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Ski industry sues the Forest Service over water rights

post #1 of 4
Thread Starter 





The National Ski Areas Association has sued the Forest Service over a revised water clause in ski-area permitting that requires ski areas to transfer some water rights to the government.


"The ski industry has no choice but to defend itself against this outright taking of private property by the U.S. government," said association president Michael Berry in a statement.


The lawsuit, filed in Colorado's U.S. District Court, excoriates the November 2011 clause as a "stunning and unprecedented directive" inserted into ski-area permits "to control and seize privately owned water rights acquired and used under state law."


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 operator sharing ownership of some water rights.


In an interview in late December, the Forest Service's acting deputy chief, Jim Pena, said the revamped water-rights clause more closely mirrors the original 1986 ski-area permitting legislation and makes sure "we don't sever the resource from the land."


"Water is a very important commodity to be able to manage land and the resource we are responsible for," Pena said. "From our standpoint it's important for us to keep those water resources tied to those ski areas. It's also important from the standpoint of local communities that are reliant on the ski areas for economic activity."


The industry, however, argues the new clause is a federal taking of private property that prohibits ski areas from selling and trading a valuable commodity and reduces the value of the commodity and injures balance sheets. (For example, the continent's largest resort operator,Vail Resorts, reports water rights as intangible assets valued at $18.3 million .) The industry also argues that the new clause requires operators to use the water only for resort operations yet does not make the same requirement for the Forest Service.


The complicated water-rights imbroglio roiled recently as a consortium of congressional delegates joined the ski industry in requesting the Forest Service conduct further study and gather public input on the controversial change.


Senators from Wyoming, Idaho and both Colorado Sens. Mark Udall and Michael Bennett joined Colorado Reps. Scott Tipton and Jared Polis and congressmen from Washington, Wyoming, Oklahoma and Georgia in urging the agency to issue a moratorium. The agency declined.


"This clause is a job-killer and federal takeover of private property. Congressman Tipton is disappointed that the Forest Service has decided to not be reasonable on this matter," said Tipton spokesman Joshua Green .


Former 13-year Forest Service winter sports coordinator Ed Ryberg stirred the waters even more last week when he emerged from retirement with a fiery letter to Udall, Bennett and Gov. John Hickenlooper. Ryberg, who oversaw ski-area permits on federal land from 1992 to 2005, said the 2004 water rights clause was a "radical change to Forest Service direction" and "a direct result of the ski industry exploiting lax regulatory environment that characterized the Bush Administration."


Ryberg argues that "the only reason ski areas could obtain these water rights was because the Forest Service allowed them to." If the resorts thought they were going to keep the water rights and never transfer them to the federal government, as first required in the 1986 National Forest Ski Area Permit Act, they were deceiving the agency and could be liable for criminal charges or permit revocation, Ryberg wrote.


"That they would resort to such reckless behavior clearly illustrates the power of greed," Ryberg wrote. "This clause will not negatively impact ethical ski areas who met their agreed-to obligations of their permits. It will only impact 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."


Not surprisingly, the National Ski Areas Association has responded to Ryberg's letter. The association's head of public policy, Geraldine Link , said Ryberg, who panned the ski industry's prospects for growth before leaving his post in 2005, "clearly has an axe to grind."


"His whole premise that we took advantage of the Bush Administration to make this change is just plain not true," Link said. "Ed's recollection of history is faulty. We had been talking about making this change long before George W. was elected to office."


Colorado water attorney Glenn Porzak , who has represented several ski areas and helped negotiate the 2004 water rights clause, also sent a letter to Udall, rebutting "numerous inaccuracies" and "major relevant omissions" 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. Udall's spokeswoman declined to comment, saying the senator was waiting for a formal response from the Forest Service regarding his request for a moratorium on the new water rules.


And another sticking point in the new water clause is the possibility that the federal government may decide the water rights secured by the ski area for skiing may be used more appropriately elsewhere.


"There is nothing in the new clause that requires the Forest Service to continue to maintain and use the water for ski purposes and the Forest Service could sell these water rights or dedicate them to wildlife, instream flow, or other forest maintenance purposes," Porzak wrote.


Read more:Ski industry sues the Forest Service over water rights - The Denver Posthttp://www.denverpost.com/business/ci_19713626#ixzz1j6QHBU6r
Read The Denver Post's Terms of Use of its content: http://www.denverpost.com/termsofuse

post #2 of 4

As we've often heard here in the West:


"Around these parts, whiskey is for drinkin' and water is for fightin'."


As a taxpaying citizen, I can't believe the Forest Service would ever have agreed to an arrangement that might have allowed water rights to be severed from the land they were originally attached to.  This will be interesting to follow.


Thanks for the report, Seg.

post #3 of 4

Any time a private industry is making a profit off of public lands and complains about decisions by the public lands managers it catches my attention.  


If I read this right, the water comes from federally owned and managed land, but the profits from the water use go to private hands.  

post #4 of 4
Thread Starter 


From a Denver Post editorial:
The right to enjoy the land vs. ski resorts' water rights
As water becomes increasingly scarce, it is important to bring clarity to the issue of who controls this resource at ski areas.
The intensifying battle between the ski industry and the U.S. Forest Service over water rights is far more complicated and nuanced than it might seem at first glance. It's not necessarily a bad thing that the matter has landed in federal court so a judge can parse through the issues and apply the law fairly. At the end of the day, we hope the rights of citizens to enjoy recreational opportunities on federal land are appropriately balanced against the financial interests of ski resorts.
We've heard a lot about ski industry contentions that new rules by the government amount to a "taking" of water rights they spent millions to acquire. The industry makes a compelling case.
Yet it's important to keep in mind the government's argument. The Forest Service says it is proposing regulations that clarify a 2004 change to ski permit conditions made during the Bush administration.
The government's position is that water rights associated with ski areas should remain with the government even if the ownership of a resort or its business plans change. An important point of disagreement between the ski areas and the government is this: Federal authorities contend the water rights at issue involve water that originates on federal land and didn't have to be bought by the resorts. This rule doesn't, they say, have anything to do with private rights bought by resorts. That is to say, water from federal land that is permitted for use in snowmaking ought to remain with the property even if a ski resort were to be sold.
The National Ski Areas Association sees the water rights issue in a different light — one they construe as an effort to confiscate private property. In a lawsuit filed last week in federal court, the industry group says the government is seeking control over water rights that ski areas obtain "from private lands or lands miles away from the ski area."
These are vastly different interpretations of the proposed permit language that need to be resolved.
The federal courts are well-equipped to pull apart the complexities of water law and rule-making procedure. However, a better outcome would be a settlement. We hope the parties can agree on a resolution of their differences over ski permit language without a protracted and costly legal battle. Homes and businesses have sprouted up around ski runs built on federal land and people have come to expect access to these areas for alpine recreation. Those towns could be decimated by a decision that could allow water to be siphoned off for other uses.
As water becomes increasingly scarce, it is important to bring clarity to the issue of who controls this valuable resource at ski areas.
It would be a travesty if the future of the recreation that has so come to define Colorado were undercut by an unjust policy.
Read more: Editorial: The right to enjoy the land vs. ski resorts' water rights - The Denver Post http://www.denverpost.com/opinion/ci_19732036#ixzz1jY3tzgny
Read The Denver Post's Terms of Use of its content: http://www.denverpost.com/termsofuse
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