

from the EMR 2011 Master Plan, should that alternative be approved through this

process, the 2011 Master Plan would need to be amended to reflect the correct SUP

boundary.

DEIS at 2-40.

The Forest Plan was not amended after completion of the 2011 Master Plan. In fact no public

input was sought or accepted when the ARP accepted the 2011 plan, as is clear from the

following correspondence:

…there is no provision in our MDP review process for public meetings or input….

It is during th[e] NEPA process that you will have an opportunity to submit your

comments/concerns for specific proposed project(s), potential forest plan

amendments and or any other actions requiring public involvement.

Exhibit 9, Letter from Forest Supervisor Glenn Casamassa to Dave Hallock of MBCC, October

6, 2010 at 1, 2.

Similar views were expressed in a letter from then-Boulder District Ranger Christine Walsh to

Payson Sheets, dated January 14, 2011:

Because all proposed projects and permit actions are conceptual at the MDP level,

acceptance of the MDP makes no commitments.

Id. at 1.

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Clearly, the Forest Service did not accept any public input on the proposed special use permit

boundary adjustments.

The latest chapter in this saga exacerbates this problem, as the DROD “amends the 2011 Master

Plan to include the Alternative 3 configuration of the Jolly Jug chairlift and terrain”. Alternative

2, the preferred alternative in the DEIS, did not include the expanded Jolly Jug configuration, nor

did it propose to amend the Master Plan.

Instead of attempting to amend the Forest Plan in an attempt to authorize a controversial

expansion that violated the existing Plan, the Forest Service should be implementing the Plan

and denying expansion beyond the existing SUP boundaries. Dave Hallock’s letter of March 7,

2010 to the Ski Area (attached as Exhibit *) clearly expresses concern with expansion down to

Middle Boulder Creek, as is now heading toward approval by way of the proposed Placer Lift

and associated runs and glades. Id. at 2-3.

Another letter from Mr. Hallock to Forest Supervisor Casamassa, dated September 12, 2010,

raises the question of the need for a public process at the time of the Master Plan revision:

Should the Forest Service consider having some type of public process at this time?

It may not be mandated by current policy, but should it be considered? One

downside of waiting until there is a specific proposal for improvements that trigger

NEPA, is that it may only cover a portion of all contemplated improvements and the

process only deals with a piece and not the whole. Context gets lost.

The 1997 Revision of the Land and Resource Management Plan for Arapaho and

Roosevelt National Forests and Pawnee National Grassland makes the following

statement relative to Management Area 8.22 (Eldora Ski Area): “There will be no

expansion of the area outside the boundaries currently specified in the Master

Development Plan” (Chapter 2, Page 54 in the Geographic Area Direction for

Boulder Creeks Geographic Area). Should the Forest Service be considering

accepting a MDP that indicates an expansion of the permit boundary that goes

against the current Forest Plan first without holding some public process at this time?

…

In closing, if a large-scale planning project for the Hessie area cannot be undertaken,

then at least there should be some public process to the Update of the Master

Development Plan.

Id. at 2.

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EMR did conduct some voluntary public involvement, as noted at FEIS D-24, but EMR’s

process was never intended to satisfy NEPA obligations in any way. Rather, EMR’s process was

geared toward improving the recreational experience for guests, not in addressing environmental

concerns, as was stated by a Jan. 5, 2011 letter from MBCC to Glenn Casamassa and Christine

Walsh, discussing the problems with the November, 2010 “Analysis Of The Purpose, Process,

And Content Of Eldora Mountain Resort’s 2010 Master Plan And Related Public Comments”

distributed by EMR:

The public process and the three open houses that were run by the ski area were

focused on gathering “comments from the general public on how to improve the

guest experience” (Section II of the Report). We ask that in any consideration of the

Report in the Forest Service review process of the Master Development Plan it be

recognized that the public process was run by the proponents (Eldora Mountain

Resort) and was geared toward users of the ski area. The Report also states that

“particular effort was made by Eldora not to show support or opposition to any

particular suggestion or comment” (Section II of the Report). But, based on

comments made by ski area representatives at the meetings, there is evidence of bias.

For example, at the open house in Boulder the ski area manager stated in his

introductory remarks “in any development we will not affect natural habitats." When

creating a ski run and converting a closed canopy forest ecosystem to a grassland, it

is rather difficult to have no impact on the natural habitat, but we will hold the ski

area to that comment and level of impact. Also at the open house in Boulder the ski

area manager was asked about the effects on wildlife habitat, but the question was

cut short: the ski area manager indicated that the meeting was for improving the area

for users. At the open house at the ski area the ski area manager was asked about

impacts to moose, to which he replied “None, the moose will stay.” This is not a

neutral position during an open house. The ski area’s wildlife consultant corrected

the ski area manager and said there would be displacement.

