White River National Forest supervisor Scott Fitzwilliams has approved final plans for a road across federal land to access a proposed development of luxury homes above the Eagle River Valley.
After nearly a decade of study under the National Environmental Policy Act, a lawsuit filed last year by the developers of the proposed Berlaimont Estates to force a Forest Service decision, and hundreds of protest letters from residents, politicians and environmental groups, Fitzwilliams’ final road decision is “the best balance of a safer alignment,” he wrote in his Final Record of Decision issued Friday.
“I truly believe this meets the spirit and intent of the National Environmental Policy Act to reasonably address the purpose and need and minimize environmental and social impacts to the greatest extent possible,” he wrote of his decision to adjust his previously selected route to what he called “a modified alternative.”
Investors Petr Lukes and Jana Sobotova first proposed Berlaimont Estates 15 years ago. The Florida real estate developers plan to build 19 luxury homes on 35-acre parcels on a 680-acre island of mountaintop aspens surrounded by Forest Service land above Edwards. Homes on 35-acre parcels can sidestep local planning regulations and they sought access across federal land under the 1980 Alaska National Interest and Lands Conservation Act. That legislation, known as ANILCA, requires federal land managers to provide landowners with “adequate access” for “reasonable use” of private property surrounded by public land.
The words “adequate” and “reasonable” in ANILCA are contentious. The developers say a year-round paved road with a limited number of switchbacks is adequate for homeowners to reach their homes. Opponents of the plan — which include most elected leaders in the region, multiple wildlife and environmental groups and 4,200 residents who signed a petition — say an existing seasonal dirt road is enough for the owners to enjoy “reasonable use” of the property.
Refusing to build an access road was not an option due to the rules of ANILCA, Fitzwilliams said in his decision. The decision notes more than 1,000 comments on the proposed road, of which “all but a few are in strong opposition to the project.” He shares those concerns.
“I fully understand that this project will have adverse impacts on resources that are important to the public and to the Forest Service,” Fitzwilliams wrote. “In particular, long-term impacts to wildlife habitat and recreation will occur if this access route and residential development are constructed.”
A statement from a representative of the two developers said they were taking their time to review the decision, “due to the nature and substance of the modified alignment.”
Fitzwilliams said the Forest Service tried “several times” to get Lukes and Sobotova to exchange their land for other less critical Forest Service parcels or sell it to the agency, but they declined.
“ANILCA regulations do not give the Forest Service the right to tell a landowner what use may be made of non-federal land,” Fitzwilliams wrote, detailing his rationale for determining the plan for 19 homes was “reasonable.”
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Environmental groups are unhappy with the decision. The Wilderness Workshop, which has battled Berlaimont for more than a decade, said the decision to pave public lands will “facilitate sprawl in the backcountry.” (There is no formal objection period for a Final Record of Decision. But there can be — and often are — legal challenges to the final stage of the NEPA process. Environmental groups early Friday declined to hint at the possibility of litigation.)
“Throughout this process, it has become abundantly clear how unreasonable Berlaimont Estates really is,” Wilderness Workshop attorney Peter Hart said in a written statement that notes “thousands of people opposed the project.”
“Whether it’s due to the impact on declining wildlife populations, because it will put more people and expensive homes in the path of wildfire, or because the development is so much more grandiose than what typifies inholdings — this approval sets a terrible precedent,” Hart said. “Today’s decision fails to protect public lands and wildlife, while ignoring the public and defying logical consideration of the record.”
The new road winds through habitat used by elk and deer in the winter. Fitzwilliams said his selected route of 2.4 miles of paved road on Forest Service land minimizes disturbance to habitat, protects a wildlife corridor used by deer and elk and “strikes a better balance between addressing winter wildlife effects and safety while also reducing visual impacts.”
Fitzwilliams issued a final environmental review approving a 2.6-mile access road to the inholding in 2020. The developers appealed the approval, arguing the choice would hinder emergency service to the planned homes and asking Fitzwilliams to reconsider their more direct — and less expensive to build — route.
A Forest Service arbiter heard the appeal in January 2021 and sent the final decision back to Fitzwilliams for adjustment. In September 2022, the developers sued Fitzwilliams, asking a federal judge to force a final record of decision on the access road.
Lukes and Sobotova argued in the lawsuit filed in Colorado’s U.S. District Court that “political pressure” was slowing the Forest Service process, saying that special interest groups “waged a campaign of misinformation” that has swayed political leaders to lean on the federal agency. (Gov. Jared Polis, Colorado U.S. Sens. Michael Bennet and John Hickenlooper and U.S. Rep. Joe Neguse in 2021 asked Forest Service officials to delay a final decision to “reengage with the local community” and address local concerns.)
Bill Heicher, a former wildlife manager with what is now Colorado Parks and Wildlife, said in a statement that the road and new subdivision will destroy important habitat “and encourage deeper penetration into a fragile ecosystem that barely sustains the native species today.”
“The Forest Service is creating a sacrifice zone in Edwards for development and recreation,” Heicher wrote. “To most of us, that is unreasonable and unacceptable.”