Judge rules on ski area water rights

A federal judge in Denver, Colo., has overturned a regulation requiring ski areas on public land to turn over private water rights to the U.S. Forest Service.

U.S. District Court Judge William Martinez ruled Dec. 19 that the government violated its own procedures, failed to evaluate the economic impact and violated ski area rights. His decision sided with the National Ski Areas Association, which sued over the new water rights permit rules.

Martinez ordered the agency not to enforce the new rules and sent the issue back to the Forest Service for further review. The agency had no immediate reaction and has not indicated if it will appeal.

Much of the ski terrain at Whitefish Mountain Resort is on National Forest land, and the resort has limited water rights to the unnamed tributaries of First Creek. The resort uses the water for snowmaking.

Officials at Whitefish Mountain Resort said they supported the lawsuit when it was first filed early this year. The ski areas association argued that the agency failed to follow federal rules by not taking public comment and that the new water regulations violated the National Forest Management Act and the Regulatory Flexibility Act.

The Forest Service argued that the new regulations would assure ski areas never sold water rights that federal lands now depend on. But during a hearing in November, Martinez questioned the idea that a ski area would sell essential water rights.

“Why would a ski area sell off water rights and leave itself with insufficient water to operate a ski area?” he asked. “Then you are not a ski area anymore.”

Industry members said they expect a much different outcome if hearings are held.

“I think a lot of different entities will weigh in this time,” ski areas public policy director Geraldine Link said. “I don’t expect the Forest Service will issue the same clause next time around.”