The proposed road through public land weaves up the mountain to thickets of aspens where Florida developers want to build trophy homes.
The bureaucratic path to approval, more than a decade in the making, is even more serpentine, as a chorus of wildlife advocates and conservationists fight the plan.
“It’s quite obvious that most people, especially in Eagle County, do not like this and do not want it and I’m trying to balance that with applying and implementing the laws of the land,” said Scott Fitzwilliams, the White River National Forest supervisor. Fitzwilliams in September approved a road through federal land above Edwards to give the developers access to an island of private property where they want to build Berlaimont Estates. The developers, however, argue he picked the wrong road.
The Alaska National Interest and Lands Conservation Act of 1980 — or ANILCA — requires federal land managers to provide “adequate access” for “reasonable use” of private property surrounded by public land.
When Fitzwilliams approved the road in September — after more than 12 years of federal and local review — wildlife advocates cried foul, arguing the road would impact elk and deer herds in a valley where development and recreation has already reduced winter habitat. Many asked that Fitzwilliams simply deny the road.
“ANILCA can be a hard law to understand,” Fitzwiliams said. “I’ve received so many emails and letters and petitions, telling me I should reject any access. I wish it was as easy as people described in those letters.”
The developers — Petr Lukes and Jana Sabatova — were troubled by the decision as well, arguing Fitzwilliams violated ANILCA and federal environmental laws by approving a road to 19 homesites on 680-acres of private land that was not their preferred alternative. (The developers wanted a less winding, less expensive road that accessed their property in the middle, not the side. They enlisted Eagle County safety officials in support of their route.)
They pleaded their case last month before Tammy Angel, the acting regional forester of the Forest Service’s Rocky Mountain region, objecting to Fitzwilliams’ decision. Angel also heard from conservationists and wildlife advocates equally irked by Fitzwilliams’ approved road to land surrounded by Forest Service-managed wildlands.
In her 37-page response to the flurry of objections, Angel tasked Fitzwilliams with a lot more work before he makes a final decision. And none of Angel’s directions bodes well for the developers, who began working with the Forest Service in 2008 to build a road climbing 2,000 vertical feet from the valley to their planned community.
Angel directed Fitzwilliams to better explain why he dismissed the possibility of allowing only an unpaved road, which could limit winter access to the property. She asked Fitzwilliams to consider how other new developments in the valley, including the approved expansion of Beaver Creek ski area across Interstate 70, may affect wildlife. She asked for even more detailed analysis of the project’s impacts on deer, elk and lynx habitat.
And she rejected just about every argument raised by the developers, who urged Angel to overturn Fitzwilliams’ approval of a road alignment they see as dangerous and “prevent(s) Berlaimont from making any use of the property.”
The developers argued that Fitzwilliams violated environmental laws and ANILCA’s requirement of “adequate access” for “reasonable use” when he approved a more expensive, winding road that accesses the property from the side, not the middle.
“We’re disappointed in Acting Regional Forester Angel’s response … and believe she got it wrong,” project spokeswoman Kristin Kenney Williams said.
Conservation groups cheered the response to the objections. Opposition to the project has been ardent in the last dozen years as Lukes and Sabotova pushed their plan through the Eagle County and Forest Service approval process. Of the eight specific directions Angel gave Fitzwilliams for his final decision, five addressed cumulative effects on deer, elk and lynx habitat in a valley that has seen wildlife populations impacted by development and backcountry recreation.
It’s not surprising Angel focused on wildlife, said Grant Stevens with the Wilderness Workshop.
“So many more objectors raised conservation and environmental issues,” Stevens said. “We’ve been concerned about the impacts of this project for more than 10 years.”
The developers, whose plan for one home on every 35 acres complies with existing state and county zoning, argued Fitzwilliams picked the wrong route among options that included three different road alignments and an alternative to not allow any new road construction. (The environmental groups lobbied hard for that alternative.) The road approved by Fitzwilliams “is equivalent to the no action alternative,” the developers’ lawyer, Zeke Williams, argued in the objection hearing last month.
Angel dismissed the argument that Fitzwilliams’ choice of road was unsafe, with switchbacks posing issues for fire trucks and emergency access.
There is no requirement for the Forest Service supervisor to select the safest alternative, Angel said.
Kenney Williams said that the Forest Service’s Environmental Impact Statement showed impacts of the road alignments as equivalent, so safety should be the deciding factor.
“The Forest Service should carefully balance the safety of first responders, recreationalists and residents with impacts to natural resources,” she said in an emailed response to questions. “Our expectation is that the USFS will follow its legal obligation to provide adequate access and not defer to our preference, or public or political pressure. Alt. 3 is the only alternative that meets the USFS’ legal obligation to provide adequate access.”
Fitzwilliams, who took over as supervisor of the most trafficked national forest in the country in 2009, said he soon will be huddling with his research team to see if they need to do additional analysis. Some of the impacts Angel asked him to detail — like how the project’s effects on wildlife might overlap with other new development, including the expansion of Beaver Creek ski area’s McCoy Park across Interstate 70 — might already be part of previous reviews. Still, a final decision on access to the parcel from Fitzwilliams is several months away.
ANILCA projects rile conservation and wildlife groups as developers seek access to build in undeveloped forests. Texas developer Red McCombs has spent more than 30 years fighting for access to a proposed village atop southern Colorado’s Wolf Creek Pass, with decades of lawsuits contesting the Forest Service’s negotiations to provide access to the proposed development.
“ANILCA cases tend to be very individualized. You can’t apply broad standards and that’s how case law has evolved over the years,” Fitzwilliams said. “I’m trying to be as transparent and honest, and do my job as a public servant as well as I can. I know there is a lot of disagreement from a lot of people on both sides of this project. I will tell you, this is as hard of an individual project I’ve worked on since I got here.”