The list of the “Breakdown of Comments by Topic” (Section III of the Report)

provides only limited mention to environmental concerns, and they are listed

exclusively under “Concerns about the Hessie area (Water Quality, Wildlife, General

Recreational Use, and Traffic). We know that there were other environmental

concerns raised by participants in the public process and a number of the concerns

were regarding the existing operation and not just expansion into Hessie, including

impacts to wetlands and aquatic ecosystems, noise from snowmaking and grooming,

noxious weeds, erosion, and the use of carbaryl. We wonder why there is no mention

of these concerns. The exclusion of known comments from this list brings into

question the validity of the evaluation process.

52

Id. at 1, 2.

The public “outreach” done by EMR cannot substitute for legal requirements applying to the

Forest Service. EMR’s representative that the Resort’s plans “will not affect natural habitats” is

demonstrably false, as just one example of the bias associated with EMR’s process and proposal.

Even with all the emphasis on the proposed action being consistent with the current (2011)

master plan, it isn’t, as is discussed above.

Clearly, there was an issue of major public concern involved in the Master Plan update --

expansion outside existing SUP boundaries including the intensely controversial expansion

toward Middle Boulder Creek. –Instead of “accepting” the new Master Plan, the Forest Service

should have noted that certain elements were inconsistent with the Forest Plan and thus could not

be endorsed or approved unless the Plan were amended. Instead, the Forest Service has played a

shell game, changing the rules at it goes: changing the Master Plan to allow expansions outside

the SUP without changing the Forest Plan or involving the public, then proposing to approve

even more development beyond that contained in new master plan, and seeking to change the

master plan to allow that expansion as part of the proposed decision.

The Forest Service has failed to take account of broad public and stakeholder support for 1)

adhering to the existing Forest Plan, and 2) denying proposed amendments that seek to allow

highly controversial expansions to the detriment of competing values and uses. The unlawfulness

of the agency’s procedures is especially glaring in light of its decision to eliminate from analysis

the only action alternative that would have complied with the Forest Plan: directing

improvements and upgrades to the existing SUP under an infill alternative.

The solution is simple. The Forest Service needs to analyze an alternative that would allow the

Resort to proceed with the great majority of proposed actions: those inside the existing permit

boundary. It is patently unreasonable and unlawful not to analyze even one action alternative that

1) complies with the Forest Plan, and 2) complies with the Boulder County Comprehensive Plan,

and would allow local governments and residents to implement their policies and achieve their

objections while still authorizing the lion’s share of improvements sought be EMR. Failing to

analyze such an alternative violates NEPA by depriving the public of a meaningful opportunity

to comment on a viable action alternative that is consistent with the existing Forest Plan, and

local plans and policies.

If the Forest Service would continue to follow its Plan for the ARP, it would allow the County to

continue to implement the county’s plan. But the EIS failed to analyze an action alternative that

complies with either plan, despite deep public support for both plans, and the fact that the

53

existing plans are environmentally preferable to the expansions considered in Alternatives 2 and

3.

XI. THE FOREST VIOLATED NEPA’S HARD LOOK REQUIREMENT FOR KEY

ISSUES INCLUDING SOCIO-ECONOMICS, AND WILDLIFE AND HABITAT

IMPACTS

The EIS violated NEPA by failing to taking the requisite hard look at the impacts the proposed

expansion will have on issues including terrestrial and aquatic wildlife, special status fish and

wildlife, socioeconomics; recreation; and wilderness values.

A. The EIS violated NEPA by failing to take a hard look at the socioeconomic

impacts of the project and the lack of consistency with local government plans

and policies.

MBCC challenged the economic assumptions that the expansion will be a financial success in the

context of the fundamentally different perspective on the EMR’s proper niche in the community

in its scoping comments. These comments (at 18) stated:

The ski area has been touting the number of jobs being created by the proposed

expansion. There needs to be a complete breakdown of these jobs, including construction

vs. ongoing ski operations; jobs related to each portion of the expansion (Placer, Jolly

Jug, guest service facilities); and further broken down by kinds of jobs, their pay, and

their benefits.

We also argued that the Draft ROD allows development that is inconsistent with both the Eldora

Environmental Preservation Plan (EEPP) and the Boulder County Comprehensive Plan (BCCP).

As the agency acknowledged, the Eldora Environmental Preservation Plan was created in 1992

by the Eldora Civic Association to “address growth and development issues, and concerns with

recreational growth” in the Eldora area.”

Objectors commented that the DEIS was inconsistent with the EEPP on ten specific topics

ranging from habitat protection to the 5,000 skier per day capacity limit. The EEPP is included

in the BCCP, which states: “Eldora Civic Association would work towards limiting the eventual

size and operations of the ski area. There should be no expansion of the ski area outside their

current permit boundary and no expansion below the existing Corona and Indian Peaks pods.”

This directly conflicts with the draft decision.

Nederland PROSAB opposed Alternative 2 because it conflicts with the Town’s vision and

would have unacceptable impacts.

