Forest Service to pay resorts’ legal fees in water rights lawsuit

The U.S. Forest Service will pay $125,000 to the National Ski Area Association for its attorney fees in a case the association brought to stop the agency from demanding new water rights.

U.S. District Judge William Martinez approved an agreement between the agency and association after the ski areas sought $163,000 in attorney fees for the case, according to court papers.

The agreement to pay attorney fees drew a scathing response from U.S. Rep. Scott Tipton, R-Colo., who said that $125,000 is “a lot of money, especially when it’s at taxpayer expense and at a time when the Forest Service should be dedicating as many resources as possible to addressing the hazardous conditions of our forests to prevent wildfire.”

The ski areas sought attorney’s fees under a federal law that requires the Forest Service to pay attorney’s fees if a judge “concludes the Forest Service’s position was not substantially justified,” Geraldine Link, the attorney for the National Ski Area Association, said in an email.

The association filed suit last year after the Forest Service required the new ownership at Powderhorn Mountain Resort to surrender new water rights to the agency in exchange for a permit to operate the ski area on national forest lands.

Although the agreement includes a provision in which the Forest Service admits no allegations, Link said the deal makes it clear “that taxpayer dollars are being used in defense of an unlawful federal water grab.”

Martinez rejected the ski-area water rights directive after finding that the Forest Service had failed to meet public-participation requirements in drafting it.

If the Forest Service moves forward on the directive, “the costs will be even greater to the businesses, farmers, ranchers and communities that rely on these water rights for their livelihoods,” Tipton said.

The Forest Service conducted the first of several focus-group open houses nationwide on Tuesday in Denver. Officials anticipate publishing a draft directive later this year in the Federal Register, then conducting a public-comment process before adopting a new directive.

Concern about the consequences of such a policy extends beyond the ski industry.

“We’re very concerned about the implications of such a clause targeted to one industry because if it’s successful and because it’s outside Colorado water law, could the U.S. government demand similar rights of agriculture, municipal water users, anyone who develops a water right that originates on public land?” said Bonnie Petersen, executive director of Club 20, a Western Slope advocacy organization.

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