Judge allows ski areas to keep water rights
A federal judge has overturned a regulation requiring ski areas on public land to turn over private water rights to the U.S. Forest Service.
U.S. District Court Judge William Martinez ruled that the government violated its own procedures, failed to evaluate the economic impact and violated ski area rights. His decision sided with the National Ski Areas Association, which sued over the new water rights permit rules.
Much of the ski terrain at Whitefish Mountain Resort is on National Forest land. The resort has limited water rights to the unnamed tributaries of First Creek. First, Second and Third creeks converge below Big Mountain to create Haskill Creek, which meets the Whitefish River near Monegan Road.
Officials at Whitefish Mountain Resort said they supported the lawsuit when it was first filed early this year. The resort uses their limited rights to fill snowmaking ponds. Snowmaking water is fed into Rainbow Pond below the Base Lodge, then pumped to reservoirs near the Good Medicine slope. The resort typically makes snow at the beginning of the season in high-traffic areas near the village.
Martinez ordered the agency not to enforce the new rules and sent the issue back to the Forest Service for further review. The agency had no immediate reaction and has not indicated if it will appeal.
During a hearing in November, Martinez questioned the idea that a ski area would sell essential water rights.
"Why would a ski area sell off water rights and leave itself with insufficient water to operate a ski area? Then you are not a ski area anymore," he said.
Industry members said if hearings are held, they expect a much different outcome.
"I think a lot of different entities will weigh in this time. I don't expect the Forest Service will issue the same clause next time around," said ski areas public policy director Geraldine Link.
The Forest Service argued that new regulations would assure ski areas never sold water rights that federal lands now depend on.
Martinez ruled that over the past three decades, the Forest Service did not follow a uniform policy and did not require federal ownership of water rights in all ski area permits.
Department of Justice attorney Clay Samford told the judge the water rights were too valuable to allow ski areas to sell some of their rights.
The ski areas association argued that the agency failed to follow federal rules by not getting public comment on them. The association's lawsuit also argued the new water regulations violated the National Forest Management Act and the Regulatory Flexibility Act.
According to the Denver Post (http://tinyurl.com/cgzhc4k ), the Forest Service acknowledged it did not follow the public review and comment guidelines. The agency contended hearings were unnecessary because the new water rules were simply a regulatory revision, not a major legislative rule change.
Martinez's decision only addressed the Forest Service's procedural failures. He did not rule on the ski area association's claims that the agency should not set conditions on ski permits for the transfer of water rights obtained through state processes.