54

It is important that the critical balance between active recreation areas and wilderness,

referenced in the first Nederland Vision 2020 vision statement, be maintained, as well as

the water quality in Middle Boulder Creek, which provides drinking water for the Town

of Nederland and the City of Boulder. With this in mind, PROSAB urges the Responsible

Official to reject the proposed EMR expansion north to Middle Boulder Creek, as

presented in Alternative 2 of the DEIS.

Nederland PROSAB Comment Letter at 2.

These comments also stated that the agency failed to take a hard look at traffic impacts: The

impact of EMR traffic within the Town of Nederland is inadequately treated. Reliance upon

CDOT criteria for highway carrying capacity ignores the very real gridlock created during

afternoon peak hour EMR traffic within the town.” Id.

In stating that ARP standards, guidelines and conditions will be applied by the Forest Service,

the agency fails to mention that the pre-Amendment standards, guidelines, and conditions were

consistent with the local vision and zoning.

The agency would suggest that it is enough that these plans were considered “throughout the

Preparation of the DEIS,” (FEIS at D-27) where they were ultimately rejected without any

serious effort to integrate their goals and objections into the ROD, or even fully analyze an

alternative that would do so.

Federal law requires that the Forest Service take account of local zoning and land use plans, and

encourages consistency between federal, state and local plans. See Granite Rock, 480 U.S. 572,

585 (1987) (citing 16 U.S.C. § 1604(a) and 43 U.S.C. § 1712(c)(9). Although federal agencies

are not obligated to defer to local plans, local jurisdictions are injured when federal action

preempts their enactments and plans. City of Sausalito v. O’Neill, 386 F.3d 1186, 1197-98 (9th

Cir. 2004).

CEQ’s Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act

Regulations addresses conflicts with local land use plans or policies:

23a. Q. Conflicts of Federal Proposal With Land Use Plans, Policies or Controls. How

should an agency handle potential conflicts between a proposal and the objectives of

Federal, state or local land use plans, policies and controls for the area concerned? See

Sec. 1502.16(c).

A. The agency should first inquire of other agencies whether there are any potential

conflicts. If there would be immediate conflicts, or if conflicts could arise in the future

when the plans are finished…, the EIS must acknowledge and describe the extent of

those conflicts. If there are any possibilities of resolving the conflicts, these should be

explained as well. The EIS should also evaluate the seriousness of the impact of the

proposal on the land use plans and policies, and whether, or how much, the proposal will

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impair the effectiveness of land use control mechanisms for the area. Comments from

officials of the affected area should be solicited early and should be carefully

acknowledged and answered in the EIS.

Here, it is incumbent on the FS to better describe the conflict and endeavor to resolve it. Boulder

County has not indicated it is prepared to waive the protective designations in the controlling

land use plans for one of the most sensitive and highly valued recreational and environmentally

important landscapes in the County. Analyzing the Infill Alternative would fulfill the obligation

that the FS explore resolving the conflicts between the proposed MBC Placer Lift expansion, the

Forest Plan Amendment that would make it possible, on the one hand, and local land use

policies, on the other.

Such analysis would also address the local concerns submitted by Boulder County, the Town of

Nederland, Nederland PROSAB and Eldora townsite residents. To date, the agency appears to

have not even acknowledged the extent to which its draft decision conflicts with important local

planning documents and land-use objectives on a wide range of important resource issues.

The FEIS relies on the Economic Impacts Assessment prepared for SE Group by Doug Kennedy

Advisers for its apparent assumption that the expansion will be a guaranteed financial success.

However, the Economic Assessment offers little or no confidence that its projections are accurate

or reliable. Stated otherwise, if the report isn’t taken at face value, it could easily be perceived as

a case of “garbage in, garbage out”. In this case, the garbage was generated to support expansion

plans rather than an independent, objective evaluation that takes a hard look at ski industry

economics or the unique challenges facing EMR based on a host of factors that went unanalyzed

by the consultant.

The agency needs to explore a joint Forest Service/Boulder County review process for the

proposed ski area improvements, as well as a comprehensive planning process for Middle

Boulder Creek. Nederland, Eldora townsite representatives, and other stakeholder could also

participate.

Much of the controversy involves the extent to which upgraded facilities and opportunities

within EMR’s existing footprint might better serve skiers and contribute to financial viability

than the proposed expansions. Upgrading existing lifts is an obvious component of an infill

alternative from any reasonable perspective.

But the FEIS declined to meaningfully analyze replacing the existing Indian Peaks lift, simply

because EMR apparently isn’t interested, and seems to prefer to build entirely new infrastructure

to serve new terrain outside the Resort’s existing footprint. To justify its deference to EMR’s

preference, the agency Response to Comments opines that upgrading both Indian Peaks and

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Corona lifts “would not make common sense from a technical and economic standpoint.” FEIS

at D-20.

The appeal to logic here is mystifying. Regular EMR skiers use both lifts to access the mountain.

