by Tracy Chamberlin

This round went to the ski industry, but that doesn’t mean the fight is over.

U.S. District Court Judge William Martinez sided with the National Ski Area Association Dec. 19, ruling that the U.S. Forest Service violated procedure with its so-called “2012 directive.” The rule required ski areas to sign over water rights to the United States when applying for permits to operate on public lands.

“The 2012 Directive requires the permanent transfer of valuable water rights to the federal government,” Martinez wrote.

Although his decision suspended and voided the rule, it did not address one of the NSAA’s key concerns: that the federal government was essentially taking private property without compensation.

The directive required ski areas to transfer water rights to the U.S., grant the federal government limited power of attorney, and waive any claim against the U.S. for compensation for those water rights.

The NSAA said this amounted to a “takings” of private property without compensation. The Forest Service said it wanted the water rights to stay attached to the land for the next potential buyer or occupier, and the language in the directive was meant to ensure that.

The NSAA’s accusation that the Forest Service was taking private property was the substantive argument. The procedural one was based on the fact that the Forest Service did not solicit public input or comment when issuing the new directive, a move that violated federal requirements.

Martinez agreed with the NSAA’s procedural argument, but chose not to address the substantive claims. He wrote that because the Forest Service violated the procedural acts, the directive was void and the other claims did not need to be addressed.

He remanded the issue back to the Forest Service, requiring that they follow procedure before attempting to reissue the directive.

“The court finds that the injunctive relief is particularly necessary to ensure good faith between the parties while the 2012 Directive runs through … procedural process on remand,” he wrote.

But the other argument is still out there, and for some it’s the key sticking point.

In June of last year, several other industries and municipalities filed briefs in support of the NSAA. Oil and gas industry representatives, recreational industries and several municipal water districts said they agreed with the NSAA because if the Forest Service gets away with this, they will be next.

“If the Forest Service is allowed to extract these concessions from the ski industry, then potentially the federal government will seek to demand the same or similar constraints from municipal and other water users,” the parties argued. “… most of the headwaters and water sources in the Western states arise on federal lands.”

They called the case a “bellwether.” For them, it would set a precedent for whether or not the Forest Service directive could supersede federal and state water law.

Martinez acknowledged in his decision that water rights are “critical to ski area operations” and ski areas must acquire them “under state law at their own expense.” But his acknowledgements were used to explain why it was so important that the Forest Service follow procedure when issuing the new directive, not what kind of precedent could be set by the new rule.

This is not the first battle over water rights between the Forest Service and the ski industry.

In the 1960s and ’70s, permits issued by the Forest Service didn’t have water rights requirements. By the 1980s, they began adding language concerning water rights but not every permit included that language.

The first national water rights clause was issued in 1997 but, again, the Forest Service did not include this in all ski area permits. A turning point occurred in 2002 when language similar to the 1997 clause was added to the management plan for the White River National Forest in Colorado, giving it more weight under the law.

The NSAA appealed, saying both the ’97 clause and the 2002 management plan were illegal “takings” of water rights without compensation.
Two years later, the language in the clause and forest plan were removed. The Forest Service and NSAA ended up sitting down at the same table to write a clause giving water rights “from the permitted National Forest System land” that the ski area was using “on the same permitted National Forest System land” to the U.S.

It left water rights already owned by the ski area alone. And ski areas were invited to adopt the new clause; they weren’t required to accept it or risk losing their permits.

This wasn’t the case with the new directive. Four ski areas had been required to agree to the new language before they could apply for or modify a special use permit to operate on public lands.

Following the court’s decision, the 2012 Directive included in those permits is now void. The Forest Service is now going to have to follow all the procedural steps if it wants to reissue the directive. But the next round in the fight for water rights might begin when the Forest Service asks the community what it thinks.