Going to court may be “the best way” to resolve a dispute over water rights between the U.S. Forest Service and the National Ski Areas Association, according to a former Forest Service ski area permit coordinator.
“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.”
Udall, along with Sen. Michael Bennet, D-Colorado, John Barrasso, R-Wyoming, James Risch, R-Idaho, and Rep. Scott Tipton, R-Colorado, recently asked the Forest Service to suspend a new clause in its permitting process that ski resorts contend is an illegal taking of valuable water rights.
The Forest Service did not act on the advice of the politicians. Officials say that under the National Forest Ski Area Permit Act of 1986 ski area water rights are owned by the federal government. They also cite statutory authority based on the Organic Administrative Act of 1897, and other laws.
But in 2004, high-level meetings between ski industry executives and Bush administration officials resulted in a new policy that awarded permit owners joint ownership of water rights on federal lands.
“The 2004 water rights clause was implemented during my tenure and accordingly, I experienced how the ski industry exploited the lax regulatory environment that characterized the Bush Administration to attempt to effectuate the transfer of valuable water rights, that justly belong to the American people, to private ski areas,” Ryberg wrote in his letter to Udall. “The 2004 water rights clause is the legacy of this effort and should be seen in the context of that administration’s regulatory failures that allowed greed to jeopardize our economy and environment.”
Before the 2004 clause, there was a particularly cantankerous meeting between Ryberg, accompanied by a Department of Agriculture’s Office of General Council (OGC) lawyer, and NSAA.
“They reacted to every concern we voiced with hostility and let us know that they had the support of the Under Secretary’s Office to make the changes they wanted,” Ryberg wrote of the NSAA officials. “Following this unproductive meeting, all discussions on modifying the clause were conducted between NSAA representatives, the Director of Recreation in the Chief’s office, and the Under Secretary’s staff. Agency permit specialist and water rights experts with OGC were excluded from the meetings that resulted in the development of the 2004 water rights clause.”
When the Forest Service tried to convey water rights under the 2004 joint-ownership policy, officials say agency lawyers learned Colorado’s laws wouldn’t allow it. That led to the 2011 interim directive, which authorizes the Forest Service to begin to reclaim water rights at ski areas through permit actions. The new directive is limited to new permit requests and it is only valid for 18 months.
Ryberg’s letter questions whether any ski areas have intentionally deceived the Forest Service.
“If, in fact, some ski area operators signed their permits under the pretense of agreeing to transfer these water rights to the Government, when their intent was not to do so, they knowingly and willfully deceived the Forest Service and defrauded the United States,” he wrote. “Accordingly, these ski area operators risked criminal penalties under 18 USC 1001, as well as termination of their permits. That they would resort to such reckless behavior clearly illustrates the power of greed.”
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.”