Although Corona is sometimes more exposed to wind than Indian Peaks, Indian Peaks can see

more use when the Corona trails are closed or unattractive to some skiers on high wind days. The

question is not whether an upgraded lift is needed to serve the Indian Peaks part of the mountain;

it is whether the upgraded lift should extend outside the current boundaries to MBC instead of

being configured to best serve terrain as proposed by the Infill Alternative.

Contrary to the agency assertion to defend its decision, it would appear to “not make common

sense” to not consider infill upgrades that would: 1) significantly improve the user experience on

existing terrain, and 2) avoid the significant impacts and controversy associated with the lower

portion of the proposed Placer lift. If we assume that either a new lift, or an upgraded

replacement lift will be built – the Forest Service needs to take a hard look at addressing all

relevant concerns, not just the Resort’s preference for the full Placer pod expansion. As

numerous stakeholders including Boulder County continue to note, this has not happened.

The Economic Impacts Assessment purports to be able to predict increases in skier-days with

precision of 1/100 of 1% up to five years into the future following project implementation. It

seemingly lacks any disclaimers as to how other variables, such as snow conditions, resort skiing

trends in Colorado, fuel prices, lift ticket prices, or the health of the economy – might affect

skier-days and revenue as much or more than the expansion. The “Assessment” does not seem to

inquire into how lift tickets, or the total cost of downhill skiing (including equipment rentals,

food, etc.) could contribute to skier-days, revenues, or financial success.

The sentiment of Eldora users was aptly captured in a March 27, 2015 article in the Mountain

Ear newspaper regarding the FEIS and ROD:

Last Sunday, a group of three families from Denver enjoyed a barbecue tailgate party at

the end of the day. “We are taking lessons in this kind of awesomeness,” said Byron

Hittle. When asked how he felt about the expansion, he said, “I am excited about having

more terrain, but I hope the expansion doesn’t make Eldora too crowded. Right now, it

has a welcoming, family area-feel and I wouldn’t like to bring in too much traffic.

Exhibit 17.

Eldora’s future success depends on being in tune with the land ethic of Boulder County and the

hardy skiers who relish the unique skiing experience provided by the resort. A significant

proportion of customers are looking to avoid not just the traffic, but many of the other trappings

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of the I-70 resorts as well. Maintaining a “welcoming, family-area feel” will continue to be a key

contributor to a thriving resort. Crowds and “too much traffic” will compromise the experience,

the feel and the “vibe.” An over-aggressive expansion plan that is out of touch with users’ values

risks killing the goose that lays the golden eggs at EMR.

Unfortunately, the Economics Impacts Assessment lacks any discussion of this aspect of the

issue. Perhaps that is unsurprising that a Vermont-based consultant would be less likely to have

knowledge of local culture and custom or analyze these factors as part of quantifying the

projected costs and benefits of various expansion alternatives. That does not make the omission

any less glaring or justify the NEPA violation. Simply put, the Forest Service decision entirely

failed to analyze a key aspect of the issue – let alone take the required hard look.

Objectors’ claim is supported by the expert conclusions of one of the leading resource

economists in the Rocky Mountain region, Pete Morton, PhD, Senior Economist

Conservation Economics Institute. According to Dr. Morton:

There is little discussion on how other variables influence future skier-days. Some

variables that are reasonable to consider when predicting future skier visitation and

revenue at a ski area include snow conditions, competition from destination results,

current economic conditions, the cost of gasoline, and lift ticket prices. For example, will

the cost of the aggressive expansion included in Alternative 2 and 3 be paid for by higher

lift ticket prices? If so, how will higher priced lift tickets affect future visitation rates?

In a similar vein, future visitation rates should consider local skiers like myself who will

choose not to ski, or to ski less at Eldora Mountain as a result of unnecessary expansion

outside the current ski area boundary. As an avid backcountry and area skier, and a long

time Colorado and Boulder County resident I have never understood Eldora Mountain’s

over-aggressive expansions plans which run counter to the land ethic of Boulder County

and of nearly all of the skiers I talked to this year while riding the lifts at Eldora.

Exhibit 12 at 1.

This expert review casts doubt on the methodology and conclusions of the Economic Impacts

Analysis. Unlike the consultant who purported to project the differences in skier-visits with an

accuracy of hundredths of percentage points five years into the future, Dr. Morton is a Colorado

resident and regular user of EMR. Dr. Morton reached a very different conclusion about the

likely viability of some improvements than the Economics consultant retained for the EIS, and

casts enough doubt on the underlying methodology that the existing Economic Impacts

Assessment cannot be relied on to support the Forest Service decision. Quite simply, pie-in-the-

sky projections of increased visitation directly correlated to the level of expansion do not hold

water as currently presented. According to Dr. Morton:

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Another very reasonable improvement I agree with is to simply replace/upgrade the

existing lifts in order to address performance issues, stalling, length of time enduring

wind gusts, and people getting stuck. This improvement would certainly improve the

overall quality of every skier's experience.

There is also room for improvement in terms of the service amenities currently offered.

