Kearns and Sons RS Aesthetics

Forest Service sued over ski resort permit denial


By Michael Howell

A lawsuit has been filed in Missoula District Court challenging the decision by the U.S. Forest Service to deny the application for a Special Use Permit (SUP) to construct and operate a ski area in the Carlton Ridge area of the Lolo and Bitterroot National Forests. Plaintiffs include a limited liability company, Special Use Permit for Public Resort Benefits, LLC (SUPPRB), formed by Tom Maclay and a recently formed non-profit public interest organization called Western Montana Community Partners, Inc. (WMCP). Supervisors Deborah Austin and Julie King, of the Lolo and Bitterroot National Forests respectively, as well as Region One Forester Faye Krueger, are also named as defendants in the case along with the USFS.

The initial proposal to develop a ski area on the national forests, called the Bitterroot Resort, included private land at the bottom owned by Tom Maclay, who was also the originator of the ski area proposal. After working for a few years to gain a Special Use Permit for the project, in early 2013 he lost the ranchland through foreclosure. The land had been mortgaged to fund his development efforts.

Following the loss of the family ranch, Maclay formed a limited liability company, Special Use Permit for Public Resort Benefits, LLC (SUPPRB) to prepare and submit an SUP application for a revised development that would not include any private land at the base. SUPPRB submitted its “Special Uses Proposal for the Bitterroot Resort Ski Area” to the Lolo National Forest in May 2013. The new proposal hoped to take into account and avoid issues or roadblocks expressed by the U.S. Forest Service in preceding applications.

On June 26, 2013 the Lolo National Forest deemed SUPPRB’s application complete and designated it approved for an initial screening, the first step in the SUP review process, but on August 16, 2013, Forest Supervisor Deborah Austin denied the SUPPRB Proposal as, in large part, being inconsistent with the existing Forest Plan.

SUPPRB appealed this decision on September 20, 2013 to Regional Forester Faye Krueger. Krueger declined further review of the proposal on the grounds that it suffered the same deficiencies as previous proposals. Maclay believes the Regional Forester simply ignored the many significant differences with the SUPPRB Proposal, which he believes was specifically tailored to avoid previous Forest Service rationales for denying further review.

Maclay argues that the Forest Service ignored, mischaracterized or misinterpreted its own Forest Plan and other plans and information that the Forest Service itself generated over the years in support of siting a ski area on Carlton Ridge. He also claims that through the Bitterroot Resort, and ultimately the SUPPRB proposal, the Forest Service has refused to consider the economic boost that the resort would provide to the local economy.

The plaintiffs are asking the court to declare that Regional Forester Krueger’s September 20, 2013 decision is null and void, of no effect, as arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law, and in violation of statutory jurisdiction, authority, or limitations embodied in the APA, NFMA and FLPMA. Or, alternatively, to vacate the September 20, 2013 decision and remand the matter back to the agency with instructions to make a new decision consistent with all applicable federal law.

Plaintiffs are also asking for a preliminary injunction preventing the Forest Service from relying in any way on the September 20, 2013 Regional Forester decision until the court decides the merits of the lawsuit. They are also seeking award of their costs and reasonable attorney fees incurred in the action and any other relief the court may deem just and proper.

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