Local nonprofits file suit against Forest Service

By Will Buzzerd Sopris Sun Correspondent

On March 13, Colorado environmental advocacy groups Wilderness Workshop and Rocky Mountain Wild filed a lawsuit against a Record of Decision made by the National Forest Service (NFS) to pave 2.4 miles of road as part of the Berlaimont Estates Road Improvement Project.

The project in question would improve vehicular access to a currently undeveloped parcel of land, six miles from Edwards. The concerned parties fear that not only will the paving of the road increase habitat fracturing, but eventually lead to full-on development on important wildlife habitat.

The Record of Decision was issued on March 10, approving a paved road across White River National Forest land in accordance with the Alaska National Interest Land Conservation Act (ANILCA), a controversial federal law passed in 1980 that, among many rulings which address the expansion and usage of protected lands in Alaska, includes a provision in Section 1323(a) stating that for privately owned land surrounded by public/protected land, the state “shall provide such access… as the Secretary [of the Interior] deems adequate to secure to the owner the reasonable use and enjoyment thereof.”

The NFS stated in a press release on March 10 that they are legally required to provide access under ANILCA, and, according to Forest Supervisor Scott Fitzwilliams, “the Forest Service does not have discretion to deny access to inholdings for reasonable use.”

The decision approves the paving of roads belonging to the NFS but does not approve any additional development by Berlaimont. In order for more construction to begin, more county approvals would need to be obtained by the developers.

According to NFS’s Environmental Impact

Statement (EIS), Berlaimont Estates intends to develop “19 single-family residences and associated additional dwelling units” on 680 acres of land. This plan is consistent with the land's official designation as a Resource Zone, which in order to “maintain the open and rural character… and to protect and enhance the appropriate use of natural resources” limits development to single-family uses on plots of 35 acres or larger.

The EIS states that all of the NFS’s alternative plans which include paving these roads “would bisect deer and elk winter ranges.” Additionally, these plans were found to be inconsistent with NFS Wildlife Standard Number Four, which restricts any activities which would impact Brewer’s sparrow breeding activity.

In any case, the official Record of Decision goes against these standards, stating that the Forest Service is nonetheless required by law to provide “adequate access” in accordance with ANILCA Sec. 1323(a), referenced earlier.

The lawsuit filed by Wilderness Workshop and Rocky Mountain Wild, specifically targets the NFS’s use of ANILCA to justify road development, arguing that applying its “Alaska-specific provisions to an access request involving the National Forest in the lower 48 states is contrary to the plain language of ANILCA.”

The lawsuit also argues that using ANILCA as justification for development deliberately ignores the provisions listed in the Federal Land and Policy Management Act of 1976 (FLPMA), which establish that the State is permitted to act according to its own discretion when considering requests for improving access.

Furthermore, the lawsuit mentions that any development on this land would potentially harm wildlife protected by the Endangered Species act. “Populations of deer and elk in and around the project area have dropped by 50% in recent decades,” and, “State and federal biologists agree that increased pressure from development and year-round recreation are the primary causes for these declines.”

“Conservation groups have been engaged in the fight to stop the Berlaimont Access Road for over 10 years,” states the Wilderness Workshop website. According to Wilderness Workshop, over 4,200 local residents near Berlaimont signed a petition against further development on otherwise undeveloped land.

Bill Heicher, Eagle Valley resident and former district wildlife manager for the Colorado Division of Wildlife, is among the critics of the Berlaimont Estates Road Improvement Project.

“In the long-term, the paved road, additional developed recreation, new parking lots and the new subdivision will directly destroy important habitat and encourage far deeper penetration into a fragile ecosystem that barely sustains the native species today. In short, the Forest Service is creating a sacrifice zone in Edwards for development and recreation. To most of us, that is unreasonable and unacceptable,” claimed Heicher.