Updating and improving existing eating and drinking facilities at the base lodge and on

the mountain make great sense to me. To be honest, I am more likely to stop in

Nederland on my way home for food and drink because the eating-drinking facilities at

Eldora Mountain are pretty lame. Simply upgrading the existing food and beverage

services would be a huge leap forward in capturing more revenue from existing skiers

like me.

Another concern I have with the EIS is the increasing visitation rates assumed for each

plan alternative. The assumed rate of skier visits for each alternative is a key input into

the economic analysis completed. If a higher rate is assumed the economic impacts (i.e.

jobs, revenue) increase. Alternatively, if a low rate is assumed for an alternative the

economic impacts decrease. Unfortunately there is little documentation or discussion on

the justifications used for the high rates assumed for Alternatives 2 and 3, or importantly

the large discrepancy between those high rates and the much lower rate for Alternative 1.

Why did the author assume such a low rate for the do nothing alternative and much

higher rates for the other alternatives?

There is little discussion on how other variables influence future skier-days. Some

variables that are reasonable to consider when predicting future skier visitation and

revenue at a ski area include snow conditions, competition from destination results,

current economic conditions, the cost of gasoline, and lift ticket prices. For example, will

the cost of the aggressive expansion included in Alternative 2 and 3 be paid for by higher

lift ticket prices? If so, how will higher priced lift tickets affect future visitation rates?

In a similar vein, future visitation rates should consider local skiers like myself who will

choose not to ski, or to ski less at Eldora Mountain as a result of unnecessary expansion

outside the current ski area boundary. As an avid backcountry and area skier, and a long

time Colorado and Boulder County resident I have never understood Eldora Mountain’s

over-aggressive expansions plans which run counter to the land ethic of Boulder County

and of nearly all of the skiers I talked to this year while riding the lifts at Eldora.

Since the visitation rates assumed in each alternative are one of the key assumptions used

in the economic analysis, much more documentation and discussion is needed on the

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reasonableness of the assumed rates of future visitation. Obviously, some sensitivity

analysis of this key variable is in order.

Exhibit 12 at 2-3.

In sum, the Economics Assessment does not withstand expert scrutiny. Dr. Morton’s analysis

raises questions that undermine the document prepared to justify the proposed expansions, and

establishes scientific controversy on at least two of the central social science questions facing the

project: 1) whether the proposed expansions are likely to result in the level of increases visitation

predicted by the EIS (or could even decrease skier-days and revenue due to controversy), and 2)

whether an infill alternative might capture most of the economic benefits sought by the Resort, at

substantially lower cost, avoiding most of the controversy, while avoiding significant

environmental impacts and allowing Forest Plan protections to remain in place?

The level of controversy surrounding what some local Forest Service officials seem to consider a

relatively modest expansion of the Resort is understandable only if one is aware of the context

for the decision. The framework and local public opinion need to be taken into account, as well

as expert reviews of the complicated socioeconomics of EMR, both in developing alternatives

and reaching the final agency decision.

B. The EIS violates NEPA by failing to take a hard look at wildlife and habitat

impacts of the project.

Objectors raised wildlife issues in their comments at 4-9, and Dave Hallock’s comments (at 1-6).

Wildlife concerns and potentially significant impacts from expansion were also addressed by

CPW’s comment letter, addressed above, and Boulder County DEIS comments.

ARP users, including Boulder County residents, put great value on wildlife viewing and habitat

stewardship. Most visitors to Indian Peaks and adjacent lands report that elk and other

“charismatic megafauna” are viewed infrequently in the backcountry, making sightings all the

more precious to hikers. But the Forest Service does not appear to have attempted to balance the

relative benefits of protecting the existing elk herd against a controversial and incremental

expansion of EMR down to MBC. The Economics Impact Assessment was notably silent on any

and all potential adverse environmental impacts of the expansion, neither qualitatively

acknowledging nor attempting to quantify any negative impacts to wildlife, riparian, water

quality, or other threatened values – despite the fact that the project includes Forest Plan

amendments intended to authorize actions that would violate the existing Forest Plan.

CEQ regulations implementing NEPA require agencies “to prepare supplements to either draft or

final EIS's if there ‘are significant new circumstances or information relevant to environmental

concerns and bearing on the proposed action or its impacts.’” Id. (citing 40 CFR § 1502.9(c)).

Supplemental review is triggered by new and significant information not previously

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analyzed under NEPA. The CEQ regulations list several factors that indicate significance,

including the following:

(3) Unique characteristics of the geographic area such as proximity to . . .

ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment are

likely to be highly controversial.

(5) The degree to which the possible effects on the human environment are highly

uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions with

significant effects or represents a decision in principle about a future consideration.

