Vail Daily editorial on Berlaimont Estates plan missed the mark (letter) | VailDaily.com

Vail Daily editorial on Berlaimont Estates plan missed the mark (letter)

On Dec. 18 the Vail Daily editorialized about public opposition to the proposed Berlaimont Estates subdivision above Edwards. The editorial got some things right. For example, the public has consistently voiced opposition to the proposal: first, by submitting more than 700 comments opposing the project after the U.S. Forest Service released a draft environmental analysis, and, more recently, when 2,400 people signed a petition opposing it.

The editorial also suggests that we should respect our local land managers, which is true. They’re trying hard, but they don’t always get everything right. They’d probably be the first to tell you so. In fact, when it comes to implementation of laws at issue in this case, the agency has a history of failed compliance.

For example, Wilderness Workshop and partners have been engaged in a decadeslong fight to protect Wolf Creek Pass from poorly conceived development. In that effort, our legal positions have consistently prevailed over the Forest Service’s in federal courts.

With regard to the Berlaimont proposal, the agency is again headed in the wrong direction. The Forest Service is poised to approve a new two-lane, paved road through critical winter wildlife habitat to facilitate development of Berlaimont Estates. The agency has determined that 19 mansions with 9 accessory units is a reasonable use of this remote national forest inholding. The Forest Service intends to abandon protections for dwindling wildlife in its existing management plan — amending that plan completely — to facilitate this real estate speculation in the forest.

The Daily’s editorial falls flat in its implication that the law is on the Forest Service’s side here. The editorial provides no support for this — none. For readers who care to engage on a deeper level and ascertain for themselves the legality of the agency’s position, please read comments we filed discussing the applicability of the Alaska National Interest Lands Conservation Act, 16 U.S.C. §§ 3103-3233, the reasonableness of the proposed development, and the adequacy of access.

The law doesn’t require the Forest Service to grant the elaborate access proposed by Berlaimont developers. To the extent the agency has to grant any access, it is only adequate access for reasonable use (16 U.S.C. § 3210(a)). To determine what constitutes reasonable use, the agency looks at other similarly situated national forest inholdings.

Here, after looking far and wide, the agency found no inholdings with year-round paved access — none. That would lend itself to the logical conclusion that adequate access to an inholding is something less than a paved year-round road: think Fulford or Piney Ranch. Instead, though, the agency ignored logic and came to the opposite conclusion that unlike other inholdings this parcel deserves both year-round and paved access.

The editorial is right that public sentiment and the law may not always equate. But sometimes they do. In cases like this, where the law involves a reasonableness standard, public sentiment is an important consideration and a good gut check for public land managers.

Peter Hart

Staff attorney, Wilderness Workshop