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Tenth Circuit Rejects Snowmass Ski Project Lawsuit

By Robyn Hagan Cain on November 15, 2011 3:09 PM

Good news, slope-bound attorneys: Snowmass will open this week, five days earlier that initially planned, thanks to early, heavy snow.

And now, let's tie ski season in with something about the law, so we're not just goofing off at work.

Last week, the Tenth Circuit Court of Appeals ruled against the Ark Initiative in its challenge to the proposed Snowmass Ski Improvements Project, finding that the organization had not properly exhausted its administrative remedies before bringing a federal lawsuit.

Snowmass Ski Area is located within the White River National Forest near Aspen, Colorado. The Aspen Skiing Company operates the ski area under a long-term, special use permit issued by the U.S. Forest Service. The permit requires Aspen Skiing to submit Master Development Plans (MDPs) to the Forest Service, outlining envisioned future improvements and expansion plans to the resort or surrounding areas.

In 1995, the Forest Service consulted with the U.S. Fish and Wildlife Service (USFWS) regarding the effect of proposed MDP actions on threatened or endangered species. Over a seven-year period, the USFWS issued multiple Biological Opinions (BiOps) that concluded that the proposed projects would likely affect certain protected fish and wildlife, and offered alternative actions to mitigate the consequences.

In 2003, Aspen Skiing submitted a Master Plan Amendment (MPA) to the Forest Service, which proposed improvements such as replacement of ski lifts at Snowmass, expansion and addition of ski trails, expansion of snowmaking facilities, and construction of the Base Village Project (BVP). On May 2, 2003, Aspen Skiing sought to follow through with three of the outlined projects: (1) the Sam's Knob express lift installation and grading project; (2) the Burnt Mountain trail development; and (3) the Big Burn lift replacement and realignment.

All but one of the proposals has been previously evaluated in the mid-90s, so the Forest Service fast-tracked the approval process, entering a Final Environmental Assessment (Final EA), Decision Notice (DN), and Finding of No Significant Impact (FONSI) in 2006.

Plaintiffs filed a Notice of Appeal with the Forest Service on April 10, 2006, challenging the Final EA, DN, and FONSI. After the Deputy Regional Forester denied their claims, they brought a claim in the district court.

The district court ruled for the Forest Service, and the Tenth Circuit Court of Appeals affirmed that ruling.

The Tenth Circuit found that the plaintiffs failed to exhaust their administrative remedies before bringing their claims to the district court, and that they added new claims in court that they had not previously addressed with the agency. The Tenth Circuit also rejected new claims that the plaintiffs raised on appeal because a litigant who does not argue an issue in the district court may not seek appellate relief.

Thanks to thousands of acres of national parks, the Tenth Circuit Court of Appeals is a hotbed for administrative law appeals, like the Snowmass Ski Improvements Project challenge. Before you file a federal claim to appeal an administrative ruling, be certain that you have exhausted your client's administrative remedies.

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