40 CFR 1508.27.

These four factors apply here. First, the northern expansion will impact unique and ecologically

critical resources in the area of Middle Boulder Creek. According to CPW:

Our primary concern regarding the expansion of EMR is the extension of the special use

permit (SUP) boundary to and along the south side of MBC and associated riparian

habitat and CO Highway 130 (Hessie Road). This expansion of the SUP boundary and

associated ski area projects are all summarized and contained in the DEIS proposed

alternative 2. It should be noted that if implemented impacts to this site will not be

seasonal and limited to winter, but will likely occur throughout the year. This is

important in that, topography at the location along MBC results in a natural corridor

which funnels wildlife through the drainage. There is also a unique, well functioning

riparian complex consisting of beaver ponds, wetlands, and creek which has many

benefits to wildlife resources and hydrologic processes. Throughout the year Hessie

Road is a primary access point to the Indian Peaks Wilderness. Currently, due to MBC

and marshy conditions along the creek human activities are restricted to Hessie Road

until recreationists (by foot or vehicle) reach access points farther west into the Indian

Peaks Wilderness via established trails. It would be fair to say that this is the most

congested roadway for recreationists accessing the Indian Peaks Wilderness. Because of

the high volume of recreational use along the road and the natural barrier afforded by the

creek, riparian corridor and mature forest stand to the south, wildlife use tends to

concentrate to the south side of the creek. The development of several projects outlined in

alternate 2 . . . adjacent to and south of MBC could directly and indirectly adversely

impact wildlife resources using the area south of the creek negatively impacting this

wildlife movement corridor.

CPW Comment Letter at 3.

Second, the highly controversial nature of the project is undisputed by the Forest Service. Public

controversy and intensive disagreement over the environmental impacts and socio-economic

components of the project are snowballing, the more the public learns about the draft decision

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and actual impacts. A sampling of recent media coverage is indicative of the controversy, which

is also manifest in the number and quality of objections to the DROD.

An article in 5280 Magazine by a local skier who sees both sides of the issues spoke for many

locals and much of the public. First, he recognizes what is obvious to most Eldora users, that

better lifts and facilities will go a long way to improving the experience and luring more skiers.

Second, he expressed his preference for mostly leaving well enough alone. The article is

significant because5280 Magazine generally leans more pro-business establishment than

environmentally minded.

It sounds great—in theory. Better technology, more terrain, faster equipment. But to get

those things, we’ll have to give up the Brian’s Glades’ powder stash—and potentially

create other issues for the environment and area residents. Faster lifts and more runs

mean easier skiing for everyone, but those few solitary turns in the trees and the soft,

static whoosh of my edges in fresh-fallen powder are the things great skiing is made of.

Yes, Eldora must grow and change to survive—any business does—but I have to say, I’m

kind of fond of the old girl just the way she is.

Exhibit 14 at 4.

A February 21, 2015 Boulder Daily Camera article summarized the perspective of two local

residents, establishing deep opposition from the Eldora Civic Association to the northern

expansion, and serious concerns about the both the northern and southern expansion from a

former EMR Ski Instructor who has skied Eldora all his life:

Diane Brown was a year-round resident of Eldora for 18 years. She still lives there May

through October each year and is former president of the Eldora Civic Association Board.

"We've done numerous surveys regarding ski area expansion, and the town is

overwhelmingly opposed to any expansion that would come in our direction, and

particularly Hessie," Brown said. "This is a real sore point." [. . . ]

Morgan Ruskay, a 1995 graduate of Nederland High School and former ski instructor at

both Eldora and Aspen, lives just outside Nederland and fears the effects of expansion.

And, as an avid alpine and nordic skier, she is convinced expansion isn't even needed.

"My concern with the expansion is that it's going to go into an absolutely beautiful area,

the Fourth of July and Hessie area, and the (ski) terrain isn't going to improve that much.

And then, there's all the stuff into Jenny Creek, the south terrain, which is a pristine area,

and isn't going to hold the snow," Ruskay said.

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"It's not going to be that great, and is really going to take away from the beauty of

Nederland, Colorado, and Eldora."

Exhibit 15 at 4-5.

Although EMR claims that the southern expansion will hold snow and make sense, local experts

are skeptical. Contrary to Forest Service assertions in the DROD, significant controversy

surrounds the proposed southern expansion regarding whether it makes sense, and whether the

impacts on a currently pristine area are justified.

A March 17, 2015 Daily Camera article examines at length the concerns of environmental

stakeholders representing Middle Boulder Creek Coalition and the Sierra Club, in addition to

establishing that failing to reconsider the proposed expansion will only extend the controversy;

ensure that objections and possible litigation are paralleled by charged county review processes.

Because of the resort's split between Forest Service land and privately held land that is

subject to county jurisdiction, [Boulder County Land Use Director Dale] Case said

numerous aspects of the expansion may still likely need to undergo special use review by

county commissioners.

Exhibit 17 at 5.

A March 18, 2015 Denver Post story quoted the Middle Boulder Creek Coalition’s coordinator

on the prevailing view of many local residents who commented constructively and participated

in the public process in good faith -- but found the Forest Service seemed to be deaf to public

concerns.

