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Fed Court Issues Nationwide Injunction In Water Litigation; Ski Areas Prevail

Loon Mt. Snowmaking

Federal Court Judge William Martinez overturned a controversial water policy that would have had resorts that operate on public land turn over water rights to the U.S. Forest Service without compensation.


The Colorado judge sided with the National Ski Areas Association (NSAA), a trade organization that was suing the Forest Service over the new water permit rules. He ordered the government agency to not enforce the terms of the rules and remanded the issue back to the Forest Service.


“Given how critical and valuable water is to ski operations, we are pleased that the court has stopped this unreasonable and unlawful policy in its tracks,” said NSAA President Michael Berry. “We look forward to working in cooperation with the Forest Service to develop a water policy in the future that respects property rights and state water law.”


The court’s decision cast a wide web. It affects 121 ski areas operating on National Forest lands in 13 states from New Hampshire to California. The ruling removes the requirement from ski area permits that were renewed in 2011 and 2012 and precludes the Forest Service from including the requirement in future permits.


In short, the decision allows ski areas to continue to own and control their water for use in snowmaking, restaurants, lodging, and restrooms.


The NSAA suit was filed in January 2012 in the District of Colorado on the basis that the Forest Service’s water clause violated the Administrative Procedures Act, the National Forest Service Management Act, and the Regulatory Flexibility Act. Clearly, the court sided with the ski resorts on all three of these claims.


The Forest Service had said it changed the permit requirements to assure that ski areas never sold water rights in all ski area permits. The agency argues it considered the new clause just “a regulatory tweak” and not “a consequential legislative rule change.”


Photo: Loon Mt., N.H. 



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