Here’s the release from the National Ski Areas Association (Troy Hawks):
The National Ski Areas Association (NSAA) filed a lawsuit in Federal court in the district of Colorado today against the U.S.D.A. Forest Service (USFS) to challenge a new water rights clause that results in an unconstitutional taking of property.
“We greatly value our longstanding and successful partnership with the United States Forest Service in delivering outdoor recreation experiences for millions of Americans that are unmatched in the world,” said NSAA President Michael Berry. “As always, we will continue to work positively and cooperatively with the agency to provide these opportunities on public land, but water rights are simply too critical and valuable to our operations not to defend ourselves against this outright taking of private property by the U.S. Government.”
The controversial water rights clause requires ski areas operating on Forest Service land to transfer ownership of many types of water rights to the United States government, including water rights that have been purchased with private dollars by ski areas for business operations. From NSAA’s view, requiring ski areas to transfer ownership or limit the sale of water rights without compensation is no different than the government forcing a transfer of ownership of gondolas or chairlifts, grooming machines, or snowmobiles without compensation—except for the fact that water rights are significantly more valuable than these other ski resort assets.
NSAA’s lawsuit should be a wake up call for cities and counties and other entities that have invested in the development of water rights that are in any way associated with National Forest System lands. Because of the significant percentage of water that originates on National Forest System lands, this change in policy could impact other water owners including cities and counties, owners of recreation residences, marinas and summer resorts, ranchers, mining interests and utilities.
The new water clause also poses a threat to the current system of state allocation and administration of water rights. The Forest Service acted unilaterally in changing its policy, and did not consult with states on its impacts on the state system of allocation and adjudication of water rights.
Prior to litigating the matter, NSAA urged the agency to set aside the controversial water clause and start over on a clause that was within the bounds of the law and protected all parties’ interests. NSAA was not alone in making this request, as Sen. John Barrasso (R-WY), Sen. James Risch (R-ID), Sen. Mark Udall (D-CO), Sen. Michael Bennet (D-CO), Colorado Governor John Hickenlooper (D), Colorado representatives Scott Tipton (R) and Jared Polis (D), Doc Hastings (R-WA), Chairman of the House Committee on Natural Resources, Frank Lucas (R-OK) Chairman of the House Committee on Agriculture, Mike Simpson (R-WY), Chairman of the Appropriations Subcommittee on Interior and the Environment, and Jack Kingston (R-GA), Chairman of the House Subcommittee on Agriculture, Rural Development, also requested in writing that the agency issue a moratorium on implementation of the controversial clause.
When the agency refused to withdraw the clause, NSAA was forced to go to federal court to seek judicial review and injunctive relief and protect the rights and interests of its member ski areas. Three ski areas have already been required to accept the clause, effective November 8, 2011, as a term in their special use permit in order to operate. Those ski areas include Powderhorn in Colorado, Alpine Meadows in California, and Stevens Pass in Washington.
More coverage from the Summit County Citizens Voice (Bob Berwyn). From the article:
The water rights issue surfaced publicly in November, when the National Ski Areas Association, represented by attorney Glenn Porzak, complained in Congress that the Forest Service was trying to “take” privately held water rights by revising a ski area permit condition that was adopted in 2004. Since then, the ski industry has threatened to sue the Forest Service over the new water rights clause. But Ed Ryberg, who headed the agency’s ski area program from 1992 to 2005, says it’s the other way around. According to Ryberg, the ski industry used its political connections in the Bush administration to lobby for regulatory changes that were subsequently implemented without public input or review under federal environmental laws…
According to Ryberg, the latest move by the Forest Service to revise the language merely restores the balance that existed before 2004 and ensures that water that originates on national forest lands and has been developed for ski resort use remains with the ski areas.
Click through to read the text of a letter from Ryberg to U.S. Senator Udall.
More coverage from Troy Hooper writing for the Colorado Independent. From the article:
“Frankly, litigation may be the best way forward on this issue,” Ed Ryberg wrote in a letter last week to Sen. Mark Udall, D-Colorado, commending foresters for redressing “the abuses of crony capitalism.” In his letter, Ryberg, who coordinated the Forest Service’s ski area program from 1992 until his retirement in 2005, excoriates “the ‘bad actors’ in the ski industry who welshed on their agreements with the United States, and obtained water rights, justly belonging to the American people, through fraud and deception. These are the ski areas on who’s behalf NSAA has been lobbying.”
Asked for a response, Geraldine Link, the policy director for NSAA, emailed the Colorado Independent to say “the 2011 clause … is retroactive in nature. It resurrects old, invalid and replaced clauses that are no longer in effect. It resurrects them from the past even though at this time the ski area and the water rights could very well be owned by a different entity who was not a party to the permit from 3 decades ago. The 2011 clause also applies to water that originates on private land and other non-USFS lands. Talk about shifting political winds. The ski industry is frustrated with the pendulum swinging back and forth between administrations. It is not good for business.”
Ryberg has a much different perspective but he agrees with NSAA officials on at least one point when they say they are going to sue the Forest Service: Let the dispute play out in court. “It will be advantageous to the public’s interest to get the Justice Department involved in this matter,” Ryberg wrote in his letter to Udall, on which Bennet was copied. “It will provide them an opportunity to become familiar with the facts of the matter to help them determine if criminal prosecutions should be pursued, and to expedite acquiring title to water rights that justly belong to the American people.”
More coverage from Kevin Hoffman writing for The Mountain Mail. From the article:
The industry statement says the water rights clause enacted in November last year requires ski areas operating on forest service land to transfer ownership of many types of water rights to the United States government. The clause prohibits ski areas from selling or transferring ownership of some water rights acquired on private or non-federal land. Effectively the lawsuit is based on the association claim that the clause results in an unconstitutional taking of property without compensation and is a restriction that will have a significant and adverse effect on the value of water rights…
Monarch Mountain marketing director Greg Ralph said the lawsuit will not affect the local ski area much because it doesn’t use water rights to manufacture snow.
More coverage from Jason Blevins writing for The Denver Post. From the article:
The new water-rights regulation — already employed in three new ski-area permits in California, Washington and Colorado’s Powderhorn — revises a 2004 agreement that had the Forest Service and ski- area operators sharing ownership of some water rights. In an interview in late December, the Forest Service’s acting deputy chief, Jim Pena, said the revamped clause more closely mirrors the original 1986 permitting legislation and makes sure “we don’t sever the resource from the land.” The industry, however, argues the new clause prohibits ski areas from selling and trading a valuable commodity, reduces the value of the commodity and injures balance sheets. Vail Resorts reports water rights as intangible assets valued at $18.3 million…
Former Forest Service winter sports coordinator Ed Ryberg last week sent a letter to Sen. Mark Udall, D-Colo. Ryberg said the 2004 water rights clause was a “radical change to Forest Service direction” that “was a direct result of the ski industry exploiting lax regulatory environment that characterized the Bush Administration.”[…]
Colorado attorney Glenn Porzak, who has represented several ski areas and helped negotiate the 2004 water-rights clause, sent a letter to Udall rebutting “numerous inaccuracies” in Ryberg’s letter. A major contention between the Forest Service and the ski industry is the agency’s assertion that the new water-rights clause does not impact water rights secured on private or non-federal lands. “The new clause impacts water rights on no ski area permit lands regardless of whether they are federal or private lands,” Porzak wrote in his Jan. 10 letter to Udall.
More water law coverage here.