"This is even worse than Eldora's proposal," coalition coordinator Dave Hallock said of

the blended alternative. "The Forest Service even expanded this thing for them. The

relationship between the ski area and the Forest Service and the consultants — they are

all in bed together. The Forest Service didn't listen to anyone, only the ski area."

Exhibit 18 at 2.

As the FEIS and DROD objection deadline approached, media coverage continues to document

growing and ongoing controversy regarding the agency’s draft decision. According to a recent

Daily Camera story, Boulder County sees little to like in the expansion plans and is asking why

EMR can’t limit improvements to the existing footprint.

And, reiterating an earlier position on Eldora's plans that the county has taken in previous

letters to the Forest Service, the letter says, "Based on the Forest Service's analysis in the

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final EIS, we are not convinced that the ski area cannot accomplish its goal within its

existing footprint."

Exhibit 20 at 2.

The County’s position 1) disposes of the Forest Service’s unsupported assertion that only the

northern expansion is controversial; and 2) removes any doubt as to the reasonable-ness of fully

analyzing and infill alternative.

Third, impacts to wildlife, habitat, riparian areas, and the neighboring Indian Peaks Wilderness

are uncertain and risky. CPW and others are concerned that wildlife impacts could be year-

round, not just during the Resort’s winter operation as asserted by the EIS. The potential for

backcountry or wilderness users to cross the bridge and use informal access to the Indian Peaks

wilderness is a point of disagreement. CPW stressed that “The potential recreational access

issues on the south side of MBC outside the ski season have not been addressed in the DEIS.” Id.

at 5. This deficiency was not rectified in the FEIS. CPW (at 5-6) concluded by emphasizing that:

The potential recreational access issues on the south side of MBC outside the ski season

have not been addressed in the DEIS. Again, there is a likelihood that recreationists will

use the bridge crossing over MBC to access the forest and Indian Peaks Wilderness

further to the west, potentially increasing use and social trails thereby impacting wildlife

in areas where human activity is supposed to be absent.

Fourth, approval of the two expansions currently on the table could be precedent for future

expansions of EMR. Objectors, Eldora residents, and local government have repeatedly stated

concerns about future expansion plans to Moose Glades or elsewhere.

In its Response to Comments 8.3.19, the agency appears to assume that elk will be “largely

unaffected” by the proposed expansion, contrary to the opinion of CPW: “if moose respond in

the same way as mule deer and elk, seasonal movement patterns should be largely unaffected.”

FEIS at D-47.

Legally, the FS is required to analyze these impacts even if the agency considers them justified

when weighed against the financial interest of EMR. From a policy perspective, the agency has

an obligation to avoid and minimize impacts to highly valued wildlife populations and habitat,

and local residents and forest users who place great importance on wildlife protection.

The ROD attempts to downplay the potential for unauthorized use of the bridge to access the

south side of Middle Boulder Creek and Indian Peaks. “Human presence on the south side of

Middle Boulder Creek is not anticipated to increase because the gate on the bridge across Middle

Boulder Creek can be designed to effectively block unauthorized access.” D-48. This assertion is

inconsistent with the CPW comment letter. It doesn’t take account of local conditions including

the shortage of parking for the nearby Hessie trailhead, and the fact that this part of Indian Peaks

is one of the most heavily visited wilderness areas in Colorado. The acknowledgement that

“people currently cross the creek in localized areas after peak flow periods (typically beginning

in August)” highlights the likelihood of the bridge being used as a bridge, notwithstanding

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signage. Ibid. The agency finally falls back on unspecified “adaptive management,” a speculative

reference that provides no assurances to residents, wilderness users, or wildlife life, and falls

short of satisfying the law. Ibid.

Supplemental analysis needs to take a hard look at these impacts, including concerns raised in

DEIS comments that constitute new information.

SUGGESTED REMEDIES

The proposed expansion of EMR does not comply with NEPA, ARPA, various regulations, and

the Forest Plan. Objectors suggest the following remedies to achieve compliance with applicable

law and craft a better-reasoned decision that incorporates the well-founded objections of the

objectors as well as other commenters, including Boulder County, Nederland, PROSAB,

Colorado Parks and Wildlife, the EPA, and hundreds of concerned local residents:

Withdraw the draft record of decision.

Issue a Supplemental EIS that fully analyzes the Infill Alternative, including an updated

economic impacts assessment that credibly compares the predicted economic impacts and

user-day estimates to existing alternatives.

If any expansion of EMR outside current permit boundaries is still pursued, issue a

supplement EIS for public comment that fully analyzes an Infill Alternative and compares

the impacts to existing alternatives.

Reconsider and reject the proposal to expand to the north impacting Middle Boulder Creek,

including construction of the Placer Lift and new trails near MBC and a new bridge across

the creek.

Withdraw the Forest Plan Amendment that would remove protection of riparian

vegetation along Middle Boulder Creek.

If any facilities (lifts, runs, roads, buildings, etc.) would be constructed in this

corridor, analyze how composition, structure, function, and ecological integrity of

the riparian area would be maintained.

In a draft supplemental EIS, analyze alternatives for maximum avoidance of

damage to and destruction of wetlands in full compliance with 40 CFR 230.

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Reconsider and reject the proposal to expand to the South impacting Jenny Creek backcountry

access, Nordic use, and implicating serious user safety concerns.

If the newly formulated alternative in the DROD is carried forward, fully analyze it as a new

stand-alone Alternative combining Alternative 2 with parts of Alternative 3 to allow

informed public comment and a full disclosure of the impacts of such a proposal. A draft EIS

supplement analyzing the impacts of this new alternative must be issued because the

combined impacts were not analyzed in the DEIS or subject to public comment under NEPA.

If any version of the Jolly Jug pod will be considered, relocate the Jenny Creek backcountry

trail or provide another solution to the problem of alpine skiers intersecting backcountry

travelers in the Jolly Jug Pod.

Before approval of any action alternative:

Heed Boulder County’s request to ensure the project is consistent with County zoning

and land-use designations by avoiding construction of a new bridge across MBC and

impacts to the sensitive environmental resources and habitat on adjacent lands

including Chittenden Mountain.

Heed the Town of Nederland Parks, Recreation & Open Space Advisory Board

request to reject the Middle Boulder Creek expansion proposal

Heed Colorado Parks and Wildlife’s comment that the proposed northern expansion

could significantly impact or eliminate use of the land above MBC as an elk

migration corridor

Heed EPA comments regarding fen wetlands by avoiding direct and indirect impacts

to such wetlands in reconfiguring the Corona lift

Ensure full compliance with the Watershed Conservation Practices Handbook by

locating all facilities outside the Water Influence Zone. At a minimum, do not allow

any grading in the WIZ.

Conduct a detailed, comprehensive Class III survey of archaeological resources using

professionally approved methods, including the proper spacing of transects. Report

the results to the public and interested professional archaeologists, and invite

comments prior to finalization.

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Gather sufficient wind data to demonstrate that the proposed new Placer Lift would

indeed be less susceptible to wind compared to other lifts at EMR.

Reduce cutting of new runs and creation of new glades/tree skiing areas so that: fen

wetlands are entirely avoided, large intertrail islands are not fragmented, snow

compaction in lynx habitat is not increased, and the project complies will all measures

in the SRLA.

Demonstrate that EMR will comply with the limit of 5000 lift tickets sold daily.

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List of Exhibits to Conservation Groups Objection

Exhibit 1 Letter from GMUG National Forest Supervisor Charles S. Richmond to owners of

Crested Butte Mountain Resort, November 5, 2009.

Exhibit 2 May 6, 2010 decision on CBMR’s appeal of December 18, 2009.

Exhibit 3 BLM Press Release on Roan settlement.

Exhibit 4 Army Corps of Engineers Wetland Determination letter, April 25, 2013, to

Western Ecological Resource, Inc.

Exhibit 5 Links to references for Archaeological Resources.

Exhibit 6 Evaluation Process for Eldora Mountain Resort MDP and Potential Projects,

signed by Arapaho-Roosevelt National Forest Supervisor Glenn Casamassa on

February 18, 2011.

Exhibit 7 Letter from Boulder County concerning the Lawler-Tasaday Easement,

November 9, 2006

Exhibit 8 Map of Lawler-Tasaday Easement

Exhibit 9 Letter from Dave Hallock to EMR, March 7, 2010

Exhibit 10 MBCC Infill Alternative from website, summary and map

Exhibit 11 List of References Cited in Archeological Resources Section VI of Objection

Exhibit 12 Letter by Pete Morton, PhD, Senior Economist, Conservation Economics

Institute, May 3, 2014

Exhibit 13 USFS Approves EMR Expansion, Nederland Mountain-Ear newspaper, March

27, 2015

Exhibit 14 Expanding Interests, 5280 Magazine, November 2014

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Exhibit 15 Resort's neighbors see bumps ahead with possible Eldora expansion - Eldora and

Nederland residents voice concerns about ski area's growth, Boulder Daily

Camera, February 21, 2015

Exhibit 16 Eldora Mountain Ski Resort gets preliminary go-ahead for expansion, Fox 31

Denver, March 17, 2015,

Exhibit 17 Eldora Mountain Resort's expansion plans get green light from feds U.S. Forest

Service process allows 45 days for objections to be filed, Boulder Daily Camera,

Marc 17, 2015

Exhibit 18 Feds bless Eldora ski area expansion; environmental groups cry foul, Denver Post

March 18, 2015

Exhibit 19 Bill Thibedeau: Eldora expansion decision flawed, Boulder Daily Camera, April

29, 2015

Exhibit 20 Boulder County renews opposition to Eldora's expansion plans Monday ends 45-

day window for objecting to expansion details, Boulder Daily Camera, April 30,

2015